Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 37-2009-00094664-CU-OR-CTL Joan M. Lewis, Judge.
O'ROURKE, J.
Appellant Frank Noble appeals from an order granting a preliminary injunction in favor of his homeowners association, respondent Discovery at Cortez Hill Homeowners Association (Association). The injunction requires Noble to grant Association access to his condominium unit to inspect and, if appropriate, make repairs to cure a plumbing problem that caused mold and water damage within an Association common area. On appeal, Noble challenges the preliminary injunction on grounds Association's request to inspect and repair his unit abridges his right of privacy, the injunction is contrary to Association's "Amended Declaration of Covenants, Conditions and Restrictions" (CC&Rs, or at times Declaration), the trial court erred by considering certain inadmissible evidence, and Association did not clearly establish by verified complaint a violation of the CC&Rs or any irreparable injury sufficient to warrant a mandatory preliminary injunction.
Based on Nobel's oral argument concessions, we affirm the preliminary injunction to the extent it permits Association to enter his unit and inspect it, including to conduct destructive testing, for purposes of assessing the extent of damage and need for repair. Otherwise, we hold Association's evidence did not clearly establish it would suffer irreparable injury in the event the mandatory injunction was denied. As a result, there is no record support for the trial court's implied finding that Noble's wrongful actions threatened irreparable injuries that could not be compensated in damages, and the trial court accordingly abused its discretion in issuing the mandatory preliminary injunction permitting Association to undertake repairs. For that reason, we reverse that portion of the order and direct the trial court to modify it as directed below.
FACTUAL AND PROCEDURAL BACKGROUND
Noble resides in unit 803 within Association, a nonprofit mutual benefit corporation. Association is governed by CC&Rs recorded on July 25, 2006. Section 4.3.5 of Association's CC&Rs, entitled "Right of Entry and Enforcement, " provides in part: "Except in the case of emergencies in which case no prior notice need be given, the Board or any authorized representative thereof shall have the right, upon forty-eight (48) hours prior notice and during reasonable hours, to enter into a Residential Unit for the purpose of construction and maintenance, or to perform its obligations under the Declaration or to cure any default by an Owner under this Declaration, and immediate entry with as much notice as is reasonably possible under the circumstances when involving an emergency that threatens the Common Area and Association Property or the other Condominiums."
The section continues: "Such person(s) shall not be deemed guilty of trespass by reason of such entry. If any such repair or maintenance is due to the failure of an Owner to perform its obligations hereunder, the cost of such maintenance or repair shall be assessed against said Owner as an Enforcement Assessment in accordance with the provisions of the Article hereof entitled 'Assessments.' "
In July 2009, Association filed an unverified complaint against Noble for damages and a permanent injunction, as well as declaratory relief. In part, Association alleged that after the discovery of peeling wallpaper in the common area hallway adjacent to Noble's unit, Association asked Noble several times if a representative could enter and inspect his property to look for water leaks, but Noble prevented the inspection. It alleged that its common area continued to suffer mold and drywall damage, potentially damaging the drywall of neighboring units. Association alleged it had no adequate remedy at law without a mandatory injunction to enter Noble's property, and would suffer irreparable harm if Noble was not immediately ordered to allow it to enter. It sought a permanent injunction requiring Noble to allow it to enter, inspect and repair the common area plumbing within 10 days; a temporary restraining order, preliminary injunction and permanent injunction restraining Noble from preventing it from entering his property; and a judicial declaration that Noble's activities constituted a nuisance and a breach of Association's CC&Rs.
In August 2009, Association filed an ex parte application for a temporary restraining order and order to show cause for a preliminary injunction. It sought a court order requiring Noble to grant Association and its agents access to the shower/tub area of his condominium unit in order to inspect and repair an unidentified water leak that was causing damage to Association's adjacent property. Association supported its request with a sworn declaration from attorney David Peters. Peters averred that on April 27, 2009, Association's building engineer discovered water damage, including peeling wallpaper and mold, in the common area hallway adjacent to Noble's unit. A water and fire damage service inspected the area that day and reported that the suspected cause of the water damage was a leak emanating from Noble's shower/tub area adjacent to the affected common area.
