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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 10/14/2020 TIME: 01:30:00 PM DEPT: 53
JUDICIAL OFFICER PRESIDING: David Brown
CLERK: E. Brown
REPORTER/ERM: A. Gaskins CSR# 13636
BAILIFF/COURT ATTENDANT:
CASE NO: 34-2020-00280867-CU-MC-GDS CASE INIT.DATE: 06/17/2020
CASE TITLE: Hemer vs. Brookfield Homeowners Association, a California corporation
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion for Preliminary Injunction
APPEARANCES
Suzanne Alves, counsel present for plaintiff via Zoom
Cang Le, counsel present for defendant via Zoom
Lynne Hemer, plaintiff via Zoom
Nature of Proceeding: Motion for Preliminary Injunction
TENTATIVE RULING
Effective June 16, 2020 hearings for Department 53 will be held at 1:30 p.m.
Until further notice, NO IN-PERSON APPEARANCES WILL BE PERMITTED. All Civil Law and
Motion hearings will be conducted remotely via CourtCall or Zoom [which includes telephonic
and teleconferencing options]. This will also apply to "Appearance Required" matters. The
Department 53 Zoom ID is: 841 204 6267.
Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this
calendar must comply with the following procedure.
To request oral argument, you must call the Department 53 clerk at (916) 874-7858 and opposing
party by 4:00 p.m. the court day before the hearing. At the time of requesting oral argument, the
requesting party shall leave a voice message to advise the clerk that it has notified the opposing
party of the following: a) its intention to appear and b) that opposing party may appear via Zoom
using the Zoom ID indicated above or by CourtCall. If no request for oral argument is made, the
tentative ruling becomes the final order of the Court.
The hearings will also be live-streamed on the Court's YouTube page for the benefit of the public.
Although the hearings will be live-streamed on the Court's YouTube page, the broadcast will not
be saved/preserved. Thus, if any party wishes to preserve the hearing for future use, a court
reporter will be required. During the COVID-19 emergency, the Court will supply a court reporter
upon request. Any party desiring a court reporter shall so advise the clerk upon request for oral
argument. Unless a fee waiver has been granted, the reporter's fee must be paid to the Court
prior to the hearing. Local Rule 1.12 and Government Code § 68086.
DATE: 10/14/2020 MINUTE ORDER Page 1
DEPT: 53 Calendar No.
CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS
Association, a California corporation
This matter was continued from October 7, 2020, to today's date to permit plaintiff Lynn Hemer to obtain
a better audio connection for the hearing. The Court now republishes the tentative ruling that was
originally posted on October 6, 2020.
Plaintiff Lynn Hemer's ("Plaintiff") motion for preliminary injunction is DENIED.
Plaintiff's request for judicial notice of the pleadings in this action and 2019 California Senate Bill No. 323
is granted.
In this declaratory relief action, Plaintiff, a former director of defendant Brookfield Homeowners
Association (the "HOA" or "Defendant") who was removed by recall in April of 2019, alleges that when
she was a Board member she became aware that the Board was not operating in conformance with the
HOA's governing documents. Plaintiff alleges she observed that the Board did not authorize expending
membership dues to retain legal counsel to pursue disciplinary and legal action against members, she
was not permitted to include items on the agenda for Board meetings, she was not provided with
accurate and complete packets of financial information for review, and Board meeting minutes were
improperly delegated to the HOA's property manager, Angela West. (Hemer Decl. ¶¶ 2-4.) Plaintiff
contends when she raised these issues with the Board she was informed that a petition to recall her
from the Board had been presented and she was subsequently removed. (Hemer Decl. ¶ 5.)
Plaintiff contends that in 2018 and 2019 she made numerous requests of the HOA to review its records.
