NAHRSTEDT v. LAKESIDE VILLAGE CONDOMINIUM ASSOC INC

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Court of Appeal, Second District, Division 3, California.

Natore A. NAHRSTEDT, Plaintiff and Appellant, v. LAKESIDE VILLAGE CONDOMINIUM ASSOC., INC., et al., Defendants and Respondents.

No. B053259.

Decided: August 28, 1992

Joel F. Tamraz, Santa Monica, for plaintiff and appellant. Wilner, Klein & Siegel, Leonard Siegel, Laura J. Snoke and Thomas M. Ware, II, Beverly Hills, for defendants and respondents.

This action concerns (1) a plaintiff who wishes to continue living with her three pet cats in the condominium she owns, (2) a provision in the recorded covenants, conditions and restrictions (“CC & R's”) governing that condominium, which prohibits owners of the units in her condominium project from keeping most types of pets, and (3) the authority of the board of directors of her homeowners association to levy monetary fines on homeowners who violate that pet restriction.   Plaintiff has filed this action to obtain, among other things, a declaration that she (1) is entitled to keep her pets in her condominium, notwithstanding the CC & R's 1 and (2) has no legal obligation to pay the fines which have been assessed against her for her refusal to move her cats out of her condominium.   This case comes to us on an appeal from a judgment of dismissal which was entered after the trial court sustained, without leave to amend, demurrers to all six causes of action in plaintiff's original complaint.

Defendants contend that plaintiff's appeal violates the “one final judgment rule” because there is an outstanding cross-complaint filed by one of the defendants, Lakeside Village Homeowners Association (“Homeowners Association”).   As we find the appeal is proper as to all the other defendants, we treat the appeal as to the Homeowners Association as a petition for a writ of mandamus.   The interests of judicial economy will be served by our resolution of these pleading issues so that there can be a single trial on both the complaint and the cross-complaint.

We conclude that plaintiff has stated at least three causes of action and should have been given leave to amend her complaint in order to state additional causes of action if she can.   Therefore, the judgment of dismissal will be reversed and the cause remanded for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND 2

1. The Parties

Plaintiff resides in the Lakeside Village Condominiums in Culver City.   She filed her complaint on February 20, 1990 and named as defendants the Lakeside Village Condominium Association (“Condominium Association”), the Homeowners Association, and certain persons alleged in the complaint to be employees, agents, officers and directors of the Homeowners Association and the Condominium Association.

2. The Complaint

We describe here, in turn, the essential allegations of each of the six causes of action in the complaint.   Causes of action two through six each reallege all of the prior charging allegations.

a. Plaintiff's first cause of action is for invasion of privacy.   In it she alleges that Article VII, section 11 of the CC & R's for the condominium project provides in part:  “No animals (which shall mean dogs and cats), livestock, reptiles or poultry shall be kept in any unit except that usual and ordinary domestic fish and birds (and [sic] inside bird cages) may be kept as household pets within any unit;  provided (a) they are not kept, bred or raised for commercial purposes or in unreasonable numbers;  and (b) prior written approval of the Board [of Directors of the Condominium Association] is first obtained.   As used herein, ‘unreasonable numbers' shall be determined by the Board, but in no event shall such term be construed so as to permit the maintenance by any owner of more than two (2) pets per unit.   The Association shall have the right to prohibit maintenance of any pet which constitutes, in the opinion of the Board, a nuisance to any other owner.”

Plaintiff alleges that her three cats at all times remain inside her unit and are noiseless and not a nuisance;  that beginning in July 1988 defendants peered into and entered her condominium without a compelling reason to do so and in violation of the California Constitution's provision for privacy, found in Article 1, section 1 thereof;  that defendants have harassed plaintiff by assessing penalties against her in increasingly large amounts, (beginning with $25/month and increasing in steps to $500/month), to penalize her for keeping her pet cats;  and that the assessments are in violation of the CC & R's and in violation of her right to privacy.

b. Plaintiff's second cause of action is for declaratory relief.   She alleges that the “cat provision” in the CC & R's is overly broad and, as applied to her, violates her constitutional right to privacy;  that the requisite state action is present because of the small claims court actions brought against her for the fines levied on her;  that the cat provision is “unreasonable” under Civil Code section 1354; 3  that the defendants believe the cat provision is constitutional and enforceable;  and that an actual controversy exists between herself and defendants regarding said provision.

c. Plaintiff's third and fourth causes of action are for intentional and negligent infliction of emotional distress, respectively.   In the former, she alleges that defendants have assessed fines against her as a penalty for keeping her cats;  that the cats are not a nuisance, are clean, are kept inside her unit and have not been the object of complaints by any of her close neighbors;  that defendants' acts in assessing her fines which are unauthorized, have been designed to inflict emotional distress upon her and have done so;  that as a result, plaintiff has had to seek medical attention;  that the fines have been designed to force her to sell her condominium at an unreasonable price or remove her cats from her home;  and that defendants' acts are intentional and malicious.

d. In the cause of action for negligent infliction of emotional distress, plaintiff alleges that defendants knew or should have known that she is excitable emotionally, that she is susceptible to being easily upset, and that she is susceptible of obsessing about defendants' unfair and unprovoked actions.   Plaintiff further alleges that she is entitled to live in her home undisturbed and unharassed;  that defendants' acts were negligent;  that as a proximate result of said negligence, she suffered “profound shock to her nervous system, resulting in physical injuries, for which she has sought the help of physicians [and] psychologists”;  and that she has incurred expenses associated therewith.

e. Plaintiff's fifth cause of action is labeled one “to invalidate penal assessments levied in excess of authority and for damages.”   In this cause of action, plaintiff alleges that although the CC & R's do provide for certain charges and assessments (i.e., regular monthly assessments, special assessments for capital improvements, and emergency assessments), no other assessments are provided for in the CC & R's.   This cause of action also alleges that the cat assessments levied against plaintiff and against a “substantial portion” of the other condominium owners who also possess pets, are defendants' attempt “to reduce the regular maintenance assessments and capital expenditures assessments ․ and offset other expenses․”  Plaintiff further alleges that defendants' acts are a conversion of her money, are actions without authorization and are not acts on behalf of the Homeowners Association or the Condominium Association.

f. Plaintiff's sixth and last cause of action is for injunctive relief.   In it, she alleges that the defendants threaten to impose a lien on her home as a means of enforcing their pet assessments (which she estimates to be $6,000 per year) and she further alleges that the assessments and threatened lien could cause her to lose her home.   She requests that the court enjoin defendants from making and enforcing the assessments.

