>Cathedral>
Hill>
Tower>
Condo Assn. v. Garbar

















Filed 6/29/12 Cathedral Hill Tower Condo Assn. v. Garbar CA1/3

>

>

>

>

>

>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

>

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION THREE




>

CATHEDRAL HILL TOWER CONDOMINIUM ASSOCIATION, Plaintiff, Cross-defendant and Appellant, v. LARISA GARBAR et al., Defendants, Cross-complainants and Appellants.

A124711 (City & County of San Francisco Super. Ct. No. CGC 04-432068)

Respondent Cathedral Hill Tower
Condominium Association (the Association)
brought this action in 2004 to preclude condominium unit owner Larisa
Garbar from installing ceramic tile on her balcony and to compel her to remove
unauthorized renovations that violated the Tower’s covenants, conditions, and
restrictions (CC&Rs). In a
cross-complaint, Garbar and her fiancé, Michael Rabichev (defendants) sought to
recover damages for excess heat and noise in the unit, allegedly caused by the
Association’s failure to maintain the Tower’s mechanical room above it.href="#_ftn1" name="_ftnref1" title="">[1]

The trial court sustained a demurrer
to defendants’ cross-complaint without leave to amend and granted the
Association summary adjudication as to
the balcony tile. After a bench trial,
the court found Garbar violated the CC&Rs by failing to obtain approval for
her renovations and by constructing a raised ceiling that encroached upon the
common area above her unit. The court
denied injunctive relief requiring
restoration of the unit’s original ceiling, but granted the Association
continued use of the common area ceiling space.
The court deemed the Association the prevailing party and awarded
attorney fees.

Defendants challenge the orders
dismissing their cross-complaint and granting summary adjudication, the
judgment, and the attorney fee award.
The Association also appeals from the judgment, contending the trial
court erred in denying injunctive relief.

We reverse the judgment as it
relates to the cross-complaint and the prevailing party determination, but
otherwise affirm it. We also reverse the
attorney fee award.

factual and procedural background

Cathedral Hill Tower (Tower)
is a 25-story, 137-unit building in San Francisco,
which was built in 1966 and converted to condominiums in 1982, with the
adoption of CC&Rs that incorporate a recorded condominium map.

In May 2001, defendants purchased
condominium unit 24D, a one bedroom unit on the Tower’s top residential floor.href="#_ftn2" name="_ftnref2" title="">[2] In June 2001, they began extensive
renovations, which included installation of hardwood floors throughout the unit
and ceramic tile on the balcony, remodeling of the kitchen and bathroom,
removal of the unit’s original ceiling, and construction of a raised
architectural ceiling.

On August 29, 2001, the Association’s board of directors (Board) sent Garbar a letter
asking her to stop work immediately and submit her renovation plans to the
Board for review, as required by the CC&Rs.
(Art. III, § 5 [“With respect to any alteration or modification of
a unit requiring a building permit from the City of San Francisco, the plans
must be first submitted in writing to the Board”].) The Board found Garbar’s response
insufficient and asked her to provide the floor specifications and “some detail
on the elevation of each room[,] as it appears you may be encroaching into the
common area.” Garbar sent the Board “all
the plans . . . that were submitted to [the] City for the building
permit . . . ,” as well as a sample of the flooring
material. She said she had offered to
submit her plans to the Board before construction, but real estate agent
Darrell Wineman (Wineman) told her “this had not been done in many years.” She said she had “made no secret about [her]
design and building objectives” with property manager Karen Collingwood
(Collingwood) and Board vice-president, George Naganuma (Naganuma), and
Naganuma had approved the hardwood floors.
She said her renovations were “nearly complete.”

In response, Naganuma denied
approving hardwood floors and stated Collingwood “has no specific information
other than that you planned to perform remodeling and you planned to draw the
necessary . . . permits . . . .” He told Garbar her plans were “quite
incomplete,” as she had provided no information regarding the ceiling. Garbar replied that no plans were created for
the ceiling and noted: “The construction
is almost complete and, upon finalizing of finishes, I hope to move in very
soon.”

Defendants moved into the unit in
late October or November 2001. The
parties continued to discuss the encroachment issue, as well as defendants’
complaints regarding excess heat and noise in their unit. In 2003, a dispute arose regarding the
Association’s plan to waterproof the Tower.

The Complaint

In June 2004, the Association filed
a complaint against Garbar based on allegations that she violated the
CC&Rs: (1) by refusing access to her
unit for the waterproofing work, including removal of her balcony tile, and
seeking to retile her balcony after the project’s completion; and (2) by
failing to obtain Board approval for her renovations, installing hardwood
floors, and encroaching upon the common area above her unit’s original ceiling. The Association sought a declaration of the
parties’ rights and obligations and injunctions preventing Garbar from
interfering with the waterproofing and retiling her balcony, and requiring her
to restore the unit to its original condition.


Defendants’
Cross-Complaint

In July 2004, defendants filed a
cross-complaint for damages, asserting causes of action for nuisance,
negligence, invasion of privacy; and intentional infliction of emotional
distress (IIED) against the Association and four Board members based on
allegations that outdated, inadequately ventilated, and poorly maintained
equipment in the mechanical room directly above their unit was producing excess
noise and heat.

The trial court sustained a demurrer
to the cross-complaint with leave to amend, and defendants filed a first
amended cross-complaint. The trial court
sustained the Board members’ demurrer to all of defendants’ causes of action
and sustained the Association’s demurrer to Rabichev’s claims on standing
grounds, without leave to amend. This
court affirmed the trial court’s decision as it applied to the Board members,
but reversed the order of dismissal of Rabichev’s claims. (Cathedral
Hill Tower Condominium Association v. Garbar et al. (May 31, 2006, A110379)
[nonpub. opn.], 2006 Cal.App. Unpub. LEXIS 4752, pp. 4-5,
9-10, 18-19 (Cathedral Hill I).) The court held allegations of Rabichev’s
ownership were sufficient to survive demurrer on standing grounds, but found
his allegations did not satisfy the standard set forth in Lamden v. La Jolla
Shores Clubdominium Homeowners Assn. (1999)
21 Cal.4th 249 (Lamden).
(Cathedral Hill I,
pp. 11-13; see Lamden,
pp. 260, 265 [adopting a rule of judicial deference to certain Board
decisions].) The court directed the
trial court to sustain the demurrer to Rabichev’s claims, with leave to amend
to state a claim against the Association under Lamden. (>Cathedral Hill I, pp. 13, 19.)

