Writing Sample - PointsnAuthorities - KW

KIMBERLEY WALSH
2208 Margaret Drive
Newport Beach, CA 92663
949-230-7000
Attorney for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
CAROL BROAD, an individual
Plaintiff,
vs.
HERB HANCOCK, an individual,
Defendant
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Case No.: NW 291 033
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF A
MOTION FOR PRELIMINARY
INJUNCTION
Dated: August 3, 2008
_________________________
JAMES F. FOX (Bar No. 157911)
24255 Pacific Coast Hwy.
Malibu, CA 90263
Case No. NW 291-033 Plaintiff’s Memorandum of Points & Authorities - 1

PRELIMINARY STATEMENT / INTRODUCTION
Plaintiff, Carol Broad, respectfully requests, and the court
should hereby issue, a preliminary (and subsequent prohibitive)
injunction enjoining Defendant neighbor, Herb Hancock, from
demolishing and reconstructing the adjoining property located in,
and governed by, the Common Interest Development known as “Dwarf
Village”. Defendant’s proposed demolition and reconstruction is in
direct violation of the Association’s governing documents to which
all Dwarf Village residents are bound. Further, if not enjoined
from proceeding with said construction, Defendant will be in breach
of Ms. Broad’s Covenant of Air and Light legally granted to her as
an easement that runs with the land. By Defendant’s own admission
(see Defendant’s Declaration #3), he knowingly plans to breach the
Covenant and violate the easement by constructing a home that will
be three times the allowable size, and in so doing, will
substantially restrict the free flow of air and light into Ms.
Broad’s home. Defendant’s violation of the Covenants and blatant
disregard of Ms. Broad’s easement was knowing, willful and in bad
faith. Since Defendant has already brought heavy demolition
equipment onto the property to begin construction, a preliminary
injunction should be issued as necessary to enjoin Defendant from

proceeding with the illegal construction. Further, a permanent
prohibitive injunction, based upon the merits of Ms. Broad’s claim
and the legal arguments set forth below, should then be issued to
return the parties to the status quo, ensure that the uniformity
and historic designation of the development will be maintained, and
to preserve the easement(s) held by Ms. Broad and all other
property owners within Dwarf Village.
STATEMENT OF THE CASE
The material facts are essentially undisputed. Defendant has
brazenly proceeded with his plans to demolish and re-build the
house on his property at 23 Dwarf Village Road, which is
specifically prohibited by the CC&Rs of the Dwarf Village
Homeowners Association. Further, Defendant’s planned construction
constitutes a blatant violation of the reciprocal easement
encumbering both Defendant and Plaintiff’s property. Defendant
argues that Plaintiff’s claim of breach fails to establish a cause
of action (citing only irreparable injury), is illegal and void
against public policy, and that she is barred from obtaining
injunctive relief due to balancing of equities favoring Defendant.
However, Plaintiff has properly shown that, not only will she
suffer irreparable harm if Defendant is permitted to proceed with

construction, the facts clearly establish that she is likely to
succeed on the merits, that the injunctive relief being requested
is not against public policy, and that the balance of the hardships
in this case certainly favors Plaintiff. For these reasons, as well
as the arguments set forth below, Defendant’s “Affirmative
Defenses” as cited in his Answer to the Complaint, must fail.
Plaintiff is entitled to a preliminary injunction for the reasons
discussed in this memorandum.
ARGUMENT
I. ISSUANCE OF A PRELIMINARY INJUNCTION IS NECESSARY TO PRESERVE
THE STATUS QUO AND PREVENT IRREPARABLE INJURY TO MS. BROAD PENDING
THE HEARING FOR PERMANENT INJUNCTIVE RELIEF.
A. A Preliminary Injunction Should Issue Due To Plaintiff’s
Likelihood of Success on the Merits.
This court, in exercising discretion to grant or deny the
requested injunctive relief, is required to balance the relative
hardship to the parties resulting from the issuance of an
injunction and consider two interrelated factors: (1) the
likelihood that the moving party will succeed on the merits of its
claims at trial, and (2) which party is likely to suffer a greater
injury from either granting or denying the injunction. Robbins v.