3. The Cross–Complaint

Defendant Homeowners Association filed a cross-complaint against plaintiff alleging causes of action for nuisance and declaratory relief.4  According to the cause of action for nuisance, article V, section 2(a) of the CC & R's gives “the Board” 5 authority to adopt rules and regulations necessary to enforce the CC & R's and the board has adopted rules that authorize the issuance of fines to enforce the board's rule against pets.   Additionally, the cross-complaint alleges that article XV, section 2 of the CC & R's provides that any violation of the CC & R's constitutes a nuisance and shall be subjected to the remedies allowed at law or in equity against a nuisance.   Homeowners Association seeks an injunction against plaintiff's maintenance of the cats in her home.

In its cause of action for declaratory relief, Homeowners Association alleges:  “An actual controversy has arisen and now exists between the [Homeowners] Association and [plaintiff] as to the validity of the pet restriction in the CC & R's and her right to violate the pet restriction and refuse to pay fines assessed against her for such violation.  [¶] Cross-complainant desires a judicial determination of the respective rights and duties of the [Homeowners] Association and [plaintiff] with respect to enforcement of the aforesaid CC & R provisions.  [Homeowners] Association desires a judicial determination that the pet restriction is reasonable and enforceable, that fines assessed for its violation are reasonable and enforceable, and that [plaintiff] is to be ordered to remove the pets from her unit and pay the assessed fines.  [¶]  Such a declaration is necessary and appropriate at this time in order that the [Homeowners] Association may ascertain its rights and duties with respect to the CC & R's.   Determination of these issues at this time is necessary and appropriate in order to avoid the uncertainty and multiplicity of actions that would result if such a declaratory judgment was not rendered at this time.”

Defendants generally demurred to all six causes of action in plaintiff's complaint, including her cause of action for declaratory relief.   Plaintiff filed opposition to the demurrer.   The trial court found that each of the six causes of action failed to state a valid cause of action and the court signed an “Order of Dismissal of Complaint” as well as a “Judgment of Dismissal of Plaintiff's Complaint.” 6  Plaintiff has filed this timely appeal from the judgment.

DISCUSSION

1. The Issue of Appealability

 Defendants challenge the appealability of the judgment of dismissal, contending it is not appealable because the cross-complaint remains to be tried.   With respect to all but one of the named defendants, we disagree.   Of the eleven named defendants, only one (the Homeowners Association) has cross-complained against plaintiff.   Thus, the judgment of dismissal constitutes a final judgment against plaintiff and in favor of the other ten defendants since they face no further proceedings in the trial court vis-a-vis plaintiff.   As to these defendants, the judgment is appealable.   (California Dental Assn. v. California Dental Hygienists' Assn. (1990) 222 Cal.App.3d 49, 58–60, 271 Cal.Rptr. 410.)

 However, like the California Dental court, we find that there are compelling reasons to review the judgment of dismissal as to all of the defendants, including the cross-complainant, Homeowners Association.   It is clear that the facts giving rise to the complaint against all the defendants are the same ones that underlie the cross-complaint.   If we were to exclude the Homeowners Association from our review of the judgment of dismissal, this case would be in the procedural posture of (1) receiving, in this appeal, a review of those common facts, as they relate to ten of the eleven defendants;  (2) proceeding to trial on the cross-complaint to achieve a final judgment on it;  and then (3) having plaintiff appeal that subsequent final judgment wherein she would raise against Homeowners Association the same issue she is now raising against the other ten defendants in the instant appeal, i.e., whether the demurrers to all causes of action in the original complaint should have been sustained and sustained without leave to amend.

In the interest of judicial economy and to avoid inconsistent judgments, we choose to treat plaintiff's appeal, as it relates to the cross-complainant, as a petition for a writ of mandate and address its merits while we address the merits of the appeal as to the other ten defendants.  (California Dental Assn. v. California Dental Hygienists' Assn., supra, 222 Cal.App.3d at p. 60, 271 Cal.Rptr. 410.)

2. Standard of Review

 A general demurrer admits all material and issuable facts that are properly pleaded in the complaint, but not the contentions, deductions or conclusions of fact or law alleged therein.  (Daar v. Yellow Cab. Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.)   Thus, such properly pleaded allegations of fact are accepted as true for purposes of ruling on the demurrer and the court must assume that the plaintiff will be able to prove all of the facts as alleged.  (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955, 199 Cal.Rptr. 789.)

When reviewing the merits of a general demurrer, “The court must, at every stage of an action, disregard any defect in the pleadings that does not affect the substantial rights of the parties.   Pleadings must be reasonably interpreted;  they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears.   All that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief.   In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.”  (Fundin v. Chicago Pneumatic Tool Co., supra, 152 Cal.App.3d at p. 955, 199 Cal.Rptr. 789.)

In determining whether a general demurrer should be sustained, “the rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Matteson v. Wagoner (1905) 147 Cal. 739, 742, 82 P. 436.)

 If the trial court finds that a general demurrer should be sustained, it must then determine whether to grant the plaintiff leave to amend.  “If, despite defects in form or substance, it is reasonably probable that the complaint can be cured by amendment, and if a fair, earlier opportunity to correct the substantive defect has not been given, a demurrer should not be sustained without leave to amend.  [Citation.]”  (Fundin v. Chicago Pneumatic Tool Co., supra, 152 Cal.App.3d at pp. 955–956, 199 Cal.Rptr. 789.)   Thus, when general demurrers are sustained without leave to amend, the reviewing court determines if there is a reasonable possibility that the defects in the complaint (if indeed there are any), can be cured by an amendment.   If such a possibility of cure exists, then the trial court has abused its discretion in denying leave to amend and the order of dismissal is reversed.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)   It is the plaintiff's burden to show either the trial court or the reviewing court how the complaint can be amended to state a cause of action.  (Code Civ.Proc., § 472c;  Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737.)

3. The Cause of Action for Declaratory Relief 7

a. Introduction

Code of Civil Procedure section 1060 provides for causes of action for declaratory relief.  Section 1060 states in pertinent part:  “Any person interested under a ․ written instrument ․ may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action ․ or file a cross-complaint in a pending action ․ for a declaration of his rights and duties in the premises, including a determination of any question of construction or validity arising under such instrument․”  Declaratory relief may be asked for alone or together with claims for other relief.  (Columbia Pictures Corp. v. DeToth (1945) 26 Cal.2d 753, 761, 161 P.2d 217.)   To obtain declaratory relief, the plaintiff need not allege facts that establish his right to a declaration that is favorable to him.  (Id. at p. 760, 161 P.2d 217.).