Defendants filed a second amended
cross-complaint against the Association, reasserting their tort causes of
action, adding a cause of action for breach of contract, and asserting
additional factual allegations in response to the court’s analysis in >Cathedral Hill I. The Association demurred, contending
defendants’ allegations did not satisfy Lamden,
and the trial court sustained the demurrer with leave to amend. Defendants then filed the third amended
cross-complaint at issue in this appeal.
The Association demurred, contending the acts and omissions alleged were
entitled to deference under Lamden. On August 15, 2007, the trial court
sustained the demurrer without leave to amend and dismissed the
cross-complaint.

The Motions
for Summary Judgment/Adjudication

The Association and Garbar filed
cross-motions for summary judgment, or alternatively, summary adjudication. The trial court denied summary judgment but
granted summary adjudication of the Association’s first cause of action,
permanently enjoining Garbar from retiling her balcony.

Trial

In October 2008, the matter
proceeded to a seven-day bench trial on the Association’s claims that Garbar
violated the CC&Rs by failing to obtain Board approval for her renovations,
installing hardwood floors, and encroaching upon the common area above the
unit’s original sheetrock ceiling. At
the outset of trial, Rabichev and the parties stipulated: “[A]ny judgment entered against
. . . Garbar in this case may be enforced with equal force and effect
against . . . Rabichev without the necessity to amend the judgment or
otherwise.”

At trial, Garbar maintained that the
Board had not consistently enforced the approval requirement, that she had
complied with the Board’s approval practice as it existed in 2001, and that its
enforcement action was selective and
arbitrary. She also asserted defenses of
waiver, estoppel, and laches, contending the Board was aware of the work in her
unit from the outset and that Naganuma approved her hardwood floors. She denied encroaching upon the common area,
claiming her unit’s boundary extended to a concrete slab separating the unit
from the floor above.

In a statement of decision, the
trial court concluded: “[T]he area above
the original sheetrock ceiling in [Garbar’s] Unit is Common Area, and
. . . by removing that sheetrock ceiling and extending the interior
of the Unit upward . . . [,] [Garbar] has encroached into the Common
Area.” The trial court also concluded
Board approval was required for defendants’ renovations and they had failed to
obtain it. The trial court rejected
defendants’ equitable defenses, finding no evidence the Board was aware of work
in the common area until after August 2001, and no substantial evidence
defendants were misled by the Association.

Balancing the equities, the trial
court denied the Association’s request for an injunction compelling Garbar to
restore the original ceiling, but held: “[T]he Association retains the right to
utilize the area that was above the pre-existing sheetrock ceiling for
maintenance and repair of anything in that space, as well as the right to
otherwise use that space for utility or other installations, and if such work
results in the destruction or alteration of the architectural ceiling
. . . in the Common Area, then [defendants] are responsible for any
resulting damage.” The court did not order
removal of the hardwood floors, finding Naganuma approved them.

The trial court entered judgment
accordingly, making it binding upon Rabichev and enforceable with the same
force and effect as it is on Garbar, and deeming the Association the prevailing
party. Defendants and the Association
filed timely appeals from the judgment.

Thereafter, the trial court granted
the Association’s motion for attorney fees and amended the judgment
accordingly. Defendants amended their
notice of appeal to seek review of the amended judgment.

>discussion

I. The Trial Court Erred in Dismissing
the Third Amended Cross-Complaint.href="#_ftn3" name="_ftnref3" title="">>[3] Relying
on this court’s decision in Cathedral
Hill I, the trial court held that the allegations of defendants’ third
amended cross-complaint did not satisfy Lamden,
supra, 21 Cal.4th 249 and that
defendants had not shown an ability to plead facts reflecting the Association’s
failure to comply with that standard. In
reviewing the trial court’s decision, “we examine the [cross-]complaint de novo
to determine whether it alleges facts sufficient to state a cause of action
under any legal theory . . . .”
(McCall v. PacifiCare of Cal.,
Inc. (2001) 25 Cal.4th 412, 415.) We
“ ‘give [it] a reasonable interpretation, reading it as a whole and its parts
in their context . . . ,’ ” and assume the truth of
all facts properly pleaded, but not “contentions, deductions or conclusions of
fact or law.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) When the trial court sustains a demurrer without
leave to amend, we also must determine “whether there is a reasonable
possibility that the defect can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion and we
affirm. [Citations.]” (Ibid.)


In this case, these determinations turn primarily on whether the
causes of action asserted in the third amended cross-complaint fall within the
scope of the rule of judicial deference set forth in Lamden, which held: “[W]here
a duly constituted community association board, upon reasonable investigation,
in good faith and with regard for the best interests of the community
association and its members, exercises discretion within the scope of its
authority under relevant statutes, covenants and restrictions to select among
means for discharging an obligation to maintain and repair a development’s
common areas, courts should defer to the board’s authority and presumed
expertise.” (21 Cal.4th at p. 265.)>

In Cathedral Hill I, the court concluded: “With respect to Rabichev’s claims against
the Association, the [cross-complaint] does not satisfy the >Lamden standard. It fails to allege adequately the
. . . Board’s investigation of the problems in the mechanical room
was unreasonable, that its actions were taken in bad faith and without regard
for the best interests of the community association and its members, or that it
abused its discretion by exceeding the scope of its authority under relevant
statutes, covenants and restrictions.
[Citation.]” (>Cathedral Hill I, supra, A110379, pp. 12-13.)
The court also suggested that the cross-complaint would state a viable
cause of action under Frances T. v.
Village Green Owners Assn. (1986) 42 Cal.3d 490 (Frances T.),” if it alleged a breach of the duty of “a condominium
association, like a landlord, . . . to ‘exercise due care for the
residents’ safety in those areas under their control,’ ” specifically, “ ‘a
failure by the Association to maintain the [mechanical room] in a reasonably safe
condition, [and] knowledge on the Board’s part of any unreasonable risk of
physical injury stemming from its failure to do so.’ [Citation.]”
(Cathedral Hill I,
pp. 14-15.)

