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Electronically Filed Superior Court of CA County of Contra Costa 4/3/2024 1:32 PM By: M. Macapinlac, Deputy
Jasmine Hale, Califomia Bar No. 229980
Christopher B. Lewis, Califomia Bar No. 317950
BERDING & WEIL LLP
2175 N. Califomia Blvd, Suite 500
Walnut Creek, Califomia 94596
Telephone: 925.838.2090
Facsimile: 925.820.5592 Per local Rule, This case is assigned to
Judge Treat, Charles S, for all purposes.
jhale@berdingweil.com
Clewis@berdingweil.com
Attomeys for Plaintiff SUMMONS ISSUED
BLACKHAWK HOMEOWNERS’ ASSOCIATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 INAND FOR THE COUNTY OF CONTRA COSTA
11
C24-00905
12 BLACKHAWK HOMEOWNERS’ N
ASSOCIATION, a Califomia Non-Profit
13 Mutual Benefit Corporation,
COMPLAINT FOR:
14 Plaintiff,
D BREACH OF COVENANTS,
15 vs. CONDITIONS, AND
RESTRICTIONS;
16 OSWALDO HERNANDEZ, an individual; 2) UNCTIVE RELIEF;
and DOES 1-20, inclusive, 3) DECLARATORY RELIEF; and
17 4) NUISANCE
Defendants.
18 /
19 Plaintiff BLACKHAWK HOMEOWNERS’ ASSOCIATION, a Califomia Non-Profit
20 Mutual Benefit Corporation (hereinafter “PLAINTIFF” or “ASSOCIATION’) alleges as follows:
21 GENERAL ALLEGATIONS
1 ASSOCIATION is, and at all times herein mentioned has been, a Califomia Non-
Profit Mutual Benefit Corporation, duly organized and existing under the laws of the State of
24 Califomia, and is, and was, an owners’ association established in a common interest development
25 as defined in Section 4100 of the Califomia Civil Code.
26 2. At all times herein mentioned, the ASSOCIATION, was, and is now a Califomia
27 corporation duly organized and existing under the laws of the State of Califomia, with its principal
Place of business located in the County of Contra Costa, State of Califomia.
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3. ASSOCIATION is informed and believes, and thereon alleges, that at all times
herein mentioned, Defendant OSWALDO HERNANDEZ and DOES 1 through 20 inclusive,
(hereinafter collectively referred to as “DEFENDANTS?”) is the owner of record of certain real
properties, commonly referred to as 601 Birchwood Court, Danville, Califomia (“SUBJECT
PROPERTY”). A true and correct copy of the SUBJECT PROPERTY’s most current deed is
attached hereto and incorporated
herein as Exhibit 1.
4. ASSOCIATION is informed and believes, and on that basis alleges, that each of
the fictitiously named DEFENDANTS, herein named DOES 1 through 20, inclusive, are unknown
to ASSOCIATION, who therefore sues said DEFENDANTS by such fictitious names, and
10 ASSOCIATION
will amend this complaintto show their true names and capacities when the same
11 have been ascertained.
12 5. ASSOCIATION is informed and believes that each of the fictitiously named
13 DEFENDANTS, herein named DOES 1 through 20, inclusive, are, and at all times herein
14 mentioned were, owners or possessed some ownership interest in the SUBJECT PROPERTY and
15 are therefore responsible for and caused the damages herein alleged.
16 6. PLAINTIFF is a homeowner's association which is govemed by an Amended
17 Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”) recorded on October 14, 1999
18 as Document No. DOC-1999-0271860-00 in the Contra Costa County Recorders Office which
19 Contain equitable servitudes
that benefit and bind all owners and their Lots within its development.
20 A true and correct
copy of the Association’ s CC&Rs is attached hereto and incorporated
herein as
21 Exhibit2
7. ASSOCIATION is informed and believes, and on those grounds alleges that as the
record owner, DEFENDANT is, and at all times relevant, a member of the ASSOCIATION and
24 therefore all Goveming Documents of the ASSOCIATION, and the CC&Rs constitute
25 enforceable equitable servitudes under Califomia Civil Code section 5975, which ensure the
26 benefit
of, and are binding
upon, all owners of any lots or units in the Development, including
the
27 SUBJECT PROPERTY and DEFENDANT.
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8. At all times, and in accordance with the terms and provisions of the CC&Rs,
ASSOCIATION was authorized to perform such acts reasonably necessary to enforce the
ASSOCIATION’s CC&Rs, Bylaws, Rules & Regulations, and Articles of Incorporation
(collectively “GOVERNING DOCUMENTS”). ASSOCIATION is authorized to bring legal
action to enforce its GOVERNING DOCUMENTS pursuant to Califomia Civil Code §§5975,
5980 and the CC&Rs.
9. Included in the CC&Rs is a provision which obligates all owners to maintain their
lots in a manner that meets the standards of the Blackhawk community. Specifically, Article IX
section 9.4.1 of the Declaration provides:
10 Maintenance of Lots. Each Owner shall be responsible for the maintenance, repair
and replacement of his or her Lot and all improvements thereon including
11 landscaping, in a manner consistent with the standards established by the Goveming
Documents and other first class residential subdivisions in Contra Costa County. All
12 landscaping shall be maintained in a neat and orderly condition and shall be inigated.
13 and cultivated as necessary to maintain healthy growth. Any weeds and any diseased.
or dead lawn, trees, ground cover or shrubbery shall be removed and replaced. All
14 lawn areas shall be mowed, and trees and shrubs shall be trimmed to maintain a neat
appearance and promote safe and healthy growth.
15
16 10. Further, the CC&Rs obligates
all owners to submit and receive approval from
17 the Association for any and all exterior alterations to their Lot. Article X, Section 10.1, of
18 the CC&R’s states:
19 Submission of Plans and Specifications. No building, fence, wall, obstruction,
20 balcony, screen, patio cover, tent, awning, carport cover, improvement or other
structures of any kind or any landscaping shall be installed, commenced, erected,
21 painted, or maintained within the Development, and no addition, change, or
alteration of any exterior feature shall be made, until the plans and specifications
showing the nature, kind, shape, color, height, size, materials, and location of the
same shall have been submitted to and approved in writing by the Architectural
Review Committee as to quality of workmanship and design, harmony of extemal
24 design and location in relation to surrounding structures, topography, and finished
grade elevation. The foregoing shall not apply to improvements made or constructed
25 by or on behalf of the Association.