Superior Court (1985) 38 C3 199, 206. When a plaintiff
demonstrates that there is a good chance of success on the merits,
the court may grant an injunction, even if the balance of interests
tips the other way. Pleasant Hill Bayshore Disposal Inc. v. Chip-It
Recycling, Inc. (2001) 91 Cal App 4th 678, 696, 110 Cal Rptr. 2d
708. There is no doubt, and Defendant admits, that the planned
construction exceeds the size limits as specified in the Covenants,
Conditions, & Restrictions of the Dwarf Village Homeowners
Association. It is further uncontroverted that all owners of
property within Dwarf Village were granted an easement of air and
light on the adjacent properties, and that the Defendant’s planned
construction is a direct and intentional violation of that
reciprocal easement.
1.) Ms. Broad Has No Adequate Remedy At Law, And Her Claim
Presents A Classic Case For Injunctive Relief.
Interests in land are unique. Civil Code §3387. As such,
specific performance or injunctive relief is a proper remedy due to
the inadequacy of a monetary remedy. See id. Thus, when there is a
contract between adjoining landowners involving the use of their
property, injunctive relief is appropriate. Smith v. Mendosa (1952)
108 Cal App 2d 540, 545,238 P. 2d 1039; 6 Witkin, CAL PROC. (4TH

Ed, Provisional Remedies) § 311.
The issue here is a violation of an easement which runs with the
land and, as such, is unique per se, thus establishing a cause for
which the proper remedy is equitable in nature. The injuries to
Ms. Broad’s property rights which have been suffered and are
continuing, coupled with the additional injuries threatened by the
Defendant, present a classic case of “irreparable injury,” where
monetary damages and other legal remedies are completely
inadequate, thus issuance of injunctive relief is warranted.
2.) An Injunction is the Proper Remedy When What is Sought is
the Use & Enjoyment of Certain Benefits Such as Privacy,
Light & Air, and to Maintain the Status Quo
The easement of air and light is a covenant that runs with the
land, and involves an agreement concerning the use of the land. As
such, injunctive relief, whether prohibitory or by way of specific
performance (mandatory) is appropriate. See Major 7 Cal App 4th at
623. American courts honor express easements to sunlight. Thus, an
easement of light & air may be acquired by express grant. In
Vanklompenburg v. Berghold (2005), the trial court enjoined the
defendants from “maintaining a gate on, or otherwise interfering
with the plaintiffs’ use of the[ir] easement”. The court further

stated that “where an easement under a grant is specific in its
terms, it is decisive of the limits of the easement”. Here, as in
Vanklompenburg, the language granting the easement is specific in
its terms, (see Exhibit B, CC&Rs, Item #5) wherein it is clearly
stated that “all property owners [of the Association] are hereby
granted an easement of air & light on the adjacent properties”.
B. Plaintiff will Suffer Irreparable Injury without Injunctive
Relief.
Allowing the construction of the new home to continue until it
violates Ms. Broad’s Covenant will cause a great loss of resources.
At such a point, Defendant is likely to argue that it would be
wasteful to change the home after it has been built, because to do
so will require demolition and other remedial activity. Each day
that the construction on the house proceeds, the strength of that
argument increases which could result in any future remedy that is
available to the Plaintiff to become ineffectual or unavailable.
Thus, the benefit of what the Plaintiff bargained for in the
easement will be lost. As such, an injunction is necessary to
protect the Plaintiff's interest in her land and to protect her
rights under a contract involving the use of land, which can
eventually be specifically enforced.

1.) The Relative Hardships That Will Result, when Fairly
Balanced, Weighs Heavily in Favor of Ms. Broad.
Defendant should be enjoined from proceeding with
demolition/reconstruction because the necessary repairs can be made
without incurring substantial hardship. Even if Defendant’s
contention as to the cost of repairing the property ($250,000)
versus demolition and new construction ($200,000) were actually
substantiated by some sort of proof, the hardship to the Defendant
is still minimal when compared to the irreparable injury that Ms.
Broad will endure if the massive home is allowed. Further, it is
not necessary for Defendant to completely re-build a substantially
larger home in order to alleviate the “deteriorating condition” of
his property. In fact, making the repairs to the home (instead of
demolishing and reconstructing) will not only preserve the
community’s historic designation, it is a more reasonable solution,
especially in light of the fact that such a remedy would maintain
the status quo (not change the positions of the parties), and would
not violate any covenants, conditions or restrictions with regard
to the property easements.

2.) Intentional Act by Defendant Negates Balancing of
Hardships.
It is pertinent to note that the balancing of hardships is
ordinarily used by courts in cases of inadvertent or innocent
encroachments. Here, Defendant’s act is deliberate, intentional
and in bad faith and, as such, the balancing requirement is no
longer necessary and, in fact, should not be weighed at all.
Because Defendant acted with full knowledge of the risk he was
taking, he cannot defeat the present motion by pointing to injuries
resulting from his own intentional and calculated attempts to
violate the reciprocal easement which runs with the land.
3.) The Easement is Established at Law by Virtue of the
Governing Documents of the Association.
Both parties own real property in Dwarf Village, which is a
common interest development as defined by Civ. Code §1351, subd.
(c) and, as such, are legally required to abide by its governing
documents including the CC&Rs which clearly state, in part, (1) All
property owners are granted an easement of air and light on the
adjacent properties, and (2) Any property that is destroyed (due to
fire or natural causes) may only be rebuilt using the same floor

