The opinion
Filed 8/13/21 Sunset Greens Homeowners Assn. v. Spagenski CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SUNSET GREENS HOMEOWNERS D078201
ASSOCIATION,
Plaintiff and Respondent, (Super. Ct. No. 37-2019-
00040082-CU-CO-CTL)
v.
DOUGLAS SPAGENSKI et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed.
Law Office of Elliot Kanter and Elliot Kanter for Defendants and
Appellants.
Epsten, Anne L. Rauch, Trinette S. Sachrison, and Rian W. Jones for
Plaintiff and Respondent.
Homeowners, Douglas and Arden Spagenski, and their son John
Spagenski (collectively, Homeowners) appeal the trial court’s summary
judgment in favor of Sunset Greens Homeowners Association (Association).
The Association sued Homeowners after their German Shepperd, Kato,
attacked neighbors’ dogs within the Association’s community (the
“Community”), injuring both dogs and neighbors in the attacks. The
Association alleged two alternative theories for relief: breach of governing
documents based on the parties’ covenants, conditions, and restrictions
(CC&R’s) and nuisance. The Association asked the trial court to enforce the
Association Board’s decision to remove Kato, to permanently enjoin the
Homeowners from keeping Kato within the Community, and to award
attorney fees and costs.
The trial court granted the Association’s motion for summary judgment
after determining: (1) the Association established that the Homeowners
breached the CC&R’s; (2) the undisputed evidence demonstrated an
aggressive dog within the Community creates a condition interfering with the
comfortable enjoyment of life or property and violations of the applicable
CC&R’s automatically established the existence of a nuisance; and (3) the
CC&R’s vested the Board with the discretion to enforce the CC&R’s, to
declare Kato a nuisance, and to require Kato’s removal from the Community.
The court entered judgment for the Association and permanently enjoined
Kato from living in the Community.
The Homeowners contend summary judgment was not proper because
there are triable issues of material fact regarding whether Kato is an
aggressive dog and whether his training has eliminated the alleged
aggressive tendencies such that he should be allowed to remain within the
Community. We conclude the trial court properly granted summary
judgment because the Association established by undisputed material facts
that the Homeowners violated the CC&R’s, the violations constituted a
nuisance, and the Association was entitled to a permanent injunction.
Therefore, we affirm the judgment.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The CC&R’s
Appellants Douglas and Arden Spagenski are homeowners of
residential properties within the Association’s Community. Their adult son,
appellant John Spagenski, lives in one of their properties in the Community.
The Association homeowners are subject to a recorded declaration of
covenants, conditions, and restrictions (CC&R’s), which are equitable
servitudes that may be enforced by any owner within the Community, the
Association, or both.
The CC&R’s provide in relevant part:
“5.17 Offensive Activity; Nuisances. [Civ. Code[,] § 3479] No one
may engage in any illegal, noxious, or offensive activity in any part of the
Community, or do any act which unreasonably threatens the health, safety
and welfare of other residents of the Community. Nothing shall be done on or
within the Community that may be or may become a nuisance to the
residents of the Community. [¶] . . . [¶]
“5.21 Pets. [Civ. Code[,] § 4715] No one may keep pets or other
animals in violation of the following:
“5.21.1 Owners or residents of the Community may keep up to two (2)
usual and ordinary domestic pets on the Lot subject to the provisions of the
Rules; provided, however, that no Owner or other occupant of a Lot may keep
any pet which interferes with, or has a reasonable likelihood of interfering
with, the rights of any Owner or other occupant of a Lot to the peaceful and
quiet enjoyment of the Lot. In the event the Board determines that any pet
or other animal creates an unreasonable annoyance or nuisance to any
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Owner or other occupant of a Lot, the keeping thereof shall be discontinued
within a reasonable time after such determination.
