Discovery at Cortez Hill HOA v. Noble

















Filed 9/29/10 Discovery at Cortez Hill HOA v. Noble CA4/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 >.



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

DISCOVERY AT CORTEZ HILL HOMEOWNERS ASSOCIATION, Plaintiff and Respondent, v. FRANK E. NOBLE, Defendant and Appellant.

D056397 (Super. Ct. No. 37-2009-00094664-CU-OR-CTL)

APPEAL from
an order of the Superior Court
of San Diego
County, Joan M. Lewis, Judge.
Affirmed in part, reversed in part and remanded with directions.



Appellant
Frank Noble appeals from an order granting a preliminary injunction in favor of
his homeowners association, respondent Discovery at Cortez Hill Homeowners
Association (Association). The
injunction requires Noble to grant Association access to his condominium unit
to inspect and, if appropriate, make repairs to cure a plumbing problem that
caused mold and water damage within an Association common area. On appeal, Noble challenges the preliminary
injunction on grounds Association's request to inspect and repair his unit
abridges his right of privacy, the
injunction is contrary to Association's "Amended Declaration of Covenants,
Conditions and Restrictions" (CC&Rs, or at times Declaration), the
trial court erred by considering certain inadmissible evidence, and Association
did not clearly establish by verified complaint a violation of the CC&Rs or
any irreparable injury sufficient to warrant a mandatory preliminary
injunction.

Based on
Nobel's oral argument concessions, we affirm the preliminary injunction to the extent
it permits Association to enter his unit and inspect it, including to conduct
destructive testing, for purposes of assessing the extent of damage and need
for repair. Otherwise, we hold
Association's evidence did not clearly establish it would suffer irreparable > injury in the event the mandatory
injunction was denied. As a result,
there is no record support for the trial court's implied finding that Noble's
wrongful actions threatened irreparable injuries that could not be compensated
in damages, and the trial court accordingly abused its discretion in issuing
the mandatory preliminary injunction permitting Association to undertake
repairs. For that reason, we reverse
that portion of the order and direct the trial court to modify it as directed
below.

FACTUAL AND
PROCEDURAL BACKGROUND

Noble
resides in unit 803 within Association, a nonprofit mutual benefit
corporation. Association is governed by
CC&Rs recorded on July 25, 2006. Section 4.3.5 of Association's CC&Rs,
entitled "Right of Entry and Enforcement," provides in part: "Except in the case of emergencies in
which case no prior notice need be given, the Board or any authorized
representative thereof shall have the right, upon forty-eight (48) hours prior
notice and during reasonable hours, to enter into a Residential Unit for the
purpose of construction and maintenance, or to perform its obligations under
the Declaration or to cure any default by an Owner under this Declaration, and
immediate entry with as much notice as is reasonably possible under the
circumstances when involving an emergency that threatens the Common Area and
Association Property or the other Condominiums."[1]

In July
2009, Association filed an unverified complaint against Noble for damages and a
permanent injunction, as well as declaratory relief. In part, Association alleged that after the
discovery of peeling wallpaper in the common area hallway adjacent to Noble's
unit, Association asked Noble several times if a representative could enter and
inspect his property to look for water leaks, but Noble prevented the
inspection. It alleged that its common
area continued to suffer mold and drywall damage, potentially damaging the
drywall of neighboring units.
Association alleged it had no adequate remedy at law without a mandatory
injunction to enter Noble's property, and would suffer irreparable harm if
Noble was not immediately ordered to allow it to enter. It sought a permanent injunction requiring
Noble to allow it to enter, inspect and repair the common area plumbing within
10 days; a temporary restraining order, preliminary injunction and permanent
injunction restraining Noble from preventing it from entering his property; and
a judicial declaration that Noble's activities constituted a nuisance and a
breach of Association's CC&Rs.