In reviewing these records Plaintiff contends she learned the HOA did not have a signed agreement with
its legal counsel; that the Board had failed to conduct monthly reviews of the HOA's financial records;
that the Board did not have a current, signed contract with its property manager or a conflict of interest
disclosure; that the Board had permitted its property manager, Ms. West, to issue and sign HOA checks
exceeding $2,000, which was prohibited; that Ms. West signed HOA checks to herself and her company
without a countersignature by a Board member; that the Board allowed one Director, Ning Han, to
remain on the Board although he had only attended a single open meeting and one executive session
between November 2018 and April 2020; and the Board had failed to amend its election procedures as
required by the provisions of the Davis-Stirling Common Interest Development Act ("Davis-Stirling")
effective January 1, 2020. (Hemer Decl. ¶ 6, Exhs. A-G.) Plaintiff contends there was also no annual
election of Directors for the Board in 2019, in violation of the HOA's governing documents. (Hemer Decl.
¶ 8.)
Plaintiff alleges she presented a petition to the HOA requesting a recall election for the HOA's Board
members and a special election to elect a new board. Plaintiff alleges the HOA failed to timely respond
and notice the requested special meeting and, to date, has ignored her petition, which is authorized by
the HOA's governing documents.
Plaintiff, as an individual, filed this action seeking a declaration of rights of herself and other members of
the HOA. Specifically, Plaintiff seeks the following declaratory relief:
a. Members have a right to notice a special meeting to take place by teleconference or videoconference
if BROOKFIELD fails to notice said meeting within twenty days after receipt of a petition requesting
meeting signed by five percent (5%) or more of the membership;
b. BROOKFIELD can schedule and hold a special membership meeting via teleconference or
videoconference as long as at least one Board member is physically present at the physical meeting
location;
c. BROOKFIELD has an obligation to adopt and circulate the election procedures of Civil Code §5100 et
DATE: 10/14/2020 MINUTE ORDER Page 2
DEPT: 53 Calendar No.
CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS
Association, a California corporation
seq.;
d. BROOKFIELD has an obligation to set a date for a concurrent recall and election of Board members
by written ballot in accordance with the provisions of Civil Code §5100 et seq.
e. BROOKFIELD cannot conduct an Annual Election in lieu of the recall election duly sought by five
percent (5%) or more of the membership to recall all sitting members of the Board of Directors;
f. Any successful recall election would effectuate the immediate removal and replacement of the recalled
Director(s) after completion of the vote tally by the independent inspector of elections; and
g. The inspector of elections for the concurrent recall and election of Board members shall be The Ballot
Box, an independent third party, and not an inspector selected by the Board members subject to recall
or their agents, including but not limited to Reliable Association Management and Angius & Terry, LLP,
due to the conflict of interest presented by their actions necessitating this litigation.
By this motion, Plaintiff seeks a preliminary injunction preventing the HOA, its Board of Directors, agents,
and attorneys from:
(1) expending any of the homeowner's associations' funds, whether in the reserve or operating
accounts, for any purpose other than to pay existing debt obligations to vendors and creditors;
(2) initiating any disciplinary action or legal action against any member or on behalf of the Association;
(3) from entering into any contracts, debt obligation or debt instrument, on behalf of the Association
pending the conclusion of trial in this matter; and
(4) issuing checks signed by anyone other than the Association's current Board members.
Legal Standard
"As its name suggests, a preliminary injunction is an order that is sought by a plaintiff prior to a full
adjudication of the merits of its claim[s]. [Citation.]" (White v. Davis (2003) 30 Cal.4th 528, 554.) "The
purpose of such an order 'is to preserve the status quo . . . . It 'does not constitute a final adjudication of
the controversy.' [Citation.]" (Costa Mesa City Employees Assn v. City of Costa Mesa (2012) 209
Cal.App.4th 298, 305.)
"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 (2003) 30 Cal.4th 528, 554 [emphasis added]; see generally Code Civ. Proc. § 426,
subd. (a)(2) [a preliminary injunction "may be granted . . . [w]hen it appears . . . that the commission or
continuance of some act during the litigation would produce . . . great or irreparable injury . . . to a party
to the action].)
"'[T]he extraordinary remedy of injunction' cannot be invoked without showing the likelihood of
irreparable harm. [Citation.]" (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.) The threat of
"irreparable harm" must be imminent. "An injunction cannot issue in a vacuum based on the proponents'
fears about something that may happen in the future.[..i]t must be supported by actual evidence that
there is a realistic prospect that the party enjoined intends to engage in the prohibited activity." (Korean
Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) The
showing must be strong enough to "support the exercise of the rather extraordinary power to restrain the
defendant's actions prior to a trial on the merits." (Tahoe Keys Property Owners' Ass'n v. State Water
DATE: 10/14/2020 MINUTE ORDER Page 3
DEPT: 53 Calendar No.
CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS
Association, a California corporation
Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471.)
"If the threshold requirement of irreparable injury is established, then [the court] must examine two
interrelated factors to determine whether . . . a preliminary injunction should be [issued]: '(1) the
likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to
the parties from issuance or non-issuance of the injunction.' [Citation.]" (Costa Mesa City Employees
Assn., supra, 209 Cal.App.4th at 306 [emphasis added].) The greater the showing on one factor, the
lesser the showing must be on the other. (Butt v. State of California (1992) 4 Cal.4th 668, 678.)
However, a preliminary injunction may not be granted, regardless of the balance of interim harm, unless
it is reasonably probable that the moving party will prevail on the merits. (San Francisco Newspaper
Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442.)
The party seeking injunctive relief bears the burden of showing all elements necessary to support
issuance of a preliminary injunction. (O'Connell v. Super. Ct. (2006) 141 Cal.App.4th 1452, 1481.)
"The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to
minimize the harm which an erroneous interim decision may cause." (IT Corp. v. County of Imperial
(1983) 35 Cal.3d 63, 73.)
Moreover, it bears repeating that courts will deny a preliminary injunction unless there is a reasonable
probability that the plaintiff will be successful in his or her assertion of rights. (Continental Baking Co. v.
Katz (1968) 68 Cal.2d 512, 528.) A preliminary injunction will not be issued simply to prevent the
possibility of some remote future injury. Issuing a preliminary injunction based only on a possibility of
irreparable harm is inconsistent with courts' characterization of injunctive relief as an extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. (Winter
v. NRDC, Inc., (2008) 555 U.S. 7, 22.)
Irreparable Harm
Plaintiff contends the HOA has and continues to violate the rights of HOA members by failing to comply
with Plaintiff's petition and hold a recall election. Plaintiff contends this has allowed the current Board to
remain in power and continue pursuing lien foreclosures for unpaid assessments against members [not
plaintiff] even though a moratorium on foreclosures was issued by the Governor. (Hemer Decl. ¶ 16;
Memorandum at 7:3-17.) Plaintiff contends the Board's violation of member rights to recall and elect
Board members and call special meetings of membership have "intangible, intrinsic and essential worth
but ... have no ascertainable and compensable value." (Memorandum at 8:9-12.) Plaintiff alleges that
"[a]llowing the Board to continue 'business as usual' pending the outcome of trial would render the result
of the trial ineffectual, as the right of those members to continue to sit on the Board is at issue."
(Memorandum at 7:15-17.)
The Court finds that Plaintiff has failed, at this juncture, to meet her burden to demonstrate imminent and
irreparable harm. First, while Plaintiff contends violating member rights to recall and elect Board
members has no compensable value, no evidence is presented in support of this conclusion. Plaintiff
fails to establish that a suit for damages brought by HOA members (such as for breach of fiduciary duty)
would not provide a clear remedy if the Board's violations continue. Injunctions of any kind (even
prohibitory) will rarely be granted where a suit for damages provides a clear remedy. (Thayer Plymouth
Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307; Pacific Decision Sciences Corp v.
Superior Court (2004) 121 Cal.App.4th 1100, 1110.) "An injunction will not issue where 'only money is
involved'" because "there is no threat of irreparable harm, because monetary losses are compensable in
damages." (Rutter Group, Civil Procedure Before Trial, 9:524; Doyka v. Superior Court (1991) 233
Cal.App.3d 1134, 1136.) To obtain a preliminary injunction Plaintiff must demonstrate that monetary
damages would not be an adequate remedy for the alleged wrongdoing. (Code Civ. Proc. § 526(a)(4)
DATE: 10/14/2020 MINUTE ORDER Page 4
DEPT: 53 Calendar No.
CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS
Association, a California corporation
[injunction may be granted (4) When pecuniary compensation would not afford adequate relief.]; Estes v.
