Major v. Miraverde Homeowners AssociationCOUNSEL
(1992)7 Cal.App.4th 618
Ayscough & Marar and Sidney Lanier for Plaintiffs and Appellants.
Kaiser, DeBiaso, Palmer & Lopez and Eric C. Demler for Defendants and Respondents. [7 Cal.App.4th 621]
Plaintiffs sought a preliminary injunction restraining a condominium
homeowners association from enforcing certain rules plaintiffs contended
unreasonably interfered with their right to use the recreational
facilities of the condominium project. The trial court denied an
injunction. We reverse the denial of injunctive relief as to the
Rasmussens. The appeal of Ms. MaJor is dismissed as moot.
Statement of Facts and Proceedings Below
John and Donna Rasmussen, husband and wife, own a condominium unit in
the Miraverde condominium project. The project is managed by the
Miraverde Homeowners Association, Inc. (Association).
The Rasmussens purchased the condominium pursuant to a "Declaration of
Covenants, Conditions and Restrictions" (CC&Rs) whose provisions
are discussed below. The unit was originally occupied by the Rasmussens
and their sons, Keith and Kyle. Ms. Rasmussen's mother, Ethel MaJor,
subsequently moved into the unit. A few years later, the Rasmussens
moved into a new residence and Ms. MaJor remained in the Miraverde
The dispute in this case centers on the right of the Rasmussens to
continue using the recreational facilities of Miraverde, principally the
tennis court, even though they are no longer residents of the
condominium. Miraverde has only one tennis court. After moving from
Miraverde, Ms. Rasmussen and Keith continued to use the court
occasionally, while Kyle played regularly. Ms. MaJor is 82 years old and
senile. She does not play tennis.
In July 1989, the Association made new rules regarding the use of the
tennis court and other common facilities by the Miraverde residents and
others. Rule 1.7 states "non-resident" homeowners are not entitled to
use any Miraverde facilities except as guests of an authorized resident.
Rule 6.4.2 provides only "registered residents" over 18 years of age
may reserve the tennis court and rule 6.4.5 requires a "registered
resident" to be present whenever a guest plays tennis.
The day after it adopted these rules, the Association informed the
Rasmussens they were nonresident homeowners and only entitled to use the
tennis court as guests of an authorized resident. As a result, Ethel
MaJor, whom the Association considered the authorized resident, would
have to personally sign up the Rasmussens and be present during their
use of the tennis court. There was evidence Ms. MaJor, because of her
physical disabilities, could [7 Cal.App.4th 622] not go to the
guard building to sign up the Rasmussens to play tennis or be present
while they played. The Rasmussens failed to follow the new rules and
were denied use of the tennis court. The Association also imposed fines
on the Rasmussens for using the tennis court in violation of the new
The Rasmussens and Ms. MaJor filed a complaint against the Association
and its directors alleging, inter alia, violation of the Unruh Civil
Rights Act, slander of title, and breach of fiduciary duty and seeking
injunctive and declaratory relief. The Rasmussens and Ms. MaJor
requested a temporary restraining order and preliminary injunction
against enforcement of the rules restricting use of the recreational
facilities by nonresident homeowners. The trial court issued a temporary
restraining order against the assessment of fines against the
Rasmussens and set a hearing on the motion for a preliminary injunction.
At the hearing on the preliminary injunction, the parties introduced the
following evidence. The Rasmussens purchased their condominium in 1975.
The Miraverde condominium project contains one tennis court, two
swimming pools, one basketball court, one paddle tennis court, barbecue
facilities, recreation room, and some green belt parking all of which
the CC&R's refer to as common areas. The board of directors approved
the disputed rules effective July 1989. The Association fined the
Rasmussens for using the tennis court in violation of the disputed
rules. The CC&Rs, articles of incorporation, and bylaws were also
admitted into evidence.