In August
2009, Association filed an ex parte application for a temporary restraining
order and order to show cause for a preliminary injunction. It sought a court order requiring Noble to
grant Association and its agents access to the shower/tub area of his
condominium unit in order to inspect and repair an unidentified water leak that
was causing damage to Association's adjacent property. Association supported its request with a
sworn declaration from attorney David Peters.
Peters averred that on April
27, 2009, Association's building engineer discovered water damage,
including peeling wallpaper and mold, in the common area hallway adjacent to
Noble's unit. A water and fire damage
service inspected the area that day and reported that the suspected cause of
the water damage was a leak emanating from Noble's shower/tub area adjacent to
the affected common area.

Peters
averred that he and Noble, who is also an attorney, exchanged a series of
letters in May and June 2009, in which Peters explained the situation and asked
on Association's behalf for access to Noble's unit to inspect and repair the
problem, citing section 4.3.5 of the CC&Rs.
Noble responded by stating he was unaware of any leak or mold and that
his plumber had advised him the leak was in the common area, not in his
unit. Peters stated that Noble refused
to grant Association access. He further
stated that in June 2009, Milton Burgess, a professional engineer, inspected
the drywall adjacent to Noble's unit and identified "clear evidence"
that a leak had occurred that resulted in mold.
According to Peters, Burgess identified the shower valve in Noble's unit
as the likely source of the leak.
Burgess stated that access to the unit was necessary to inspect the
shower value and repair the leak. Peters
exchanged additional letters with Noble in June 2009. Peters stated that Association needed access
to Noble's unit to perform maintenance and fulfill its common area maintenance
and repair obligations under the CC&Rs and sought such access to inspect
and, if necessary, repair the source of the water leak that was believed to be
located at Noble's bathroom shower valve.


Association
also supported its application with a sworn declaration from its manager, Karen
Webb, who averred that after Association's building engineer had notified her
of the common area water damage, Association representatives inspected the
affected area and reported to her that they found additional wetness in the
affected common area after running the shower/tub from Noble's adjacent
bathroom and that Association would need access to his unit to inspect and
repair the suspected source of water damage.
She averred: "Since
discovering the water damage and mold described above, Association
representatives cut out and removed drywall in the affected common area damaged
by the water leak and covered the area with plastic to contain the mold from
further spreading to the Association's carpet and other areas of the hallway
until the suspected leak and affected common area could be repaired; however
behind the drywall that is covered by the plastic the damage is unknown and
remains unaddressed. [¶] The Association's representatives and consultants
that inspected the affected common area described herein above reported to me
that the water damage, and resulting mold, will continue to threaten and may
cause further damage to the affected common area and possibly other areas of
the condominium project until the water leak that is causing the damage is
repaired."[2] (Capitalization omitted.)

Noble
opposed Association's application. His
position, as stated in his submitted declaration, was that there was no
emergency; that he had never received any written report indicating a problem
with his property and that his own plumbing expert had given him an opinion
that his shower valve was in perfect working order and had no damage According to Noble, Association could enter
his unit "only to repair and maintain" including repairing and
maintaining to cure any default by the owner, or to enter for an emergency that
threatened the common area, Association property, or other condominiums. He maintained none of those conditions
existed. Noble also moved to consolidate
Association's lawsuit against him with Association's construction defect law
suit against the developer.

The court
denied Association's request for a temporary restraining order and set the
matter for a hearing on a preliminary injunction. Noble thereafter submitted opposing points
and authorities as well as another sworn declaration. He averred that at Webb's request, in late
April 2009 he had allowed Association representatives, a handyman and security
guard, into his unit to inspect and run his tub and shower. He stated that when his shower valve was
used, "slight moisture then appeared in the common area." According to Noble, Webb later left him a
voicemail stating they believed some portion of his shower was leaking,
recommending he contact a plumber because it was his responsibility to repair
his shower, and telling him that she would contact a plumber if he did not to
ensure the problem was addressed and further damage avoided. Noble stated that he did so, and his plumber,
Mark Smith, told him the leak did not emanate from his unit and could not be
repaired from his unit. Noble stated
that on August 20, 2009, he
had offered to permit Burgess to enter his unit to remove the cover plate on
his shower valve and make the requested repair, but Association did not respond
to his offer. He also stated he provided
Association with his plumber's report, which assertedly advised Association how
repairs could be accomplished in the common area. Noble took the position that under the
definitions provided by the CC&Rs, the solder joint referred to in
Association's expert's report was not within his residential unit. He continued to maintain that no circumstance
allowed Association to enter his unit under section 4.3.5 of the
CC&Rs.

