Judge: Anne Richardson, Case: 22STCV03817, Date: 2023-10-16 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV03817    Hearing Date: October 16, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:               Plaintiff Ana Maria Garcia.

OPPOSITION:                     Defendant Karpel Investment Group, Inc. [Opposition #1; Defendants Aaron Marzwell, 1155 N. Madison Ave, LLC, Madison Sundance Manager, LLC, and Appa Real Estate, LLC [Opposition #2].

Background

Relevant Pleadings

Plaintiffs Leslie Herrera, Guillermo Garcia, Ana Maria Garcia, and Maria Ponce de Leon—four separate tenants living in the residential real property located at 1155 N. Madison Ave., Los Angeles, CA, 90029 (Subject Property), with Ana Maria Garcia and Maria Ponce de Leon both over the age of 65 years old—sue Defendants/Cross-Complainants/Cross-Defendants 1155 N. Madison Ave, LLC (Madison) and Aaron Marzwell (Marzwell), Defendants Madison Sundance Manager, LLC (Sundance), and Appa Real Estate, LLC (Appa), Defendants/Cross-Defendants/Cross-Complainants Karpel Investment Group Inc. (KIG), and Does 1 through 100 pursuant to a May 15, 2023 First Amended Complaint (FAC) alleging claims of (1) Breach of Quiet Enjoyment, (2) Nuisance, (3) Violation of Civil Code § 1942.5, (4) Violation of Los Angeles Municipal Code § 151.10, (5) Violation of Los Angeles Municipal Code § 45.30, et seq., (6) Violation of Fair Employment and Housing Act, (7) Violation of Unruh Civil Rights Act – Cal Civ. Code §§ 51, et seq., (8) Violation of the California Disabled Persons Act – Cal Civ. Code §§ 54-55.2, (9) Intentional Infliction of Emotional Distress (IIED), and (10) Violation of Business & Professions Code § 17200.

The claims arise from allegations that after acquiring ownership of the Subject Property, Madison, through its agents, engaged in unlawful practices to remove long-term Latino tenants from the building, including misrepresentations that the building was going to be demolished coupled with statements that buyout offers would not be extended to tenants that did not vacate the Subject Property before demolition, as well as retaliation against tenants refusing buyout offers—e.g., reduced services to rental units, intimidation by informing Plaintiffs they were allegedly breaching their leases for trivial reasons like maintenance of an emotional support animal, attempts to raise rent during times of COVID-19 protections, removal of Plaintiffs’ storage units, removal of Plaintiffs’ parking space allotment (including for disabled Ana Maria), requirements to obtain renter’s insurance, failure to maintain functioning laundry room services on the property, failure to make timely repairs in Plaintiffs’ units, and refusal to allow pets to urinate in common areas such that pets have been urinating near Ana Maria’s unit.

Defendant KIG is alleged to be the Subject Property’s management company. Defendant Sundance is alleged to own Madison. Defendant Appa is alleged to own Sundance. Defendant Marzwell is alleged to be Madison’s, Sundance’s, and Appa’s ultimate owner and a person that directs these entities’ operations and decisions.

Motion Before the Court

On September 19, 2023, Plaintiff Ana Maria Garcia moved for affirmative injunctive relief in the form of an order enjoining Defendants “to reasonably accommodate Plaintiff’s physical disability by returning the use of a designated onsite parking space pending resolution of the matter on the merits.”

On October 3, 2023, Defendant KIG opposed Plaintiff Garcia’s motion.

On October 4, 2023, Defendants Marzwell, Madison, Sundance, and Appa made a separate opposition to Plaintiff Garcia’s motion.

On October 9, 2023, Plaintiff Garcia replied to the oppositions.

Plaintiff Garcia’s motion for preliminary injunction is now before the Court.

Motion for Preliminary Injunction

Legal Standard

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. (Code Civ. Proc., § 525.) An injunction is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. (Meridian, Ltd. v. City and County of San Francisco, et al. (May 5, 1939) 13 Cal.2d 424, 447, as modified in Meridian, Ltd., v. San Francisco (Jun. 3, 1939) 13 Cal.2d 424.) Otherwise stated, an injunction may be more completely defined as a writ or order commanding a person either to perform or desist from performing a particular act. (See Comfort v. Comfort (1941) 17 Cal.2d 736, 741; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1160.) The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. (See, e.g., Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 713 [“… [The i]njunction before [Court] … is mandatory … [because] [i]t compels [the party] to take affirmative action by terminating present employees”].)