“5.21.2 No pets or other animals shall be permitted in the Common
Area except as specifically permitted by the Rules, and then only when on a
leash held by a person capable of controlling the animal. [¶] . . . [¶]
“13.1 Right to Enforce; Remedies. [Civ. Code[,] §§ 5850 et seq., 5900
et seq., 5925 et seq.; Corp. Code[,] § 7231] The Association or any Owner
shall have the right to enforce, by any proceeding at law or in equity, all
restrictions, conditions, covenants, reservations, liens and [changes] now or
hereafter imposed by the Governing Documents. Each remedy provided in
this Article, this Restated Declaration and under Applicable Law shall be
considered cumulative and not exclusive.
“13.2 Board Discretion Whether to Enforce. [Corp. Code[,] § 7231]
In deciding whether to take any action to enforce the restrictions, conditions,
covenants, reservations, liens and changes in the Governing Documents, the
Board may exercise its discretion using the business judgment rule of
Corporations Code section 7231.
“13.3 Nuisance. [Civ. Code[,] § 3479] The result of every act or
omission, whereby any provision, condition, restriction, covenant, easement,
or reservation contained in the Governing Documents is violated in whole or
in part, is declared to be and constitute a nuisance, and every remedy allowed
by Applicable Law or equity against a nuisance, either public or private, shall
be applicable against every act or omission or incident resulting in a nuisance
and may be exercised by any Owner and the Association. [¶] . . . [¶]
“13.6 Violation of Applicable Law. Any violation of any Applicable
Law pertaining to the ownership, occupancy or use of any Lot within the
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Community is declared to be a violation of this Restated Declaration and
subject to any or all of the enforcement procedures herein set forth.”
B. Kato’s First Attack and the Association’s Response
Homeowners brought Kato into the Community in August 2018 when
he was three months old. In February 2019, while on a walk, Kato crossed
paths with another resident and her dog, Missy. Kato picked up Missy with
his mouth and shook her. Missy required stitches and antibiotics for her
injuries. Kato also bit and/or scratched Missy’s owner during the attack. The
Humane Society put Kato in home quarantine after this incident for biting
the owner’s hand.1
After the February 2019 attack, the Association sent Homeowners a
notification of violation letter and held an enforcement hearing pursuant to
the Association’s Rules and Regulations. In the Board’s decision, it asked the
Homeowners to comply with the CC&R’s going forward, to ensure Kato was
never off leash, to maintain control of Kato in the Community common areas,
and to pay Missy’s veterinary bills. The Board also notified Homeowners
that “[s]hould there be any further incidents with other animals or people,
the dog could be asked to leave the community.”
1 There is no dispute that Kato injured Missy’s owner. On summary
judgment, Homeowners attempt to create a dispute around this fact through
their declarations, stating the owner “did not mention any scratches or bites
on her hand.” But in an earlier declaration, Douglas Spagenski admitted
that while Missy and her owner were in their residence immediately after
Kato’s attack, he noticed “a small cut” on Missy and “the scratch on [the
owner’s] hand.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1,
21-22 [a party may not defeat summary judgment by means of declaration
testimony that contradicts their prior deposition testimony]; Benavidez v.
San Jose Police Dep’t (1999) 71 Cal.App.4th 853, 863 [the court did not abuse
its discretion in disregarding a witness’s summary judgment declaration
testimony that was “contradictory and mutually exclusive” with their prior
deposition testimony].)
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C. Kato’s Second Attack and the Association’s Response
In May 2019, Kato attacked two other dogs in the Community and
injured another neighbor. Three Community residents were walking by
Homeowners’ residence with their dogs Holly and Gracie. Kato escaped
through a small opening in the Homeowners’ living room window. Kato
rushed at the dogs, grabbed Gracie with his mouth, and shook her violently.