26 11 The GOVERNING DOCUMENTS, and in particular Section 5.13 of
27 || ASSOCIATION’ s CC&Rs require each owner to store their trash and garbage containers in an
28 enclosed area out of view from persons outside the Lot, except when placed on the street for
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collection. ArticleV, Section 5.13 states in relevant part:
Garbage and recycling containers shall be located in an appropriate enclosed area upon.
each Lot and concealed from view of any person outside the Lot, except when placed on
the street the evening before or the day of scheduled pick up.
12. The ASSOCIATION’ S GOVERNING DOCUMENTS, specifically, Article V,
Section 5.5 prohibits any Lot owner from operating any business from their Lot except those
expressly penmitted
by applicable law. ArticleV, Section 5.5 states in relevant part:
Restriction on Business. No business of any kind shall be established, maintained,
Operated, permitted, or conducted within the Blackhawk Development except (i) such
professional and administrative occupations as may be permitted by applicable
10 govemmental ordinances, provided that there shall be no extemal evidence thereof; and
(ii) certain facilities to the extent specifically authorized
by statute. Extemal evidence may
11 include, but is not limited to, signs, the presence of employees, business traffic including
clients, vendors or delivery services.
12
13 13. Starting in or about 2020, DEFENDANT was notified that he was in violation of
14 the ASSOCIATION s GOVERNING DOCUMENTS, specifically Sections 5.5, 5.13, and 10.1 of
15 the CC&Rs, by failing to properly store his trash and recycling containers, failing to obtain prior
16 architectural approval for his front yard landscaping, not using approvable materials for his front
17 yard landscaping, and refrain from operating a business from the SUBJECT PROPERTY and
18 showing extemal evidence thereof. On September28, 2020, the ASSOCIATION noticed and held
19 a disciplinary hearing to discuss DEFENDANT’s violations. A true and correct copy of the
20 Association’ s violation hearing results notice is attached hereto and incorporated herein as Exhibit
21 23
14. During the September28, 2020 hearing, DEFENDANT did not attend, but the
ASSOCIATION discussed the alleged violations in the absence of DEFENDANT. After the
24 hearing, the ASSOCIATION determined that DEFENDANTS were in violation of the
25 ASSOCIATION’ S GOVERNING DOCUMENTS and imposed an ongoing fine of $250.00 per
26 week on DEFENDANTS in accordance with its authority under Article VII, Section 7.10 of the
27 CC&Rs. The fines currently total $33,250.00.
15. OnJune 6, 2023, DEFENDANTS were again notified that he is in violation of the
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ASSOCIATION’ s GOVERNING DOCUMENTS. Inthe same notice, the ASSOCIATION served
on DEFENDANTS a Request for Resolution pursuant to Civil Code § 5930 and requested that
DEFENDANT agree to submit this dispute to mediation. DEFENDANT did not respond to the
ASSOCIATION’s Request for Resolution so it has been deemed rejected. Attached as
Exhibit 4 to this Complaint is a true and correct copy of the ASSOCIATION’s Certificate of
Compliance.
16. Following the ASSOCIATION S duly noticed hearings and its prior notices of
violation to DEFENDENTS wherein their compliance was requested, on October 3, 2023, the
ASSOCIATION sent another demand for compliance and provided DEFENDANTS with notice
10 that the ASSOCIATION'S Board of Directors had authorized a lawsuit to be filed if their
11 noncompliance continued. Attached as Exhibit 5 to this Complaint is a true and correct copy of
12 the ASSOCIATION ’S October 2023 demand notice.
13 17. On March 8, 2024, the ASSOCIATION sent a final demand for compliance to
14 DEFENDANTS
in a final effort to obtain their compliance without the need to proceed with a
15 lawsuit. The final demand letter provided DEFENDANTS until March 31, 2024 to comply with
16 the GOVERNING DOCUMENTS and remediate their violations. The ASSOCIATION did not
17 receive any response from DEFENDANTS nor did they remedy their violations. Attached as
18 Exhibit 6to this Complaint is a true and correct copy of the ASSOCIATION’s March 8, 2024
19 final demand notice.
20 18. Despite repeated notices, DEFENDANTS have failed, and continues to fail to
21 maintain his lot in a manner consistent with the standards establishedby the GOVERNING
DOCUMENTS, remove the unapproved landscape modifications located on the SUBJECT
PROPERTY, properly store his trash receptacles, and refrain from operating a business out of the
24 SUBJECT PROPERTY.
25 19. In orderto file and prosecute
this action, the ASSOCIATION
has retained the law
26 firm of Berding
& Weil, LLP as its attomey of record and hereby requests an award of reasonable
27 attomeys’ fees.
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FIRST CAUSE OF ACTION
(For Breach
of Covenants, Conditions
and Restrictions)
20. ASSOCIATION incorporates herein the allegations in paragraph 1 through 18 as
though fully set forth herein.
21. Included in the CC&Rs is a provision which obligates all owners to maintain their
lots in a manner that meets the standards of the Blackhawk community. Specifically, Article Ix
Section 9.4.1 of the CC&Rs provides:
“Maintenance of Lots. Each Owner shall be responsible for the maintenance, repair
and replacement of his or her Lot and all improvements thereon including
landscaping, in a manner consistent with the standards established by the Goveming
Documents and other first class residential subdivisions in Contra Costa County. All
10 landscaping shall be maintained in a neat and orderly condition and shall be inigated.
11 and cultivated as necessary to maintain healthy growth. Any weeds and any diseased.
or dead lawn, trees, ground cover or shrubbery shall be removed and replaced. All
12 lawn areas shall be mowed and trees and shrubs shall be trimmed to maintain a neat
appearance and promote safe and healthy growth.”
13
14 22. The CC&Rs also obligates all owners to submit and receive prior written
15 approval from the Association for any and all exterior alterations to their Lot. Article X,
16 Section 10.1, of the CC&R’s states:
17 Submission of Plans and Specifications. No building, fence, wall, obstruction,
18 balcony, screen, patio cover, tent, awning, carport cover, improvement or other
19 structures of any kind or any landscaping shall be installed, commenced, erected,
20 painted, or maintained within the Development, and no addition, change, or
21 alteration of any exterior feature shall be made, until the plans and specifications
showing the nature, kind, shape, color, height, size, materials, and location of the
same shall have been submitted to and approved in writing by the Architectural
24 Review Committee as to quality of workmanship and design, harmony of extemal
25 design and location in relation to surrounding structures, topography, and finished
26 grade elevation. The foregoing shall not apply to improvements made or constructed
27 by or on behalf of the Association.