A. The Allegations at Issue

The third amended cross-complaint
includes the following allegations:

Shortly after defendants moved into
the unit, they were disturbed by loud noises from the Tower’s mechanical room,
which is located directly above their bedroom.
They also noticed radical temperature differences between their bedroom,
which often exceeded 80 degrees, and their living room, which was up to 16
degrees cooler. The excess noise, which
was loudest at night and early morning, was caused by vibrations from
improperly installed and/or poorly maintained equipment in the mechanical room,
water boilers and pumps “nearing the end of their useful lives.” The excess heat was caused by inadequate
ventilation in the mechanical room, which did not provide “combustion air”—the
minimum air required for the equipment to function properly. The lack of ventilation, which could have led
to an explosion, presented an unreasonable risk of danger to Tower
occupants. The excess heat and noise
prevented defendants from sleeping, causing them physical and emotional
distress, and related ailments.

From February 2002, to May 2003,
defendants sent numerous letters to the Board
complaining of the noise and “overwhelming heat.” They proposed repairs and provided estimates
from contractors, including a proposal from mechanical engineer, Dick Glumac,
who later submitted measurements of the noise and heat levels.

By June 2003, defendants still had
received no verbal or written response from the Board, which refused to meet or
communicate with them to discuss the problem, “ignored” their complaints, and
“took no action” to correct the noise problem.
The Association had “ignored” the noise complaints of other residents
for years.

Glumac complained to the City about
the dangerous condition of the mechanical room, and in the summer of 2003, building
inspectors red-tagged the mechanical room, requiring repairs to allow proper
ventilation. The Association’s repairs
reduced but did not eliminate the excess heat in unit 24D. In early 2004, Glumac sent the Board
measurements showing a continuing noise problem and offered a solution, but the
Board “ignored” him and “undertook no significant repairs to solve the
excessive noise problem.”

Based upon the above allegations,
defendants asserted several causes of action that sound in tort. In support of a negligence claim, they
alleged: “[The Association] had a duty
to act in good faith to insure the mechanical equipment . . . was
properly maintained, repaired and/or replaced such that it would not cause annoyance
or endanger any resident . . . .
In addition, [the Association] had a duty to communicate with
[defendants] about the problems they were encountering because of the refusal
of the [Association] to make repairs.”
Defendants alleged the Association breached these duties by ignoring
their complaints and evidence of the mechanical room’s condition, refusing to
make repairs to resolve the issue, and refusing to meet and communicate with
them about the defective mechanical room.
Further, defendants alleged: “The
maintenance of the noisy, dangerous and non Code compliant mechanical room
constituted a nuisance in violation of . . . Civil Code
section 3479,” and that the Association’s breach of its duties and the
resulting nuisance caused them loss of sleep, emotional distress, and physical
trauma. (See Civil Code § 3479
[“Anything which is injurious to health . . . or is indecent or
offensive to the senses, or an obstruction to the free use of property, so as
to interfere with the comfortable enjoyment of life or property . . .
is a nuisance”].) Defendants also
asserted an Intentional Infliction of Emotional Distress (IIED) claim, alleging
the Association knew of the defective mechanical room’s impact on them, but
refused to make repairs or replace the defective equipment, intending to cause
them extreme emotional distress and physical trauma. Finally, defendants asserted a cause of
action for invasion of privacy, alleging the Association’s refusal to
adequately maintain, repair and/or replace antiquated and defective and
dangerous mechanical room equipment that produced excess heat and noise
violated their right to privacy in their home.

Defendants also asserted a breach of
contract cause of action, alleging the Association failed to properly maintain
and repair the common area as required by the CC&Rs.

Defendants further alleged that the
decision of the Association to ignore defendants’ complaints was made in bad
faith and not to further the interest of homeowners, as evidenced by: (1) the Board’s conduct in targeting
defendants for special treatment and refusing to listen to them when they
raised the issue at board meetings, telling Garbar to “ ‘sit down and shut
up’ ”; and (2) Naganuma’s statements to Rabichev that “ ‘no work
would be done . . . in response to [his] complaints[,]’ ” that
the Board did not care about defendants’ suffering, and that none of the
requested repairs would be made.

The Association argues that the
court must disregard allegations “that [it] failed to investigate, refused to
repair the ventilation system, ignored [defendants’] complaints, and knowingly
maintained a dangerous condition,” as these allegations are contradicted by the
facts in the attached exhibits and the allegations in earlier versions of the
cross-complaint. We find some support
for the Association’s position, as identified below. The facts in the exhibits and the allegations
in the first amended cross-complaint show that, sometime before
August 2002, the Association retained an acoustical engineer (Wilson) who recommended repairs to the pumps
and that this work was done in March 2003.
These assertions contradict allegations in the instant cross-complaint
that the Association “ignored” the noise problem, “took no action to make
repairs” regarding the noise, and refused to make any repairs to correct the noise problem. We find no conflict, however, between the
exhibits and allegations that the Association ignored defendants’ complaints
about the heat and refused to make repairs to resolve this problem.href="#_ftn4" name="_ftnref4" title="">[4] We view the allegations in the third amended
cross-complaint accordingly in determining Lamden’s
application. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384
[“[W]here a party . . . seeks to avoid the defects of a prior
complaint either by omitting the facts that rendered the complaint defective or
by pleading facts inconsistent with the allegations of prior pleadings
. . . ,” the court may take judicial notice of the prior pleadings,
disregard inconsistent allegations, and read the prior allegations into the
amended complaint if the pleader fails to explain the inconsistency]; >Banis Restaurant Design, Inc. v. Serrano
(2005) 134 Cal.App.4th 1035, 1044-1045 [“Facts appearing in exhibits attached
to a complaint will . . . be accepted as true and will be given
precedence over any contrary allegations in the pleadings”].)

