Judge: Ashfaq G. Chowdhury, Case: 24GDCV00032, Date: 2024-02-09 Tentative Ruling
Case Number: 24GDCV00032 Hearing Date: February 9, 2024 Dept: E
Case No: 24GDCV00032
Hearing Date: 02/09/2024 – 9:00am
Trial Date: UNSET
[TENTATIVE RULING ON
MOTION FOR PRELIMINARY INJUNCTION]
RELIEF REQUESTED
[The Court notes that on 1/10/2024, Plaintiff
filed an ex parte application for issuance of temporary restraining order and
for issuance of order to show cause re preliminary injunction. What the ex
parte application specifically requested for relief as to the temporary
restraining order was mentioned on pages 1-5 of the application. Since the
instant motion pertains to the preliminary injunction portion of this ex parte
application, the Court will only list in its “Relief Requested” section the
relief requested that appears to pertain to the preliminary injunction.]
Plaintiff, Gina M. Mastro, as Trustee of the
Mastro Recovable Living Trust dated April 13, 2006 (“Mastro”) requests that the
Court issue an Order to Show Cause to Defendants, Armen Akopyan and Ramona
Akopyan, requiring said Defendants to show cause at a time and place to be set
by the court why the Court should not grant a Preliminary Injunction in favor
of Plaintiff enjoining said Defendants from the following pending trial in this
matter:
(1)
Continuing to use and threatening to use the ALLEGED EASEMENT;
(2)
Constructing any temporary, permanent, or other structure, fence, wall,
edifice, building, or addition that interferes with the use and quiet enjoyment
by Plaintiff and her employees, agents, invitees and licensees with respect to
the ALLEGED EASEMENT, described as the area two to three feet to the east of
the Fence Line that existed prior to December 26, 2023, between the AKOPYAN
PROPERTY, located at and commonly known as 1927 Ravista Lane, La Canada
Flintridge, California 91011, and the MASTRO PROPERTY, located at and commonly
known as 1927 Ravista Lane, La Canada Flintridge, California 91011, and running
in a generally north-south direction from the front to the rear of said
properties, a distance of approximately 123 feet
(3)
From denying, precluding or preventing Plaintiff access to or use of the
ALLEGED EASEMENT, including persons accessing said area with Plaintiff's
consent;
(4)
Removing, destroying or harming the bushes, shrubbery, trees and other
plantings in the ALLEGED EASEMENT and the fences and walls presently located in
the ALLEGED EASEMENT;
(5)
Constructing a guesthouse and/or other structure either located within the
ALLEGED EASEMENT or that will violate the setback requirements of the City of
La Canada Flintridge with respect to the Fence Line that has existed for more
than 65 years between the MASTRO PROPERTY and the AKOPYAN PROPERTY.
(6)
From failing to restore to their condition immediately prior to December 26,
2023, all fences, walls, bushes, shrubbery, trees and other plantings along the
Fence Line or in the ALLEGED EASEMENT that Defendants removed, moved,
destroyed, altered, modified, or otherwise effected;
(7)
Defendants, and each of them, are ordered to replace all earth, soil and
similar materials removed from the ALLEGED EASEMENT on or after December 26,
2023, and restore the ALLEGED EASEMENT to its condition prior to December 26,
2023; and
(8)
Defendants, and each of them, are ordered to replace all fences, walls, bushes,
shrubbery, trees and other plantings that Defendants have removed from the
ALLEGED EASEMENT on or after December 26, 2023, and to restore said items to
their location and condition prior to December 26, 2023.
This Application is made pursuant to Code of
Civil Procedure, §§526 and 527, and California Rules of Court, Rules 3.1150 and
3.1202. No previous application for the relief sought herein has been brought
by Plaintiff [California Rules of Court, Rules 3.1150(e) and 3.1202(b)].
Defendants have been notified pursuant to California Rules of Court, Rule
3.1203(a). The notice set forth the date, time and place for the presentment of
this Application, and the nature of the relief to be requested. [Id.] Plaintiff
and Counsel for Plaintiff are not aware of any Counsel representing Defendants.
This Ex Parte Application is based on the
Verified Complaint, on the concurrently filed Memorandum of Points and
Authorities, the Declarations of Gina M. Mastro, Phillip Ramsey, Kevin Lai and
Shannon Duane, on all pleadings, exhibits, records and papers on file in this matter,
and such oral argument and documentary evidence that may be presented at the
hearing of this Ex Parte Application.
