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LEXSTAT 12-124 CALIFORNIA FORMS OF PLEADING AND PRACTICE--ANNOTATED 124.

.83 California Forms of Pleading and Practice--Annotated Copyright 2009, Matthew Bender & Company, Inc., a member of the LexisNexis Group. Volume 12: Claim and Delivery thru Consolidation, Severance, and Coordination of Actions-Chs. 119-125 Chapter 124 CONDOMINIUMS AND OTHER COMMON INTEREST DEVELOPMENTS PART IV. FORMS 12-124 California Forms of Pleading and Practice--Annotated 124.83 124.83 Complaint for Preliminary [Code Civ. Proc. 526, 527(a)] and Permanent [Civ. Code 3422] Injunction, Temporary Restraining Order [Code Civ. Proc. 527], and Damages [Civ. Code 3333]--By Owner of Separate Interest [Civ. Code 1351]--To Compel Owner's Association to Approve or Disapprove Proposed Improvements in Conformity With Declaration of Restrictions

[1] FORM Complaint for Preliminary [Code Civ. Proc. 526, 527(a)] and Permanent [Civ. Code 3422] Injunction, Temporary Restraining Order [Code Civ. Proc. 527], and Damages [Civ. Code 3333]--By Owner of Separate Interest [Civ. Code 1351]--To Compel Owner's Association to Approve or Disapprove Proposed Improvements in Conformity With Declaration of Restrictions SUPERIOR COURT OF CALIFORNIA, COUNTY OF ___________________ ______________________ [names], ) Plaintiff, ) vs. ) ______________________ [names], [and DOES I ) NO. _____ through ______________________,] ) COMPLAINT FOR TEMPORARY RESTRAINING Defendant(s). ) ORDER, PRELIMINARY AND PERMANENT IN) JUNCTIONS[, AND DAMAGES] __________________________________________________

Plaintiff alleges: 1. [Capacity of plaintiff. See 124.79[1], Paragraph 1.] 2. [Capacity and residence of defendant association. See 124.79[1], Paragraph 2.] [3. At all times mentioned in this complaint, defendants ___________________ (names) were members of the committee known as ___________________ (name of committee that approved or disapproved improvements, e.g., the Architectural Control Committee). They were appointed by ___________________ (specify, e.g., the Board of Directors of defendant Association) and, at all times mentioned in this complaint, acted as the agents, officers, and employees of defendant Association.] [4. Fictitious name allegations, if appropriate. See 124.78[1], Paragraph 3.]

5. At all times mentioned in this complaint, Defendant Association [and defendants Committee Members] were obligated and empowered by ___________________ [specify portion(s) of governing document requiring approval of proposed improvements, e.g., Article ____________________, Section ____________________] of the Declaration of Restrictions executed on ____________________ [date] and recorded in the Official Records of the County of ___________________, Book ____________________, page ____________________, a copy of which is attached to this complaint as Exhibit "____________________" and made a part of this complaint, to ___________________ [describe duties of defendant(s) as set forth in declaration, e.g., review all plans and specifications for proposed changes in structural and landscaping architecture and design for the development, and to approve only those plans and specifications that comply with the use restrictions set out in Article ____________________, Section ____________________ of the Declaration described above, and that are otherwise compatible with the standards of design, construction, and quality of the development as a whole]. 6. On or about ___________________ [date], in compliance with the Declaration described above, ___________________ [plaintiff or ___________________ (name of separate interest owner whose improvement plaintiff seeks to restrain) submitted to defendant ___________________ [Association or Committee] plans and specifications for ___________________ [describe proposed improvement, e.g., the construction of a two-foot fiberglass addition to the top of the existing fence on the west boundary of that unit located at ___________________ (street address and city), California, owned at all times mentioned in this complaint by ___________________ (name of separate interest owner whose improvement plaintiff seeks to restrain)]. Defendant ___________________ [approved or rejected] the plans and specifications on ___________________ [date]. 7. Defendant's ___________________ [approval or disapproval] of the proposed ___________________ [specify, e.g., fence] was unreasonable, arbitrary, and in bad faith. [8. Furthermore, the ___________________ (approval or disapproval) of the proposed ___________________ (specify, e.g., fence) was in violation of the restrictions contained in Article ____________________, Section ____________________ of the Declaration, which provides, inter alia, that ___________________ (set out restriction alleged to be violated, e.g., no fence shall be constructed that materially obstructs the view of any lot).] 9. The actions described above were undertaken by defendant(s) negligently and carelessly and in breach of their fiduciary duty owed to plaintiff[, and proximately caused damage to plaintiff as hereinafter described]. [10. The actions described above were undertaken by defendant(s) with full knowledge of their breach of the Declaration and in willful, conscious, and reckless disregard for their fiduciary duty owned to plaintiff.] 11. The wrongful conduct of defendant(s), unless and until enjoined and restrained by order of this court, will cause great and irreparable injury to plaintiff in that ___________________ [specify particular facts that will constitute great and irreparable injury, e.g., the view from plaintiff's lot will be substantially obstructed, greatly decreasing plaintiff's enjoyment of his/her property and the value thereof]. 12. A subsequent action for money damages for the wrongful conduct of defendant(s) cannot adequately compensate plaintiff for the injuries ___________________ [currently being suffered or which are threatened] in that ___________________ [allege facts showing that plaintiff's remedy at law is inadequate, e.g., it will be impossible for plaintiff to determine the precise amount of damages that he/she will suffer if defendant's arbitrary conduct is not enjoined and restrained]. [13. ___________________ (Allege facts establishing a basis for a claim for damages as additional relief, if any, e.g., From the commencement of the construction approved by defendant Association on the property of ___________________ (name of separate interest owner whose improvement plaintiff seeks to restrain) through the date of this complaint, plaintiff has suffered annoyance, inconvenience, discomfort, and interference with his/her rightful use and enjoyment of his/her property, constituting damages in the sum of $____________________).] WHEREFORE, plaintiff prays judgment against defendant as follows: 1. For an order requiring defendant(s) to show cause, if any, why they should not be compelled to