28 |///
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23. The GOVERNING DOCUMENTS, and in particular Section 5.13 of
ASSOCIATION’s CC&Rs, require each owner to store their trash and garbage containers in an.
enclosed area out of view from persons outside the Lot, except when placed on the street for
collection. Article V, Section 5.13 states in relevant part:
Trash Disposal. Garbage and recycling containers shall be located in an appropriate
enclosed area upon each Lot and concealed from view of any person outside the Lot,
except
when placed on the street the evening before or the day of scheduled pick up.
24. The ASSOCIATION'S GOVERNING DOCUMENTS, specifically Article V,
Section 5.5 prohibits any Lot owner from operating any business from their Lot except those
10 expressly penmitted by applicable law. Article V, Section 5.5 states in relevant part:
11 Restriction on Business. No business of any kind shall be established, maintained,
12 operated, permitted, or conducted within the Blackhawk Development except (i)
13 such professional and administrative occupations as may be permitted by applicable
14 govemmental ordinances, provided that there shall be no extemal evidence thereof;
15 and (ii) certain facilities to the extent specifically authorized by statute. Extemal
16 evidence may include, but is not limited to, signs, the presence of employees,
17 business traffic including clients, vendors or delivery services
18 25. DEFENDANTS continued to violate Sections 5.5, 5.13, 9.4.1, and 10.1 of the
19 CC&Rs even after receiving notice of these violations and participating in a disciplinary hearing.
20 DEFENDANT has violated the CC&Rs by failing to maintain the SUBJECT PROPERTY in
21 accordance with Section 9.4.1 of the CC&Rs, failed to obtain the requisite written approval for his
landscaping modifications in violation of Section 10.1 of the CC&Rs. Further DEFENDANTS have
and continue to fail to properly store his trash receptacles in violation of Section 5.13 and continues
24 to operate a prohibited business from the SUBJECT PROPERTY in violation of Section 5.5 of the
25 CC&Rs.
26 26. Despite numerous requests by the ASSOCIATION that DEFENDANTS properly
27 maintain the SUBJECT PROPERTY, remove the unapproved landscape modifications, propery
store his trash receptacles, and refrain from operating a prohibited business at the SUBJECT
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PROPERTY in accordance with the ASSOCIATION’s GOVERNING DOCUMENTS,
DEFENDANTS have failed
and refused to do the same.
27. The GOVERNING DOCUMENTS and CC&Rs are reasonable and are designed to
foster, promote, and provide for the health, safety, and pleasant appearance of property throughout
the Development. At all times mentioned, ASSOCIATION has performed all acts on its partto be
performed under the GOVERNING DOCUMENTS and CC&Rs.
28. DEFENDANTS’ willful and continued failure to cure DEFENDANTS’ Violations
will cause great and irreparable injury to ASSOCIATION and its members, in that the Development
camnot be fully enjoyed and used by ASSOCIATION's members due to the following:
10 a) The appearance and uniformity of the ASSOCIATION has been and will
11 continue to be substantially diminished by the failure to keep the Property in a condition consistent
12 with the CC&Rs;
13 b) ASSOCIATION will be unable to discharge its obligation to uniformly
14 enforce the terms, conditions, and provisions of the CC&Rs with respect to maintenance of Lots
15 within the Development;
16 ° The other members of ASSOCIATION will continue to be deprived of the
17 higher property values associated with a properly maintained and attractive community;
18 d) Confusion will be created as to the standards to be employed by the
19 ASSOCIATION and its members with respect to maintenance of Lots within the ASSOCIATION;
20 and
21 2) ASSOCIATION will be further damaged in like manner so long as
DEFENDANT’ conduct is permitted to continue.
29. ASSOCIATION has been required to retain counsel to resolve this dispute, the
24 expenditure towards which the Board of Directors has determined to be in furtherance of the
25 ASSOCIATION S purposes, and ASSOCIATION is, therefore, entitled to attomeys’ fees pursuant
26 to ASSOCIATION’ s CC&Rs, Civil Code section 1717 and Civil Code section 5975.
27 30. ASSOCIATION has complied with section Civil Code section 5930 by serving
DEFENDANT with a request to submit the dispute to Altemative Dispute Resolution (“ADR”).
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DEFENDANT failed
and refused to agreeto engage in such mediation within thirty days of
service of such request.
31. DEFENDANTS’ actions violate the GOVERNING DOCUMENTS, specifically
Article IX section 9.4.1 and ArticleV sections 5.5 and 5.13, Article X, section 10.1 of the CC&Rs.
32. The GOVERNING DOCUMENTS are enforceable equitable servitudes pursuant to
Civil Code Section 5975.
33. DEFENDANTS’ willful and continued violations of the GOVERNING
DOCUMENTS, unless enjoined, will cause great and irreparable injury to the ASSOCIATION and
its members
for the reasons set forth herein.
10 34. The GOVERNING DOCUMENTS, including Section 9.5 of the CC&Rs, vest
11 in ASSOCIATION the absolute discretion to determine whether any maintenance, repair or
12 replacement is necessary on any lot (including the SUBJECT PROPERTY); that Section further
13 provides that where an ownerrefuses to comply with decisions of the Boardof Directors with respect
14 to any such maintenance, repair or replacement within sixty (60) days’ notice thereof,
15 ASSOCIATION may cause such work to be done and to charge the cost thereof to the owner as a
16 reimbursement assessment.
17 35. The GOVERNING DOCUMENTS, including Sections 10.1 and 10.8 of the CC&Rs
18 and Civil Code section 4765, vest in the ASSOCIATION the authority to approve or deny an
19 Owner's architectural application pursuant to the guidelines set forth in the ASSOCIATION’s
20 GOVERNING DOCUMENTS, specifically the Blackhawk Homeowners Association Architectural
21 Standards and Guidelines.
36. The ASSOCIATION has performed all relevant conditions, covenants, and
promises under the CC&RS required to be performed by the ASSOCIATION as a condition to
24 pursuing this enforcement action.