Peters averred that he and Noble, who is also an attorney, exchanged a series of letters in May and June 2009, in which Peters explained the situation and asked on Association's behalf for access to Noble's unit to inspect and repair the problem, citing section 4.3.5 of the CC&Rs. Noble responded by stating he was unaware of any leak or mold and that his plumber had advised him the leak was in the common area, not in his unit. Peters stated that Noble refused to grant Association access. He further stated that in June 2009, Milton Burgess, a professional engineer, inspected the drywall adjacent to Noble's unit and identified "clear evidence" that a leak had occurred that resulted in mold. According to Peters, Burgess identified the shower valve in Noble's unit as the likely source of the leak. Burgess stated that access to the unit was necessary to inspect the shower value and repair the leak. Peters exchanged additional letters with Noble in June 2009. Peters stated that Association needed access to Noble's unit to perform maintenance and fulfill its common area maintenance and repair obligations under the CC&Rs and sought such access to inspect and, if necessary, repair the source of the water leak that was believed to be located at Noble's bathroom shower valve.
Association also supported its application with a sworn declaration from its manager, Karen Webb, who averred that after Association's building engineer had notified her of the common area water damage, Association representatives inspected the affected area and reported to her that they found additional wetness in the affected common area after running the shower/tub from Noble's adjacent bathroom and that Association would need access to his unit to inspect and repair the suspected source of water damage. She averred: "Since discovering the water damage and mold described above, Association representatives cut out and removed drywall in the affected common area damaged by the water leak and covered the area with plastic to contain the mold from further spreading to the Association's carpet and other areas of the hallway until the suspected leak and affected common area could be repaired; however behind the drywall that is covered by the plastic the damage is unknown and remains unaddressed. [¶] The Association's representatives and consultants that inspected the affected common area described herein above reported to me that the water damage, and resulting mold, will continue to threaten and may cause further damage to the affected common area and possibly other areas of the condominium project until the water leak that is causing the damage is repaired." (Capitalization omitted.)
Noble objected to this portion of Webb's declaration as lacking foundation or personal knowledge, calling for expert opinion, hearsay and constituting improper conclusions. Though Noble requested a ruling, the trial court declined to rule on the evidentiary objections, stating they were not "necessary to get to that point." Following briefing in this matter, the California Supreme Court rendered its opinion in Reid v. Google, Inc. (2010) 50 Cal.4th 512, in which it held a trial court's failure to rule on evidentiary objections in the summary judgment context does not waive those objections on appeal. We see no reason why Reid should not apply to motions for preliminary injunctions, which require evidentiary support (White v. Davis (2003) 30 Cal.4th 528, 554) and thus we deem Noble's evidentiary objections overruled and preserved on appeal. (Reid v. Google, at p. 534.) Noble's hearsay and expert opinion objections to this portion of Webb's declaration have merit. (Evid. Code, § 1200, subd. (a); see DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 680.) Thus, in strictly assessing the propriety of mandatory injunctive relief, we do not consider Webb's conclusion, based on a report made to her, that the water damage and resulting mold would continue to threaten and may cause further damage to the affected area and possibly other areas of the condominium project until the leak is repaired.
Noble opposed Association's application. His position, as stated in his submitted declaration, was that there was no emergency; that he had never received any written report indicating a problem with his property and that his own plumbing expert had given him an opinion that his shower valve was in perfect working order and had no damage According to Noble, Association could enter his unit "only to repair and maintain" including repairing and maintaining to cure any default by the owner, or to enter for an emergency that threatened the common area, Association property, or other condominiums. He maintained none of those conditions existed. Noble also moved to consolidate Association's lawsuit against him with Association's construction defect law suit against the developer.
The court denied Association's request for a temporary restraining order and set the matter for a hearing on a preliminary injunction. Noble thereafter submitted opposing points and authorities as well as another sworn declaration. He averred that at Webb's request, in late April 2009 he had allowed Association representatives, a handyman and security guard, into his unit to inspect and run his tub and shower. He stated that when his shower valve was used, "slight moisture then appeared in the common area." According to Noble, Webb later left him a voicemail stating they believed some portion of his shower was leaking, recommending he contact a plumber because it was his responsibility to repair his shower, and telling him that she would contact a plumber if he did not to ensure the problem was addressed and further damage avoided. Noble stated that he did so, and his plumber, Mark Smith, told him the leak did not emanate from his unit and could not be repaired from his unit. Noble stated that on August 20, 2009, he had offered to permit Burgess to enter his unit to remove the cover plate on his shower valve and make the requested repair, but Association did not respond to his offer. He also stated he provided Association with his plumber's report, which assertedly advised Association how repairs could be accomplished in the common area. Noble took the position that under the definitions provided by the CC&Rs, the solder joint referred to in Association's expert's report was not within his residential unit. He continued to maintain that no circumstance allowed Association to enter his unit under section 4.3.5 of the CC&Rs.