Noble submitted numerous
evidentiary objections to the declarations provided by Peters and Webb. He also asked that the trial court take
judicial notice of his prior declaration and points and authorities in
opposition to Association's ex parte TRO application, as well as Smith's
declaration filed at that time in which Smith stated he had informed Noble that
in his expert opinion, the cause of the leak was based on the developer's
failure to adequately seal the pipe in the common area hallway.

On September 17, 2009, Association filed
its reply papers, as well as declarations from Burgess and Simon Tissington, an
emergency service manager for a restoration company, and another declaration
from its counsel, who stated he had responded to Noble's August 20, 2009 offer. Burgess averred that in June 2009 he had
performed a preliminary inspection in which he observed "visible evidence
that a water leak had occurred, and concluded that the most likely source of
the water leak was a shower valve at a solder joint for the bathroom of Unit
803 adjacent to the wall area." He
stated that based on his evaluation, he believed that in order to repair the
suspected source of the water leak, it would be "necessary to enter the
bathroom area of Unit 803, remove the cover plate on the shower valve, remove
sufficient dry wall to examine the shower valve, and make the necessary
repairs." He further stated,
"Notwithstanding the foregoing, I do not now know the complete scope of
the inspection and repairs that will be needed and will not know the same until
an inspection of the bathroom tub/shower area of Unit 803 is
conducted." Tissington averred that
in April 2009 he had inspected the common area wall adjacent to unit 803 and
conducted a moisture reading that showed elevated moisture for the area. He also discovered visible mold growth and
damage on the backside of the wall to the unit, which he understood to be
adjacent to that unit. He stated: "Based on the location of the mold
growth and the amount of the mold growth, it is my professional opinion that in
order to successfully remediate the mold damage on the backside wall, part of
the backside wall will need to be cut-out.
Given the foregoing and the location of the backside wall with possible
bathroom tiles and tub/shower fixtures on the opposite side in Unit 803, it is
my further professional opinion that the mold damage to and removal of the
backside wall will need to be addressed from inside of Unit 803, regardless of
whether or not there are visible signs of mold on the interior of Unit
803. At this time, I do not believe that
there is any other way to make the needed repairs to the wall area, including
the backside wall, successfully."
Association submitted its own written evidentiary objections to Noble's
and Smith's declarations.

Noble
objected to the declarations of Burgess and Tissington as untimely and asked
the trial court to disregard them. He
alternatively asked the court to grant a continuance so that he could review
the declarations and hire experts to review and comment upon them. He also addressed the declarations on their
merits, asserting that Burgess's did not state it was necessary to remove any
drywall from his unit, and objecting to Tissington's opinion as vague.

Finding no
need to rule on Noble's evidentiary objections, the trial court granted
Association's requested preliminary injunction, ruling Association had
demonstrated its probability of success and that the equities were in its
favor. It ruled the CC&Rs permitted
Association to have access to Noble's unit for purpose of construction and
maintenance, to perform its obligations under the Declaration, or to cure any
default by an owner under the Declaration, and the declarations of Burgess and
Tissington supported Association's request that it be permitted to inspect and,
if appropriate, make repairs to cure the plumbing problem. It declined to grant Noble a further
continuance to offer rebuttal opinion, reasoning "[a]t best, rebuttal
argument and evidence would only, in essence, create an issue of fact and would
not change the Court's analysis in finding the injunction should be
issued." It ruled rebuttal evidence
could be offered at the appropriate time if the case proceeded.

Noble
answered Association's complaint and filed a cross-complaint against the
developer. The court thereafter entered
its preliminary injunction order. In
part, it ordered Noble to "grant [Association] and its agents access to
[his] condominium unit . . . to inspect and, if appropriate, make repairs to
cure the plumbing problem." It
ordered Noble and/or his representatives were entitled to be present when the
inspections and/or repairs were made and permitted them to take photographs or
otherwise memorialize Association's actions.


Noble filed
the present appeal.