25 37. By reason of the foregoing allegations, the ASSOCIATION has been, and is,
26 damaged
and injured, and will continue to be damaged and injured, so long as DEFENDANTS
27 continue to violate and breach the CC&Rs, according
to proof
at the time of trial.
38. As a direct and proximate result of the DEFENDANTS’ wrongful acts and breaches
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of the CC&Rs as set forth herein, ASSOCIATION
has been required to retain
the services of legal
counsel to prosecute
this action, which is in furtherance of the enforcement of the CC&Rs and other
GOVERNING DOCUMENTS and has thereby incurred and will continue to incur, attomey’ s fees,
costs, and expenses. Califomia Civil Code section 5975(c) provides that, in an actionto enforce the
GOVERNING DOCUMENTS, the prevailing party shall be awarded reasonable attomey’ s fees and
costs.
WHEREFORE, the ASSOCIATION prays for judgment as hereinafter
set forth.
SECOND CAUSE OF ACTION
10 34. The ASSOCIATION incorporates by reference all preceding paragraphs of this
11 Complaint and re-alleges those allegations herein.
12 35. DEFENDANTS, after being notified on multiple occasions, has refused to remedy
13 his violations as set forth in this Complaint and in violation of the CC&Rs Sections 5.5, 5.13, 9.4.1,
14 and 10.1.
15 36. DEFENDANTS’ violations are ongoing, and he has refused to cease such violations
16 of the CC&Rs in the past and future despite reasonable time and opportunity to do so, thereby
17 interfering with and denying the ASSOCIATIONS rights created by the CC&Rs and Califomia
18 law.
19 37. Unless enjoined and restrained by an order of this Court requiring DEFENDANTS
20 to cease and remedy his violations of the GOVERNING DOCUMENTS, DEFENDANTS have and
21 will continue to interfere with the ASSOCIATIONS duties as prescribed by the GOVERNING
DOCUMENTS.
WHEREFORE, ASSOCIATION prays for damages as more fully set forth below.
24 THIRD CAUSE OF ACTION
25 (Dedaratory Relief)
26 38. ASSOCIATION re-alleges and incorporates by reference as though fully set forth
27 herein, the allegations contained
in paragraphs 1 through 37 above.
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39. Pursuantto Califomia Code of Civil Procedure, section 1060:
“[alny person interested
under a written instrument . . . who desires
a declaration of
his or her rights or duties with respect to another, or in respectto, on, over or upon
property . . . may, in casesof actual controversy relating to the legal rightsand duties
of the respective parties, bring an original action . . . in the superior court for a
declaration of his or her rights and duties . . . including a determination of any
question of construction or validity arising under the instrument . . . [T]he court may
make a binding declaration of these rights or duties.”
40. An actual controversy now exists between ASSOCIATION and DEFENDANTS
conceming their respective rights and duties. ASSOCIATION contends that the CC&Rs provisions,
Sections 5.5, 5.13, 9.4.1, and 10.1 regarding
the maintenance of his lot, architectural approval for
10 landscape modifications, garbage disposal, and use of the SUBJECT PROPERTY. ASSOCIATION
11 further contends that pursuant to the CC&Rs each owner is obligated to maintain his Lot, obtain
12 Prior written approval for landscape modifications, properly store his trash receptacles, and refrain
13 from operating a prohibited business from the SUBJECT PROPERTY .
14 41. ASSOCIATION desires a judicial determination and declaration of
15 ASSOCIATION’s and DEFENDANI’s respective rights and duties conceming the above-
16 described violations of the ASSOCIATION GOVERNING DOCUMENTS and whether
17 DEFENDANT is obligated to remove his unapproved landscape modifications. Such a Declaration
18 is necessary and appropriate
at this time so the ASSOCIATION
may ascertain
its rights and duties
19 without being subjected to liability for violation of the CC&Rs. If declaratory relief is not granted,
20 ASSOCIATION
will continue to be harmed by DEFENDANT’ s continual violation of the CC&Rs.
21 FOURTH CAUSE OF ACTION
(Nuisance)
ASSOCIATION incorporates all previous paragraphs of this Complaint as if set forth fully herein.
24 42. DEFENDANTS’ conduct constitutes a Nuisance within the meaning of Civil Code
25 §3479
in that:
26 a) It unreasonably interferes with ASSOCIATION's ability to operate the
27 ASSOCIATION, provide for the health, safety, and welfare of its members;
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b) It casts doubt on the enforceability of the GOVERNING DOCUMENTS
thereby impairing the ASSOCIATION's ability to carry out its obligation to uphold, interpret and
enforce the GOVERNING DOCUMENTS;
° It creates confusion among ASSOCIATION’ s members as to what provisions
of the GOVERNING DOCUMENTS are enforceable and those which are not;
d) It deprives ASSOCIATION’ s members from obtaining the benefits of the
GOVERNING DOCUMENTS.
2) It subjects the ASSOCIATION to suit by other members who claim losses
arising out of the failure to enforce the GOVERNING DOCUMENTS, including the ability to
10 attract buyers orto refinance their homes within the ASSOCIATION.
11 f) It creates a risk of liability to those who might sustain injury on those
12 portions of the common area damaged by DEFENDANTS’ actions;
13 9 It unreasonably interferes with the ability of ASSOCIATION’ s members to
14 use and enjoy their property.
15 43. DEFENDANTS’ above-described violations of the ASSOCIATION’s
16 GOVERNING DOCUMENTS constitutes a Nuisance within the meaning of the CC&Rs at Section
17 5.6 in that such action unreasonably interferes with the rights of ASSOCIATION’ s members, other
18 than DEFENDANT, and deprives the ASSOCIATION and its’ membership of the benefits of
19 landscape control provided for in the GOVERNING DOCUMENTS.