One of Gracie’s owners became entangled in the dogs’ leashes during the
fight, was knocked over by Kato, and sustained injuries. When Gracie’s other
owner kicked Kato, he dropped Gracie, only to begin attacking Holly. Kato
bit Holly repeatedly. When a third resident tried to separate Kato and Holly,
Kato bit her hand. Kato continued to chase and bite Holly until the
Homeowners came out of their house, intervened, and brought Kato under
control. The Humane Society responded to the incident, took a report, and
put Kato on home quarantine for another ten days.
The neighbors took Gracie and Holly to a veterinarian for their injuries.
The veterinarian treated Holly for surface bites. She received antibiotics and
recovered. Gracie’s injuries were more significant. She underwent surgery
for her injuries, but died the day after the attack.
In June 2019, counsel for the Association sent the Homeowners a letter
notifying them of another enforcement hearing and directing them to remove
Kato from the Community pending the hearing. Homeowners did not attend
the hearing, but in July 2019, received the Board’s notice of decision. The
Board determined Kato was a “dangerous, immediate, and unreasonable
infringement or threat to the health, safety or quiet enjoyment of neighboring
owners within the Association” and was a nuisance. The Board ordered Kato
immediately and permanently removed from the Community.
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D. Kato’s Third Attack
In July 2019, Kato attacked another dog, which was walking with a
Community resident. The dog’s owner claimed Kato “saw [her] dog Cora and
began to run aggressively towards Cora and began to attack her, biting Cora
on her thigh and shaking her with his head.” Homeowners did not dispute
the attack itself, but claimed it happened earlier in the year on a walking
trail adjacent to the Community rather than within the Community.
E. The Association’s Lawsuit
In August 2019, the Association sued Homeowners, seeking injunctive
relief for breach of the CC&R’s and nuisance. The trial court issued a
temporary injunction enjoining Homeowners from keeping Kato within the
Community during the pendency of the lawsuit.
The Association moved for summary judgment. The Association
presented evidence that its CC&R’s were valid equitable servitudes,
enforceable as to homeowners who purchased property in the Community
through a permanent injunction. Specifically, it contended that because of
Kato’s attacks on other residents and dogs within the Community,
Homeowners violated Section 5.21.1. They argued that, through the CC&R’s,
the Association’s Board had discretion to determine a violation of Section
5.21.1, and in finding a violation, could require the removal of Kato. Section
13.3 of the CC&R’s provided a broad definition of nuisance, which included a
violation of the governing documents. The Association presented declarations
from other owners who witnessed the attacks and from an insurance agent
for the Association regarding the impact on the Association’s insurance rate
of keeping an aggressive dog within the Community.
In their opposition, Homeowners did not dispute they were subject to
the CC&R’s as owners of property within the Community and they raised no
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issues regarding the validity, enforceability, or interpretation of the CC&R’s.
They presented no legal argument in opposition to the Association’s request
for summary judgment for enforcement based on breach of the CC&R’s,
although they disputed some of the underlying facts surrounding Kato’s
attacks.2 Instead of addressing the enforcement cause of action for breach of
governing documents, they argued “[t]he single issue in this case is whether
Kato is a nuisance such that [the Association] can ban [Homeowners] from
having Kato on the subject property.” They claimed two material disputes of
fact required trial on the issue of nuisance: (1) whether Kato attacked others
because he was “surprised, provoked, and taunted,” and (2) whether he was a
future threat after undergoing training. They also claimed for the first time
that Kato was an “emotional support dog.”
The trial court granted the Association’s motion for summary
judgment. On the first cause of action for breach of the CC&R’s, the court
determined there was no material factual dispute that Kato attacked other
dogs and individuals within the Community “on at least two separate
occasions.”3 The trial court stated, “[g]iven these attacks, it was reasonable
for the Association Board to conclude [Homeowners] violated provisions of the
[CC&R’s].” The court found “no evidence suggesting the Board’s decision was
made in bad faith, or [was] not consistent with the development’s governing
documents.” Based on the undisputed facts, “the Board’s decision was not
2 Namely, they alleged that the July 2019 attack took place in the spring
of 2019, outside of the Community.