At the conclusion of the hearing, the trial court made the following
findings: that the term "resident" means someone who primarily resides
at Miraverde whether they are an owner or a nonowner or a lessee; the
Rasmussens are nonresidents; the rules relating to the use of the tennis
court and other facilities by "nonresidents" are reasonable. The trial
court denied the motion for preliminary injunction and vacated the
temporary restraining order.
The Rasmussens and Ms. MaJor appealed the denial of the preliminary injunction.
I. The Appeal of Ethel MaJor Is Moot.
The complaint of Ethel MaJor alleges, in relevant part, the rules
adopted by the Association with respect to guests' use of the tennis
facilities discriminate against her in the use and enjoyment of her
property on the basis of her [7 Cal.App.4th 623] age and physical
disabilities in violation of the Unruh Civil Rights Act. (Civ. Code, §
51 et seq.) The complaint seeks a preliminary and permanent injunction
against further enforcement of those rules. (Civ. Code, §§ 52 subd.
(c)(3), 52.1, subd. (b).) As noted, the trial court denied a preliminary
injunction and Ms. MaJor appealed.
[1a] While this appeal was pending, two events rendered the appeal moot:
Ms. MaJor suffered a stroke and moved out of Miraverde and the trial
court sustained a demurrer to her Unruh Civil Rights Act cause of action
without leave to amend.
Because Ms. MaJor is no longer a resident of Miraverde there is no
longer any discriminatory action on the part of defendants to be
enjoined. (Cf. Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460,
467 [239 Cal.Rptr. 728].) We recognize Ms. MaJor might recover from her
stroke and might move back into Miraverde thus raising the possibility
the alleged discrimination might be repeated. However, we need not
consider these possibilities because the appeal is moot for a second
As previously noted, while this appeal was pending the trial court
sustained a demurrer to Ms. MaJor's Unruh Civil Rights Act cause of
action. Because the Unruh Civil Rights Act claim was her only basis for a
preliminary injunction, Ms. MaJor's appeal from denial of an injunction
is now moot.
 A preliminary injunction is an interim remedy designed to maintain
the status quo pending a decision on the merits. (Gray v. Bybee (1943) 60 Cal.App.2d 564,
571 [141 P.2d 32].) It is not, in itself, a cause of action. Thus, a
cause of action must exist before injunctive relief may be granted.
(Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164,
168 [125 P.2d 930].) Accordingly, where the complaint fails to state a
cause of action an order granting a preliminary injunction must be
reversed. (Watson v. Santa Carmenita etc. Co. (1943) 58 Cal.App.2d 709, 719 [137 P.2d 757].)
 An appeal from an order denying a preliminary injunction does not
deprive the trial court of jurisdiction to proceed to try the case on
the merits. (Gray v. Bybee, supra, 60 Cal.App.2d at p. 571.) If the
court can try the case on the merits then a fortiori it can determine
the case has no merit by sustaining a demurrer without leave to amend.
In the present case, the trial court having sustained a demurrer without
leave to amend to the only cause of action which might have supported a
preliminary injunction in favor of Ms. MaJor, her appeal from the
denial of a preliminary injunction is moot.
In order to avoid this result the plaintiff may request a stay of trial
court proceedings while the appeal from denial of the preliminary
injunction is [7 Cal.App.4th 624] pending.  Furthermore,
although an order sustaining a demurrer is not appealable (Cohen v.
Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 671 [242 Cal.Rptr. 84]), it is reviewable by petition for writ of mandate (Coulter v. Superior Court (1978) 21 Cal.3d 144,
148 [145 Cal.Rptr. 534, 577 P.2d 669]). We see no reason why such
review could not also encompass the denial of preliminary relief. [1b]
In the present case, plaintiffs, including Ms. MaJor, requested a stay
of proceedings and writ review of the order sustaining the demurrer to
the Unruh Civil Rights Act cause of action. Both requests were denied.