“A [cause of action] for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court.   [Citations.]”  (Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 728, 146 P.2d 673.)   Obviously, if the cause of action for declaratory relief is legally sufficient, it is not susceptible to a general demurrer.   Such is the case here;  plaintiff's cause of action for declaratory relief is legally sufficient and therefore the demurrer should have been overruled.

“Where ․ a case is properly before the trial court, under a complaint which is legally sufficient and sets forth facts and circumstances showing that a declaratory adjudication is entirely appropriate, the trial court may not properly refuse to assume jurisdiction;  and if it does enter a dismissal, it will be directed by an appellate tribunal to entertain the action.   Declaratory relief must be granted when the facts justifying that course are sufficiently alleged.”  (Columbia Pictures Corp. v. DeToth, supra, 26 Cal.2d at p. 762, 161 P.2d 217.)

We are aware of the rule that “Leave to amend [a cause of action for declaratory relief] is properly denied if the facts and nature of plaintiff's claim are clear and under substantive law, no liability exists [citation].”   (Haskins v. San Diego County Dept. of Public Welfare (1980) 100 Cal.App.3d 961, 965, 161 Cal.Rptr. 385.)   Defendants argue that this rule should be applied here because published cases have stated that pet restrictions in CC & R's are enforceable.   We disagree with defendants' contention for two reasons.

First, this “leave to amend” rule is not applicable here because plaintiff's cause of action for declaratory relief does state a cause of action for such relief;  therefore, she has no need to amend that cause of action.   Second, of the five “pet restriction” cases cited by defendants, four are from other jurisdictions and are not binding on us.8  The sole California case (Ritchey v. Villa Nueva Condominium Assn. (1978) 81 Cal.App.3d 688, 697, 146 Cal.Rptr. 695) did not squarely address pet restrictions.   Rather, it dealt with a restriction against persons under 18 years of age.   Its comment regarding the “reasonableness” of pet restrictions was pure dicta, not supported by reasoning or discussion.

Of the four out-of-state cases cited by defendants, one focused on a lessee's defense that the landlord was selectively enforcing a “no dogs” term in a lease.   It did not analyze the merits of such a restriction.  (1036 Park Corp. v. Rubin (N.Y.Supreme Ct., App.Div.1983) 92 A.D.2d 452, 458 N.Y.S.2d 595.)   Another of the opinions did not address pet restrictions at all but did address the issue of attorney's fees, and merely noted that “In a prior summary proceeding the defendant [lessee] was found to have willfully violated a house rule restricting the harboring of pets on the premises.”  (930 Fifth Corporation v. King (N.Y.Ct. of Appeals 1977) 42 N.Y.2d 886, 397 N.Y.S.2d 788, 366 N.E.2d 875.)   A review of the published opinion for that “prior proceeding” shows the court merely stated:  “We have stated that ‘a landlord can legally enforce a lease providing for the prohibition of dogs as a matter of law’ (Hillman Housing Corp. v. Krupnik [40 A.D.2d 788] ․ 337 N.Y.S.2d 547).”  (930 Fifth Corporation v. King (N.Y.Supreme Ct., App.Div.1972) 42 N.Y.2d 886, 397 N.Y.S.2d 788, 366 N.E.2d 875.)   Tracing the Hillman Housing case back showed that the New York courts have found landlords' pet restrictions to be “reasonable and enforceable.”

Whatever the merits of the two New York cases cited by defendants, neither they, nor their progeny or predecessors, are helpful to this court.   First, rather than involving condominium projects where each occupant is an “owner” of a particular unit and a fraction of the common area, they involved pet restrictions in apartment housing and such housing involves a lease or rental relationship.   Second, neither had to consider a statutory requirement that any restriction imposed by condominium CC & R's be reasonable, as we must consider in this case.  (Civ.Code, § 1354.)

The other two out-of-state cases cited by defendants do address pet restrictions placed on condominium owners.   In Wilshire Condominium Ass'n., Inc. v. Kohlbrand (Fla.Ct. of Appeal 1979) 368 So.2d 629, the court examined a condominium regulation which permitted purchasers of condominium units to keep the dogs that they owned when they moved into the unit but forbade them from replacing such pets when the pets died or otherwise left the unit.   The court adopted a “reasonableness” test in examining the challenged restriction.   The court found that the restriction was “reasonably consistent with principles that promote the health, happiness and peace of mind of unit owners living in close proximity.”   The court did not explain why the replacement dogs would impinge on the health, happiness and peace of mind of unit owners but the dogs originally owned by buyers would not.

In Dulaney Towers Maintenance v. O'Brey (Md.Ct. of Special Appeals 1980) 418 A.2d 1233, the court considered a restriction that permitted unit owners to keep one dog or one cat.   The defendants kept two dogs in their unit and were sued.   The court found the restriction reasonable.   It noted that courts have often upheld restrictions regulating dogs and stated that communal living requires giving fair consideration to the rights and privileges of all occupants of the condominium project so as to provide a harmonious atmosphere.

Neither Wilshire Condominium nor Dulaney Towers is helpful to the resolution of the case before us because (1) neither case addressed the reasonableness of a blanket restriction against keeping any cats in a condominium unit, (2) neither addressed a statutory limitation on condominium restrictions similar to the one in Civil Code section 1354, and (3) neither examined the particular facts of the case before it to see if the challenged restrictions were reasonable as applied to those facts.   This latter characteristic runs contrary to the approach taken by our California courts in examining challenged provisions in condominium and “planned community” CC & R's to see if they are enforceable under Civil Code section 1354.   For example, in Bernardo Villas Management Corp. v. Black (1987) 190 Cal.App.3d 153, 235 Cal.Rptr. 509 and Portola Hills Community Assn. v. James (1992) 4 Cal.App.4th 289, 5 Cal.Rptr.2d 580, the courts found that the CC & R restrictions sought to be enforced by homeowner management groups were unreasonable when they were applied to the circumstances of the homeowners who were challenging them.

In Bernardo Villas, the provisions being challenged precluded residents from parking trucks in the project except on a temporary basis for the purpose of loading or unloading the trucks.   The provisions also restricted the project's carports to passenger automobiles and non-powered vehicles, such as bicycles.   The defendants in the case parked their new pickup truck, which they used solely for their personal transportation, in their carport space.   The management of the project sued to enjoin them from doing so and to recover $2,060 in fines it had imposed on the defendants for violating the truck restriction.   In its opinion, the court applied Civil Code section 1354.   It stated:  “the trial court properly found the restriction unreasonable as applied to clean noncommercial pickup trucks.   The court correctly concluded the parking of such vehicles in condominium carports was not aesthetically unpleasant to reasonable persons and did not interfere with other owners' use and enjoyment of their property.”  (Bernardo Villas Management Corp. v. Black, supra, 190 Cal.App.3d at pp. 154–155, 235 Cal.Rptr. 509.)