Noble submitted numerous evidentiary objections to the declarations provided by Peters and Webb. He also asked that the trial court take judicial notice of his prior declaration and points and authorities in opposition to Association's ex parte TRO application, as well as Smith's declaration filed at that time in which Smith stated he had informed Noble that in his expert opinion, the cause of the leak was based on the developer's failure to adequately seal the pipe in the common area hallway.
On September 17, 2009, Association filed its reply papers, as well as declarations from Burgess and Simon Tissington, an emergency service manager for a restoration company, and another declaration from its counsel, who stated he had responded to Noble's August 20, 2009 offer. Burgess averred that in June 2009 he had performed a preliminary inspection in which he observed "visible evidence that a water leak had occurred, and concluded that the most likely source of the water leak was a shower valve at a solder joint for the bathroom of Unit 803 adjacent to the wall area." He stated that based on his evaluation, he believed that in order to repair the suspected source of the water leak, it would be "necessary to enter the bathroom area of Unit 803, remove the cover plate on the shower valve, remove sufficient dry wall to examine the shower valve, and make the necessary repairs." He further stated, "Notwithstanding the foregoing, I do not now know the complete scope of the inspection and repairs that will be needed and will not know the same until an inspection of the bathroom tub/shower area of Unit 803 is conducted." Tissington averred that in April 2009 he had inspected the common area wall adjacent to unit 803 and conducted a moisture reading that showed elevated moisture for the area. He also discovered visible mold growth and damage on the backside of the wall to the unit, which he understood to be adjacent to that unit. He stated: "Based on the location of the mold growth and the amount of the mold growth, it is my professional opinion that in order to successfully remediate the mold damage on the backside wall, part of the backside wall will need to be cut-out. Given the foregoing and the location of the backside wall with possible bathroom tiles and tub/shower fixtures on the opposite side in Unit 803, it is my further professional opinion that the mold damage to and removal of the backside wall will need to be addressed from inside of Unit 803, regardless of whether or not there are visible signs of mold on the interior of Unit 803. At this time, I do not believe that there is any other way to make the needed repairs to the wall area, including the backside wall, successfully." Association submitted its own written evidentiary objections to Noble's and Smith's declarations.
Noble objected to the declarations of Burgess and Tissington as untimely and asked the trial court to disregard them. He alternatively asked the court to grant a continuance so that he could review the declarations and hire experts to review and comment upon them. He also addressed the declarations on their merits, asserting that Burgess's did not state it was necessary to remove any drywall from his unit, and objecting to Tissington's opinion as vague.
Finding no need to rule on Noble's evidentiary objections, the trial court granted Association's requested preliminary injunction, ruling Association had demonstrated its probability of success and that the equities were in its favor. It ruled the CC&Rs permitted Association to have access to Noble's unit for purpose of construction and maintenance, to perform its obligations under the Declaration, or to cure any default by an owner under the Declaration, and the declarations of Burgess and Tissington supported Association's request that it be permitted to inspect and, if appropriate, make repairs to cure the plumbing problem. It declined to grant Noble a further continuance to offer rebuttal opinion, reasoning "[a]t best, rebuttal argument and evidence would only, in essence, create an issue of fact and would not change the Court's analysis in finding the injunction should be issued." It ruled rebuttal evidence could be offered at the appropriate time if the case proceeded.
Noble answered Association's complaint and filed a cross-complaint against the developer. The court thereafter entered its preliminary injunction order. In part, it ordered Noble to "grant [Association] and its agents access to [his] condominium unit... to inspect and, if appropriate, make repairs to cure the plumbing problem." It ordered Noble and/or his representatives were entitled to be present when the inspections and/or repairs were made and permitted them to take photographs or otherwise memorialize Association's actions.
Noble filed the present appeal.
DISCUSSION
I. Noble's Oral Argument Concessions
At oral argument in this matter, Noble represented that he was not challenging the preliminary injunction order to the extent it permitted Association to enter his unit to inspect and conduct destructive testing. Accordingly, we uphold the preliminary injunction granting Association and its agents access to Nobel's condominium unit to inspect and conduct destructive testing so as to assess the nature and scope of the plumbing problem and need for repairs. In view of Noble's concession, our discussion and analysis of the propriety of mandatory injunctive relief is directed solely to that portion of the preliminary injunction order permitting Association to actually undertake repairs.