B. Lamden
Does Not Require Dismissal of the Cross-Complaint.

Defendants’ claims arise from the
Association’s alleged failure to maintain the mechanical room and make
necessary repairs. These allegations,
liberally construed, may support either a claim that the Association violated a
discretionary duty of maintenance and repair under the CC&Rs, which >Lamden precludes, or claims—to which >Lamden does not apply—that the
Association breached duties otherwise imposed upon it by the common law. (See Lamden,
supra, 21 Cal.4th at pp. 264,
270 [Lamden does not “eviscerat[e]
the long-established duty to guard against unreasonable risks to residents’
personal safety owed by associations that ‘function as a landlord in
maintaining the common areas’ [citation] . . .”]; >Frances T., supra, 42 Cal.3d at p. 507 [the business judgment rule “does
not abrogate the common law duty which every person owes to others ─ that
is, a duty to refrain from conduct that imposes an unreasonable risk of injury
on third parties”; it only applies to parties, like shareholders and creditors,
to whom the Board owes a fiduciary obligation]; accord, Lamden, p. 267.)
Defendants’ fifth cause of action clearly arises from a contractual duty
under the CC&Rs, but their remaining tort causes of action do not specify
the source of the duties they assert.
Defendants’ allegations arguably encompass the Association’s common law
duties to maintain the common areas in a reasonably safe condition and to
refrain from conduct that invades the privacy rights of others and is intended
to cause severe emotional distress.href="#_ftn5"
name="_ftnref5" title="">[5] We need not decide whether defendants’
allegations are sufficient to state causes of action under the common law, for
two reasons. First, to the extent
defendants are required to specifically allege a breach of particular common
law duties, leave to amend their cross-complaint to add such allegations is
appropriate. Second, the cross-complaint
includes specific facts supporting an allegation that the Board acted in bad
faith and not to further the interests of Tower residents. That alone is sufficient to satisfy >Lamden as to all causes of action at the
pleadings stage.href="#_ftn6" name="_ftnref6"
title="">[6]

II. The
Association’s Motion for Summary Adjudication

On appeal from the judgment,
defendants also contend the trial court erred in granting summary adjudication
of the Association’s first cause of action for permanent injunctive relief
prohibiting the re-installation of tile on their balcony.href="#_ftn7" name="_ftnref7" title="">>[7]

A. Standard of Review

“ ‘ “We review the trial
court’s decision de novo, considering all the evidence set forth in the moving
and opposing papers except that to which objections were made and
sustained.” ’ [Citation.]” (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) We determine independently the construction
and effect of facts presented below as a matter of law. (See
Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355-356.) Summary judgment is proper if the materials
submitted show there is no triable issue of material fact and the moving party
is entitled to judgment as a matter of
law. (Code Civ. Proc., § 437c,
subd. (c); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As the moving plaintiff, the Association was
required to show each element of the cause of action has been proved, and that
there is no defense thereto. (>Aguilar, at p. 850.) In deciding whether the Association met its
burden, we liberally construe the evidence and accept as true Garbar’s evidence
and the reasonable inferences that can be drawn from it. (Spitzer
v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385; Yanowitz, at p. 1037.)
We must reverse if the evidence would allow a reasonable trier of fact
to find any material fact in Garbar’s favor in accordance with the applicable
standard of proof; we must affirm, however, if the Association’s evidence would
require a reasonable trier of fact to find all material facts in its favor,
more likely than not. (>Aguilar, supra, 25 Cal.4th at
pp. 850-851.)

B. Relevant Background

The Association presented evidence
of the following facts: The Association
is responsible for management of the Tower and is governed by a five-person
board of directors. The CC&Rs charge
the Association with control and maintenance of the common areas of the Tower
(Art. I, § 3, p. 2; Art. IV, § 1, pp. 12-13), and govern
the conduct of homeowners there. The
Association has the authority “[t]o enforce the applicable provisions of the
[CC&Rs,] relative to the management and control of the project. (Art. V., § 7(A), p. 17; Art. I,
§ 11, p. 3)

The Tower had sustained extensive
structural damage over the years due to water intrusion. In 2002, the Board retained architect and
engineer Jeff Chen to study the problem and recommend a solution. Chen recommended waterproofing the building
as soon as possible, and permanent removal of coatings, tile, and other
materials from the balcony surface. In
June 2003, homeowners approved a $3 million waterproofing project at the
Board’s urging. The Board retained
general contractor Everest
Waterproofing and Restoration (Everest) to perform the work, using a
waterproofing membrane manufactured by Tremco, and the work began in
August 2003.

A dispute arose with Garbar, who
sought to retile her balcony after the project’s completion. Chen and Everest’s president, Keith
Goldstein, explained that no tile or other “ ‘overburden’ ” could be
placed over the waterproofing membrane and provided letters from Tremco and
Everest stating the warranties would be voided if such material was installed.href="#_ftn8" name="_ftnref8" title="">[8] The Association also presented evidence from
Chen that retiling the balcony could compromise the waterproofing.

In addition to this evidence, the
Association contended the CC&Rs prohibited balcony tile and that >Lamden precluded Garbar from objecting
to the Board’s method of fulfilling its maintenance responsibilities.

Seeking to raise a material issue of
fact regarding the Association’s claim that retiling would void the warranties,
Garbar presented evidence: (1) that
the Tremco waterproofing membrane is compatible with tile; and (2) that
placement of tile on the balcony surface would not cause leaks or other harm,
and, in fact, would provide additional protection. Rabichev, a licensed architect and civil
engineer, submitted a declaration in which he stated that Tremco’s letter “did
not mention anything about tile,” and characterized it as “a generic
non-specific letter of abstract requirement to conform to manufacture[r]
specifications.” He construed Tremco’s
letter to mean “their warranty was only valid when Tremco’s specific system of
installation was provided . . . .”
Rabichev also stated that Chen and Goldstein admitted tile installation
was feasible and that they had installed tile over waterproofing, but that
Tremco would not warrant the product with tile, and the Board was unwilling to
consider other alternatives.href="#_ftn9"
name="_ftnref9" title="">[9]

In granting the Association’s
motion, the trial court cited Article III, section 2.E of the CC&Rs
(section 2.E), “which addresses restrictions on the use of balconies.” In addition, the trial court found the
Association’s request to enjoin Garbar from retiling her balcony “is reasonable
under [Lamden]” and Article II,
section 2.F of the CC&Rs, “as related to the need to maintain the building
. . . .”

B. Analysis

As explained more fully below, we
agree with the trial court that section 2.E gives the Board discretion to
restrict the installation of balcony tile and that Lamden insulates this discretionary decision from judicial scrutiny.