PROCEDURAL
Moving Party: Plaintiff, Gina M. Mastro, as Trustee of The
Mastro Revocable Living Trust dated April 13, 2006
Responding Party: Defendants,
Armen Akopyan and Ramona Avedissian (erroneously sued and named as Ramona
Akopyan)
Service
Proof of Service
Timely Filed (CRC Rule 3.1300(c)): No
16/21 Court Days Lapsed (CCP 1005(b)): Uncertain because no proof of service
filed
Proper Address (CCP §1013, §1013a, §1013b): Ok
Although a proof of
service was not filed, Defendants submitted an Opposition and do not appear to
object to any issues relating to service.
Moving Papers: Ex
Parte Application in support of TRO and for Issuance of Order to Show Cause re
Preliminary Injunction; Memorandum; Phillip Ramsey Declaration; Notice of
Errata (Affidavit – Death of Trustee); Kevin Yoon Lai Declaration; Gina M.
Mastro Declaration; Proposed Order; Request for Judicial Notice; Shannon Duane
Declaration;
Opposition: Opposition;
Proposed Order; Evidentiary Objections; Declarations of Armen Akopyan and
Mohamad Ali Molai
Reply: A 15-page
“Memorandum of Points and Authorities” (not including caption page or tables of
contents or authorities) was filed by the Plaintiff on 2/6/24, which appears to
have been late under CCP § 1005(b) (requiring Reply briefs to be filed at least
4 court days before hearing). Moreover, the 15-page brief, which appears to be
a reply brief, exceeds the 10-page limit for reply briefs. (CRC, rule 3.1113(d).)
The Court will hear
from the parties as to whether the plaintiff’s 2/6/24 brief (and accompanying
filings) should be considered. Among other things, the Plaintiff submitted two
additional declarations, apparently raising additional factual issues in her late
reply.
BACKGROUND
The instant action involves a dispute about where a
property line is located. The Complaint was filed on January 10, 2024, and
alleges 12 causes of action:
(1) To Quiet Title; (2)
For Declaratory Relief; (3) For Injunctive Relief; (4) To Establish and Confirm
a Prescriptive Easement; (5) For Declaratory Relief with respect to
Prescriptive Easement; (6) To Quiet Title with respect to Prescriptive
Easement; (7) To Establish and Confirm and Equitable Easement; (8) For
Declaratory Relief with respect to an Equitable Easement; (9) To Quiet Title
with respect to An Equitable Easement; (10) For Intentional Trespass; (11) For
Negligent Trespass; and (12) Intentional Destruction of Personal Property.
On January 16, 2024, this Court granted Plaintiff’s ex
parte application for issuance of a temporary restraining order.
In relevant part, the Court ruled:
A Temporary
Restraining Order is issued this date.
No further
development, construction, or alteration of the property in question is to take
place on the disputed parcel until after the next hearing date.
The parcel in
dispute is located on the boundary line between the respective properties of
the parties, behind the housing structures.
The Temporary
Restraining Order is in place until 2/9/24.
Hearing on Motion
for Preliminary Injunction is scheduled for 02/09/24 at 09:00 AM in Department
E at Glendale Courthouse.
(Min. Order
1/16/2024, p. 1.)
The instant
hearing pertains to the preliminary injunction portion of the ex parte
application filed on January 10, 2024.
LEGAL STANDARD
The purpose of a preliminary injunction is to preserve
the status quo pending final resolution upon a trial. (See Scaringe v.
J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.)
“A preliminary injunction may be granted at any time
before judgment upon a verified complaint, or upon affidavits if the complaint
in the one case, or the affidavits in the other, show satisfactorily that
sufficient grounds exist therefor. No preliminary injunction shall be granted
without notice to the opposing party.” (CCP §527(a).)
As stated in 14859 Moorpark Homeowner’s Ass’n:
In determining
whether to issue a preliminary injunction, the trial court considers two
related factors: (1) the likelihood that the plaintiff will prevail on the
merits of its case at trial, and (2) the interim harm that the plaintiff is
likely to sustain if the injunction is denied as compared to the harm that the
defendant is likely to suffer if the court grants a preliminary injunction. (King
v. Meese (1987) 43 Cal.3d 1217, 1226 [240 Cal.Rptr. 829, 743 P.2d
889].) “The latter factor involves consideration of such things as the
inadequacy of other remedies, the degree of irreparable harm, and the necessity
of preserving the status quo.” (Abrams v. St. John's Hospital & Health
Center (1994) 25 Cal.App.4th 628, 636 [30 Cal.Rptr.2d 603].)