II. Nature of the Trial Court's Injunction
Noble characterizes the injunction in this case as mandatory. Association does not address the point. We agree that the injunction issued here was mandatory in nature. It ordered Noble to grant Association access to his unit to inspect and make appropriate repairs to cure the plumbing problem. In that way, the injunction compelled affirmative action on Noble's part and altered the status quo in advance of trial on the merits. (See Feinberg v. Doe (1939) 14 Cal.2d 24, 27 [order compelling affirmative action by the defendant is in essence and effect a mandatory injunction]; Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625, fn. 4; 6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, §§ 280-283, pp. 222-224.)
"[T]he status quo... ' "has been defined to mean 'the last actual peaceable, uncontested status which preceded the pending controversy.' " ' " (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1408.)
III. Principles of Preliminary Injunctive Relief and Appellate Standard of Review
The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action. (White v. Davis, supra, 30 Cal.4th at p. 554; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) "To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits." (White v. Davis, at p. 554; City of Torrance v. Transitional Living Centers for Los Angeles (1982) 30 Cal.3d 516, 526 [plaintiff must plead or demonstrate irreparable injury, either existing or threatened, to warrant peremptory relief].) Trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction: (1) the likelihood that the moving party will ultimately prevail on the merits at trial and (2) the relative interim harm to the parties from the issuance or nonissuance of the injunction. (Ibid.) " 'The ultimate goal of any test to be used in deciding if a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.' " (White v. Davis, at p. 554, quoting IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73.) It is Association's burden in the trial court to show all necessary elements. (See O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)
The California Supreme Court has held that a mandatory injunction is not permitted except in clear and extreme cases: "The granting of a mandatory injunction pending the trial, and before the rights of the parties in the subject matter which the injunction is designed to affect have been definitively ascertained by the [trial court], is not permitted except in an extreme case where the right thereto is clearly established and it appears that irreparable injury will flow from its refusal." (Hagen v. Beth (1897) 118 Cal. 330, 331; accord, Slakin v. White (2002) 102 Cal.App.4th 963, 972.) Thus, " ' "[a] preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal." ' " (Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th at p. 625; accord, Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493; Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446; Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295-296.) " 'The judicial resistance to injunctive relief increases when the attempt is made to compel the doing of affirmative acts.' " (McMahon, at p. 295.)
We nevertheless review the trial court's order granting the injunction under an abuse of discretion standard. (Davenport v. Blue Cross of California, supra, 52 Cal.App.4th at p. 446; Perez v. Hastings College (1996) 45 Cal.App.4th 453, 456-457; Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th at pp. 624-625.) A trial court will be found to have abused its discretion only when it has exceeded the bounds of reason or contravened the uncontradicted evidence. (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527.)Abuse of discretion as to either of the two interrelated factors warrants reversal. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1299 (Alliant).)
The court properly exercises its discretion where its determination is supported by substantial evidence. (Monogram Industries, Inc. v. Sar Industries, Inc. (1976) 64 Cal.App.3d 692, 703; accord, Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527.) " 'In determining the validity of the injunction, we look at the evidence presented to the trial court to determine if there was substantial support for the trial court's determination that the plaintiff was entitled to the relief granted.' [Citation.] 'Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal. "[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court's province to resolve conflicts." [Citation.] Our task is to ensure that the trial court's factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order.' " (Alliant, supra, 159 Cal.App.4th at p. 1300; see also 14859 Moorpark Homeowner's Assn. v. VRT Corp., supra, 63 Cal.App.4th at pp. 1402-1403 [reviewing court will presume the trial court made appropriate factual findings in the absence of express findings and review the record for substantial evidence to support the rulings].) Where the determination on the likelihood of a party's success rests on an issue of pure law based on unconflicting evidence, we review the determination de novo. (Moorpark, at p. 1403.)
Noble asserts we must treat the trial court's ruling as a question of law because the relevant facts are undisputed. The record and the parties' supporting and opposing declarations, however, indicate otherwise. The parties here disputed key facts, including whether repairs were necessary and whether or not Association was required to enter Noble's unit in order to perform the proposed repairs. Hence, applying the above-summarized standards, we review the trial courts express and implied factual findings — which we presume were made in Association's favor — for substantial evidence.
IV. Irreparable Injury
Our analysis of the sufficiency of Association's evidence begins and ends with the irreparable injury factor. Noble contends Association failed to present evidence of any immediate threat of harm or irreparable injury; that neither Burgess's nor Tissington's declarations support a finding of such injury or harm. He points out that Code of Civil Procedure section 526 requires a verified showing of irreparable injury or interim harm the movant will suffer if an injunction is not issued pending an adjudication of the merits. Applying the heightened review for a mandatory preliminary injunction as we must, we conclude the contention has merit.