1. The CC&Rs Give the Board
Discretion to Deny Balcony Tiling.

Where, as here, the trial court’s
interpretation of the CC&Rs does not turn on the credibility of extrinsic
evidence, we construe them independently according to general principles of contract
interpretation. (Harvey v. The Landing Homeowners Assn. (2008) 162 Cal.App.4th 809,
817.) Thus, “[t]he language of the
CC&R’s governs if it is clear and explicit, and we interpret the words in
their ordinary and popular sense unless a contrary intent is shown. [Citations.]
The parties’ intent is to be ascertained from the writing alone if
possible. [Citation.] If an instrument is capable of two different
reasonable interpretations, the instrument is ambiguous. [Citation.]
In that instance, we interpret the CC&Rs to make them lawful,
operative, definite, reasonable and capable of being carried into effect, and
must avoid an interpretation that would make them harsh, unjust or
inequitable. [Citations.]” (Id. at
pp. 817-818, fns. omitted; see Civ. Code, § 1638.) Applying these principles, we conclude the
CC&Rs give the Board discretion to preclude Garbar from retiling her
balcony.

Section 2.E is entitled “Balcony
Restrictions” and states: “No portion of
any balcony shall be enclosed in any manner whatsoever, nor shall any structure,
shade, screen, awning, hanging plants or
other devices be attached thereto, without the written consent of the
Board. Further, nothing shall be placed,
stored or maintained on any balcony (such as bicycles and barbeques) other than
furniture specifically designed for balcony use and which may include potted
plants . . . .” This language
reflects an intention to give the Board discretion to decide what items could
be attached to the balcony surfaces.
Patently, ceramic tile is attached to the balcony surface.

Defendants’ challenge to the trial court’s interpretation of this
provision lacks merit. First, they
maintain this section cannot be reasonably interpreted “to refer to the balcony
surface, let alone to prohibit tiling,” as “[t]iling does not ‘enclose,’
. . . [and] is not a ‘device . . . attached’ to
. . . the balcony . . . .” They fail to acknowledge the language of this
section indicating “[n]o portion of any balcony shall be enclosed
. . . ,” and provide no discussion or definition of the terms
“enclosed” and “device” to support their contention. (See Ekstrom
v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1121.)


Second, they maintain that if the
CC&Rs intended to preclude balcony tile, “its framers could have said so
clearly, specifically and unmistakably, as they did in referring to bicycles
and barbeques, or as they did in Article III, section 2B, . . .
[which] address[es] . . . floor coverings.” (See id.
[“installation of . . . ceramic tile . . . shall be
prohibited except in the entryways”].)
Reviewing in context the paragraphs regarding “maintenance of
residential units,” however, we do not agree failing to specifically mention
ceramic tile evidences an intent not to include it within the balcony
restrictions.

Finally, defendants argue: “[T]he CCRs expressly contemplate that owners
can tile their floors, consistent with the statutory scheme governing
condominium developments in 1982.”
Effectively, they argue that, since the CC&Rs track the language of
former Civil Code section 1353, subdivision (d), which gave condominium owners
the exclusive right to refinish and decorate the inner surfaces of floors, the
CC&Rs also must provide such a right.
(Id., as enacted at 1963
Stats., ch. 860, § 3, p. 2092.)
They fail to note language in Article III, section 2, however,
specifically making this right conditional (Art. III, § 2, 1st para.), and
subject to section 2.E.href="#_ftn10"
name="_ftnref10" title="">[10]

In sum, the trial court correctly
held that section 2.E afforded the Board discretion to decide whether to allow
retiling upon completion of waterproofing.

2. Lamden
Requires Deference to the Board’s Discretionary Decision.

The decision whether to permit
balcony tile after waterproofing is the exact type of discretionary economic
decision at issue in Lamden, and the
undisputed facts show that this decision satisfies the Lamden criteria, specifically, that the Board conducted a
reasonable investigation, followed its experts’ recommendations, and acted in
good faith for the benefit of the Association and its members to prevent leaks,
protect the Tower’s structural integrity, and preserve the service and product
warranties in precluding defendants from retiling. (See Lamden,
supra, 21 Cal.4th at
p. 265.) Defendants’ reliance on
facts addressing the waterproofing membrane’s compatability with tile is of no
moment, and Lamden precludes this
type of second guessing in any event.
Even if the facts on which defendants rely are true, the Board has
discretion not to risk harming the waterproofing system and opening the door to
a warranty dispute.href="#_ftn11"
name="_ftnref11" title="">[11]


Finally, defendants contend the Association did not allege or assert
in its summary judgment motion the facts required for href="http://www.fearnotlaw.com/">injunctive relief, namely, that damages
would be inadequate or difficult to estimate, or that relief is necessary to
prevent multiple actions. The record
demonstrates otherwise.

We therefore affirm the trial
court’s decision granting the Association’s motion for summary adjudication.href="#_ftn12" name="_ftnref12" title="">[12]


III. The
Encroachment Issue

Defendants challenge the trial
court’s findings regarding the unit’s boundaries and its conclusion the space
above the original ceilings is common area.


A. Relevant Background

The 24th floor is the top
residential floor of the Tower and is separated from the mechanical room on the
floor above by a concrete slab. As
originally constructed, the living room, dining area, kitchen and bedroom in
unit 24D had a flat suspended sheetrock ceiling, identified in the recorded
condominium map as “ceiling A.” The
original ceiling in the foyer and bathroom is identified as “ceiling B.” In unit 24D and other 24th floor units, there
is a space of approximately 21 to 24 inches between ceiling A and the concrete
slab above. The space above ceiling B is
larger, as this ceiling is several inches lower than ceiling A.

Defendants removed ceilings A and
B. They replaced ceiling A with a
sculptural architectural ceiling, which has pockets lower than 8.5 feet, high
pockets around 10 feet, and an average height of nine feet in the living room
area.href="#_ftn13" name="_ftnref13" title="">[13] They also raised ceiling B by six inches, to
an average height of less than nine feet.

The Evidence
at Trial

At trial, the parties offered into
evidence: original building plans for
the Tower, photographs of unit 24D at various stages of construction, and the
governing documents, including the CC&Rs.