Rowland (1993) 14 Cal.App.4th 508, 535 ["There is no right to equitable relief or an equitable remedy
when there is an adequate remedy at law." (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 3,
p. 681 italics in original); Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410
[there must be an injury that "cannot be compensated by an ordinary damage award"].) Plaintiff has
failed to proffer any evidence whatsoever that a suit for money damages would be insufficient.
Second, Plaintiff fails to establish the Board will continue to engage in improper contracting, payments,
and member discipline if not enjoined. Plaintiff's declaration details purported improper conduct taken by
the Board in the past, but fails to establish why she believes the Board's purported violations will
continue. As discussed above, the mere possibility of great or irreparable harm is not sufficient. (Korean
Philadelphia Presbyterian Church, supra, 77 Cal. App. 4th at 1084.) Plaintiff's speculation that the
Board's violations will continue is insufficient. The timing of Plaintiff's actions with respect to this motion
and her allegations also suggests harm is not truly imminent. Specifically, Plaintiff complains of Board
misconduct that occurred in 2018 and 2019, but she did not submit a petition for a recall election until
April 2020, and then attempted to notice her own meeting for June 1, 2020. She did not file this motion
until September of 2020 and did not seek ex parte relief at any time. Moreover, the HOA has presented
evidence that it never rejected Plaintiff's petition for a recall election, but determined it could not proceed
at that time (April of 2020) due to the Governor's shelter-in-place order arising from the COVID-19
pandemic. (West Decl. ¶ 19.) The HOA presents further evidence that it intends to hold the elections in
January of 2021 and has been adopting a timeline of legally required actions preceding the recall
pursuant to Plaintiff's petition. (West Decl.¶ 19.) The foregoing suggests that the HOA is attempting to
comply with Plaintiff's request for a recall election, but that the current circumstances presented by
COVID have resulted in delays.
The general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act
and mandatory if it compels performance of an affirmative act that changes the position of the parties.
Davenport v. Blue Cross of California (1997) 52 Cal. App. 4th 435, 446. Further, it bears repeating that
the purpose of a preliminary injunction is to maintain the status quo. (Costa Mesa City Employees Assn
v. City of Costa Mesa (2012) 209 Cal. App. 4th 298, 305.) Where the preliminary injunction mandates
an affirmative act that changes the status quo, it is scrutinized even more closely for abuse of discretion.
A preliminary mandatory injunction is rarely granted. The granting of a mandatory injunction pending trial
is not permitted except in extreme cases where the right thereto is clearly established and it appears that
irreparable injury will flow from its refusal. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal. App.
4th 1487, 1493; Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal. App. 4th 1178,
1184; Perez v. Hastings College of the Law (1996) 45 Cal. App. 4th 453, 456.) Here, granting Plaintiff's
injunction would disturb the status quo as Plaintiff seeks to eliminate the Board's authority to act in many
areas. Plaintiff seeks a sea-change in the HOA's powers rather than a preservation of the status quo.
The injunction is therefore subject to a heightened standard of review. Plaintiff has failed to meet her
burden under the regular standard of review, and as a result clearly cannot meet her burden under a
heightened standard or review.
Balancing of the Harm
Moreover, even assuming arguendo, that Plaintiff had established imminent irreparable injury, and a
likelihood of success, the balancing of the harm tips in favor of denial of the injunction.
Plaintiff fails to discuss anywhere in her moving papers or supporting evidence how the balance of the
harm tips in her favor. This alone is a sufficient basis upon which the Court could deny the motion; it is
Plaintiff's burden as the moving party to establish all elements are satisfied to grant her requested
injunction. Nonetheless, in opposition, the HOA has presented evidence that if the injunction is granted,
the HOA would be unable to fulfill its obligations under the CC&Rs. The HOA would be unable to collect
DATE: 10/14/2020 MINUTE ORDER Page 5
DEPT: 53 Calendar No.
CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS
Association, a California corporation
unpaid assessments by discipline or litigation, leaving members free to withhold membership dues, and
thereby posing a risk to the HOA's financial viability. The HOA could not maintain or repair dangerous or
other conditions in the common area per the CC&Rs and could not discipline members for creating
nuisances, dangerous conditions, failing to maintain their properties, damaging common areas,
maintaining dangerous animals, or other governing document violations. The HOA contends emergency
repairs and unanticipated health and safety issues would go unattended. (West Decl. ¶¶20-25.)