DISCUSSION

I. Noble's
Oral Argument Concessions

At oral
argument in this matter, Noble represented that he was not challenging the preliminary injunction order to the
extent it permitted Association to enter his unit to inspect and conduct
destructive testing. Accordingly, we
uphold the preliminary injunction granting Association and its agents access to
Nobel's condominium unit to inspect and conduct destructive testing so as to
assess the nature and scope of the plumbing problem and need for repairs. In view of Noble's concession, our discussion
and analysis of the propriety of mandatory injunctive relief is directed solely
to that portion of the preliminary injunction order permitting Association to
actually undertake repairs.

II. Nature
of the Trial Court's Injunction

Noble
characterizes the injunction in this case as mandatory. Association does not address the point. We agree that the injunction issued here was
mandatory in nature. It ordered Noble to
grant Association access to his unit to inspect and make appropriate repairs to
cure the plumbing problem. In that way,
the injunction compelled affirmative action on Noble's part and altered the
status quo[3] in
advance of trial on the merits. (See >Feinberg v. Doe (1939) 14 Cal.2d 24, 27
[order compelling affirmative action by the defendant is in essence and effect
a mandatory injunction]; Shoemaker v.
County of Los Angeles (1995) 37 Cal.App.4th 618, 625, fn. 4; 6 Witkin, Cal.
Procedure (5th ed. 2008) Provisional Remedies, §§ 280-283, pp. 222-224.)

III. Principles
of Preliminary Injunctive Relief and Appellate Standard of Review

The general
purpose of a preliminary injunction is to preserve the status quo pending a
determination on the merits of the action.
(White v. Davis, >supra, 30 Cal.4th at p. 554; >Continental Baking Co. v. Katz (1968) 68
Cal.2d 512, 528.) "To obtain a
preliminary injunction, a plaintiff ordinarily is required to present evidence
of the irreparable injury or interim harm that it will suffer if an injunction
is not issued pending an adjudication of the merits." (White
v. Davis, at p. 554; City of Torrance
v. Transitional Living Centers for Los Angeles (1982) 30 Cal.3d 516, 526
[plaintiff must plead or demonstrate irreparable injury, either existing or
threatened, to warrant peremptory relief].)
Trial courts should evaluate two interrelated factors when deciding
whether or not to issue a preliminary injunction: (1) the likelihood that the
moving party will ultimately prevail on the merits at trial and (2) the
relative interim harm to the parties from the issuance or nonissuance of the
injunction. (Ibid.) " 'The ultimate
goal of any test to be used in deciding if a preliminary injunction should
issue is to minimize the harm which an erroneous interim decision may cause.'
" (White v. Davis, at p. 554, quoting IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73.) It is Association's burden in the trial court
to show all necessary elements. (See >O'Connell v. Superior Court (2006) 141
Cal.App.4th 1452, 1481.)

The
California Supreme Court has held that a mandatory injunction is not permitted
except in clear and extreme cases:
"The granting of a mandatory injunction pending the trial, and before the rights of the parties
in the subject matter which the injunction is designed to affect have been
definitively ascertained by the [trial court], is not permitted except in an
extreme case where the right thereto is clearly established and it appears that
irreparable injury will flow from its refusal." (Hagen
v. Beth (1897) 118 Cal. 330, 331; accord, Slakin v. White (2002) 102 Cal.App.4th 963, 972.) Thus, " ' "[a] preliminary mandatory injunction is
rarely granted,
and is subject to stricter review on appeal." ' " (Shoemaker
v. County of Los Angeles, supra,
37 Cal.App.4th at p. 625; accord, Teachers
Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493; >Davenport v. Blue Cross of California (1997)
52 Cal.App.4th 435, 446; Board of
Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295-296.) " 'The judicial resistance to injunctive
relief increases when the attempt is made to compel the doing of affirmative
acts.' " (McMahon, at p. 295.)