Also instructive is Portola Hills Community Assn. v. James, supra, 4 Cal.App.4th 289, 5 Cal.Rptr.2d 580.   There, the challenged CC & R provision was a total ban on satellite dishes in the “planned community” of Portola Hills.   The plaintiff was the body having the right to enforce the CC & R's.   The defendant installed a satellite dish in his back yard.   The trial court found from the evidence that the dish was installed in such a manner that it was not visible to other residents of the community or to the public and therefore the defendant did not have to remove the dish.   On review, the Portola Hills court agreed with the trial court's conclusion.   Its opinion begins:  “Is a private restriction prohibiting a homeowner from installing a satellite dish in his yard unreasonable?   In this case it is.”  (Id. at p. 291, 5 Cal.Rptr.2d 580.)   Thereafter in its opinion, the court stated:  “With [the finding of nonvisibility] established, the question becomes whether the ban against a satellite dish that cannot be seen promotes any legitimate goal of the association.   It clearly does not.   Accordingly, the restriction is unreasonable as a matter of law.”  (Id. at p. 293, 5 Cal.Rptr.2d 580.)

b. The Standard to be Applied by the Trial Court

 The question of whether the pet restriction at issue in the case before us is an enforceable equitable servitude under Civil Code section 1354 is a mixed issue of law and fact which can only be resolved in the context of the particular circumstances of this case.  (Portola Hills Community Assn. v. James, supra, 4 Cal.App.4th at p. 293, 5 Cal.Rptr.2d 580;  Bernardo Villas Management Corp. v. Black, supra, 190 Cal.App.3d at p. 154, 235 Cal.Rptr. 509.)   In Portola Hills and Bernardo Villas, the courts did not address the question of law (i.e., the reasonableness of the restrictions being challenged), until the question of fact (the circumstances of the particular homeowners who were challenging the restrictions) was determined.

 So also here, the enforceability of the pet restriction will be decided in the trial court after the taking of evidence as to the relevant circumstances of this case.   Restrictions in CC & R's regarding the ownership and possession of pets are reasonable and therefore are enforceable under Civil Code section 1354 when they prohibit conduct which, while otherwise lawful, in fact interferes with, or has a reasonable likelihood of interfering with, the rights of other condominium owners to the peaceful and quiet enjoyment of their property.

 Defendants argue that the blanket pet restriction they seek to enforce against plaintiff is reasonable and enforceable because it avoids a situation where they must always take a “wait and see” position on pets and then litigate over pets that are causing problems in the condominium project.   We reject this contention.   First, it runs contrary to the philosophy of Portola Hills and Bernardo Villas, which is to judge situations on their own specific facts.   Plaintiff's condominium home is her castle and her enjoyment of it should be by the least restrictive means possible, conducive with a harmonious communal living arrangement.   Second, if carried to its logical conclusion, defendants' argument could be used to support all-inclusive bans on such diverse things as stereo equipment, social gatherings and visitors between the ages of two and eighteen.   We cannot envision the courts finding that blanket restrictions against such things are reasonable;  yet it is certainly conceivable that allowing Fluffin, Muffin and Ruffin to live inside plaintiff's condominium will pose less of a threat to the peace and quiet of the parties' communal living arrangement than would stereo equipment, parties or young visitors.

c. The Issue of Estoppel

 As a final observation on the issue of Civil Code section 1354 “reasonableness,” we note its effect on defendants' contention that by purchasing a unit in the condominium project, plaintiff agreed to and became bound by the pet restriction and should not now be heard to complain of it.   The contention is without merit because under section 1354, defendants can only enforce restrictions in CC & R's that are reasonable.   Thus, if the pet restriction at issue here is found to be unreasonable as applied to plaintiff because plaintiff's conduct in keeping her cats has not interfered with and does not have a reasonable likelihood of interfering with, the rights of other owners to the peaceful and quiet enjoyment of their property, then by the very terms of section 1354, it is not enforceable against plaintiff, even though she brought her unit with at least constructive knowledge that keeping cats in the project was forbidden.9

4. The Cause of Action for Invasion of Privacy

 Although some of the allegations in plaintiff's cause of action for invasion of privacy are more properly placed in her cause of action for declaratory relief and others are more properly included in a cause of action for trespass, the cause of action for invasion of privacy does indeed survive a general demurrer because it does state a cause of action.  “When a complaint is good as against a general demurrer, it is erroneous for the trial court to sustain the demurrer without leave to amend because of defects in the form of pleading.   This is not to hold that the complaint is not subject to special demurrer.   Upon the remanding of the cause the trial court may in its discretion require the clarification of uncertainties or ambiguities in the pleading.  [Citations.]”  (Columbia Pictures Corp. v. DeToth, supra, 26 Cal.2d at p. 762, 161 P.2d 217.)

Plaintiff should have been given an opportunity to revise the invasion of privacy cause of action by limiting it to the allegations regarding defendants' peering into and entering her home.   She should also have been given the opportunity to advance these allegations as a basis for a cause of action for trespass.10  The other allegations pertaining to the pet restriction should be included in plaintiff's cause of action for declaratory relief, as a basis for her assertion that such a restriction is unreasonable and therefore unenforceable under Civil Code section 1354.

5. The Cause of Action for Intentional Infliction of Emotional Distress

To state a cause of action for intentional infliction of emotional distress, the plaintiff must allege conduct by the defendant that is “extreme and outrageous” and that is performed “with the intention of causing, or reckless disregard of the probability of causing, emotional distress.”  (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975.)   “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.  [Citations.]”  (Ibid.)

 In the instant case, the conduct alleged by plaintiff which she claims constitutes an intentional infliction of emotional distress is defendants' assessment of fines against her so as “to force plaintiff to sell her unit at unreasonable prices or alternatively to force plaintiff to remove her cats ․ from the premises,” cats which she describes as clean, living inside her condominium only and not constituting a nuisance.   We have no trouble concluding, as a matter of law, that this conduct is not so extreme and outrageous as to permit recovery in a cause of action for intentional infliction of emotional distress.  (Fuentes v. Perez (1977) 66 Cal.App.3d 163, 172, 136 Cal.Rptr. 275.)