(14859 Moorpark
Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.)
“The trial court’s determination must be guided by a
‘mix’ of the potential-merit and interim-harm factors; the greater the
plaintiff’s showing on one, the less must be shown on the other to support an
injunction. [Citation.] Of course, ‘[t]he scope of available preliminary relief
is necessarily limited by the scope of the relief likely to be obtained at
trial on the merits.’ [Citation.] A trial court may not grant a preliminary
injunction, regardless of the balance of interim harm, unless there is some possibility
that the plaintiff would ultimately prevail on the merits of the claim.
[Citation.] Unless potential merit is conceded, an appellate court must
therefore address that issue when reviewing an order granting a preliminary
injunction.”
(O’Connell v.
Superior Court (2006) 141 Cal.App.4th 1452, 1463 [quoting Butt v. State
of California (1992) 4 Cal.4th 668, 677-678].)
Further, as stated
in 14859 Moorpark Homeowner’s Ass’n:
The determination
whether to grant a preliminary injunction generally rests in the sound
discretion of the trial court. (Abrams v. St. John's Hospital & Health
Center, supra, 25 Cal.App.4th at p. 636.) “Discretion is abused
when a court exceeds the bounds of reason or contravenes uncontradicted
evidence. [Citation.]” (Jessen v. Keystone Savings & Loan Assn. (1983)
142 Cal.App.3d 454, 458 [191 Cal.Rptr. 104].)
(14859 Moorpark
Homeowner’s Ass’n , supra, at 1402.)
The burden is on
plaintiff, as the party seeking injunctive relief, to show all elements
necessary to support issuance of a preliminary injunction. (See O’Connell,
supra, at 1481.)
On granting an
injunction, the court or judge must require an undertaking on the part of the applicant
to the effect that the applicant will pay to the party enjoined any damages,
not exceeding an amount to be specified, the party may sustain by reason of the
injunction, if the court finally decides that the applicant was not entitled to
the injunction. Within five days after the service of the injunction, the
person enjoined may object to the undertaking. If the court determines that the
applicant’s undertaking is insufficient and a sufficient undertaking is not
filed within the time required by statute, the order granting the injunction
must be dissolved.
(CCP § 529(a).)
Notwithstanding rule 3.1312, whenever an application
for a preliminary injunction is granted, a proposed order must be presented to
the judge for signature, with an undertaking in the amount ordered, within one
court day after the granting of the application or within the time ordered.
Unless otherwise ordered, any restraining order previously granted remains in
effect during the time allowed for presentation for signature of the order of
injunction and undertaking. If the proposed order and the undertaking required
are not presented within the time allowed, the TRO may be vacated without
notice. All bonds and undertakings must comply with rule 3.1130.
(CRC, Rule
3.1150(f).)
ANALYSIS
Likelihood that Plaintiff Will Prevail on the
Merits of Her case at Trial
In determining whether to issue a preliminary
injunction, the trial court considers two related factors: (1) the likelihood
that the plaintiff will prevail on the merits of its case at trial, and (2) the
interim harm that the plaintiff is likely to sustain if the injunction is
denied as compared to the harm that the defendant is likely to suffer if the
court grants a preliminary injunction.
(14859 Moorpark Homeowner’s
Ass’n, supra, at 1402.)
On page 3 of Plaintiff’s memorandum, Plaintiff
has a section in which Plaintiff bundles the two factors together. With respect
to the first factor of likelihood that the plaintiff will prevail on the merits
of its case at trial, Plaintiff argues:
The first factor-likelihood of success on the
merits-weighs heavily in Plaintiff's favor. One of the ultimate issues to be
resolved by the trier of fact is the location of the true property line between
the MASTRO PROPERTY and the AKOPYAN PROPERTY. However, even if it is determined
the true boundary line between the properties is as contended by Defendants,
the facts support an express easement, a prescriptive easement, or an equitable
easement. Under these theories, Plaintiff will either be declared the owner of
the MASTRO PROPERTY or to have the easements rights to the ALLEGED EASEMENT
that would preclude Defendants from. removing the fences, bushes, shrubbery,
trees and other plantings in the ALLEGED EASEMENT, and from interfering with
Plaintiff's access to and use of the MASTRO PROPERTY, including persons to whom
Plaintiff grants access rights to the MASTRO PROPERTY.
(Pl. Memo p. 3-4.)