We
nevertheless review the trial court's order granting the injunction under an
abuse of discretion standard. ( >Davenport v. Blue Cross of California, >supra, 52 Cal.App.4th at p. 446; >Perez v. Hastings College (1996) 45
Cal.App.4th 453, 456-457; Shoemaker v.
County of Los Angeles, supra, 37
Cal.App.4th at pp. 624-625.) A trial
court will be found to have abused its discretion only when it has exceeded the
bounds of reason or contravened the uncontradicted evidence. (Continental
Baking Co. v. Katz, supra, 68
Cal.2d at p. 527.) Abuse of discretion as to either of the
two interrelated factors warrants reversal.
(Alliant Ins. Services, Inc. v.
Gaddy (2008) 159 Cal.App.4th 1292, 1299 (Alliant).)

The court
properly exercises its discretion where its determination is supported by
substantial evidence. ( >Monogram Industries, Inc. v. Sar Industries,
Inc. (1976) 64 Cal.App.3d 692, 703; accord, Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527.)
" 'In determining the validity of the injunction, we look at the
evidence presented to the trial court to determine if there was substantial
support for the trial court's determination that the plaintiff was entitled to
the relief granted.' [Citation.] 'Where the evidence before the trial court
was in conflict, we do not reweigh it or determine the credibility of witnesses
on appeal. "[T]he trial court is
the judge of the credibility of the affidavits filed in support of the
application for preliminary injunction and it is that court's province to
resolve conflicts."
[Citation.] Our task is to ensure
that the trial court's factual determinations, whether express or implied, are
supported by substantial evidence.
[Citation.] Thus, we interpret
the facts in the light most favorable to the prevailing party and indulge in
all reasonable inferences in support of the trial court's order.' " (Alliant,
supra, 159 Cal.App.4th at p. 1300;
see also 14859 Moorpark Homeowner's Assn.
v. VRT Corp., supra, 63
Cal.App.4th at pp. 1402-1403 [reviewing court will presume the trial court made
appropriate factual findings in the absence of express findings and review the
record for substantial evidence to support the rulings].) Where the determination on the likelihood of
a party's success rests on an issue of pure law based on unconflicting
evidence, we review the determination de novo.
(Moorpark, at p. 1403.)

Noble
asserts we must treat the trial court's ruling as a question of law because the
relevant facts are undisputed. The
record and the parties' supporting and opposing declarations, however, indicate
otherwise. The parties here disputed key
facts, including whether repairs were necessary and whether or not Association
was required to enter Noble's unit in order to perform the proposed
repairs. Hence, applying the
above-summarized standards, we review the trial courts express and implied
factual findings -- which we presume were made in Association's favor -- for
substantial evidence.

IV. Irreparable
Injury

Our
analysis of the sufficiency of Association's evidence begins and ends with the
irreparable injury factor. Noble
contends Association failed to present evidence of any immediate threat of harm
or irreparable injury; that neither Burgess's nor Tissington's declarations
support a finding of such injury or harm.
He points out that Code of Civil Procedure section 526 requires a
verified showing of irreparable injury or interim harm the movant will suffer
if an injunction is not issued pending an adjudication of the merits. Applying the heightened review for a
mandatory preliminary injunction as we must, we conclude the contention has
merit.

A
plaintiff's showing of potential harm can be expressed as one involving the
inadequacy of legal remedies or threat of irreparable injury, but
"whatever the choice of words it is clear that a plaintiff must make some
showing which would support the exercise of the rather extraordinary power to
restrain the defendant's actions prior to a trial on the merits. [Citations.]
In general, if the plaintiff may be fully compensated by the payment of
damages in the event he prevails, then preliminary injunctive relief should be
denied." (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd.
(1994) 23 Cal.App.4th 1459, 1471-1472 & fn. 9 (Tahoe Keys) [appellate court found insufficient showing of
irreparable harm to enjoin the collection of an assertedly unconstitutional
regulatory fee because the fees could be refunded if the challengers
prevailed]; accord, White v. Davis, >supra, 30 Cal.4th at pp. 554-555
[plaintiff seeking a preliminary injunction ordinarily is required to present
evidence of the irreparable injury or interim harm that it will suffer if an
injunction is not issued pending an adjudication of the merits; monetary harm
(in the form of improper use of tax funds for example) is insufficient to
justify the issuance of a preliminary injunction]; Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437,
446-447 [plaintiff proved that interim harm it would suffer was more than
monetary, warranting injunctive relief]; Abrams
v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628, 636,
640, fn. 2.) Thus, an injunction will be
properly granted where it would be extremely difficult or impossible to
ascertain the amount of compensation that would afford adequate relief. (Palo
Alto-Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976)
65 Cal.App.3d 121, 132.)