Additionally, plaintiff has not shown how this cause of action could be amended to allege facts that would either (1) as a matter of law, constitute extreme and outrageous conduct or (2) be sufficient to permit a jury to find intentional infliction of emotional distress.  (Fuentes v. Perez, supra, 66 Cal.App.3d at p. 172, 136 Cal.Rptr. 275.)   Therefore, the demurrer was properly sustained without leave to amend.

6. The Cause of Action for Negligent Infliction of Emotional Distress

 Unlike a cause of action for intentional infliction of emotional distress, a cause of action for the negligent infliction of emotional distress is not an independent tort but rather is the tort of negligence, involving the usual issues of duty of care, breach of duty, causation and damages.  (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 838, p. 195.)   The totality of plaintiff's complaint shows that her cause of action for negligent infliction of emotional distress is based on defendants' entering plaintiff's home without her permission and on their imposing fines on her and threatening to impose a lien on her home.

 Defendants contend they have a duty to enforce the restrictions in the CC & R's and therefore this cause of action cannot be maintained.   But the gist of a cause of action for negligence is that the defendant owes the plaintiff a duty to act carefully when he or she undertakes to act.   As persons connected with the enforcement of the CC & R's, defendants have a duty to plaintiff to enforce the CC & Rs in an appropriate manner.   Plaintiff alleges that entering her home, levying fines on her and threatening to impose a lien on her home are inappropriate.

Under Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, plaintiff is the direct victim of defendants' allegedly negligent enforcement of the CC & R's.   It was reasonably foreseeable that said negligent enforcement of the pet restriction would cause her emotional distress.   Plaintiff has stated a cause of action for negligent infliction of emotional distress.

7. The Cause of Action for Invalidation of the Fines

a. Introduction

As with plaintiff's cause of action for invasion of privacy, the allegations in her cause of action for invalidation of the fines levied against her are better placed in her cause of action for declaratory relief.   Plaintiff basically seeks an adjudication that there is no basis of authority in the CC & R's for defendants to levy fines against her for keeping her cats.

Defendants argue that their general demurrer to this cause of action was properly sustained without leave to amend because article V of the CC & R's gives the board of directors of the Homeowners Association the authority to enforce the CC & R's and to adopt rules with respect thereto.   They point out that the board did in fact (1) enact rules which prohibited, among other things, all pets except those allowed by the CC & R's and (2) also enacted rules which provided for fines for infractions of those prohibitory rules.   However, our reading of the provisions in article 5 shows that the board was limited in the types of rules it could enact;  it also shows that the two rules at issue here—the pet rule and the rule regarding penalty fines—are not applicable to plaintiff.

b. The Provisions in the CC & R's for Adoption of Rules

 To support their demurrer to this cause of action, defendants refer us to the portion of article V, section 2 which states:  “The Board shall have the right to adopt reasonable rules and to amend the same from time to time relating to the use of the Common Area and any recreational and other facilities situated thereon, by owners and their tenants or guests and conduct of such persons with respect to automobile parking, outside storage of boats, trailers, bicycles and other objects, disposal of waste materials, drying of laundry, control of pets and other activities which if not so regulated might detract from the appearance of the community or offend or cause inconvenience or danger to persons residing or visiting therein.   Such rules may provide that the owner whose occupants leave property on the Common Area in violation of the rules, may be assessed to cover the expense incurred by the directors in removing such property and storing or disposing thereof․”  (Emphasis added.)

Defendants point out that rules regarding pets and fines were indeed enacted pursuant to this provision.   The pet rule is entitled “Pets” and it states:  “No pets are allowed on the premises.   This includes animals being held on a temporary basis.   The only exception to this rule is specified in the CC & R's.  (No Dogs or Cats)” The rule regarding fines is part of the portion of the rules entitled “Enforcement” and it sets out the various penalties which will be assessed for the first offense (a warning) and for later offenses (increasingly large monetary fines).

A fair reading of the portion of article V, section 2 which is quoted in the second preceding paragraph compels the conclusion that it only addresses the enactment of rules relating to the use of the common areas of the condominium project.   The language is unambiguous.   It cannot reasonably be read to relate to the enactment of rules which prohibit or regulate or penalize conduct within the owners' units.   Therefore, a trial court could find that said language does not apply here because the complaint alleges that plaintiff's cats are confined to her unit.   Because this provision in article V, section 2 only relates to the common areas, the rules which were enacted pursuant to it can also only relate to the common areas.   Thus, (1) the abovequoted pet rule can only apply to exclude cats from the common areas and (2) the penalty fines set out in the rules cannot be applied to persons who keep pets in their units.  Section 1 of article V specifically provides that if there is any inconsistency between the provisions of the CC & R's and the rules adopted by the board, the CC & R's will prevail.

Thus, it appears to this court that the fines levied against plaintiff are not proper under the authority given to the Board in the portion of the CC & R's relied upon by defendants to support their demurrer to this fifth cause of action.   We must therefore conclude that, absent such support in other portions of the CC & R's, not only did the trial court err in sustaining a demurrer to this cause of action (with or without leave to amend), but a request by plaintiff for a summary adjudication of issues on the question of the fines would, on the basis of the record before us, have to be resolved in her favor.   We next examine other portions of the CC & R's.

c. Other Enforcement Provisions in the CC & Rs

 Article V, section 2 gives the board the authority to “manage the affairs of the Association” and the power and duty to enforce the provisions of the CC & R's.   Regarding such enforcement, we note that under article VIII, section 6, the board can enforce the CC & R's, and the rules enacted by itself, by bringing an action for damages and injunctive relief.   Article XV, section 4 further provides for the board to “enforce any and all of the terms and conditions of the [CC & R's]” and it declares “that damages at law for [breaches of the CC & R's] are inadequate.”  Section 2 of that article declares that violations of the CC & R's constitute a nuisance and may be treated as such in an action against the violator.   It is evident that none of these provisions for enforcement of the CC & R's provide for penal fines such as those levied against plaintiff.

d. Conclusion

In view of the record before us, there appears to be no provision in the CC & R's which permits defendants to levy the fines of which plaintiff complains in her fifth cause of action.   In any event, the trial court erred in its ruling on defendants' demurrer.

8. The Cause of Action for Injunctive Relief

Plaintiff's cause of action for injunctive relief alleges that (1) defendants threatened to impose a lien on her property for her failure to pay their penalty assessments and (2) defendants' actions could cause her to lose her property.   She seeks injunctive relief from further imposition of the fines and from the threatened enforcement of them by liens.