The CC&Rs define “condominium”
as “a separate fee interest in the air space and interior surfaces within a
unit, as more particularly described on the Condominium Map.” A recorded condominium map (Map) appended to
the CC&Rs sets out a typical residential floor plan, which does not show
the units’ upper boundaries but includes “General Notes” stating: “The entire condominium property, excepting
the condominium units, is ‘Common Area.’ [¶] The boundaries of the
condominium units are the interior surfaces of the perimeter walls, floors,
ceilings, windows and doors thereof . . . . [¶] The
physical boundaries of the condominium unit . . . shall be
conclusively presumed to be its boundaries rather than the metes and bounds
expressed herein, regardless of settling or lateral movement of the building
and regardless of minor variances between boundaries shown hereon and those of
the building. . . . [¶] . . .
[¶] Condominium unit floor and ceiling elevations, are as shown hereon.” href="#_ftn14" name="_ftnref14" title="">[14] On the next page of the Map appears a
schedule of unit elevations, which indicates a floor elevation of 422.60 feet
in unit 24D, an elevation of 430.9 feet for ceiling A, and an elevation of
430.1 feet for ceiling B.

General contractor Kevin Kearney
testified for the Association and opined that the original sheetrock ceilings
provided the unit’s upper boundaries, and the area above these ceilings was
intended to be common area. He stated,
after review of the applicable CC&R provisions and the attached Map, that
it was “clearly the intention to be able to utilize the area [above the
original ceilings] to run service, possibly for the entire building”—specifically,
to allow the Association “to run conduits for either gas, electric, plumbing,
HVAC, cable television. Any number of
possible future uses.” Kearney relied on
photographs showing water pipes and heating ventilation ducts in the space
above the original ceilings. He also
relied on original building plans M-6 and M-7.
Plan M-6 shows a space above the ceiling, labeled: “furred
clg,” and, according to Kearney, plan M-7 states: “run
all pipe in furred space above ceiling of top typical floor.” Plan M-6 also provides a 24th floor ceiling
height of 8.5 feet.

Kearney’s testimony was countered by
that of several witnesses called by defendants.
Architect Harry Novak testified that the upper boundaries of the 24th
floor units extend to the concrete slab above the unit. Novak relied on the Map’s definition of the
units’ boundaries as “the perimeter . . . ceilings,” in concluding a
unit’s structural elements mark its boundaries.
Thus, in his view, the unit had two ceilings: the sheetrock ceiling and the concrete slab
above it—the latter representing the unit’s “perimeter . . .
ceiling[]” and upper boundary. He
further testified that the elevations schedule referred to the unit’s “current
head room,” and not its upper boundaries.


General contractor, John Nunnelee,
concurred in Novak’s opinion that the concrete slab is the unit’s upper
boundary. He opined that the term
“perimeter” in the Map’s boundary definition is an adjective that specifies
“what ceiling is being used [as a boundary].”
In his view, this term contemplates the structural elements— the
concrete slab above the sheetrock ceiling.
Nunnelee stated that the sheetrock ceiling was finished material, not a
durable, permanent structure, and therefore not a boundary. He also rejected the elevations in the
schedule as boundaries, noting they do not match the unit’s actual
measurements.

Testifying as an expert, Rabichev
stated the structural perimeter elements define a unit’s boundaries. Noting the original plans call for a “furred”
ceiling — a lower ceiling below the primary ceiling, he said “[v]irtually every
single time” he has been involved in renovating a unit with a false ceiling, it
was removed.

The Trial
Court’s Decision

The trial court determined, after
considering the evidence presented by the parties, that the unit’s upper
boundaries are the original sheetrock ceilings, not the concrete slab, and
concluded that the area above these boundaries is common area, upon which
defendants had encroached. In support of
its findings, the court noted “evidence that the approximately two feet of
space above the ceilings on the 24th floor was unique, that is[,] it did not
exist in the units on the lower floors,” and “portions of the original plans in
evidence [which] show that the space above the ceilings on the 24th floor [was]
intentionally designed to accommodate the heating and ventilation ducting, as
well as other utility piping, wiring, etc.”
The trial court set the unit’s upper boundaries in accordance with the
elevations schedule, with ceiling A at 8.3 feet and ceiling B at 7.5 feet; and
found the space above these ceilings was common area, “whether located below or
above the currently existing ceiling.”

B. Analysis

As the trial court admitted
extrinsic evidence to aid in interpreting the CC&Rs, we must uphold any
reasonable construction supported by substantial evidence. (See Tesoro
del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619,
636.)href="#_ftn15" name="_ftnref15" title="">[15]

1.
The Trial Court Properly
Concluded That The Space Above the Original Sheetrock Ceilings in Unit 24D
is Common Area.



The Map’s boundary definition may
reasonably be construed in accordance with the trial court’s conclusion setting
the interior surfaces of the unit’s sheetrock ceilings as its upper
boundaries. Defendants argue that in
referring to the unit’s “perimeter . . . ceilings,” the Map
identifies the boundaries as the outer, structural elements, but it was not
unreasonable for the trial court to conclude this language refers simply to
“ceilings,” as that term is commonly understood. Lending further credence to this construction
is the Map’s reference to the elevations schedule in defining the
boundaries. The schedule reasonably
refers to the height of the sheetrock ceilings and not the concrete slab.

In addition, the court’s
construction is supported by substantial evidence, namely, Kearney’s testimony,
photographs of the ceiling space and the original building plans. Evidence the lower floors have no space above
ceiling A and only a 9-to-12-inch space above ceiling B also suggests 24th
floor units were not intended to include additional space.

Defendants attack Kearney,
contending his testimony does not constitute substantial evidence for several
reasons, none of which has merit. First,
they characterize as “preposterous” testimony that the ceiling space could be
used to run conduits, but they fail to provide record support for the ambiguous
reasoning supporting their contention.
In addition, defendants erroneously contend Kearney admitted the
architect would have drafted a reflected ceiling plan to indicate an intent to
reserve the ceiling space for future use.
Kearney simply agreed: “[It]
would be part of the plans, if one was
drawn . . . .”href="#_ftn16"
name="_ftnref16" title="">[16]

Second, defendants argue that
Kearney’s testimony regarding the intended use of the ceiling space “lacks any
substantiality” because he misread the notation on plan M-7, which they contend
is an instruction to run a particular pipe (“AL1”), not “all pipe,” in the
furred ceiling space. Kearney’s
testimony at trial regarding this notation was inconsistent, but his
conclusions did not turn on this distinction.
Defendants contend, in any event, that plan M-7’s notation cannot be
construed to refer to the ceiling space above the 24th floor because Kearney
admitted the 24th floor was not “typical.”
Defendants fail to note testimony in which Kearney acknowledged that
plan M-6 identifies only floors 3 through 23 as “typical” floors but concluded,
nevertheless, that the 24th floor is “the top typical floor” within the meaning
of the notation on plan M-7.