20 44, Unless
and until enjoined and restrained by Order of this Court, DEFENDANI’s
21 conduct will cause great and irreparable injury to ASSOCIATION
and its members for the reasons
stated in the preceding paragraph. ASSOCIATION has no adequate remedy at law to restrain
DEFENDANTS from engaging
in the conduct described above, and causing
the injuries currently
24 being suffered in that an award of money damages does not remedy or stop DEFENDANTS’
25 improper conduct. Further, ASSOCIATION is also unable to ascertain its potential liability if
26 DEFENDANTS are not restrained from continuing to violate the GOVERNING DOCUMENTS.
27 45. A balance of the equities demands that the Court grant ASSOCIATION's request
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Electronically Filed Superior Court of CA County of Contra Costa 4/3/2024 1:32 PM By: M. Macapinlac, Deputy Jasmine Hale, Califomia Bar No. 229980 Christopher B. Lewis, Califomia Bar No. 317950 BERDING & WEIL LLP 2175 N. Califomia Blvd, Suite 500 Walnut Creek, Califomia 94596 Telephone: 925.838.2090 Facsimile: 925.820.5592 Per local Rule, This case is assigned to Judge Treat, Charles S, for all purposes. jhale@berdingweil.com Clewis@berdingweil.com Attomeys for Plaintiff SUMMONS ISSUED BLACKHAWK HOMEOWNERS’ ASSOCIATION SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 INAND FOR THE COUNTY OF CONTRA COSTA 11 C24-00905 12 BLACKHAWK HOMEOWNERS’ N ASSOCIATION, a Califomia Non-Profit 13 Mutual Benefit Corporation, COMPLAINT FOR: 14 Plaintiff, D BREACH OF COVENANTS, 15 vs. CONDITIONS, AND RESTRICTIONS; 16 OSWALDO HERNANDEZ, an individual; 2) UNCTIVE RELIEF; and DOES 1-20, inclusive, 3) DECLARATORY RELIEF; and 17 4) NUISANCE Defendants. 18 / 19 Plaintiff BLACKHAWK HOMEOWNERS’ ASSOCIATION, a Califomia Non-Profit 20 Mutual Benefit Corporation (hereinafter “PLAINTIFF” or “ASSOCIATION’) alleges as follows: 21 GENERAL ALLEGATIONS 1 ASSOCIATION is, and at all times herein mentioned has been, a Califomia Non- Profit Mutual Benefit Corporation, duly organized and existing under the laws of the State of 24 Califomia, and is, and was, an owners’ association established in a common interest development 25 as defined in Section 4100 of the Califomia Civil Code. 26 2. At all times herein mentioned, the ASSOCIATION, was, and is now a Califomia 27 corporation duly organized and existing under the laws of the State of Califomia, with its principal Place of business located in the County of Contra Costa, State of Califomia. “1 BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia 3. ASSOCIATION is informed and believes, and thereon alleges, that at all times herein mentioned, Defendant OSWALDO HERNANDEZ and DOES 1 through 20 inclusive, (hereinafter collectively referred to as “DEFENDANTS?”) is the owner of record of certain real properties, commonly referred to as 601 Birchwood Court, Danville, Califomia (“SUBJECT PROPERTY”). A true and correct copy of the SUBJECT PROPERTY’s most current deed is attached hereto and incorporated herein as Exhibit 1. 4. ASSOCIATION is informed and believes, and on that basis alleges, that each of the fictitiously named DEFENDANTS, herein named DOES 1 through 20, inclusive, are unknown to ASSOCIATION, who therefore sues said DEFENDANTS by such fictitious names, and 10 ASSOCIATION will amend this complaintto show their true names and capacities when the same 11 have been ascertained. 12 5. ASSOCIATION is informed and believes that each of the fictitiously named 13 DEFENDANTS, herein named DOES 1 through 20, inclusive, are, and at all times herein 14 mentioned were, owners or possessed some ownership interest in the SUBJECT PROPERTY and 15 are therefore responsible for and caused the damages herein alleged. 16 6. PLAINTIFF is a homeowner's association which is govemed by an Amended 17 Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”) recorded on October 14, 1999 18 as Document No. DOC-1999-0271860-00 in the Contra Costa County Recorders Office which 19 Contain equitable servitudes that benefit and bind all owners and their Lots within its development. 20 A true and correct copy of the Association’ s CC&Rs is attached hereto and incorporated herein as 21 Exhibit2 7. ASSOCIATION is informed and believes, and on those grounds alleges that as the record owner, DEFENDANT is, and at all times relevant, a member of the ASSOCIATION and 24 therefore all Goveming Documents of the ASSOCIATION, and the CC&Rs constitute 25 enforceable equitable servitudes under Califomia Civil Code section 5975, which ensure the 26 benefit of, and are binding upon, all owners of any lots or units in the Development, including the 27 SUBJECT PROPERTY and DEFENDANT. //1 -2- BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia 8. At all times, and in accordance with the terms and provisions of the CC&Rs, ASSOCIATION was authorized to perform such acts reasonably necessary to enforce the ASSOCIATION’s CC&Rs, Bylaws, Rules & Regulations, and Articles of Incorporation (collectively “GOVERNING DOCUMENTS”). ASSOCIATION is authorized to bring legal action to enforce its GOVERNING DOCUMENTS pursuant to Califomia Civil Code §§5975, 5980 and the CC&Rs. 9. Included in the CC&Rs is a provision which obligates all owners to maintain their lots in a manner that meets the standards of the Blackhawk community. Specifically, Article IX section 9.4.1 of the Declaration provides: 10 Maintenance of Lots. Each Owner shall be responsible for the maintenance, repair and replacement of his or her Lot and all improvements thereon including 11 landscaping, in a manner consistent with the standards established by the Goveming Documents and other first class residential subdivisions in Contra Costa County. All 12 landscaping shall be maintained in a neat and orderly condition and shall be inigated. 13 and cultivated as necessary to maintain healthy growth. Any weeds and any diseased. or dead lawn, trees, ground cover or shrubbery shall be removed and replaced. All 14 lawn areas shall be mowed, and trees and shrubs shall be trimmed to maintain a neat appearance and promote safe and healthy growth. 15 16 10. Further, the CC&Rs obligates all owners to submit and receive approval from 17 the Association for any and all exterior alterations to their Lot. Article X, Section 10.1, of 18 the CC&R’s states: 19 Submission of Plans and Specifications. No building, fence, wall, obstruction, 20 balcony, screen, patio cover, tent, awning, carport cover, improvement or other structures of any kind or any landscaping shall be installed, commenced, erected, 21 painted, or maintained within the Development, and no addition, change, or alteration of any exterior feature shall be made, until the plans and specifications showing the nature, kind, shape, color, height, size, materials, and location of the same shall have been submitted to and approved in writing by the Architectural Review Committee as to quality of workmanship and design, harmony of extemal 24 design and location in relation to surrounding structures, topography, and finished grade elevation. The foregoing shall not apply to improvements made or constructed 25 by or on behalf of the Association. 