 To properly plead facts for injunctive relief, the complaint must plead (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) “The grounds for equitable relief of this kind, i.e., a showing of inadequacy of the remedy at law.”  (5 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 774, p. 218.)  “Inadequacy of the legal remedy is usually established by a showing that the defendant's wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award.”  (Id. at § 777, p. 221.)

 Regarding the first element of a cause of action for injunctive relief, plaintiff has indeed pleaded the elements of a cause of action involving the assessments of fines and the threatened liens—her causes of action for declaratory relief and for “invalidation of the fines.”   Regarding the second element, a lien on plaintiff's property would constitute a cloud on her title to said property, an injury for which it is difficult to assess a damage award.

We note that a cause of action for an injunction has been permitted in a suit for declaratory and injunctive relief brought by plaintiffs seeking relief from threatened enforcement of allegedly invalid city assessments.   (Maxwell v. City of Santa Rosa (1959) 53 Cal.2d 274, 1 Cal.Rptr. 334, 347 P.2d 678.)   Defendants point out that under the California Code of Regulations, title 10, section 2792.26, liens based on monetary penalties imposed by condominium associations as a disciplinary measure are not permitted.   Defendants argue that since such liens are not permitted, there can be no need for an injunction in this case.   However as noted above, even a threatened injury to property rights can be the basis of a cause of action for injunctive relief.   Many things which are “not permitted” can occur nonetheless;  and certainly their occurrence can be threatened.   Thus, we conclude that plaintiff has stated a cause of action for injunctive relief.

DISPOSITION

The judgment of dismissal is reversed and, as to Homeowner's Association, a writ of mandate shall issue directing the trial court to vacate its order sustaining demurrers without leave to amend and to enter a new and different order.   The cause is remanded to the trial court for further proceedings consistent with the views expressed herein.   Costs on appeal to plaintiff.

I respectfully dissent.

The majority opinion proposes an erroneous standard of review regarding whether a covenant and restriction is “unreasonable,” in the phrasing of Civil Code section 1354.   This question is distinctly not a “mixed issue of law and fact which can only be resolved in the context of the particular circumstances of this case,” as the majority opinion mistakenly calls it.   The cases cited for the majority opinion's standard of review provide no authority for it.  Portola Hills Community Assn. v. James (1992) 4 Cal.App.4th 289, 293, 5 Cal.Rptr.2d 580, relies on Ritchey v. Villa Nueva Condominium Assn. (1978) 81 Cal.App.3d 688, 694, 146 Cal.Rptr. 695.  Ritchey arose under a different statute, section 1355, as distinct from the enforcement of covenants and restrictions under section 1354 in the case at bench.  Ritchey also involved a different factual situation, an amendment to the covenants, conditions and restrictions (CC & R's) affecting an existing property owner, as distinct from a pre-existing CC & R of which Nahrstedt had notice when purchasing the property.  Bernardo Villas Management Corp. v. Black (1987) 190 Cal.App.3d at pp. 154–155, 235 Cal.Rptr. 509, contains no indication that the trial court viewed the issue as a “mixed question of law and fact.” 1

Portola Hills stated, and applied, the following correct standard of review:  “Restrictions are presumed valid․  A homeowner is allowed to prove a particular restriction is unreasonable as applied to his property․  The question of reasonableness is one of law, and we review it de novo in light of the trial court's factual findings.”  (Portola Hills Community Assn., supra, 4 Cal.App.4th at p. 293, 5 Cal.Rptr.2d 580, citations and fns. omitted.)  “The issue of reasonableness [of a restriction] is not a factual one, but rather a legal one.”  (City of Oceanside v. McKenna (1989) 215 Cal.App.3d 1420, 1424, 264 Cal.Rptr. 275.)   Where no extrinsic evidence bearing on the interpretation of a covenant and restriction exists, the question becomes solely one of law.   (Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 771, 224 Cal.Rptr. 18.)   As the case at bench arises upon the sustaining of a demurrer, the standard of review makes the question before this court one of law.

The standard of review raises a more general principal.   The courts should leave the enforcement of covenants and restrictions to the homeowners associations unless there are constitutional principles at stake, enforcement is arbitrary, or the association fails to follow its own procedures.   Thus it is appropriate for the courts to have the power to rule on these matters at the demurrer stage.

Among many other tasks, a homeowners' association must enforce CC & R's.   Such an association owes a fiduciary duty to members, who can sue the association if it fails to perform its enforcement obligations.  (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 651, 191 Cal.Rptr. 209.)   As Duffey v. Superior Court (1992) 3 Cal.App.4th 425, 434, 4 Cal.Rptr.2d 334 stated, even limited or “small” litigation undertaken pursuant to that enforcement duty can be expensive.   The money to pay for such litigation comes from mandatory fees paid by each and every property owner.   Not only from the standpoint of an already overburdened court system, but from the standpoint of property owners who rely on the enforcement of CC & R's when they contracted to buy and as they continue to own and live in their property, it is vital to resolve any litigation stemming from such enforcement as early as possible.2

To find otherwise would only encourage prolonged litigation, which would burden both the courts and all parties untenably.  (Compare, in a different context involving a member's dispute with a voluntary association, the rule in Berke v. TRI Realtors (1989) 208 Cal.App.3d 463, 467, 257 Cal.Rptr. 738 regarding the balancing test that arises if an organization's challenged action contravenes its by-laws:  whether judicial relief is available depends on the interest in protecting the aggrieved party's rights balanced against the infringement on the organization's autonomy and the burdens on the courts that will result from judicial attempts to settle internal disputes.)

The majority opinion also proposes a lengthy “rule of law” concerning the enforceability of pet restrictions.3  No authority supports this rule.   The rule, moreover, largely disregards the statute.  Civil Code section 1354 states in part:  “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable․”  This statute is significant for two reasons.   First, it sets forth the standard for enforcing covenants and restrictions, calling them valid “unless unreasonable.”   Second, it defines enforcement of covenants and restrictions as “enforceable equitable servitudes.”   Thus it makes available equitable servitude law as criteria for determining as a matter of law whether a covenant and restriction is “unreasonable.”

“Restrictions on the use of land will not be read into a restrictive covenant by implication, but if the parties have expressed their intention to limit the use, that intention should be carried out, for the primary object in construing restrictive covenants, as in construing all contracts, should be to effectuate the legitimate desires of the covenanting parties.”  (Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 444–445, 211 P.2d 302;  see also Seaton v. Clifford (1972) 24 Cal.App.3d 46, 50, 100 Cal.Rptr. 779.)

What is “unreasonable,” like what are the “legitimate” desires of covenanting parties, only emerges by comparing the challenged restriction to other restrictions the courts have found enforceable.   A review of that case law follows.