II. The Trial Court Erred in Denying the Plaintiffs a Preliminary
Injunction Against an Ultra Vires Rule Which Prevented the Homeowners'
Use and Enjoyment of the Common Areas of Their Condominium.
 It is within the trial court's sound discretion to grant or deny a
preliminary injunction (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63,
69 [196 Cal.Rptr. 715, 672 P.2d 121].) However, a trial court abuses
that discretion by denying a preliminary injunction where the plaintiffs
establish a "reasonable probability" of success on the merits and that
they will suffer more harm from its denial than the defendant will from
its grant. (Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 264 [235 Cal.Rptr. 788].)
Civil Code section 1353 requires the owner of a project, prior to the
conveyance of any condominium, to record a declaration of restrictions
relating to such project. Under Civil Code section 1354, those
restrictions, where reasonable, are enforceable equitable servitudes and
inure to and bind all condominium owners in the project. (See Ritchey
v. Villa Nueva Condominium Assn. (1978) 81 Cal.App.3d 688,
693-694 [146 Cal.Rptr. 695, 100 A.L.R.3d 231].) The Association and the
Rasmussens do not dispute the validity of the Miraverde condominium's
CC&Rs. The CC&Rs provide in relevant part:
"Article IV, Section 1.
"Every person or entity who is a record owner of a condominium in the
project... shall be a member of the Association. ... Ownership of such
condominium shall be the sole qualification for membership.
"Article IV, Section 2.
"The membership held by any owner of any Condominium shall not be
transferred, pledged or alienated in any way, except upon the sale or [7 Cal.App.4th 625]
encumbrance of such Condominium, and then only to the purchaser or
mortgagee of such Condominium. Any attempt to make a prohibited transfer
"Article VI, Section 2.
"Every member shall have a right and easement of enjoyment in and to the
common area within the properties, and such easement shall be
appurtenant to and shall pass with the title to every assessed
Condominium, subject to the following provisions: ... (b) The right of
the Association to establish uniform rules and regulations pertaining to
the use of the common area and recreational facilities.
"Article VI, Section 3.
"Any member may delegate, ..., his right of enjoyment to the common area
and facilities to the members of his family, his tenants, or contract
purchasers who reside on the property."
As record owners of a Miraverde condominium, the Rasmussens are members
of the Association. This membership is not transferable unless the
Rasmussens were to sell the condominium. There is no evidence in the
record the Rasmussens ever delegated their right to use the common areas
to Ms. MaJor or anyone else.
[6a] The principal issue in this case is whether the Association is
authorized to discriminate between members who reside at Miraverde and
nonresident members, such as the Rasmussens, in the use and enjoyment of
common areas including recreational facilities. The CC&Rs grant
every member of the Association a right and easement of enjoyment in and
to the common areas within the property. (Art. VI, § 2.) These rights
are subject only to the right of the Association to establish uniform
rules and regulations pertaining to a member's use of the common areas
and recreational facilities (Ibid.) The Rasmussens assert the
Association acted without authority in restricting the use of common
areas, including recreational facilities, by members who are not
residents of Miraverde. We agree.
The Association's bylaws, article IV, section 1, grant the Association's
board of directors the power to manage and maintain the common areas
and to make such rules and regulations therefore not inconsistent with
law, the Association's articles of incorporation and its bylaws. The
Association's articles of incorporation, article IV, section 2(a),
require the Association to perform the duties and obligations as set
forth in the CC&Rs. The CC&Rs [7 Cal.App.4th 626] state
that "every member shall have a right and easement of enjoyment in and
to the common area." The legal effect of the CC&Rs is to grant
"every member" the right to use the common areas subject to uniform
rules and regulations. fn. 1
By classifying members into two categories, residents and nonresidents,
the Association created rules that are not uniform as to all members.