3 Because there were material factual disputes around the July 2019
attack on Cora by Kato, the trial court reached its decision considering only
Kato’s February and May 2019 attacks.
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arbitrary, and application of the CC&R provisions referenced above is
rationally related to legitimate health and safety concerns.”
The court determined the question of whether Kato posed a threat of
future harm after his training was not a triable issue of material fact on the
Homeowners’ breach of the CC&R’s. Rather, “[t]his positive development
leaves the Board with a choice between two options. The Board can address
the problem by removing Kato, or address the problem by trusting
[Homeowners] will not let Kato’s aggressive behavior reoccur through
continued training. The Board chose the former: Kato’s removal. It is
undisputed that this decision was made in good faith and in accordance with
the CC&R’s. The Board is vested with discretion, and the Court cannot
override this discretion and second guess this decision.”
On the nuisance cause of action, the court determined that “an
aggressive dog within the development creates a condition injurious to
health, and which interferes with ‘the comfortable enjoyment of life or
property’ for homeowners within the development” under Civil Code section
3479. The court also concluded that because “violations of the applicable
CC&R’s have been established,” the Association established that Kato was a
nuisance as defined in the CC&R’s, which vested the Board with the
discretion to “abat[e] the nuisance.”
II.
DISCUSSION
A. Standard of Review on Summary Judgment
Our review of the trial court’s decision is de novo. (Swigart v. Bruno
(2017) 13 Cal.App.5th 529, 536.) “ ‘ “[W]e assume the role of a trial court and
apply the same rules and standards which govern a trial court’s
determination of a motion for summary judgment.” ’ [Citation.]” (Ibid.)
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“[W]e are not bound by the trial court’s stated reasons for its ruling on the
motion; we review only the trial court’s ruling and not its rationale.” (Gafcon,
Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402.) Nevertheless,
we presume the trial court’s judgment is correct and it is appellants’ burden
to demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564;
Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 423.) Summary
judgment is properly granted if the record demonstrates there is no triable
issue of material fact such that the moving party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c).)
The pleadings determine the issues to be addressed. (City of Morgan
Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121.) A plaintiff moving for
summary judgment “bears the burden of persuasion that ‘each element of’ the
‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no
defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850 (Aguilar).) When a plaintiff has met the initial burden of showing that
each element has been proved, “the burden shifts to the defendant . . . to
show that a triable issue of one or more material facts exists as to that cause
of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)
“ ‘The defendant . . . may not rely upon the mere allegations or denials’
of his ‘pleadings to show that a triable issue of material fact exists but,
instead,’ must ‘set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action or a defense thereto.’ ” (Aguilar,
supra, 25 Cal.4th at p. 849, citing Code Civ. Proc., § 437c, subd. (o)(1).)
“[M]ere speculation and conjecture” are not enough. (LaChapelle v. Toyota
Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981; Brown v. Ransweiler
(2009) 171 Cal.App.4th 516, 525 (Brown) [“ ‘An issue of fact can only be
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created by a conflict of evidence. It is not created by “speculation, conjecture,
imagination or guess work.” [Citation.]’ ”].)
B. No Triable Issues of Material Fact on Homeowners’ Breach of CC&R’s
Homeowners generally contend “[t]here is much dispute between” the
parties about what happened during Kato’s attacks.4 They also argue that
“[t]he trier of fact . . . needs to decide whether or not Kato’s training
eliminated any alleged aggressive tendencies so that Kato can remain within
the association.”5 We are not persuaded.
The Association claims the Homeowners violated Section 5.21.1 of the
CC&R’s, which states, “no Owner or other occupant of a Lot may keep any
pet which interferes with, or has a reasonable likelihood of interfering with,
the rights of any Owner or other occupant of a Lot to the peaceful and quiet
enjoyment of the Lot.” The Association established, through undisputed
4 The Homeowners’ opening brief summarily states there are disputes
about how Kato’s attacks occurred and whether he was provoked. But they
do not provide record references for any such material factual disputes.
(Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406 [“The
court is not required to make an independent search of the record and may
disregard any claims when no reference is furnished”]; In re S.C. (2006) 138
Cal.App.4th 396, 406-407 [“[A]n appellate court need not search through the
record in an effort to discover the point purportedly made[,]” but may “simply
deem the contention to lack foundation and, thus, to be forfeited.
[Citations.]”].)
5 Homeowners do not challenge the trial court’s decision rejecting their
argument that Kato was an emotional support dog. Noting that the lawsuit
did not include “an action for disability discrimination,” the trial court
concluded that the Homeowners were not prohibited from owning a support
dog, only this “single, specific dog that has proved to be overly aggressive and
dangerous.” Having failed to dispute this ruling, they have abandoned it on
appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793 [if a party fails to
provide legal argument and citations to authority on a point, “ ‘the court may
treat it as waived, and pass it without consideration’ ”].)
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evidence, that the CC&R’s are valid and binding on Homeowners. (Pinnacle
Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55
Cal.4th 223, 241 (Pinnacle) [“There appears no question that, under the
Davis-Stirling Act, each owner of a condominium unit either has expressly
consented or is deemed by law to have agreed to the terms in a recorded
declaration”].) Homeowners agree they are subject to the CC&R’s. A validly
enacted restriction is binding on homeowners “unless the restriction is
arbitrary, imposes burdens on the use of lands it affects that substantially
outweigh the restriction’s benefits to the development’s residents, or violates
a fundamental public policy.” (Nahrstedt v. Lakeside Village Condominium
Assn. (1994) 8 Cal.4th 361, 386 (Nahrstedt); see also Civ. Code, § 5975,
subd. (a) [“The covenants and restrictions in the declaration shall be
enforceable equitable servitudes, unless unreasonable . . . .”].) Homeowners
raised no issue with the enforceability of the CC&R’s.
To establish a breach of section 5.21.1 of the CC&R’s, the Association
relied on evidence that Kato attacked other dogs within the Community at
least twice and injured other residents during these attacks.
In the first incident, Kato picked up Missy with his mouth and shook
her. She required stitches and antibiotics to heal. Kato also bit and/or
scratched Missy’s owner’s hand when the owner tried to intervene and
separate the animals. In an earlier declaration, Doug Spagenski conceded
Missy and the owner had cuts after the incident.
In the second incident, witnesses declared that Kato rushed at two
other dogs, Holly and Gracie, grabbing each with his mouth and shaking
them violently. Holly sustained surface bites, but Gracie died from her
injuries. Kato knocked one of the owners over and bit another’s hand. These
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undisputed facts sufficiently show Homeowners, through Kato, interfered
with other residents’ “peaceful and quiet enjoyment” of the Community.
Homeowners surmise that Kato may have been provoked during the
second incident. However, they failed to produce any evidence to support
their speculation that Kato was provoked on this occasion. (Brown, supra,
171 Cal.App.4th at p. 525.) Because the Homeowners did not witness the
beginning of Kato’s attack of Holly and Gracie, they cannot raise a material
factual dispute as to what occurred during the attack before they arrived on
the scene. Even assuming they could raise a dispute as to what occurred, this
would be a question of fact for the Board, not a jury. Section 5.21.1 of the
CC&R’s, provides that the Association Board is vested with the discretion to
determine whether a pet “create[d] an unreasonable annoyance or nuisance
to any Owner or other occupant of a Lot.” There is no dispute that the Board
exercised that discretion and determined Homeowners violated Section
5.21.1.