Based on the previously mentioned argument
asserted by Plaintiff, Plaintiff has presented a very weak case as to the
likelihood that she will prevail on the merits of her case at trial.
Despite Plaintiff’s Complaint asserting 12
causes of action, Plaintiff made no explanation as to what the elements are for
each cause of action are in its Complaint nor how the evidence she provided
supports each element in each cause of action.
Further, in a different section of Plaintiff’s
memorandum on page 6, Plaintiff included
a section titled “Even if not a prescriptive easement, the facts are indisputed
[sic] that Plaintiff holds an equitable easement.”
In this section, Plaintiff argues:
“The elements necessary to establish a
prescriptive easement are well settled. The party claiming such an easement
must show use of the property which has been open, notorious, continuous and
adverse for an uninterrupted period of five years.” Warsaw v. Chicago Metallic
Ceilings, Inc. (1984) 35 Cal.3d 564, 570 The facts herein that cannot be
disputed show the Plaintiff has satisfied each of the conditions for a
Prescriptive Easement with respect to the ALLEGED EASEMENT in the event the
Court ultimately determines that the true property line between the two
properties is not along the Fence Line that existed for more than 65 years.
In the alternative to a Prescriptive Easement,
Plaintiff may also have the right to an “Equitable Easement.” In appropriate
cases in which the requirements for traditional easements are not present,
California courts have exercised their equity powers to fashion protective
interests in land belonging to another, sometimes referring to such an interest
as an “equitable easement.” See. e.g., Linthicum v. Butterfield (2009) 175
Cal.App.4th 259, 252—quieting title to an “equitable easement” “[The courts are
not limited to judicial passivity as in merely refusing to enjoin an
encroachment. Instead, in a proper case, the courts may exercise their equity
powers to affirmatively fashion an interest in the owner’s land which will
protect the encroacher's use.” Hirshfield v. Schwartz (2001) 91
Cal.App.4th749, 765. Here, the equities clearly lie in favor of Plaintiff.
AKOPYAN can show no harm or prejudice to allowing Plaintiff access to and use
of the ALLEGED EASEMENT as she and her parents had for more than 65 years. Granting
the equitable easement as requested by Plaintiff will not affect AKOPYAN good
faith and historical use of their property.
(Pl. Memo. p.6-7.)
As can be seen above, although Plaintiff appears
to state the elements of a prescriptive easement cause of action, she makes no
explanation as to how the evidence she submitted meets each element for a prescriptive
easement cause of action.
Overall, Plaintiff’s demonstration of likelihood
that she will prevail on the merits of her case at trial is weak at best.
Plaintiff submitted the declarations of Phillip
Ramsey, Kevin Yoon Lai, Gina M. Mastro, and Shannon Duane. Plaintiff also
submitted a notice of errata that was an affidavit of a death of trustee.
Despite all this evidence, and despite there
being 12 causes of action in the Complaint, Plaintiff doesn’t explain what the
elements are to establish each cause of action (except for prescriptive
easement), nor does Plaintiff attempt to explain how its evidence satisfies
each element for any cause of action in the Complaint to
demonstrate the likelihood that the Plaintiff will prevail on the merits of its
case at trial.
In Opposition, Defendants have a section
on Plaintiff failing to establish likelihood of success on the merits as to an
exclusive prescriptive easement or for an equitable easement. These arguments
are asserted on pages 8-14 of the Opposition. These arguments are slightly
confusing. But to be fair, it is hard to evaluate these arguments when it is
unclear how Plaintiff is arguing its basis for likelihood to succeed on the
merits.
The burden is on plaintiff, as the party
seeking injunctive relief, to show all elements necessary to support issuance
of a preliminary injunction. (See O’Connell, supra, at 1481.) “A
trial court may not grant a preliminary injunction, regardless of the balance
of interim harm, unless there is some possibility that the plaintiff would
ultimately prevail on the merits of the claim.” (Id. at 1463 [quoting Butt
v. State of California (1992) 4 Cal.4th 668, 677-678].)
Here, the Court finds that the Plaintiff
has not shown a likelihood that she will prevail on the merits of its case at
trial.
At a very basic level, the Court will need
to hear from the plaintiff exactly how she believes she has established an
easement—whether prescriptive or equitable—and on what authority she bases her arguments.
The Plaintiff’s brief is largely devoid of legal authority supporting its
easement arguments.
The Plaintiff would appear to have a high
burden in carrying her argument of obtaining a right to control property not
within her property line by virtue of an easement based on what appear to be
neglected cinder blocks and wire tangled in foliage and brush that do not
appear to have been maintained or landscaped.