A plaintiff's showing of potential harm can be expressed as one involving the inadequacy of legal remedies or threat of irreparable injury, but "whatever the choice of words it is clear that a plaintiff must make some showing which would support the exercise of the rather extraordinary power to restrain the defendant's actions prior to a trial on the merits. [Citations.] In general, if the plaintiff may be fully compensated by the payment of damages in the event he prevails, then preliminary injunctive relief should be denied." (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471-1472 & fn. 9 (Tahoe Keys) [appellate court found insufficient showing of irreparable harm to enjoin the collection of an assertedly unconstitutional regulatory fee because the fees could be refunded if the challengers prevailed]; accord, White v. Davis, supra, 30 Cal.4th at pp. 554-555 [plaintiff seeking a preliminary injunction ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits; monetary harm (in the form of improper use of tax funds for example) is insufficient to justify the issuance of a preliminary injunction]; Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 446-447 [plaintiff proved that interim harm it would suffer was more than monetary, warranting injunctive relief]; Abrams v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628, 636, 640, fn. 2.) Thus, an injunction will be properly granted where it would be extremely difficult or impossible to ascertain the amount of compensation that would afford adequate relief. (Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121, 132.)
At issue is Association's showing as to the nature of alleged property damage in the common area of the condominium units. In the context of real property, the essential features marking an injury as irreparable are that the injury is an act that is a serious change of or is destructive to the property it affects, either physically or in the character in which it has been held and enjoyed. The property, however, must have some peculiar quality or use such that its pecuniary value as estimated by a jury will not fairly recompense the owner for its loss. (See Grey v. Webb(1979) 97 Cal.App.3d 232, 238; Helms Bakeries v. State Bd. Of Equalization (1942) 53 Cal.App.2d 417, 426.)
In Grey v. Webb, for example, the plaintiffs sued for specific enforcement of a contract to convey to them a newly constructed home in Rancho Mirage, and obtained a preliminary injunction prohibiting the defendant owner from occupying or otherwise exercising possession of the property. (Grey, supra, 97 Cal.App.3d at p. 234, 236.) Plaintiffs had shown they had spent over $16,000 to purchase items and make improvements including new floor coverings and fireplace tile, and had also sold their business in Los Angeles. (Id. at p. 236.) They argued that a new, unoccupied house had a particular and unique character that would be destroyed when occupied by others, particularly in view of their costly improvements. (Id. at p. 238.) Defendants had argued that any damages of occupancy could be adequately compensated by an award of damages. (Ibid.)On appeal, the appellate court agreed with the plaintiffs and found substantial evidence of irreparable injury; that the "difference between a new house and a used one, as perceived by a buyer of ordinary sensitivity, is a difference of character and not merely of value." (Ibid.) Accordingly, it concluded the trial court had not abused its discretion in granting the injunction. (Ibid.)
Here, Association's complaint does not suffice to prove the existence of irreparable interim property damage, as that pleading was not verified. (Code Civ. Proc., § 527, subd. (a); see, e.g., City of Torrance v. Transitional Living Centers for Los Angeles, supra, 30 Cal.3d at p. 526.) In its motion, Association presented evidence that damage had occurred to Association property, namely, Burgess having witnessed "visible evidence that a water leak had occurred..." the "most likely" source of which was a shower valve at a solder joint for Noble's unit. Burgess stated he was unable to know the "complete scope of the inspection and repairs" that would be needed until someone conducted an inspection of Noble's tub and shower area. Tissington likewise provided evidence that injury to Association property, including mold growth and mold damage, had occurred, stating that to successfully remediate the existing mold damage, it would have to be addressed from the inside of Noble's unit; that there was no other way to make the needed repairs to the wall area successfully. In reply, Association also pointed to Noble's own evidence that there was a water leak in his shower, namely Smith's letter to Noble and his declaration in which Smith stated that when he initiated water flow and diverted the water to the shower head, water seeped out of the tub/shower valve body located in the wall behind the drywall. In discussing the balance of harms in its respondent's brief, Association asserts that it "has been unable to fully remediate the existing mold in the affected Common Area and cannot do so without access to Noble's unit." Based on all of the cited evidence, Association argues it "would risk great harm if the preliminary injunction were denied."