At issue is
Association's showing as to the nature of alleged property damage in the common
area of the condominium units. In the
context of real property, the essential features marking an injury as
irreparable are that the injury is an act that is a serious change of or is
destructive to the property it affects, either physically or in the character
in which it has been held and enjoyed.
The property, however, must have some peculiar quality or use such that
its pecuniary value as estimated by a jury will not fairly recompense the owner
for its loss. (See
Grey v. Webb (1979) 97 Cal.App.3d 232, 238; Helms
Bakeries v. State Bd. Of Equalization (1942) 53 Cal.App.2d 417, 426.)[4]

Here, Association's complaint
does not suffice to prove the existence of irreparable interim property damage,
as that pleading was not verified. (Code
Civ. Proc., § 527, subd. (a); see, e.g., City of Torrance v. Transitional Living Centers for Los Angeles, >supra, 30 Cal.3d at p. 526.) > In
its motion, Association presented evidence that damage had occurred to Association
property, namely, Burgess having witnessed "visible evidence that a water
leak had occurred . . ." the "most likely" source of which was a
shower valve at a solder joint for Noble's unit. Burgess stated he was unable to know the
"complete scope of the inspection and repairs" that would be needed
until someone conducted an inspection of Noble's tub and shower area. Tissington likewise provided evidence that
injury to Association property, including mold growth and mold damage, had
occurred, stating that to successfully remediate the existing mold damage, it
would have to be addressed from the inside of Noble's unit; that there was no
other way to make the needed repairs to the wall area successfully. In reply, Association also pointed to Noble's
own evidence that there was a water leak in his shower, namely Smith's letter
to Noble and his declaration in which Smith stated that when he initiated water
flow and diverted the water to the shower head, water seeped out of the
tub/shower valve body located in the wall behind the drywall. In discussing the balance of harms in its
respondent's brief, Association asserts that it "has been unable to fully
remediate the existing mold in the affected Common Area and cannot do so
without access to Noble's unit."
Based on all of the cited evidence, Association argues it "would
risk great harm if the preliminary injunction were denied."

We are not
persuaded that Association's right to mandatory preliminary injunctive relief
is "clearly established" by this evidence. (Teachers Ins. & Annuity Assn. v.
Furlotti, supra, 70
Cal.App.4th at p. 1493.) Association's
evidence does not suggest that the mold damage is ongoing: that it would either
continue to occur or become worse in the interim. Even assuming it is possible to infer ongoing
damage, Association's declarations do not demonstrate that it has no adequate
alternate remedy for these interim damages; that the mold damage to
Association's property, even if it were permitted to continue to the time of
eventual trial, cannot be remediated or repaired if Association prevails. Association has not shown that its property
is somehow unique or has intrinsic value, and it has not shown that the interim
damage is not compensable in money damages, i.e., that the legal remedy of
damages "would not afford adequate relief" (Code Civ. Proc.,
§ 526, subd. (a)(4)) or that "it would be extremely difficult to
ascertain the amount of compensation which would afford adequate relief." (Code Civ. Proc., § 526, subd.
(a)(5).) (See Pacific Decision Sciences Corp. v. Superior Court (2004) 121
Cal.App.4th 1100, 1110; Jessen v.
Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 457-458.)

