In the recent unpublished case of Sunset Greens Homeowners Association v. Spagenski, the Fourth District Court of Appeal upheld a San Diego Superior Court judge's entry of summary judgment for a community association on a case involving a vicious dog. The association had sued after the defendant owners' German Shepherd, “Kato,” attacked neighbors' dogs within the community, injuring both dogs and neighbors.
Kato had attacked four other dogs in three separate events over roughly six months, resulting in the death of one of the other dogs. In two of the events, Kato also injured neighbors. The association called the owners to hearings and warned that further incidents could result in the removal of the dog from the community. After the second attack, the association's board held another violation hearing, which the owners failed to attend. The board ordered the owners to remove Kato from the community.
The association sued the owners, seeking injunctive relief for breach of the CC&Rs and nuisance. The association asked that the trial court enforce the decision to remove Kato, permanently enjoin the owners from keeping Kato in the community, and award attorney fees and costs. The trial court issued a temporary injunction prohibiting the owners from keeping Kato in the community while the lawsuit was pending. The association then moved for summary judgment.
The trial court found the association had established that the owners breached the CC&Rs. The trial court also found that an aggressive dog in the community interferes with the comfortable enjoyment of life or property. The CC&Rs gave the board discretion to enforce its provisions and provided that violations automatically established a nuisance. This association's CC&Rs also specifically provided that animals determined by the board to be a nuisance could no longer be kept at the property. The trial court affirmed the board's discretion to declare Kato a nuisance and to require Kato's removal from the community.
After the court entered summary judgment for the association and permanently enjoined Kato from living in the community, the owners appealed. The owners contended summary judgment was improper as triable issues of material fact existed regarding whether Kato was an aggressive dog or had been “surprised, provoked, and taunted,” and whether his training had eliminated any aggressive tendencies. The Court of Appeal affirmed the summary judgment since the association had established by undisputed material facts that the owners violated the CC&Rs and the violations constituted a nuisance. The Court of Appeal noted that the association did not need to establish a likelihood of future harm to obtain a permanent injunction under the CC&Rs. The CC&Rs also did not require the board to consider abatement or the likelihood of future harm in determining whether a breach occurred or in exercising its enforcement discretion.
While the Sunset Greens decision is not a published opinion and is therefore not citable authority, its reasoning affirms the ability of a community association, aided by supportive CC&R provisions, to remove nuisance dogs from the community.