We are not persuaded that Association's right to mandatory preliminary injunctive relief is "clearly established" by this evidence. (Teachers Ins. & Annuity Assn. v. Furlotti, supra, 70 Cal.App.4th at p. 1493.) Association's evidence does not suggest that the mold damage is ongoing: that it would either continue to occur or become worse in the interim. Even assuming it is possible to infer ongoing damage, Association's declarations do not demonstrate that it has no adequate alternate remedy for these interim damages; that the mold damage to Association's property, even if it were permitted to continue to the time of eventual trial, cannot be remediated or repaired if Association prevails. Association has not shown that its property is somehow unique or has intrinsic value, and it has not shown that the interim damage is not compensable in money damages, i.e., that the legal remedy of damages "would not afford adequate relief" (Code Civ. Proc., § 526, subd. (a)(4)) or that "it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief." (Code Civ. Proc., § 526, subd. (a)(5).) (See Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1110; Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 457-458.)
Nor has Association shown noncompensable harmful health consequences to Noble or any other Association member stemming from the mold. Association merely asserts, without record citation or any indication it sought judicial notice on the point, that "[t]he health risks of mold are well known and with a water source that is left unabated can be amplified." Such arguments of counsel are not evidence. (See Davenport v. Blue Cross of California, supra, 52 Cal.App.4th at p. 454.) We would find no basis in any event to grant any such request for judicial notice under Evidence Code section 452, subdivisions (g) or (h), providing for the taking of notice, respectively, of matters of common knowledge within the jurisdiction, and matters that are easily ascertained by reference to reliable sources. There are limitations on judicial notice of "[s]ome matters of so-called common knowledge, " because "they are not really known or immediately ascertainable within the local area." (1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, § 35, p. 130.) Even where some facts are "widely believed, " the courts will decline to take judicial notice if they are controversial or subject to expert testimony. (Ibid.) This would appear to be the case concerning the debate over the health effects of mold's presence in a building. (See Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390, 402-406; Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1311-1312; Montomery Mut. Ins. Co. v. Chesson (Md. 2007) 923 A.2d 939, 950, fn. 7 [physician's theories regarding mold exposure and illness were not the proper subject of judicial notice in part as the "debate on toxic mold and sick building syndrome has become increasingly prevalent in American courtrooms, and courts across the country have reached differing conclusions regarding the causal relationship between mold exposure and sick building syndrome"].)
In our view, there is no evidence to support the trial court's implied conclusion that, absent an injunction, Association will suffer irreparable injury or injury that is either unascertainable or cannot be adequately compensated in money damages. (Board of Supervisors v. McMahon, supra, 219 Cal.App.3d at p. 296.) Indeed, Association essentially concedes the mold damage to its property can be remediated as long as it is granted entry to Noble's unit. Association's right to enter, of course, is the question to be resolved at trial on Association's action. Even if Association demonstrated it is likely to prevail at trial, the likelihood of success on the merits, standing alone, is not enough to justify an order changing the status quo pending trial. Injunctive relief must be denied if Association "may be fully compensated by the payment of damages in the event [it] prevails...." (Tahoe Keys, supra, 23 Cal.App.4th at p. 1471.) On this record, we must conclude the trial court abused its discretion in granting the mandatory injunction, at least as to those aspects remaining after Nobel's oral argument concessions.
We emphasize that our decision that the evidence does not support the issuance of the preliminary injunction does not constitute a final adjudication of the ultimate rights in controversy. (IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 74, fn. 7 & 75-76; Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th at pp. 625-626.)
DISPOSITION
The order compelling Noble to grant Association and its agents access to his condominium unit to inspect is affirmed. The order permitting Association and its agents to make repairs to cure the plumbing problem is reversed. The trial court is directed to modify the order to read: "IT IS ORDERED that Defendant Frank E. Noble ("Noble") grant plaintiff Discovery at Cortez Hill Homeowners Association ("Association") and its agents access to defendant Noble's condominium unit located at 850 Beech Street, Unit No. 803, San Diego, California 92101 to inspect the plumbing problem and conduct destructive testing to assess the nature and scope of the problem and need for repairs. Defendant Noble and/or his representatives are entitled to be present during the inspection and testing and to take photographs or otherwise memorialize the actions taken by plaintiff Association. To the extent plaintiff Association seeks reimbursement for any expenses incurred herein and/or this case proceeds to trial then the ruling on this motion is without prejudice to defendant Noble offering whatever opinions are appropriate at that time. Plaintiff Association's undertaking is set at $5,000."
Association shall recover its costs on appeal.
WE CONCUR: HALLER, Acting P. J. McDONALD, J.