Accordingly, the Court finds the balance of the harm tips in favor of the HOA. The HOA faces the
possibility of being unable to function and fulfill its obligations under its governing documents, while
Plaintiff would be in the same position she has been since she initiated her petition for a recall election.
Conclusion
The motion for preliminary injunction is DENIED.
Given the Court's ruling, it need not rule on the HOA's objections to evidence.
Defendant's objections to evidence are overruled.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further
notice is required.
COURT RULING
The matter was argued and submitted.
The Court takes this matter under submission.
DATE: 10/14/2020 MINUTE ORDER Page 6
DEPT: 53 Calendar No.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 10/14/2020 TIME: 01:30:00 PM DEPT: 53 JUDICIAL OFFICER PRESIDING: David Brown CLERK: E. Brown REPORTER/ERM: A. Gaskins CSR# 13636 BAILIFF/COURT ATTENDANT: CASE NO: 34-2020-00280867-CU-MC-GDS CASE INIT.DATE: 06/17/2020 CASE TITLE: Hemer vs. Brookfield Homeowners Association, a California corporation CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion for Preliminary Injunction APPEARANCES Suzanne Alves, counsel present for plaintiff via Zoom Cang Le, counsel present for defendant via Zoom Lynne Hemer, plaintiff via Zoom Nature of Proceeding: Motion for Preliminary Injunction TENTATIVE RULING Effective June 16, 2020 hearings for Department 53 will be held at 1:30 p.m. Until further notice, NO IN-PERSON APPEARANCES WILL BE PERMITTED. All Civil Law and Motion hearings will be conducted remotely via CourtCall or Zoom [which includes telephonic and teleconferencing options]. This will also apply to "Appearance Required" matters. The Department 53 Zoom ID is: 841 204 6267. Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure. To request oral argument, you must call the Department 53 clerk at (916) 874-7858 and opposing party by 4:00 p.m. the court day before the hearing. At the time of requesting oral argument, the requesting party shall leave a voice message to advise the clerk that it has notified the opposing party of the following: a) its intention to appear and b) that opposing party may appear via Zoom using the Zoom ID indicated above or by CourtCall. If no request for oral argument is made, the tentative ruling becomes the final order of the Court. The hearings will also be live-streamed on the Court's YouTube page for the benefit of the public. Although the hearings will be live-streamed on the Court's YouTube page, the broadcast will not be saved/preserved. Thus, if any party wishes to preserve the hearing for future use, a court reporter will be required. During the COVID-19 emergency, the Court will supply a court reporter upon request. Any party desiring a court reporter shall so advise the clerk upon request for oral argument. Unless a fee waiver has been granted, the reporter's fee must be paid to the Court prior to the hearing. Local Rule 1.12 and Government Code § 68086. DATE: 10/14/2020 MINUTE ORDER Page 1 DEPT: 53 Calendar No. CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS Association, a California corporation This matter was continued from October 7, 2020, to today's date to permit plaintiff Lynn Hemer to obtain a better audio connection for the hearing. The Court now republishes the tentative ruling that was originally posted on October 6, 2020. Plaintiff Lynn Hemer's ("Plaintiff") motion for preliminary injunction is DENIED. Plaintiff's request for judicial notice of the pleadings in this action and 2019 California Senate Bill No. 323 is granted. In this declaratory relief action, Plaintiff, a former director of defendant Brookfield Homeowners Association (the "HOA" or "Defendant") who was removed by recall in April of 2019, alleges that when she was a Board member she became aware that the Board was not operating in conformance with the HOA's governing documents. Plaintiff alleges she observed that the Board did not authorize expending membership dues to retain legal counsel to pursue disciplinary and legal action against members, she was not permitted to include items on the agenda for Board meetings, she was not provided with accurate and complete packets of financial information for review, and Board meeting minutes were improperly delegated to the HOA's property manager, Angela West. (Hemer Decl. ¶¶ 2-4.) Plaintiff contends when she raised these issues with the Board she was informed that a petition to recall her from the Board had been presented and she was subsequently removed. (Hemer Decl. ¶ 5.) Plaintiff contends that in 2018 and 2019 she made numerous requests of the HOA to review its records. In reviewing these records Plaintiff contends she learned the HOA did not have a signed agreement with its legal counsel; that the Board had failed to conduct monthly reviews of the HOA's financial records; that the Board did not have a current, signed contract with its property manager or