plan as when originally constructed. (see Plaintiff’s Complaint,
Exhibit B). Defendant’s proposed construction, undisputedly, would
violate both of the aforementioned covenants.
4.) Defendant’s Application for a Demolition & Construction
Permit is Not a Factor for Consideration by This Court
A particular use of land may be enjoined as in violation of a
restrictive covenant, although the use is permissible under a
zoning ordinance. In Van Klompenburg v. Berghold (2005), the
appellate court, in upholding the trial court’s decision to grant a
permanent injunction stated, “the interpretation of an easement,
which does not depend upon conflicting extrinsic evidence, is a
question of law.” The fact that no violation has actually been
committed does not preclude the court from exercising its equity
jurisdiction to relieve against a breach of a covenant, as it is
sufficient that a breach is intended. Here, Defendant admittedly
intends to breach Ms. Broad’s Covenant of Air & Light and, as
stated in his Declaration, “anticipates approval of the requested
building permits”. As stated above, the CC&Rs and/or governing
documents of the Dwarf Village Homeowners Association are the
governing authority in this instance. Not only do they set forth
the restrictions as to allowable building specifications, they

clearly provide the owners with certain covenants and easements as
to the properties in general. Whether the land in question is
properly zoned, or whether city ordinances allow for the type of
construction Defendant seeks, is irrelevant. The appropriate
authority, under which the Plaintiff requests enforcement, is the
Covenants, Conditions, & Restrictions of Dwarf Village.
II. DEFENDANT HAS FAILED TO SUBMIT ANY EVIDENCE TO SUPPORT HIS
ALLEGATIONS OF EXPENSES, NOR HAS HE PROVIDED ANY PROOF THAT THE NEW
CONSTRUCTION WILL INCREASE PROPERTY VALUES.
Defendant contends that his proposed construction will increase
the fair market value of his property by $200,000, and will
similarly increase the value of neighboring properties within Dwarf
Village. Defendant, however, does not provide any evidence to
substantiate this claim. For the court to consider any such
“benefits”, as an offset to damages resulting from Defendant’s
breach of Plaintiff’s covenant(s), they must be immediate, non-
speculative and certain to result from the construction which, in
this case, is the subject of the breach itself. Since Defendant
fails on all the above counts, the court should disregard any of
Defendant’s allegations of increased value and focus solely on the

irreparable injury such construction will cause Carol Broad (as
discussed supra).
III. DEFENDANT’S ACTIONS AND BREACH OF PLAINTIFF’S COVENANT OF
AIR & LIGHT CONSTITUTES A PRIVATE NUISANCE FOR WHICH COMPENSATORY
DAMAGES SHOULD BE AWARDED.
An actionable nuisance is “anything which is injurious to
health, or is indecent or offensive to the senses or an
obstruction of the free use of property, so as to interfere with
the comfortable enjoyment of life or property.” Civil Code §3479.
An owner of land does not have absolute or unlimited right to use
his land in a way which injures the rights of neighboring
landowners, and use by one must not unreasonably impair the use or
enjoyment of the other. The reasons for enjoining a nuisance are
similar to those for enjoining a trespass. When one landowner's
use of his property unreasonably interferes with another's
enjoyment of her property, that use is said to be a “private
nuisance.” See Id. In cases of private nuisance or trespass,
regardless of whether a plaintiff has sustained physical injury,
emotional distress is an element of recoverable damages. Smith v.
County of Los Angeles (2d Dist.1989) 214 Cal.App.3d 266, 262
Cal.Rptr. 754.

Here, Carol Broad has suffered emotional distress from the
noise and anxiety caused by Defendant’s conduct and, as such, is
entitled to compensatory damages in the sum of $30,000. Further,
due to the intentional and deliberate acts of the Defendant,
reasonable justification exists for awarding said damages, as well
as attorneys fees and any other consequential damages as may be
submitted to the court. Further, since remedies for damages and
injunctive relief are not mutually exclusive Ms. Broad is entitled
to and should be awarded both.
CONCLUSION
Defendant has shown that he intends to continually violate the
rights of Ms. Broad by moving forward with the illegal demolition
and reconstruction of his property. Thus, if the Defendant is not
enjoined and restrained from further offense(s), Carol Broad will
suffer from a daily violation of her rights and a continual
invasion of her property. For the foregoing reasons, Ms. Broad’s
application for preliminary injunction and subsequent permanent
injunction should be granted.
Dated: August 3, 2008
BY: ________________

KIMBERLEY WALSH
Attorney for Plaintiff

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