Seaton v. Clifford, supra, 24 Cal.App.3d 46, 48–52, 100 Cal.Rptr. 779, held valid and enforceable a CC & R restricting use of a single family home to “residential purposes.”   To satisfy the “reasonable expectancy” of other homeowners that the neighborhood's residential character would be preserved, Seaton held that the CC & R barred a property owner from maintaining as a business establishment a facility for the care of no more than six mentally retarded male persons at any given time.

Barrett v. Lipscomb (1987) 194 Cal.App.3d 1524, 1527, 1535, 240 Cal.Rptr. 336, similarly upheld a similar CC & R to bar, as a commercial use, the conversion of a house and garage into separate housing units which the property owners intended to operate as a small residential care facility for six or fewer elderly persons.

Biagini v. Hyde (1970) 3 Cal.App.3d 877, 83 Cal.Rptr. 875 enjoined operation of a part-time beauty parlor, even though it did not have a negative impact on the neighborhood, because the original parties to the covenant intended to restrict all business uses.

Lincoln Sav. & Loan Assn. v. Riviera Estates Assn. (1970) 7 Cal.App.3d 449, 87 Cal.Rptr. 150 held that a residential use restriction barred construction of a driveway across a restricted lot to create access to a house located on an unrestricted lot.

City of Oceanside v. McKenna, supra, 215 Cal.App.3d 1420, 264 Cal.Rptr. 275 affirmed CC & R's prohibiting any condominium owner from failing to occupy the dwelling as the owner's principal residence for any period and from renting or leasing the property at any time for any reason.   A city redevelopment commission had drafted the CC & Rs to assure continued affordability of the units and to foster an owner-occupied environment in the redevelopment area.

Anthony v. Brea Glenbrook Club (1976) 58 Cal.App.3d 506, 512, 130 Cal.Rptr. 32, held that a membership restriction requiring mandatory payments by individual property owners for upkeep of a club and common facilities was enforceable as an equitable servitude.

Conrad v. Dunn (1979) 92 Cal.App.3d 236, 238, 154 Cal.Rptr. 726, held valid a restriction prohibiting broadcast antennae, based on “reasonable beneficial, aesthetic, economic and safety purposes” underlying the restriction.

Ezer v. Fuchsloch (1979) 99 Cal.App.3d 849, 862, 160 Cal.Rptr. 486, held enforceable a restriction on planting trees or building structures that obstructed an ocean view from any other lot, and required trimming of trees to roof-top level.

In Ritchey v. Villa Nueva Condominium Assn., supra, 81 Cal.App.3d 688, 697, 146 Cal.Rptr. 695, plaintiff condominium owner argued that a bylaw restricting occupancy to people 18 years of age and older was “per se unreasonable.”   Ritchey stated:  “The authority of a condominium association necessarily includes the power to issue reasonable regulations governing an owner's use of his unit in order to prevent activities which might prove annoying to the general residents.   Thus, an owner's association can prohibit any activity or conduct that could constitute a nuisance․  [A] reasonable restriction upon occupancy of the individually owned units of a condominium project is not beyond the scope of authority of the owner's association.”  (Id., at pp. 697–698, 146 Cal.Rptr. 695.)  Ritchey thus upheld the validity of an age restriction on occupancy.4

Sunrise Country Club Assn. v. Proud (1987) 190 Cal.App.3d 377, 382–383, 235 Cal.Rptr. 404, drew a distinction between an invalid restriction on sale and a valid one on use.   Although invalidating a prohibition on sale to an owner having children under 16, Sunrise Country Club Assn. declared an enforceable CC & R prohibition against rental for occupancy by families with children under the age of 16 years “rationally related to purposes of the restriction and ․ reasonable.”

The majority dismisses a reference in Ritchey to pet restrictions as “pure dicta.”   But if an age restriction on occupancy by people is not unreasonable, a fortiori a restriction on occupancy by pets cannot be unreasonable.

Legal rules borrowed from real property principles developed during feudal times may prove inappropriate tools as this court, in the late 20th century, tries to accommodate competing interests involved in the use of a condominium.  (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670, 681, 174 Cal.Rptr. 136.)   What is true of the law is even more true of metaphor.   An Englishman's home may be a castle.   Increasingly, however, a Californian's home is a condominium, and I must question the majority opinion's attempt to recast the respondent's incidents of ownership by calling a condominium a “castle.”   I have never seen a condominium that even remotely resembled a castle.   As a frequently quoted portion of the Laguna Royale Owners Assn. opinion reasons, condominium living involves increased density, shared and intensified use of common areas and facilities, and a heightened proximity to neighbors.   Therefore it necessarily involves the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners, individual unit owners must relinquish a degree of freedom of choice that they might otherwise enjoy in separate, privately owned property.   It therefore becomes “essential to successful condominium living and the maintenance of the value of these increasingly significant property interests that the owners as a group have the authority to regulate reasonably the use and alienation of the condominiums.”  (Id., at p. 682, 174 Cal.Rptr. 136;  emphasis added.)

Mere possession of cats does not create a nuisance per se.  (People v. Cooper (1944) 64 Cal.App.2d Supp. 946, 949, 149 P.2d 86.)   But it is not necessary, for a restriction to be reasonable, for it to prohibit only use rising to the level of a nuisance;  a reasonable restriction can prohibit use falling far short of a nuisance.

A restriction is unreasonable if it does not promote any “legitimate goal” of the condominium association.  (Portola Hills Community Assn. v. James, supra, 4 Cal.App.4th at p. 293, 5 Cal.Rptr.2d 580.)

A restriction is unreasonable if it is not “rationally related to the purposes set forth in the CC & R's,” or if it is “applied in an unfair or discriminatory manner.”  (City of Oceanside v. McKenna, supra, 215 Cal.App.3d 1420, 1429, 264 Cal.Rptr. 275;  see also Laguna Royale Owners Assn. v. Darger, supra, 119 Cal.App.3d at pp. 683–684, 174 Cal.Rptr. 136.)

It does not help the decision of this case for the majority opinion to create fanciful names, not alleged in the complaint, for the owner's three cats.   Cat occupancy can create offensive and unpleasant odor, additional sewage, trash, and litter and resulting problems relating to its disposal, the potential for disease, allergies, and pests that affect neighbors, caterwauling and other noise, and can attract other cats from outside the condominium during mating season.   Other difficulties could doubtless lengthen this catalogue of cat problems.   It is nonetheless sufficient to make a restriction against cat occupancy “reasonable.”