26 11 The GOVERNING DOCUMENTS, and in particular Section 5.13 of 27 || ASSOCIATION’ s CC&Rs require each owner to store their trash and garbage containers in an 28 enclosed area out of view from persons outside the Lot, except when placed on the street for -3- BERDING & WEIL, LLP COMPLAINT 2175N ‘det California Blvd Suite Crea, Calforia 959050 collection. ArticleV, Section 5.13 states in relevant part: Garbage and recycling containers shall be located in an appropriate enclosed area upon. each Lot and concealed from view of any person outside the Lot, except when placed on the street the evening before or the day of scheduled pick up. 12. The ASSOCIATION’ S GOVERNING DOCUMENTS, specifically, Article V, Section 5.5 prohibits any Lot owner from operating any business from their Lot except those expressly penmitted by applicable law. ArticleV, Section 5.5 states in relevant part: Restriction on Business. No business of any kind shall be established, maintained, Operated, permitted, or conducted within the Blackhawk Development except (i) such professional and administrative occupations as may be permitted by applicable 10 govemmental ordinances, provided that there shall be no extemal evidence thereof; and (ii) certain facilities to the extent specifically authorized by statute. Extemal evidence may 11 include, but is not limited to, signs, the presence of employees, business traffic including clients, vendors or delivery services. 12 13 13. Starting in or about 2020, DEFENDANT was notified that he was in violation of 14 the ASSOCIATION s GOVERNING DOCUMENTS, specifically Sections 5.5, 5.13, and 10.1 of 15 the CC&Rs, by failing to properly store his trash and recycling containers, failing to obtain prior 16 architectural approval for his front yard landscaping, not using approvable materials for his front 17 yard landscaping, and refrain from operating a business from the SUBJECT PROPERTY and 18 showing extemal evidence thereof. On September28, 2020, the ASSOCIATION noticed and held 19 a disciplinary hearing to discuss DEFENDANT’s violations. A true and correct copy of the 20 Association’ s violation hearing results notice is attached hereto and incorporated herein as Exhibit 21 23 14. During the September28, 2020 hearing, DEFENDANT did not attend, but the ASSOCIATION discussed the alleged violations in the absence of DEFENDANT. After the 24 hearing, the ASSOCIATION determined that DEFENDANTS were in violation of the 25 ASSOCIATION’ S GOVERNING DOCUMENTS and imposed an ongoing fine of $250.00 per 26 week on DEFENDANTS in accordance with its authority under Article VII, Section 7.10 of the 27 CC&Rs. The fines currently total $33,250.00. 15. OnJune 6, 2023, DEFENDANTS were again notified that he is in violation of the -4- BERDING & WEIL, LLP COMPLAINT 2175N ‘det California Blvd Suite Crea, Calforia 959050 ASSOCIATION’ s GOVERNING DOCUMENTS. Inthe same notice, the ASSOCIATION served on DEFENDANTS a Request for Resolution pursuant to Civil Code § 5930 and requested that DEFENDANT agree to submit this dispute to mediation. DEFENDANT did not respond to the ASSOCIATION’s Request for Resolution so it has been deemed rejected. Attached as Exhibit 4 to this Complaint is a true and correct copy of the ASSOCIATION’s Certificate of Compliance. 16. Following the ASSOCIATION S duly noticed hearings and its prior notices of violation to DEFENDENTS wherein their compliance was requested, on October 3, 2023, the ASSOCIATION sent another demand for compliance and provided DEFENDANTS with notice 10 that the ASSOCIATION'S Board of Directors had authorized a lawsuit to be filed if their 11 noncompliance continued. Attached as Exhibit 5 to this Complaint is a true and correct copy of 12 the ASSOCIATION ’S October 2023 demand notice. 13 17. On March 8, 2024, the ASSOCIATION sent a final demand for compliance to 14 DEFENDANTS in a final effort to obtain their compliance without the need to proceed with a 15 lawsuit. The final demand letter provided DEFENDANTS until March 31, 2024 to comply with 16 the GOVERNING DOCUMENTS and remediate their violations. The ASSOCIATION did not 17 receive any response from DEFENDANTS nor did they remedy their violations. Attached as 18 Exhibit 6to this Complaint is a true and correct copy of the ASSOCIATION’s March 8, 2024 19 final demand notice. 20 18. Despite repeated notices, DEFENDANTS have failed, and continues to fail to 21 maintain his lot in a manner consistent with the standards establishedby the GOVERNING DOCUMENTS, remove the unapproved landscape modifications located on the SUBJECT PROPERTY, properly store his trash receptacles, and refrain from operating a business out of the 24 SUBJECT PROPERTY. 25 19. In orderto file and prosecute this action, the ASSOCIATION has retained the law 26 firm of Berding & Weil, LLP as its attomey of record and hereby requests an award of reasonable 27 attomeys’ fees. //1 5 BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia FIRST CAUSE OF ACTION (For Breach of Covenants, Conditions and Restrictions) 20. ASSOCIATION incorporates herein the allegations in paragraph 1 through 18 as though fully set forth herein. 21. Included in the CC&Rs is a provision which obligates all owners to maintain their lots in a manner that meets the standards of the Blackhawk community. Specifically, Article Ix Section 9.4.1 of the CC&Rs provides: “Maintenance of Lots. Each Owner shall be responsible for the maintenance, repair and replacement of his or her Lot and all improvements thereon including landscaping, in a manner consistent with the standards established by the Goveming Documents and other first class residential subdivisions in Contra Costa County. All 10 landscaping shall be maintained in a neat and orderly condition and shall be inigated. 11 and cultivated as necessary to maintain healthy growth. Any weeds and any diseased. or dead lawn, trees, ground cover or shrubbery shall be removed and replaced. All 12 lawn areas shall be mowed and trees and shrubs shall be trimmed to maintain a neat appearance and promote safe and healthy growth.” 