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon trial. (Gray v. Bybee (1943) 60 Cal.App.2d 564, 571; Major v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623; Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) Accordingly, a mandatory injunction—one that mandates a party to affirmatively act—carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Assoc. v. Furlotti (1990) 70 Cal.App.4th 1487, 1493, citations omitted (Teachers Ins. & Annuity Assoc.).)

Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; see, e.g., Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. (See Code Civ. Proc. § 527, subd. (a).) A pleading alone rarely suffices.

The burden of proof is on the moving party. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255, citation omitted.)

Order Granting Preliminary Injunction: DENIED.

The trial court considers two main factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial; and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-867 (Husain); see Code Civ. Proc., § 526, subd. (a).)

I.

Likelihood of Success on the Merits

The moving party has the burden of presenting facts showing a reasonable probability of succeeding on the merits. (Citizens for Better Streets v. Board of Supervisors of the City & County of San Francisco¿(2004) 117 Cal.App.4th 1, 6; Trader Joe’s Co. v. Progressive Campaigns,¿Inc.¿(1999) 73 Cal.App.4th 425, 429-30.) The likelihood of plaintiff’s ultimate success on the merits affects the showing necessary to a balancing-of-hardships analysis whereby the more likely it is that the plaintiff will ultimately prevail, the less severe must be the harm the plaintiff alleges will occur if the¿injunction¿is not issued, particularly true when the requested¿injunction¿maintains, rather than alters, the status quo. (Take Me Home Rescue v.¿Luri¿(2012) 208 Cal.App.4th 1342, 1350.) “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Assoc., supra, 70 Cal.App.4th at p. 1493.)

In her motion, Plaintiff Garcia argues that she is likely to succeed on the merits of her claim under the California Fair Employment and Housing Act (“FEHA”), thus entitling her to the requested affirmative injunction against Defendants. Plaintiff provides arguments for each element of a FEHA housing discrimination claim. (Mot., pp. 9-11; see FAC, Sixth Cause of Action.)

In opposition, KIG presents arguments for why Plaintiff cannot establish the elements of her FEHA housing discrimination claim against KIG. (KIG Opp’n, pp. 5-7.)

In opposition, Marzwell, Madison, Sundance, and Appa argue that Plaintiff cannot establish her claims against them. These Defendants argue, among other things, that Plaintiff’s lease unambiguously provides that upon seven days’ written notice, Defendants may revoke Plaintiff’s parking privileges at any time and for any reason, that such notice was properly and timely given here when the Subject Property was retrofitted, and that another accommodation was offered to her which was refused. (Marzwell, et al. Opp’n, pp. 5-6.)

In reply, Plaintiff argues that she has sufficiently shown a likelihood of success on the merits and pushes back against KIG’s and the other Defendants’ arguments. (See Replies.)

The Court finds in favor of all Defendants.

The Court initially notes that Plaintiff Garcia seeks to change the status quo and secure an affirmative injunction against Defendants. Such an injunction carries a high burden: “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Assoc., supra, 70 Cal.App.4th at p. 1493.)

Moving to the merits, FEHA makes it unlawful for landlords to discriminate against their tenants because of, amongst other things, the tenant’s disability. (Gov. Code, § 12926 et seq.) (Ms. Garcia’s claims under the City of Los Angeles Tenant Anti-Harassment Ordinance (TAHO) are predicated on this FEHA claim.) To establish a prima facie case of housing discrimination in violation of FEHA based on a landlord’s refusal to provide reasonable accommodations, the plaintiff must establish that (1) she is disabled as defined by FEHA, (2) the landlord knew or should have known of the disability, (3) an accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the landlord refused to make this accommodation. (Auburn Woods I Homeowners Assn. v. Fair Employment and Housing Comm. (2004) 121 Cal.App.4th 1578, 1592 (Auburn Woods).)