Under the Association's rules, a resident member of the Association is
entitled to use the common areas subject only to reasonable restrictions
on time and manner. A nonresident member is not entitled to use the
common areas unless he or she is an authorized guest of a registered
resident. Hence, the Rasmussens are not entitled to use the common
areas, including recreational facilities, unless Ethel MaJor, the
authorized registered resident, reserves the recreational facility and
is personally present during its use. The evidence was undisputed Ethel
MaJor's physical handicap prevented her from reasonably complying with
this rule. Thus, the Rasmussens were denied the use and enjoyment of the
recreational facilities on an equal footing with resident members of
Miraverde, and the trial court so found. The Association's rule became a
de facto termination of the Rasmussens' use of the common areas. The
effect of the Association's rule was to terminate a right originally
granted by the CC&Rs to all members whether resident or not.
Furthermore, the Association's rules exclude the Rasmussens from the
common areas while simultaneously charging them a fee for the common
areas' use and improvements. (Art. VII, § 1.) If the Rasmussens were to
fail to pay their annual or special assessments, the Association would
have the right to charge interest, bring an action at law, or foreclose
the lien upon the condominium. (Art. VIII, § 1.) In return for the
annual or special assessment fees, the Rasmussens, as nonresident
members, would receive nothing. To de facto terminate the Rasmussens'
right would impose a substantial obligation upon the Rasmussens while
imposing no obligation at all on the Association. Such an illusory
agreement would be not enforceable. (See Farnsworth, Contracts (2d. ed.
1990) § 2.13, p. 106 et seq.)
The Association relies on Sunrise Country Club Assn. v. Proud (1987) 190 Cal.App.3d 377,
381-382 [235 Cal.Rptr. 404] for the proposition ownership of a
condominium has no necessary relationship to its use. We do not find
this case persuasive in the matter at hand. In Sunrise Country Club
Assn., the court refused to uphold the prohibition on sale of a
condominium designated for "adults only" to persons having children. The
court recognized an owner [7 Cal.App.4th 627] with children
could comply with the "adults only" restriction because the owner may
own the condominium for investment purposes or for use by less than all
family members (190 Cal.App.3d at p. 383.) It was in that context the
court remarked ownership of a condominium has no necessary relationship
to its use. (Ibid.) This case is distinguishable from the Rasmussens'
case. Whether, in general, there is no necessary connection between
ownership and use, there is a specific connection between ownership and
use in our case. The terms of the CC&Rs link ownership with the use
of the common areas. The Rasmussens' right to use the common areas
comes from being owners of a Miraverde condominium.
 When disputes arise between the homeowners and the homeowners
association, the courts will look to the governing instruments for
guidance in determining whether the association has acted within its
authority. (Thomas & Grogan, Cal. Condominium and Planned
Development Practice (Cont.Ed.Bar 1984) State Regulation of Common
Interest Subdivision Sales, p. 236.) Actions taken in excess of the
association's power are unenforceable and courts have granted injunctive
relief against associations which have exceeded the scope of their
For example, in Spitser v. Kentwood Home Guardians (1972) 24 Cal.App.3d 215,
218 [100 Cal.Rptr. 798], the association assessed the homeowners' fees
to correct a nuisance emanating from the local airport. The CC&Rs
expressly prohibited the use of homeowners' lots in a manner which
constituted a nuisance to the neighborhood and allowed the use of
assessment funds to enforce this restriction. In upholding the lower
court's injunctive relief against the association's assessment of the
homeowners, the court held the association was not authorized or
required to protect Kentwood from nuisances emanating from outside the
area. In Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726
[223 Cal.Rptr. 175], the appellant challenged the association's action
changing setback restrictions set forth in the CC&Rs. The
association was authorized to adopt rules and regulations for the
general welfare of the community. However, the CC&Rs specifically
set forth setback restrictions for the community and provided any change
required approval by two-thirds of the owners. The association
proceeded to change the setback requirements on its own. The court held
the association's actions were invalid because it was not authorized to
enact setback regulations different from those contained in the
Florida courts have adopted a similar approach to challenges directed at rules adopted by the homeowners association:
"When a court is called upon to assess the validity of a rule enacted by
a board of directors, it first determines whether the board acted
within its [7 Cal.App.4th 628] scope of authority and, second,
whether the rule reflects reasoned or arbitrary and capricious decision
making." (Beachwood Villas Condominium v. Poor (Fla.Dist.Ct.App. 1984)
448 So.2d 1143, 1144; see also Note, Judicial Review of Condominium
Rulemaking (1981) 94 Harv. L.Rev. 647, 652-653.)