13 14 22. The CC&Rs also obligates all owners to submit and receive prior written 15 approval from the Association for any and all exterior alterations to their Lot. Article X, 16 Section 10.1, of the CC&R’s states: 17 Submission of Plans and Specifications. No building, fence, wall, obstruction, 18 balcony, screen, patio cover, tent, awning, carport cover, improvement or other 19 structures of any kind or any landscaping shall be installed, commenced, erected, 20 painted, or maintained within the Development, and no addition, change, or 21 alteration of any exterior feature shall be made, until the plans and specifications showing the nature, kind, shape, color, height, size, materials, and location of the same shall have been submitted to and approved in writing by the Architectural 24 Review Committee as to quality of workmanship and design, harmony of extemal 25 design and location in relation to surrounding structures, topography, and finished 26 grade elevation. The foregoing shall not apply to improvements made or constructed 27 by or on behalf of the Association. 28 |/// -6- BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia 23. The GOVERNING DOCUMENTS, and in particular Section 5.13 of ASSOCIATION’s CC&Rs, require each owner to store their trash and garbage containers in an. enclosed area out of view from persons outside the Lot, except when placed on the street for collection. Article V, Section 5.13 states in relevant part: Trash Disposal. Garbage and recycling containers shall be located in an appropriate enclosed area upon each Lot and concealed from view of any person outside the Lot, except when placed on the street the evening before or the day of scheduled pick up. 24. The ASSOCIATION'S GOVERNING DOCUMENTS, specifically Article V, Section 5.5 prohibits any Lot owner from operating any business from their Lot except those 10 expressly penmitted by applicable law. Article V, Section 5.5 states in relevant part: 11 Restriction on Business. No business of any kind shall be established, maintained, 12 operated, permitted, or conducted within the Blackhawk Development except (i) 13 such professional and administrative occupations as may be permitted by applicable 14 govemmental ordinances, provided that there shall be no extemal evidence thereof; 15 and (ii) certain facilities to the extent specifically authorized by statute. Extemal 16 evidence may include, but is not limited to, signs, the presence of employees, 17 business traffic including clients, vendors or delivery services 18 25. DEFENDANTS continued to violate Sections 5.5, 5.13, 9.4.1, and 10.1 of the 19 CC&Rs even after receiving notice of these violations and participating in a disciplinary hearing. 20 DEFENDANT has violated the CC&Rs by failing to maintain the SUBJECT PROPERTY in 21 accordance with Section 9.4.1 of the CC&Rs, failed to obtain the requisite written approval for his landscaping modifications in violation of Section 10.1 of the CC&Rs. Further DEFENDANTS have and continue to fail to properly store his trash receptacles in violation of Section 5.13 and continues 24 to operate a prohibited business from the SUBJECT PROPERTY in violation of Section 5.5 of the 25 CC&Rs. 26 26. Despite numerous requests by the ASSOCIATION that DEFENDANTS properly 27 maintain the SUBJECT PROPERTY, remove the unapproved landscape modifications, propery store his trash receptacles, and refrain from operating a prohibited business at the SUBJECT -7 BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia PROPERTY in accordance with the ASSOCIATION’s GOVERNING DOCUMENTS, DEFENDANTS have failed and refused to do the same. 27. The GOVERNING DOCUMENTS and CC&Rs are reasonable and are designed to foster, promote, and provide for the health, safety, and pleasant appearance of property throughout the Development. At all times mentioned, ASSOCIATION has performed all acts on its partto be performed under the GOVERNING DOCUMENTS and CC&Rs. 28. DEFENDANTS’ willful and continued failure to cure DEFENDANTS’ Violations will cause great and irreparable injury to ASSOCIATION and its members, in that the Development camnot be fully enjoyed and used by ASSOCIATION's members due to the following: 10 a) The appearance and uniformity of the ASSOCIATION has been and will 11 continue to be substantially diminished by the failure to keep the Property in a condition consistent 12 with the CC&Rs; 13 b) ASSOCIATION will be unable to discharge its obligation to uniformly 14 enforce the terms, conditions, and provisions of the CC&Rs with respect to maintenance of Lots 15 within the Development; 16 ° The other members of ASSOCIATION will continue to be deprived of the 17 higher property values associated with a properly maintained and attractive community; 18 d) Confusion will be created as to the standards to be employed by the 19 ASSOCIATION and its members with respect to maintenance of Lots within the ASSOCIATION; 20 and 21 2) ASSOCIATION will be further damaged in like manner so long as DEFENDANT’ conduct is permitted to continue. 29. ASSOCIATION has been required to retain counsel to resolve this dispute, the 24 expenditure towards which the Board of Directors has determined to be in furtherance of the 25 ASSOCIATION S purposes, and ASSOCIATION is, therefore, entitled to attomeys’ fees pursuant 26 to ASSOCIATION’ s CC&Rs, Civil Code section 1717 and Civil Code section 5975. 27 30. ASSOCIATION has complied with section Civil Code section 5930 by serving DEFENDANT with a request to submit the dispute to Altemative Dispute Resolution (“ADR”). -8 BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia DEFENDANT failed and refused to agreeto engage in such mediation within thirty days of service of such request. 31. DEFENDANTS’ actions violate the GOVERNING DOCUMENTS, specifically Article IX section 9.4.1 and ArticleV sections 5.5 and 5.13, Article X, section 10.1 of the CC&Rs. 32. The GOVERNING DOCUMENTS are enforceable equitable servitudes pursuant to Civil Code Section 5975. 33. DEFENDANTS’ willful and continued violations of the GOVERNING DOCUMENTS, unless enjoined, will cause great and irreparable injury to the ASSOCIATION and its members for the reasons set forth herein. 10 34. The GOVERNING DOCUMENTS, including Section 9.5 of the CC&Rs, vest 11 in ASSOCIATION the absolute discretion to determine whether any maintenance, repair or 12 replacement is necessary on any lot (including the SUBJECT PROPERTY); that Section further 13 provides that where an ownerrefuses to comply with decisions of the Boardof Directors with respect 14 to any such maintenance, repair or replacement within sixty (60) days’ notice thereof, 15 ASSOCIATION may cause such work to be done and to charge the cost thereof to the owner as a 16 reimbursement assessment. 17 35. The GOVERNING DOCUMENTS, including Sections 10.1 and 10.8 of the CC&Rs 18 and Civil Code section 4765, vest in the ASSOCIATION the authority to approve or deny an 19 Owner's architectural application pursuant to the guidelines set forth in the ASSOCIATION’s 20 GOVERNING DOCUMENTS, specifically the Blackhawk Homeowners Association Architectural 21 Standards and Guidelines. 