a conflict of interest disclosure; that the Board had permitted its property manager, Ms. West, to issue and sign HOA checks exceeding $2,000, which was prohibited; that Ms. West signed HOA checks to herself and her company without a countersignature by a Board member; that the Board allowed one Director, Ning Han, to remain on the Board although he had only attended a single open meeting and one executive session between November 2018 and April 2020; and the Board had failed to amend its election procedures as required by the provisions of the Davis-Stirling Common Interest Development Act ("Davis-Stirling") effective January 1, 2020. (Hemer Decl. ¶ 6, Exhs. A-G.) Plaintiff contends there was also no annual election of Directors for the Board in 2019, in violation of the HOA's governing documents. (Hemer Decl. ¶ 8.) Plaintiff alleges she presented a petition to the HOA requesting a recall election for the HOA's Board members and a special election to elect a new board. Plaintiff alleges the HOA failed to timely respond and notice the requested special meeting and, to date, has ignored her petition, which is authorized by the HOA's governing documents. Plaintiff, as an individual, filed this action seeking a declaration of rights of herself and other members of the HOA. Specifically, Plaintiff seeks the following declaratory relief: a. Members have a right to notice a special meeting to take place by teleconference or videoconference if BROOKFIELD fails to notice said meeting within twenty days after receipt of a petition requesting meeting signed by five percent (5%) or more of the membership; b. BROOKFIELD can schedule and hold a special membership meeting via teleconference or videoconference as long as at least one Board member is physically present at the physical meeting location; c. BROOKFIELD has an obligation to adopt and circulate the election procedures of Civil Code §5100 et DATE: 10/14/2020 MINUTE ORDER Page 2 DEPT: 53 Calendar No. CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS Association, a California corporation seq.; d. BROOKFIELD has an obligation to set a date for a concurrent recall and election of Board members by written ballot in accordance with the provisions of Civil Code §5100 et seq. e. BROOKFIELD cannot conduct an Annual Election in lieu of the recall election duly sought by five percent (5%) or more of the membership to recall all sitting members of the Board of Directors; f. Any successful recall election would effectuate the immediate removal and replacement of the recalled Director(s) after completion of the vote tally by the independent inspector of elections; and g. The inspector of elections for the concurrent recall and election of Board members shall be The Ballot Box, an independent third party, and not an inspector selected by the Board members subject to recall or their agents, including but not limited to Reliable Association Management and Angius & Terry, LLP, due to the conflict of interest presented by their actions necessitating this litigation. By this motion, Plaintiff seeks a preliminary injunction preventing the HOA, its Board of Directors, agents, and attorneys from: (1) expending any of the homeowner's associations' funds, whether in the reserve or operating accounts, for any purpose other than to pay existing debt obligations to vendors and creditors; (2) initiating any disciplinary action or legal action against any member or on behalf of the Association; (3) from entering into any contracts, debt obligation or debt instrument, on behalf of the Association pending the conclusion of trial in this matter; and (4) issuing checks signed by anyone other than the Association's current Board members. Legal Standard "As its name suggests, a preliminary injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits of its claim[s]. [Citation.]" (White v. Davis (2003) 30 Cal.4th 528, 554.) "The purpose of such an order 'is to preserve the status quo . . . . It 'does not constitute a final adjudication of the controversy.' [Citation.]" (Costa Mesa City Employees Assn v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 305.) "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 (2003) 30 Cal.4th 528, 554 [emphasis added]; see generally Code Civ. Proc. § 426, subd. (a)(2) [a preliminary injunction "may be granted . . . [w]hen it appears . . . that the commission or continuance of some act during the litigation would produce . . . great or irreparable injury . . . to a party to the action].) "'[T]he extraordinary remedy of injunction' cannot be invoked without showing the likelihood of irreparable harm. [Citation.]" (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.) The threat of "irreparable harm" must be imminent. "An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future.