[6b] In view of the foregoing authorities, we conclude an association
may not exceed the authority granted to it by the CC&Rs. Where the
association exceeds its scope of authority, any rule or decision
resulting from such an ultra vires act is invalid whether or not it is a
"reasonable" response to a particular circumstance. Where a
circumstance arises which is not adequately covered by the CC&Rs,
the remedy is to amend the CC&Rs. The courts have held homeowners
are subject to any reasonable amendment of the CC&Rs properly
adopted (See, e.g., Ritchey v. Villa Nueva Condominium Assn., supra, 81
Cal.App.3d at p. 697.)
For the reasons set forth above, we conclude it is reasonably probable
the Rasmussens will prevail on the merits in establishing the
Association exceeded its authority by excluding nonresident members from
the common areas.
We further find the Rasmussens would suffer a greater harm from denial
of the injunction than the Association would from its grant. Civil Code
section 783 recognizes that ownership of a condominium constitutes a
statutory estate in real property. (See Laguna Royale Owners Assn. v.
Darger (1981) 119 Cal.App.3d 670,
673, fn. 1 [174 Cal.Rptr. 136].) The Rasmussens' purchase of the
condominium vested in them the right to the physical unit as well as a
right to use the common area. To exclude the Rasmussens from the common
area would prevent them from enjoying a significant part of their
The Association asserts the restrictions regarding the use of the common
areas are necessary in order to prevent overcrowding. In view of the
condominium's CC&Rs, the owners of the condominiums were well aware
of the limited facilities available at the Miraverde condominium
project. The owners of the condominiums should not expect anything more
than they bargained for. Furthermore, the Association should be able to
cure any inconvenience or overcrowding with proper rules and
regulations, consistent with the CC&Rs, governing the reasonable
time and manner of use of the recreational facilities. fn. 2 [7 Cal.App.4th 629]
The order denying the preliminary injunction is reversed as to the
Rasmussens, and the matter is remanded to the trial court for further
proceedings not inconsistent with the views expressed herein. The appeal
of Ethel MaJor is dismissed as moot. Each party is to bear its own
costs on appeal.
Lillie, P. J., concurred.
WOODS (Fred), J.
I concur in the judgment only since the majority opinion, in my view,
reaches the correct result but unnecessarily adverts to and inadequately
treats the issue of delegation. By its brevity the approach of the
majority may create confusion for trial courts and litigants in future
cases involving related issues.
The CC&Rs grant any member the right to delegate his right of
enjoyment to the common areas to the members of his family, tenants, or
contract purchasers who reside on the property (art. of incorp., art.
VI, § 3.) Here we do not address the issue whether the member's right
and easement to the common areas is extinguished upon delegation to a
Our decision, of course, is based on the record before us. We note, for
example, the Rasmussens were not seeking to both use the tennis court
themselves and have a tenant or other delegatee use the court.
Consequently the Rasmussens' unit was placing no greater burden on the
Association's facilities than it did when the Rasmussens occupied that
unit and no greater burden than if they still did. As mentioned earlier
(see fn. 1, ante), we need not reach the question whether, under the
CC&Rs, a delegation to a tenant or contract owner of the owner's
right to enjoy common facilities would have the effect of terminating
(or suspending) the owner's personal rights to use those facilities. We
leave this question to the trial court for resolution in the first
instance should new facts be developed on remand.