To accept Plaintiff’s argument would
potentially open the door to neighbors placing small barriers or obstacles in
the forests or brush behind their homes, near boundary lines, with the hope
that, if not objected to, an easement of some sort would be obtained. That would appear to be a perverse result, to
this Court.
Interim Harm
“The latter factor [of interim harm] involves
consideration of such things as the inadequacy of other remedies, the degree of
irreparable harm, and the necessity of preserving the status quo.” (Abrams
v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628,
636 [30 Cal.Rptr.2d 603].)
(14859 Moorpark
Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.)
On page 3 of Plaintiff’s memorandum,
Plaintiff has a section in which she bundles the two factors together. With
respect to the second factor of the interim harm that the plaintiff is likely
to sustain if the injunction is denied as compared to the harm that the
defendant is likely to suffer if the court grants a preliminary injunction,
Plaintiff argues:
The interim harm
that Plaintiff will suffer if Defendants are not restrained and enjoined from
removing, destroying and harming the fences, bushes, shrubbery, trees and other
plantings in the ALLEGED EASEMENT far outweighs any harm that Defendants might sustain
by delaying their use and access to the ALLEGED EASEMENT, which among other
things constitutes trespass and encroachment, whether Plaintiff is determined
to have fee simple rights to the ALLEGED EASEMENT or only easement rights.
The facts herein
palpably warrant the balance of the equities weighing in Plaintiff's favor.
This is particularly true in light of the overarching purpose of maintaining
the status quo pending a full determination on the merits and to prevent a
multiplicity of proceedings. The Court should bind that Plaintiff will suffer
greater interim harm should the Temporary Restraining Order and Preliminary
Injunction not issue.
(Pl. Memo. p. 4.)
As to the second factor, like the first factor,
Plaintiff fails to cite to its evidence that allegedly supports its arguments.
While it is not entirely clear as to what factor
Plaintiff is trying to satisfy, Plaintiff also has a section titled “Plaintiff
will suffer severe and irreparable harm if the temporary restraining order and
preliminary injunction are not granted” that starts on page 4 of the
memorandum. This section states:
The facts of this case more than justify the
issuance of a Temporary Restraining Order and an Order to Show Cause re
Preliminary Injunction, based on the likelihood that Plaintiff will prevail on
the merits at trial and the interim harm that Plaintiff and the MASTRO PROPERTY
is likely to sustain if the requested relief were denied as compared to the
harm that Defendants are likely to suffer if the Temporary Restraining Order
and Preliminary Injunction are issued. After a Fence Line that existed for more
than 65 years and open, notorious, hostile and adverse use of the ALLEGED
EASEMENT by Plaintiff and her parents, Defendants have without any specific
warning, without discussion or attempt to resolve amicably the dispute
concerning the true property line between the MASTRO PROPERTY and the AKOPYAN
PROPERTY, and what rights Plaintiff may have, such as a Prescriptive Easement
or an Equitable Easement, if the true property line is determined to be as
AKOPYAN contend, on December 26, 2023, defiantly began tearing down and
removing the fences and walls that have existed for more than six decades between
the two properties, and removing and destroying bushes, shrubbery, trees and
other plantings that have existed in the ALLEGED EASEMENT for decades. AKOPYAN
did so without even providing Plaintiff with a copy of the recent survey that
AKOPYAN had conducted that purportedly shows the true property line to be in
the location claimed by AKOPYAN.
Defendants' deprivation of Plaintiff's real
property rights has caused and will continue to cause irreparable injury to
Plaintiff. Real property is deemed unique, such that injury or loss to rights
arising therefrom cannot be compensated in damages, and injunctive relief is
therefore readily granted. See Civil Code, §3387 Indeed, as has been held in
precisely the instant context of litigation involving the validity of CC&Rs
effecting use of land, a court may be called upon to grant preliminary
injunctive relief to maintain the status quo. Major v. Miraverde Homeowners
Ass’n, Inc. (1992) 7 Cal.App.4th 618, 624.