[..i]t must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity." (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) The showing must be strong enough to "support the exercise of the rather extraordinary power to restrain the defendant's actions prior to a trial on the merits." (Tahoe Keys Property Owners' Ass'n v. State Water DATE: 10/14/2020 MINUTE ORDER Page 3 DEPT: 53 Calendar No. CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS Association, a California corporation Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471.) "If the threshold requirement of irreparable injury is established, then [the court] must examine two interrelated factors to determine whether . . . a preliminary injunction should be [issued]: '(1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction.' [Citation.]" (Costa Mesa City Employees Assn., supra, 209 Cal.App.4th at 306 [emphasis added].) The greater the showing on one factor, the lesser the showing must be on the other. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) However, a preliminary injunction may not be granted, regardless of the balance of interim harm, unless it is reasonably probable that the moving party will prevail on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442.) The party seeking injunctive relief bears the burden of showing all elements necessary to support issuance of a preliminary injunction. (O'Connell v. Super. Ct. (2006) 141 Cal.App.4th 1452, 1481.) "The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause." (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73.) Moreover, it bears repeating that courts will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful in his or her assertion of rights. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) A preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with courts' characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. (Winter v. NRDC, Inc., (2008) 555 U.S. 7, 22.) Irreparable Harm Plaintiff contends the HOA has and continues to violate the rights of HOA members by failing to comply with Plaintiff's petition and hold a recall election. Plaintiff contends this has allowed the current Board to remain in power and continue pursuing lien foreclosures for unpaid assessments against members [not plaintiff] even though a moratorium on foreclosures was issued by the Governor. (Hemer Decl. ¶ 16; Memorandum at 7:3-17.) Plaintiff contends the Board's violation of member rights to recall and elect Board members and call special meetings of membership have "intangible, intrinsic and essential worth but ... have no ascertainable and compensable value." (Memorandum at 8:9-12.) Plaintiff alleges that "[a]llowing the Board to continue 'business as usual' pending the outcome of trial would render the result of the trial ineffectual, as the right of those members to continue to sit on the Board is at issue." (Memorandum at 7:15-17.) The Court finds that Plaintiff has failed, at this juncture, to meet her burden to demonstrate imminent and irreparable harm. First, while Plaintiff contends violating member rights to recall and elect Board members has no compensable value, no evidence is presented in support of this conclusion. Plaintiff fails to establish that a suit for damages brought by HOA members (such as for breach of fiduciary duty) would not provide a clear remedy if the Board's violations continue. Injunctions of any kind (even prohibitory) will rarely be granted where a suit for damages provides a clear remedy. (Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307; Pacific Decision Sciences Corp v. Superior Court (2004) 121 Cal.App.4th 1100, 1110.) "An injunction will not issue where 'only money is involved'" because "there is no threat of irreparable harm, because monetary losses are compensable in damages." (Rutter Group, Civil Procedure Before Trial, 9:524; Doyka v. Superior Court (1991) 233 Cal.App.3d 1134, 1136.) To obtain a preliminary injunction Plaintiff must demonstrate that monetary damages would not be an adequate remedy for the alleged wrongdoing. (Code Civ. Proc. § 526(a)(4) DATE: 10/14/2020 MINUTE ORDER Page 4 DEPT: 53 Calendar No. CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS Association, a California corporation [injunction may be granted (4) When pecuniary compensation would not afford adequate relief.]; Estes v. Rowland (1993) 14 Cal.App.4th 508, 535 ["There is no right to equitable relief or an equitable remedy when there is an adequate remedy at law." (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 3, p. 681 italics in original); Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410 [there must be an injury that "cannot be compensated by an ordinary damage award"].) Plaintiff has failed to proffer any evidence whatsoever that a suit for money damages would be insufficient. Second, Plaintiff fails to establish the Board will continue to engage in improper contracting, payments, and member discipline if not enjoined. Plaintiff's declaration details purported improper conduct taken by the Board in the past, but fails to establish why she believes the Board's purported