Last, defendants identify purported
inconsistencies in Kearney’s attempt to reconcile the ceiling height indicated
in the original plans (8.5 feet) with the elevations schedule.> We do not agree that the alleged inconsistencies
would preclude a reasonable factfinder from relying on his opinion.href="#_ftn17" name="_ftnref17" title="">[17]


Defendants assert a number of
additional arguments in support of their claim of error, which we find equally
unavailing. First, they cite
“[g]enerally accepted authorities and industry standards” that purportedly
construe the CC&R language, “interior surfaces of the perimeter
. . . ceiling . . . ,” to refer to the structural elements
of the building, i.e., the concrete slab above the unit. The language defendants cite from Miller
& Starr does not establish the unit’s structural elements as its
boundaries. Moreover, defendants’
reliance upon the text of the Uniform Common Interest Ownership Act (Act) is
unpersuasive, as they have not provided authority or competent evidence establishing
that the Act constitutes a “generally accepted authorit[y],” reflects the
industry standard, or otherwise compels us to alter our conclusion. They simply quote from it, with no analysis
of its application here.href="#_ftn18"
name="_ftnref18" title="">[18] The question before us, in any case, is
whether the trial court’s construction of the CC&Rs is reasonable and
supported by substantial evidence, not whether there are other reasonable
constructions and conflicting evidence.

Defendants also maintain that the
unit would violate the California building code if the original ceilings are
deemed its upper boundaries, noting the CC&Rs may not be interpreted in a
way that renders them unlawful.
Specifically, they argue that the Tower is a Type 1 concrete structure,
which is required by the building code to have at least a one-hour fire
rating. They assert that this
requirement presents no problem if the concrete slab is deemed the boundary
because “interior non-load bearing partitions within [a] unit” are exempted,
but if the original sheetrock ceilings are deemed the boundaries, they would
violate this requirement. Defendants
fail to submit evidence that the Tower constitutes a Type 1 structure or expert
testimony discussing the building code’s requirements in these circumstances,
which we believe is essential to establish their contentions. Thus, defendants have not provided
substantial evidence supporting their contention, and the trial court
reasonably rejected it.

In addition, defendants assert a
policy argument, contending: “Defining
boundaries by easily damaged or modified elements, like wall partitions or
‘furred’ ceilings makes no sense, as it would allow the ‘existing physical
boundaries,’ . . . to vary from unit to unit and to be moved,
modified or removed altogether, thereby introducing uncertainty and inviting
boundary disputes . . . .”
Defendants fail to recognize that if the existing ceilings’ interior
surfaces are deemed the boundaries, their exterior surfaces are part of the
common area, and are not subject to modification or removal absent Board
approval.

Finally, defendants contend it is
unreasonable to construe the furred ceiling space as common area, as this would
violate Article II, section 2 of the CC&Rs, which states that all owners
shall have a “non-exclusive easement of use . . . to . . .
the Common Area,” since this space “has no possible common access.” Defendants do not provide record citations
establishing this fact, and we do not find this contention persuasive in any
case. Several items specifically identified
in the Map as common area have no common access, and there is no dispute that
the concrete slab, which abuts the ceiling space and also has no common access,
is common area.href="#_ftn19" name="_ftnref19"
title="">[19]

2. The Specific Boundaries Identified
by the Trial Court

Although we conclude the trial court
reasonably relied upon the elevations schedule in finding the unit’s original
ceilings mark its upper boundaries, we agree with defendants that the trial
court’s literal adoption of these elevations as the unit’s upper boundaries was
unreasonable in light of the evidence in the record. We note at the outset that the Map
contemplates variances between the schedule’s elevations and the units’ actual
measurements, and provides that in cases where such variances exist, the unit’s
physical boundaries control, “rather than the metes and bounds expressed
herein.” In other words, although the
schedule may reasonably be construed to approximate the unit’s upper
boundaries, it is unreasonable to set the boundaries in accordance with these
elevations to the extent they conflict with the actual height of the unit’s
original ceilings.

At oral argument, defendants
maintained, and the Association conceded, that the only evidence in the record
of the actual height of ceiling A, as originally constructed, is Rabichev’s
testimony that he measured this ceiling at 8 feet, 7 inches. As the sole evidence of the actual height of
ceiling A conflicts with “the metes and bounds” expressed in the elevations
schedule for this ceiling (8 feet, 3.6 inches), the physical boundaries
control. The trial court therefore erred
in setting the upper boundary of the portion of the unit bordered by ceiling A
in accordance with the elevations schedule, rather than this ceiling’s actual height. As the record unambiguously establishes the
actual height of ceiling A, and therefore the upper boundary of this portion of
the unit, at 8 feet, 7 inches, we modify the judgment accordingly, and need not
remand the matter to the trial court for further proceedings on this issue.

Unlike ceiling A, the parties are
unable to cite any evidence in the record that ceiling B was originally higher
than the elevation listed in the schedule for that ceiling, 7.5 feet. As defendants have not demonstrated that the
actual height of ceiling B, as originally constructed, conflicts with the
elevation listed for this ceiling in the schedule, they have failed to
demonstrate that the trial court erred in setting the upper boundary of the
portion of the unit bordered by ceiling B at 7.5 feet.