___________________ [approve or prevent] the ___________________ [specify, e.g., continued construction of the fence described in the complaint], during the pendency of this action; 2. For a temporary restraining order, a preliminary injunction, and a permanent injunction, all compelling defendant(s) and his/her agents, servants, and employees, and all persons acting under, in concert with, or for them, to ___________________ [specify, e.g., exercise its authority under the Declaration of Restrictions to halt construction of any addition to the existing fence on the west boundary of the condominium unit owned by ___________________ (name of separate interest owner whose improvement plaintiff seeks to restrain) and located at ___________________ [street address and city], California]; [3. For damages in the sum of $____________________;] [4. For reasonable attorney's fees (in the amount of $____________________ or according to proof);] 5. For costs of suit incurred in this complaint; and 6. For such other further relief as the court may deem proper. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Plaintiff ______________________ [names] [Verification, if desired. See 124.70.] [Certification of Notice. See 124.79.] CAUTION: A complaint seeking preliminary injunctive relief must be either verified or accompanied by affidavits or declarations in support of the allegations of the complaint [see Code Civ. Proc. 527(a)]. For further discussion, see 124.79. [2] Use of Form This form of complaint is for use by a separate interest owner to restrain an owner's association, or its architectural control committee, from arbitrarily approving an improvement proposed by a neighboring owner [see Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 647, 652, 191 Cal. Rptr. 209] . Alternatively, the form may be used to compel an association or its committee to approve an owner's plans and specifications for an improvement to the owner's interest after an application has been arbitrarily denied. The form may be combined with a form of complaint enjoining the individual homeowner [see Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 646, 191 Cal. Rptr. 209 ; see also Ch. 184, Deeds (discussion and forms relating to use restrictions on lots and enforcement)]. However, a separate interest owner may not directly enjoin other owners in a development from violating a construction restriction if the homeowner's association reserves the sole right to determine whether proposed construction violates the restrictions and the construction was approved [see Trahms v. Starrett (1973) 34 Cal. App. 3d 766, 770, 110 Cal. Rptr. 239 (right reserved in subdivider)]. [3] Allegations This complaint alleges the following: The identity and capacity of the parties (Paragraphs 1-2), with an Optional Paragraph 3 for use when