Homeowners also contend that given Kato’s subsequent training, there
is a dispute as to his future aggressive tendencies; but this question is simply
not material under the CC&R’s. Section 5.21.1 of the CC&R’s provides “that
no Owner or other occupant of a Lot may keep any pet which interferes with,
or has a reasonable likelihood of interfering with,” other residents. We
construe the use of the word “or” in Section 5.21.1 in its ordinary meaning.
(Civ. Code, § 1644; Houge v. Ford (1955) 44 Cal.2d 706, 712 [“In its ordinary
sense, the function of the word ‘or’ is to mark an alternative such as ‘ “either
this or that” ’ [Citations.]”].) Homeowners violated Section 5.21.1 because
Kato has interfered with other residents’ enjoyment within the Community.
The Association Board did not need to also find Kato has a “reasonable
likelihood of interfering with” other residents in the future. Section 13.2 of
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the CC&R’s also expressly grants the Board discretion to enforce a violation
of the CC&R’s, which it did. The CC&R’s—including, but not limited to,
sections 5.21.1 and 13.3—do not require the Board to consider abatement or
the likelihood of future harm in determining whether a breach occurred or in
exercising its discretion to enforce the CC&R’s.
Accordingly, we conclude the Association carried its burden and
established a breach of the CC&R’s. Once the burden shifted under summary
judgment, Homeowners failed to show a material dispute of fact or defense to
their breach. Section 5.21.1 of the CC&R’s mandates, “In the event the Board
determines that any pet . . . creates an unreasonable annoyance or nuisance
to any Owner or other occupant of a Lot, the keeping thereof shall be
discontinued within a reasonable time after such determination.” Because
the Homeowners did not comply with the Board’s direction to remove Kato,
sections 13.1 and 13.3 provide that the Association was entitled to seek
enforcement of the CC&R’s.
Therefore, we conclude the court properly granted summary judgment
as to the Association’s breach of governing documents (enforcement) claim.
C. No Triable Issues of Material Fact on Nuisance Claim
On the nuisance claim, Homeowners again contend there are disputed
material facts as to “whether or not Kato was provoked” or “aggressive,” and
as to “whether or not Kato’s training eliminated any alleged aggressive
tendencies.”
1. The Association Established Kato Was a Nuisance
The Association argued Kato was a nuisance under Civil Code section
3479 and the CC&R’s.
Civil Code section 3479 defines a nuisance, in part, as “an obstruction
to the free use of property, so as to interfere with the comfortable enjoyment
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of life or property . . . .” The statute “requires some sort of conduct, i.e.
intentional and unreasonable, reckless, negligent, or ultrahazardous, that
unreasonably interferes with another’s use and enjoyment of his property.”
(Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 102;
Rest.2d Torts, § 822, com. a [“The invasion may be intentional and
unreasonable. It may be unintentional but caused by negligent or reckless
conduct; or it may result from an abnormally dangerous activity for which
there is strict liability.”]; Rest.2d Torts, § 822, com. j [“a dog known by the
owner to be vicious may create a private nuisance when it interferes with the
use or enjoyment of the land next door, and the owner may be subject to strict
liability because of his knowledge of the dog’s propensities.”].) The
interference must be substantial, such that a reasonable person would be
disturbed by the condition. (San Diego Gas & Electric Co. v. Superior Court
(1996) 13 Cal.4th 893, 937-938 [“[T]he standard is objective: the question is
not whether the particular plaintiff found the invasion unreasonable, but
‘whether reasonable persons generally, looking at the whole situation
impartially and objectively, would consider it unreasonable.’ ”], citing Rest.2d
Torts, § 826, com. c, p. 121.)
The CC&R’s define a “nuisance” as “[t]he result of every act or
omission, whereby any provision, condition, restriction, covenant, easement,
or reservation contained in the Governing Documents is violated in whole or
in part . . . .” Through the CC&R’s, the Association Board is vested with
discretion to determine a violation of the CC&R’s, and thus, to determine
whether a homeowner created a nuisance. (Pinnacle, supra, 55 Cal.4th at
p. 241.)