Three out-of-state cases have found their way into this appeal.  1036 Park Corp. v. Rubin (1983) 92 A.D.2d 452, 458 N.Y.S.2d 595 rejected a “selective enforcement” defense that because other owners kept dogs, a prohibition against defendant's dog should not be enforced.   In a five-paragraph opinion, 1036 Park Corp. held that the trial court should have granted plaintiff's summary judgment motion to enjoin keeping the dog.   In the case at bench, the shift accorded the plaintiff should be even shorter, and the sustaining of the demurrer affirmed.

Wilshire Condominium Ass'n, Inc. v. Kohlbrand (1979) 368 So.2d 629, 630–631, concerned a restriction whose eventual effect over time would bar any condominium unit owner from keeping a dog.   The court stated that “such a restriction is not only reasonable but contractually sound in light of the circumstances in this case.”   It further stated that “a restriction against the replacement of dogs is reasonably consistent with principles that promote the health, happiness and peace of mind of unit owners living in close proximity.”

In Dulaney Towers Maintenance v. O'Brey (1980) 46 Md.App. 464, 418 A.2d 1233, condominium unit owners purchased their second poodle in violation of a restriction confining pets to one dog or cat to a unit.   Based on the “potentially offensive odors, noise, possible health hazards, clean-up and maintenance problems, and the fact that pets can and do defile hallways, elevators and other common areas,” the Dulaney Towers court held that the restriction was reasonable.  (Id., 418 A.2d at pp. 1235, 1238.)

If such cases lack precedential value, they nonetheless retain persuasive value on the question of what is “reasonable.”   The other condominium residents at Lakeside Village apparently desired pet-free living.   Plaintiff consented to that restriction.   I see no reason why this reasonable restriction should not be enforced, and would affirm the sustaining of the demurrer.

FOOTNOTES

1.   The CC & R's, as well as certain rules adopted by the board of directors of the homeowners association, were made exhibits to plaintiff's complaint and are part of the record on appeal.

2.   Because the genesis of this appeal was defendants' general demurrer to plaintiff's complaint, the facts upon which the appeal turns will be those set out in that complaint.   As we discuss below, our review of the judgment appealed from will assume the truth of the factual allegations asserted by plaintiff in her complaint.

3.   At the time this action was filed, Civil Code section 1354 stated:  “The covenants and restrictions in the declaration [of CC & R's] shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the project.   Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”  (Emphasis added.)   An amendment to section 1354, effective July 1, 1991, provides that “In any action to enforce the declaration, the prevailing party shall be awarded reasonable attorney's fees and costs.”Section 1354 is found in title 6 of part 4 of division 2 of the Civil Code.   Title 6 is entitled “Common Interest Developments.”   A common interest development is any of the following:  community apartment project, condominium project, planned development and stock cooperative.   (Civ.Code, § 1351.)

4.   The cross-complaint labels the cross-complainant as the Lakeside Village Homeowners Association;  however, the cross-complaint also describes the cross-complainant as the Lakeside Village Condominium Association.

5.   Apparently, the cross-complainant means the board of directors of the condominium association.

6.   In her opening brief, plaintiff states she requested but was denied leave to amend her complaint.

7.   While generally demurring to plaintiff's cause of action for declaratory relief, defendant Homeowners Association filed a cross-complaint with its own cause of action for declaratory relief based on the same facts as involved in plaintiff's complaint.   We are puzzled by this tactic.   The only reason we can think of for Homeowner Association's actions is that it desires to limit and control the presentation of evidence at trial by doing away with plaintiff's competing cause of action for such relief.   If that in fact was the purpose of such pleading, we have little sympathy for such gamesmanship.

8.   We feel compelled to address another aspect of defendants' citation to these four out-of-state cases.   In their citation to three of them, defendants misspelled the case names.   In their citation to two of those three cases, defendants severely mangled the reporter citation, causing this court a lengthy search for the cases.   To say the least, such conduct on the part of defendants' attorneys was less than helpful.

9.   Plaintiff alleged in her complaint that she was not provided with a copy of the CC & R's prior to the close of her escrow and was not otherwise aware of the pet restriction.   Defendants assert, and we agree, that whether or not plaintiff had actual knowledge of the pet restriction when she purchased her unit is irrelevant to the question of whether it can be enforced against her.   Defendants correctly point out that recordation of the CC & R's gave her constructive notice of it.  (Seaton v. Clifford (1972) 24 Cal.App.3d 46, 50, 100 Cal.Rptr. 779.)   Thus, her allegations regarding lack of actual knowledge are of no assistance to her.

10.   Contrary to defendant's assertion, these allegations are not a conclusionary deduction;  they are allegations of fact.   Further, in a cause of action for trespass, it is not necessary to allege that the defendants' intrusions onto the property were unauthorized and without her consent.  (Perkins v. Blauth (1912) 163 Cal. 782, 786, 127 P. 50.)

1.   In Bernardo Villas, for instance, the restriction stated that condominium carports should be used only for “parking of passenger automobiles,” but prohibited parking “trucks.”   The opinion does not indicate the procedural context of the trial court judgment or whether it made a factual finding or a ruling of law.   A pickup with a camper shell that resembled a station wagon and was used “solely for personal transportation primarily to and from work” (id., at p. 155, 235 Cal.Rptr. 509) suggests that the vehicle, as a matter of law, satisfied the restriction and qualified as a “passenger automobile.”

2.   The majority's new rule will place a tremendous burden on both the condominium owners and the courts by requiring a trial in virtually every lawsuit over the validity of such restrictions.   All the pet owner must do to force a trial under the majority rule is allege the pets are noiseless and are not a nuisance.Suppose a third of the condominium owners want to keep three cats or a dozen cats or the same number of dogs or other pets.   Is the result the same?   Would each of these instances be another jury trial?

3.   The majority opinion's proposed rule states:  “[T]he enforceability of the pet restriction will be decided in the trial court after the taking of evidence as to the relevant circumstances of this case.   Restrictions in CC & R's regarding the ownership and possession of pets are reasonable and therefore are enforceable under Civil Code section 1354 when they prohibit conduct which, while otherwise lawful, in fact interferes with, or has a reasonable likelihood of interfering with, the rights of other condominium owners to the peaceful and quiet enjoyment of their property.”

4.   It is also significant that Ritchey ruled in favor of the restriction as a matter of law, as the appeal arose from a grant of summary judgment.  (Id., at p. 692, 146 Cal.Rptr. 695.)  Ritchey, regulating use and occupancy, not sales, was not overruled by O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427, and Civil Code section 51.2.

CROSKEY, Associate Justice.

KLEIN, P.J., concurs.