C. Defendants’ Equitable Defenses

> 1. Laches

Defendants challenge the trial
court’s rejection of their laches defense, finding no substantial evidence the
Board was aware of the ceiling work and encroachment until August 28,
2001. They contend Naganuma’s and Collingwood’s
knowledge and involvement in their renovation must be attributed to the
Association, but provide no analysis or record citations of what Naganuma and
Collingwood knew and when they knew it.
Lacking citations, this argument fails on the merits, as defendants have
not demonstrated error.href="#_ftn20"
name="_ftnref20" title="">[20]

2. Arbitrary and Discriminatory
Enforcement of the CC&Rs

Defendants contend the trial court
committed reversible error in failing to make a finding with regard to its
contention that the Association selectively enforced the CC&Rs. (See Lamden,
supra, 21 Cal.4th at pp. 265-266> [association must show that exercise of
its enforcement power is fair and nondiscriminatory, that it followed its own
standards and procedures before pursuing a remedy, that its procedures are fair
and reasonable, and that its decision was in good faith, reasonable, and not
arbitrary and capricious].) Citing Code
of Civil Procedure section 632, defendants argue that the trial court is
required to explain the legal and factual basis of its decision on all
principal controverted issues. The trial
court’s duty in this regard arises, however, only upon the filing of a written
request specifying the controverted issues on which a statement of decision is requested. (Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 558; see
Code Civ. Proc., § 632.) The record
does not include such a request here. In any event, such an omission constitutes
reversible error only if it is prejudicial.
When the missing finding is reasonably implicit in other findings or
would necessarily have been adverse to the appellant, the omission is
harmless. (McAdams v. McElroy (1976) 62 Cal.App.3d 985 (McAdams); Rojas v. Mitchell (1996)
50 Cal.App.4th 1445, 1450 (Rojas).) In deciding the issues in this case, the
trial court necessarily found the Association was entitled to enforce its
CC&Rs, and the record shows the court’s finding on this point would have
been adverse to defendants in any case.

Defendants argue that failure to
make a finding on a principal controverted issue is reversible error if
substantial evidence supports a finding in their favor and such a finding would
prohibit the judgment. We do not read
their authority so broadly. Compliance
with Code of Civil Procedure section 632 precludes us from implying a finding
in favor of the prevailing party from the judgment itself (Code Civ. Proc.,
§ 634); it does not prevent us from implying findings that necessarily
follow from other findings. (>McAdams, supra, 62 Cal.App.3d at p. 985; Rojas, supra,> 50 Cal.App.4th at p. 1450.)

Defendants appear to contend
substantial evidence does not support an implied finding of fair and
nondiscriminatory enforcement. They
point only to evidence that supports their position, however, and have waived
this argument. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) We observe, in any case, that they have not
shown another instance in which the Board failed to enforce the CC&Rs under
the same circumstances as these, specifically, when owners: (1) removed ceiling A and extended the
living room area and bedroom upward by at least 1.5 feet; and (2) engaged
in other CC&R violations that required litigation.href="#_ftn21" name="_ftnref21" title="">[21] In instances of a single, minor violation,
enforcement may not be worth the time and expense of litigation; when an
owner’s encroachment is extensive and litigation otherwise becomes necessary,
it is not unreasonable to enforce the unit’s boundaries in the same litigation.href="#_ftn22" name="_ftnref22" title="">[22]

In light of our conclusion that
substantial
evidence supports the trial
court’s finding the space above the unit’s original ceilings is common area, we
need not address defendants’ challenge to its finding they failed to submit
their plans for approval, and its rejection of their related waiver and
estoppel defenses.

IV. The
Relief Ordered by the Trial Court

Both sides challenge the relief
ordered by the trial court, with defendants contending it went too far, and the
Association contending it did not go far enough. We review the trial court’s decision denying
injunctive relief, as well as the equitable relief it fashioned, for abuse of
discretion. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771 (>Hirshfield); Ekstrom, supra, 168
Cal.App.4th at p. 1121.) We resolve
all evidentiary conflicts in favor of the judgment and determine whether
the decision “ ‘ “falls within
the permissible range of options set by the legal criteria.” ’ ” (Hirshfield,
at p. 771.)

A. Balancing the Equities

Once the court determines a trespass
has occurred, the court conducts an equitable balancing to determine whether to
enjoin the trespass or whether to award damages instead. (Hirshfield,> supra, 91 Cal.App.4th> at pp. 758-759.) “Overarching the analysis is the principle
that since the defendant is the trespasser, he or she is the wrongdoer; therefore,
‘doubtful cases should be decided in favor of the plaintiff.’ [Citation.]”
(Id. at p. 759.) Nonetheless, “ ‘a court has discretion
to . . . deny removal of an encroachment if it was innocently made
and does not irreparably injure the plaintiff, and where the cost of removal
would greatly exceed the inconvenience to the plaintiff by its
continuance.’ ” (>Id.
at p. 761, italics omitted.)
When the trial court properly denies an injunction requiring removal of
an encroachment, “it has the power in equity to grant the encroacher
affirmative relief by fashioning an interest to protect the encroacher’s use of
the disputed land.” (>Id. at p. 754.)

B. The Association’s Cross-Appeal

The Association contends the trial
court erred in allowing defendants to retain remodeled ceilings that encroach
upon the common area instead of requiring restoration of the original ceilings,
for two reasons. We now turn to these
arguments.

1. The Trial Court’s Findings Do Not
Establish Willful Encroachment.

First, the Association contends the
trial court’s findings of willfulness precluded it from balancing the
equities. (See Hirshfield, supra, 91
Cal.App.4th at p. 759 [encroachment must not be willful or negligent, and
the court should consider the parties’ conduct to decide who is responsible for
the dispute].)href="#_ftn23" name="_ftnref23"
title="">[23] Although the trial court did not specifically
find willfulness, the Association argues the findings in the statement of
decision support this conclusion.

In evaluating this contention, “we
must interpret the judgment so as to make it valid, and construe it with
reference to the law regulating the rights of the parties. [Citation.]”
(Hirshfield, >supra, 91 Cal.App.4th at p. 767;
see People v. McCue (1907) 150 Cal.
195, 198-199 [if findings of fact are reasonably susceptible to a construction
that supports the judgment, they must receive that construction rather than one
that does not]; Green v. Antoine
(1955) 133 Cal.App.2d 269, 275 [liberal construction of findings to support the
judgment].) Thus, on this record, we
begin our analysis with the presumption that the trial court’s findings do not
establish a willful encroachment that precludes balancing the hardships. The
Association has the burden to overcome this presumption. (Denham
v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564 (>Denham).) Moreover, to the extent the
trial court’s findings are ambiguous, we must construe them in favor of
defendants, as the Association did not object to the proposed statement of
decision seeking clarification or a specific finding of willfulness, and indeed
prepared it. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 (>Arceneaux); see Code Civ. Proc.,
§ 634.)href="#_ftn24" name="_ftnref24"
title="">[24]


The Association relies on the
following fin