The Association satisfied its burden on summary judgment and
established that Kato unreasonably and substantially interfered with the
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Association members’ comfortable enjoyment of property under Civil Code
section 3479. The uncontroverted and undisputed evidence the Association
produced through witness declarations established that Kato attacked dogs
and injured other residents on two separate occasions. Homeowners offered
no evidence that Kato was provoked during either attack. Rather, the
undisputed evidence established that Kato was the aggressor. The harm he
created—killing Gracie, injuring Holly and Missy, and injuring other
residents—was objectively substantial and unreasonable.
Kato’s attacks violated Section 5.21.1 of the CC&R’s. The Association’s
Board had the discretion to, and did, find Kato to be a nuisance as defined by
Section 13.3 of the CC&R’s.
2. The Association is Entitled to a Permanent Injunction
Both California law and the CC&R’s provide for injunctive relief to
abate a nuisance. (Civ. Code, § 3501; Code Civ. Proc., § 526; Posey v. Leavitt
(1991) 229 Cal.App.3d 1236, 1243.) But unlike a statutory claim where the
Association would have to establish a justification for a permanent injunction
(Code Civ. Proc., § 526, subd. (a)(1)–(7)), the Association does not need to
establish a likelihood of future harm to obtain a permanent injunction under
the CC&R’s.6
Section 5.21.1 of the CC&R’s states, “[i]n the event the Board
determines that any pet or other animal creates an unreasonable annoyance
6 To permanently enjoin Kato as a nuisance solely under California law,
the risk of future harm would be a question of disputed fact. (In re Firearm
Cases (2005) 126 Cal.App.4th 959, 988, citing Rest.2d Torts, § 821F, com. b,
p. 105 [“ ‘[A] public or a private nuisance may be enjoined because harm is
threatened that would be significant if it occurred . . . .’ ”]; see also
Christensen v. Tucker (1952) 114 Cal.App.2d 554, 562-563 [trier of fact has
discretion in determining whether to grant injunction and may weigh the
relative hardships].)
16
or nuisance to any Owner or other occupant of a lot, the keeping thereof shall
be discontinued within a reasonable time after such determination.” This is
an enforceable restrictive covenant against the Homeowners. (Nahrstedt,
supra, 8 Cal.4th at p. 368.) Because the Homeowners did not voluntarily
comply, the Association sought enforcement of its decision to remove Kato.
Section 13.3 of the CC&R’s provides that “every remedy allowed by
Applicable Law or equity against a nuisance, either public or private, shall be
applicable against every act or omission or incident resulting in a nuisance
and may be exercised by any Owner and the Association.” Homeowners
failed to raise and have thus forfeited any argument that the CC&R’s were
unreasonable or unfairly applied to them.
The Association is thus entitled to enforce the remedy agreed to by the
parties in the CC&R’s through a permanent injunction prohibiting
Homeowners from keeping Kato within the Community. Accordingly, we
affirm summary judgment for the Association.
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D. The Association is Entitled to Appellate Attorney Fees
In its reply brief, the Association correctly contends if it prevails in this
appeal, it is entitled to recover its appellate attorney fees. “ ‘A statute
authorizing an attorney fee award at the trial court level includes appellate
attorney fees unless the statute specifically provides otherwise.’ [Citation.]”
(Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2
Cal.App.5th 252, 265 (Rancho Mirage).) Civil Code section 5975, subdivision
(c) provides, “[i]n an action to enforce the governing documents, the
prevailing party shall be awarded reasonable attorney’s fees and costs.”
“Neither [Civil Code] section 5975, nor any other provision of the Davis-
Stirling Act, precludes recovery of appellate attorney fees by a prevailing
party; hence they are recoverable.” (Rancho Mirage, at p. 265.)
III.
DISPOSITION
The judgment is affirmed. The Association shall recover its costs and
attorney fees on appeal.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
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