violations will continue. As discussed above, the mere possibility of great or irreparable harm is not sufficient. (Korean Philadelphia Presbyterian Church, supra, 77 Cal. App. 4th at 1084.) Plaintiff's speculation that the Board's violations will continue is insufficient. The timing of Plaintiff's actions with respect to this motion and her allegations also suggests harm is not truly imminent. Specifically, Plaintiff complains of Board misconduct that occurred in 2018 and 2019, but she did not submit a petition for a recall election until April 2020, and then attempted to notice her own meeting for June 1, 2020. She did not file this motion until September of 2020 and did not seek ex parte relief at any time. Moreover, the HOA has presented evidence that it never rejected Plaintiff's petition for a recall election, but determined it could not proceed at that time (April of 2020) due to the Governor's shelter-in-place order arising from the COVID-19 pandemic. (West Decl. ¶ 19.) The HOA presents further evidence that it intends to hold the elections in January of 2021 and has been adopting a timeline of legally required actions preceding the recall pursuant to Plaintiff's petition. (West Decl.¶ 19.) The foregoing suggests that the HOA is attempting to comply with Plaintiff's request for a recall election, but that the current circumstances presented by COVID have resulted in delays. The general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties. Davenport v. Blue Cross of California (1997) 52 Cal. App. 4th 435, 446. Further, it bears repeating that the purpose of a preliminary injunction is to maintain the status quo. (Costa Mesa City Employees Assn v. City of Costa Mesa (2012) 209 Cal. App. 4th 298, 305.) Where the preliminary injunction mandates an affirmative act that changes the status quo, it is scrutinized even more closely for abuse of discretion. A preliminary mandatory injunction is rarely granted. The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established and it appears that irreparable injury will flow from its refusal. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal. App. 4th 1487, 1493; Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal. App. 4th 1178, 1184; Perez v. Hastings College of the Law (1996) 45 Cal. App. 4th 453, 456.) Here, granting Plaintiff's injunction would disturb the status quo as Plaintiff seeks to eliminate the Board's authority to act in many areas. Plaintiff seeks a sea-change in the HOA's powers rather than a preservation of the status quo. The injunction is therefore subject to a heightened standard of review. Plaintiff has failed to meet her burden under the regular standard of review, and as a result clearly cannot meet her burden under a heightened standard or review. Balancing of the Harm Moreover, even assuming arguendo, that Plaintiff had established imminent irreparable injury, and a likelihood of success, the balancing of the harm tips in favor of denial of the injunction. Plaintiff fails to discuss anywhere in her moving papers or supporting evidence how the balance of the harm tips in her favor. This alone is a sufficient basis upon which the Court could deny the motion; it is Plaintiff's burden as the moving party to establish all elements are satisfied to grant her requested injunction. Nonetheless, in opposition, the HOA has presented evidence that if the injunction is granted, the HOA would be unable to fulfill its obligations under the CC&Rs. The HOA would be unable to collect DATE: 10/14/2020 MINUTE ORDER Page 5 DEPT: 53 Calendar No. CASE TITLE: Hemer vs. Brookfield Homeowners CASE NO: 34-2020-00280867-CU-MC-GDS Association, a California corporation unpaid assessments by discipline or litigation, leaving members free to withhold membership dues, and thereby posing a risk to the HOA's financial viability. The HOA could not maintain or repair dangerous or other conditions in the common area per the CC&Rs and could not discipline members for creating nuisances, dangerous conditions, failing to maintain their properties, damaging common areas, maintaining dangerous animals, or other governing document violations. The HOA contends emergency repairs and unanticipated health and safety issues would go unattended. (West Decl. ¶¶20-25.) Accordingly, the Court finds the balance of the harm tips in favor of the HOA. The HOA faces the possibility of being unable to function and fulfill its obligations under its governing documents, while Plaintiff would be in the same position she has been since she initiated her petition for a recall election. Conclusion The motion for preliminary injunction is DENIED. Given the Court's ruling, it need not rule on the HOA's objections to evidence. Defendant's objections to evidence are overruled. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. COURT RULING The matter was argued and submitted. The Court takes this matter under submission. DATE: 10/14/2020 MINUTE ORDER Page 6 DEPT: 53 Calendar No.