Nor has
Association shown noncompensable harmful health consequences to Noble or any
other Association member stemming from the mold. Association merely asserts, without record
citation or any indication it sought judicial notice on the point, that
"[t]he health risks of mold are well known and with a water source that is
left unabated can be amplified."
Such arguments of counsel are not evidence. (See Davenport
v. Blue Cross of California, supra,
52 Cal.App.4th at p. 454.) We would find
no basis in any event to grant any such request for judicial notice under
Evidence Code section 452, subdivisions (g) or (h), providing for the taking of
notice, respectively, of matters of common knowledge within the jurisdiction,
and matters that are easily ascertained by reference to reliable sources. There are limitations on judicial notice of
"[s]ome matters of so-called common knowledge," because "they
are not really known or immediately ascertainable within the local
area." (1 Witkin,
Cal. Evidence (4th ed. 2000) Judicial
Notice, § 35, p. 130.) Even where some
facts are "widely believed," the courts will decline to take judicial
notice if they are controversial or subject to expert testimony. (Ibid.) This would appear to be the case concerning
the debate over the health effects of mold's presence in a building. (See Dee
v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390, 402-406; >Geffcken v. D'Andrea (2006) 137
Cal.App.4th 1298, 1311-1312; Montomery
Mut. Ins. Co. v. Chesson (Md. 2007) 923 A.2d 939, 950, fn. 7 [physician's
theories regarding mold exposure and illness were not the proper subject of
judicial notice in part as the "debate on toxic mold and sick building
syndrome has become increasingly prevalent in American courtrooms, and courts
across the country have reached differing conclusions regarding the causal
relationship between mold exposure and sick building syndrome"].)

In our
view, there is no evidence to support the trial court's implied conclusion
that, absent an injunction, Association will suffer irreparable injury or
injury that is either unascertainable or cannot be adequately compensated in
money damages. (Board of Supervisors v. McMahon, supra, 219 Cal.App.3d at p. 296.) Indeed, Association
essentially concedes the mold damage to its property can be remediated as long
as it is granted entry to Noble's unit.
Association's right to enter, of course, is the question to be resolved
at trial on Association's action. Even
if Association demonstrated it is likely to prevail at trial, the likelihood of
success on the merits, standing alone, is not enough to justify an order changing
the status quo pending trial. Injunctive
relief must be denied if Association "may be fully compensated by the
payment of damages in the event [it] prevails . . . ." (Tahoe
Keys, supra, 23 Cal.App.4th at p.
1471.) On this record, we must conclude
the trial court abused its discretion in granting the mandatory injunction, at
least as to those aspects remaining after Nobel's oral argument concessions.

We
emphasize that our decision that the evidence does not support the issuance of
the preliminary injunction does not constitute a final adjudication of the
ultimate rights in controversy. ( >IT Corp. v. County of Imperial, >supra, 35 Cal.3d at pp. 74, fn. 7 &
75-76; Shoemaker v. County of Los Angeles,
supra, 37 Cal.App.4th at pp.
625-626.)





DISPOSITION

The order
compelling Noble to grant Association and its agents access to his condominium
unit to inspect is affirmed. The order
permitting Association and its agents to make repairs to cure the plumbing
problem is reversed. The trial court is
directed to modify the order to read:
"IT IS ORDERED that Defendant Frank E. Noble ("Noble")
grant plaintiff Discovery at Cortez Hill Homeowners Association
("Association") and its agents access to defendant Noble's
condominium unit located at 850 Beech Street, Unit No. 803, San Diego,
California 92101 to inspect the plumbing problem and conduct destructive
testing to assess the nature and scope of the problem and need for
repairs. Defendant Noble and/or his
representatives are entitled to be present during the inspection and testing
and to take photographs or otherwise memorialize the actions taken by plaintiff
Association. To the extent plaintiff
Association seeks reimbursement for any expenses incurred herein and/or this case
proceeds to trial then the ruling on this motion is without prejudice to
defendant Noble



offering whatever opinions are appropriate at that
time. Plaintiff Association's
undertaking is set at $5,000."

Association
shall recover its costs on appeal.











O'ROURKE, J.

WE CONCUR:







HALLER,
Acting P. J.





McDONALD,
J.





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id=ftn1>

[1] The section continues: "Such person(s) shall not be deemed
guilty of trespass by reason of such entry.
If any such repair or maintenance is due to the failure of an Owner to
perform its obligations hereunder, the cost of such maintenance or repair shall
be assessed against said Owner as an Enforcement Assessment in accordance with
the provisions of the Article hereof entitled 'Assessments.' "