Here, the Court finds that Plaintiff Garcia offers minimal but sufficient evidence in support of her disability. Plaintiff offers her declaration to the effect that she is disabled, and a copy of the handicap parking placard issued to Ms. Garcia by the Department of Motor Vehicles (DMV). (See Mot., Ana Maria Garcia Decl., ¶¶ 1, 9; Mot., Medina Decl., ¶ 2, Ex. C.) Plaintiff’s reply relies on the California Code of Regulations for the purpose of arguing that the information establishing that the individual has a disability can be provided directly by the individual with a disability through a credible statement regarding the disability that a reasonable person would believe is true based on the available information. (See Reply [KIG], p. 2, citing Cal. Code Regs., tit. 2, § 12178, subd. (f).) The Court finds that she has established a prima facie case of her disability.

However, the Court finds that Plaintiff Garcia has not sufficiently established the likelihood of success on the merits as to her alleged necessity for parking accommodation to afford her an equal opportunity to use and enjoy the dwelling. Plaintiff’s motion as to this point is brief. She cites to Auburn Woods for the purpose of arguing that on-site parking will “improve” Plaintiff’s disability, its effects, or its symptoms with no further explanation or a cite to evidence. (See Mot., p. 11.)

Even if she met that threshold, Plaintiff has not sufficiently established a likelihood that she will prevail on her claim for disability accommodation given the high standard required for an affirmative injunction. Defendants present evidence that the termination of Plaintiff’s parking space was permissible based on the written lease she had signed allowing Owner to terminate the space after seven days’ written notice. (Mot., Ana Maria Garcia Decl., Exh. A, p. 1-2, ¶4 [attached to Medina Decl.].) They present evidence that her parking space was terminated due to a retrofit, not based on any discrimination. (Opp., Marzwell Decl., ¶ 3.) Finally, they cite to a proposed accommodation that was offered to her that would have converted a parking spot on the street directly in front of Plaintiff’s unit to a handicapped spot specifically for her use (along with an application to convert the spot to permit parking only) that would have been even closer to her door than the old parking spot. (Opp., Marzwell Decl., ¶¶ 14-15; see Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 [in employment case, the employer has the ultimate discretion to choose between effective accommodations].)

The Court notes that it is not finding that Plaintiff could not convince a jury of the merit of her FEHA claim, but rather, that based on the record before the Court, the Court cannot determine for affirmative injunction purposes that Plaintiff has “clearly established” her right to a parking space on the Subject Property. (Teachers Ins. & Annuity Assoc., supra, 70 Cal.App.4th at p. 1493.)

Plaintiff’s motion is therefore DENIED.

II.

Balancing of Harms

“An evaluation of the relative harm to the parties upon the granting or denial of a preliminary¿injunction¿requires consideration of: ‘(1) the¿inadequacy of any other remedy; (2) the degree of irreparable¿injury the denial of the¿injunction¿will cause; (3) the necessity to preserve the status quo; [and] (4) the degree of adverse effect on the public¿interest or¿interests of third parties the granting of the¿injunction¿will cause.’” (Vo v. City of Garden Grove¿(2004) 115 Cal.App.4th 425, 435.)¿

Here, the Court need not reach the balancing of harms but does note that the necessity to preserve the status quo weighs against the injunction. Moreover, the Court notes that questions exist as to the adequacy of remedy at law, e.g., the reduction in rent that Plaintiff Garcia has been receiving based on the termination of her entitlement to parking space at the Subject Property, some other kind of monetary compensation, or even taking Defendants up on their offer to assist with an application to designate the sidewalk in front of the Property as disabled parking. Finally, the Court notes that the dispute regarding the termination of the parking spot started, according to Plaintiff, around October 2020. (Opp., Ana Maria Garcia Decl., at ¶ 5.) This case was filed in January, 2022. It was only in September, 2023, nearly three years after the dispute began, that Plaintiff filed this motion for preliminary injunction, when trial is set right about six months from now, in April, 2024. This cuts against a finding of irreparable injury and raises the question why this issue cannot wait to be resolved until trial, when the Court will have all the evidence before it.

Such questions would disfavor a finding that the balancing of the harms tips in Plaintiff’s favor.

Conclusion

Plaintiff Ana Maria Garcia’s Motion for Preliminary Injunction is DENIED.