Procedural Posture

In a case arising from a dispute concerning use of the common area at a condominium building, appellant unit owners challenged a nonsuit granted by the Superior Court of San Diego County, California, on their nuisance and negligence claims against respondent homeowners association and on their defamation claim against respondent director. The trial court ruled in the association’s favor on a claim against it for declaratory and injunctive relief.

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Although the owners claimed error in jury instructions pertaining to the availability of nominal damages for breach of contract, the court found that they had waived the issue because they did not cite the appellate record to show that they requested an instruction on nominal damages or made any objection to the instructions or the special verdict form. The trial court’s finding that an amendment to the covenants, conditions, and restrictions (CC&R’s) giving the association discretion to allow encroachments beyond the back patios of the lower units was lawfully passed was supported by substantial evidence. The CC&R’s gave the association the right, but not the obligation, to file lawsuits against owners for violating their provisions. The amendment was a reasonable and commonsense solution pursuant to Civ. Code, ยง 1354, to the owners’s complaints that the letter of the original CC&R’s was being violated. Presumably, the amendment to the CC&R’s would increase, rather than harm, the owners’ use and enjoyment of their unit. Thus, there was no nuisance to abate. Nonsuit on the defamation cause of action was proper. Respondents’ memorandum of costs was not late.


The court affirmed the trial court’s judgment.

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