36. The ASSOCIATION has performed all relevant conditions, covenants, and promises under the CC&RS required to be performed by the ASSOCIATION as a condition to 24 pursuing this enforcement action. 25 37. By reason of the foregoing allegations, the ASSOCIATION has been, and is, 26 damaged and injured, and will continue to be damaged and injured, so long as DEFENDANTS 27 continue to violate and breach the CC&Rs, according to proof at the time of trial. 38. As a direct and proximate result of the DEFENDANTS’ wrongful acts and breaches -9 BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia of the CC&Rs as set forth herein, ASSOCIATION has been required to retain the services of legal counsel to prosecute this action, which is in furtherance of the enforcement of the CC&Rs and other GOVERNING DOCUMENTS and has thereby incurred and will continue to incur, attomey’ s fees, costs, and expenses. Califomia Civil Code section 5975(c) provides that, in an actionto enforce the GOVERNING DOCUMENTS, the prevailing party shall be awarded reasonable attomey’ s fees and costs. WHEREFORE, the ASSOCIATION prays for judgment as hereinafter set forth. SECOND CAUSE OF ACTION 10 34. The ASSOCIATION incorporates by reference all preceding paragraphs of this 11 Complaint and re-alleges those allegations herein. 12 35. DEFENDANTS, after being notified on multiple occasions, has refused to remedy 13 his violations as set forth in this Complaint and in violation of the CC&Rs Sections 5.5, 5.13, 9.4.1, 14 and 10.1. 15 36. DEFENDANTS’ violations are ongoing, and he has refused to cease such violations 16 of the CC&Rs in the past and future despite reasonable time and opportunity to do so, thereby 17 interfering with and denying the ASSOCIATIONS rights created by the CC&Rs and Califomia 18 law. 19 37. Unless enjoined and restrained by an order of this Court requiring DEFENDANTS 20 to cease and remedy his violations of the GOVERNING DOCUMENTS, DEFENDANTS have and 21 will continue to interfere with the ASSOCIATIONS duties as prescribed by the GOVERNING DOCUMENTS. WHEREFORE, ASSOCIATION prays for damages as more fully set forth below. 24 THIRD CAUSE OF ACTION 25 (Dedaratory Relief) 26 38. ASSOCIATION re-alleges and incorporates by reference as though fully set forth 27 herein, the allegations contained in paragraphs 1 through 37 above. //1 -10 BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia 39. Pursuantto Califomia Code of Civil Procedure, section 1060: “[alny person interested under a written instrument . . . who desires a declaration of his or her rights or duties with respect to another, or in respectto, on, over or upon property . . . may, in casesof actual controversy relating to the legal rightsand duties of the respective parties, bring an original action . . . in the superior court for a declaration of his or her rights and duties . . . including a determination of any question of construction or validity arising under the instrument . . . [T]he court may make a binding declaration of these rights or duties.” 40. An actual controversy now exists between ASSOCIATION and DEFENDANTS conceming their respective rights and duties. ASSOCIATION contends that the CC&Rs provisions, Sections 5.5, 5.13, 9.4.1, and 10.1 regarding the maintenance of his lot, architectural approval for 10 landscape modifications, garbage disposal, and use of the SUBJECT PROPERTY. ASSOCIATION 11 further contends that pursuant to the CC&Rs each owner is obligated to maintain his Lot, obtain 12 Prior written approval for landscape modifications, properly store his trash receptacles, and refrain 13 from operating a prohibited business from the SUBJECT PROPERTY . 14 41. ASSOCIATION desires a judicial determination and declaration of 15 ASSOCIATION’s and DEFENDANI’s respective rights and duties conceming the above- 16 described violations of the ASSOCIATION GOVERNING DOCUMENTS and whether 17 DEFENDANT is obligated to remove his unapproved landscape modifications. Such a Declaration 18 is necessary and appropriate at this time so the ASSOCIATION may ascertain its rights and duties 19 without being subjected to liability for violation of the CC&Rs. If declaratory relief is not granted, 20 ASSOCIATION will continue to be harmed by DEFENDANT’ s continual violation of the CC&Rs. 21 FOURTH CAUSE OF ACTION (Nuisance) ASSOCIATION incorporates all previous paragraphs of this Complaint as if set forth fully herein. 24 42. DEFENDANTS’ conduct constitutes a Nuisance within the meaning of Civil Code 25 §3479 in that: 26 a) It unreasonably interferes with ASSOCIATION's ability to operate the 27 ASSOCIATION, provide for the health, safety, and welfare of its members; -11; BERDING & WEIL, LLP COMPLAINT 2175N California ‘det Blvd Suite959050 Crea, Calforia b) It casts doubt on the enforceability of the GOVERNING DOCUMENTS thereby impairing the ASSOCIATION's ability to carry out its obligation to uphold, interpret and enforce the GOVERNING DOCUMENTS; ° It creates confusion among ASSOCIATION’ s members as to what provisions of the GOVERNING DOCUMENTS are enforceable and those which are not; d) It deprives ASSOCIATION’ s members from obtaining the benefits of the GOVERNING DOCUMENTS. 2) It subjects the ASSOCIATION to suit by other members who claim losses arising out of the failure to enforce the GOVERNING DOCUMENTS, including the ability to 10 attract buyers orto refinance their homes within the ASSOCIATION. 11 f) It creates a risk of liability to those who might sustain injury on those 12 portions of the common area damaged by DEFENDANTS’ actions; 13 9 It unreasonably interferes with the ability of ASSOCIATION’ s members to 14 use and enjoy their property. 15 43. DEFENDANTS’ above-described violations of the ASSOCIATION’s 16 GOVERNING DOCUMENTS constitutes a Nuisance within the meaning of the CC&Rs at Section 17 5.6 in that such action unreasonably interferes with the rights of ASSOCIATION’ s members, other 18 than DEFENDANT, and deprives the ASSOCIATION and its’ membership of the benefits of 19 landscape control provided for in the GOVERNING DOCUMENTS. 20 44, Unless and until enjoined and restrained by Order of this Court, DEFENDANI’s 21 conduct will cause great and irreparable injury to ASSOCIATION and its members for the reasons stated in the preceding paragraph. ASSOCIATION has no adequate remedy at law to restrain DEFENDANTS from engaging in the conduct described above, and causing the injuries currently 24 being suffered in that an award of money damages does not remedy or stop DEFENDANTS’ 25 improper conduct. Further, ASSOCIATION is also unable to ascertain its potential liability if 26 DEFENDANTS are not restrained from continuing to violate the GOVERNING DOCUMENTS. 27 45. A balance of the equities demands that the Court grant ASSOCIATION's request