the owner's association of a common interest development subject to the Subdivided Lands Act [see Bus. & Prof. Code 11004.5] has set up an architectural control committee as mandated by 10 Cal. Code Reg. 2792.28(a). Fictitious name allegation (Optional Paragraph 4) [Code Civ. Proc. 474]. That defendant had a duty to review and approve or disapprove proposed improvements in conformity with the Declaration of Restrictions (Paragraph 5) [see Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 650-652, 191 Cal. Rptr. 209] . That plaintiff or another separate interest owner submitted plans to defendant and the defendant either approved or rejected them (Paragraph 6). That defendant's approval or disapproval of the proposed improvement was unreasonable, arbitrary, and in bad faith (Paragraph 7) [see Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 652, 191 Cal. Rptr. 209] . That defendant's approval or disapproval of the proposed improvement also violated the restrictions set out in the declaration (Optional Paragraph 8) [see Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 652, 191 Cal. Rptr. 209] . That defendants' actions were negligent (Paragraph 9) [see Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 647, 652, 191 Cal. Rptr. 209] . That defendants' actions were willful and are grounds for punitive damages (Optional Paragraph 10) [see Civ. Code 3294(a); see also Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 647, 652, 191 Cal. Rptr. 209] . That grounds for preliminary and injunctive relief exist (Paragraphs 11, 12) [see Civ. Code 3422 (permanent); Code Civ. Proc. 526 (preliminary), 527 (procedure for obtaining preliminary injunction or temporary restraining order)]. There is also an optional allegation of damages for use when appropriate (Paragraph 13) [see Mock v. Shulman (1964) 226 Cal. App. 2d 263, 269-270, 38 Cal. Rptr. 39] . [4] Certificate Related to Alternative Dispute Resolution Efforts When the complaint is filed, it must be accompanied by a certificate stating that specified conditions related to the parties' efforts to resolve the dispute by alternative means have been satisfied [see Civ. Code 1369.560(a); see also 124.84]. Such a certificate is required to be filed in conjunction with an action to enforce the Davis-Stirling Common Interest Development Act, the Nonprofit Mutual Benefit Corporation Law, or the governing documents of a common interest development, which action is solely for declaratory, injunctive, or writ relief, or for that relief in conjunction with a claim for monetary damages not in excess of $5,000 [Civ. Code 1369.510, 1369.520]. For a form of certificate, see 124.84. With certain exceptions, the failure to file such a certificate will be grounds for a demurrer pursuant to Code Civ. Proc. 430.10 or a motion to strike pursuant to Code Civ. Proc. 435 [Civ. Code 1369.560(b)]. For further discussion, see 124.85 (demurrer). [5] Attorney's Fees The prevailing party in any action to enforce the declaration is awarded reasonable attorney's fees and costs [Civ. Code 1354(c)]. [6] State Statutes

Use restrictions that are intended to be enforceable equitable servitudes are required to be set forth in declaration. Civ. Code 1353(a). Reasonable covenants and restrictions in declaration are enforceable by separate interest owner or association as equitable servitudes. Civ. Code 1354(a). [7] Decisions Trial court has authority to determine identity of prevailing party in litigation under Civ. Code 1354 for purposes of awarding attorney's fees; defendant dismissed without prejudice in action to enforce equitable servitude under Civ. Code 1354 is not, ipso facto, the prevailing party. Heather Farms Homeowners Assn., Inc. v. Robinson (1994) 21 Cal. App. 4th 1568, 1570, 26 Cal. Rptr. 2d 758 . Covenants requiring applications for improvement to be evaluated in light of goal of "artistic result and attractiveness in exterior and physical appearance" requires Association and Art Jury to make evaluations on subjective basis; artistry and attractiveness is not objectively mesaureable or quantifiable. Clark v. Rancho Santa Fe Assn. (1989) 216 Cal. App. 3d 606, 618-619, 265 Cal. Rptr. 41 . Declaration of restrictions requiring individual owner to obtain approval of homeowner's association before improving or landscaping lot is enforceable if association's approval or disapproval is reasonable. Palos Verdes Homes Assn. v. Rodman (1986) 182 Cal. App. 3d 324, 328, 227 Cal. Rptr. 81 . Association's disapproval of landscaping change is enforceable by injunction on showing by homeowner's association that it followed its own standards and procedures, that procedures were fair, and that substantive decision was made in good faith and was reasonable. Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal. App. 3d 766, 771-773, 224 Cal. Rptr. 18 . [8] Cross References See 124.79. Legal Topics: For related research and practice materials, see the following legal topics: Contracts LawTypes of ContractsCovenantsReal Property LawCommon Interest CommunitiesCondominiumsGeneral OverviewTortsDamagesGeneral Overview