Moreover, damages cannot adequately compensate
Plaintiff for the loss of such a unique property right, whether it is
determined by the Court that the Fence Line that has existed for more than 65
years is the true property line, or if the true property line is found by the
Court to be as contended by AKOPYAN, in which event Plaintiff will have rights
to either a Prescriptive Easement or an Equitable Easement. [n either event,
AKOPYAN'’s destruction of the fences, walls and plantings constitutes trespass and
a violation of Plaintiff's rights. If Plaintiff is unable to obtain a the
requested relief, based on statements made by AKOPYAN and their contractor,
AKOPYAN will continue to tear down the fences and cinder block walls between
the properties that have existed for more than 65 years, will continue to
remove and destroy plantings in the ALLEGED EASEMENT that have been in place
for more than six decades, will build a retaining wall two to three feet to the
east of the Fence Line that will preclude Plaintiff's access to and use of the
ALLEGED EASEMENT, are moving earth and soil on the AKOPYAN PROPERTY and in the
ALLEGED EASEMENT that is causing and will cause soil erosion, earth movement,
and slippage on the MASTRO PROPERTY, and will construct a guest house or other
structure on the AKOPYAN PROPERTY that will violate setback requirements of the
City of La Canada Flintridge. Moreover, monetary remedies would be meaningless
and the actions of AKOPYAN would result in a multiplicity of litigation.
AKOPYAN have taken a “self-help” approach to the
dispute without making any effort to resolve the dispute either directly
between the parties or with the assistance of the Court, violating the status
quo that has existed for decades, depriving Plaintiff to access and use of the
ALLEGED EASEMENT, in blatant defiance and consideration for what might be the
true property line as established by the Fence Line, or Plaintiff's easement
rights if the true property line is as reflected by the survey conducted by or
on behalf of AKOPYAN that AKOPYAN refuse to share with Plaintiff. The conduct
of AKOPYAN manifests an attitude that they are above the law and should not be
countenanced by this Court.
(Pl. Memo. p. 4-6.)
While it is not entirely
clear as to what factor Plaintiff is trying to satisfy, Plaintiff also has a
section titled “Plaintiff seeks to preserve the status quo that has existed for
more than 65 years and the harm to defendants will be minimal or non-existent”
that starts on page 8 of the memorandum. This section states:
By this Ex Parte Application, Plaintiff seeks
nothing more than to preserve the status quo including the Fence Line and
plantings in the ALLEGED EASEMENT that have existed for more than 65 years.
Defendants will be unable to show any material harm as a result of such Order
other than restoring the conditions the existed for decades that Defendants
unilaterally and improvidently removed and destroyed without making any effort
to resolve disputes with Plaintiff or seek input from the Court as to the rights
and interests of the parties with respect to the ALLEGED EASEMENT. Defendants
are unable to point to any act by Plaintiff or her Predecessors-In-Interest
that has cause any type of damage to the ALLEGED EASEMENT, assuming without
conceding that Plaintiff has only easement rights and not ownership rights to
the ALLEGED EASEMENT.
(Pl. Memo. p. 8.)
Further, while it is not entirely clear as to
what factor Plaintiff is trying to satisfy, Plaintiff has a section titled
“Defendants cannot unilaterally and unreasonably extinguish plaintiff’s
easement rights.” This section is located on pages 7-8 of the memorandum, and
this argument does not appear to be on point.
In Opposition, Defendants have sections titled,
“Plaintiff has failed to establish a significant threat of irreparable harm
without an injunction,” “the Akopyans will suffer irreparable harm if the
injunction is granted,” and “the motion is not supported by admissible
evidence.” These sections can be found on pages 14-16 of the Opposition.
In Opposition, the Defendants submitted the
declarations of Armen Akopyan and Mohamad Ali Molai.
The Court will hear argument on this factor. The
Court will need to hear further as to precisely what harm Plaintiff is claiming
she will suffer if the Court denies the Preliminary Injunction. The papers are,
in the Court’s view, somewhat unclear.
Is the Plaintiff arguing that the intended ADU
will in fact be set on the Plaintiff’s property? Or a part of her claimed
easement?
If the latter, how much of her claimed easement
will the intended ADU encroach upon?
If the claim is not that the ADU will encroach
on the claimed easement, is the claim that the construction of the ADU will require
the removal of the foliage or vegetation on Plaintiff’s claimed ADU?
Weighing of Both Factors
The Court will hear argument as to the weighing
of the factors. The Court’s tentative
view is that a weighing of the factors weighs decisively against the granting
of a preliminary injunction here.
Bond
“On granting an
injunction, the court or judge must require an undertaking on the part of the
applicant to the effect that the applicant will pay to the party enjoined any
damages, not exceeding an amount to be specified, the party may sustain by
reason of the injunction, if the court finally decides that the applicant was
not entitled to the injunction. Within five days after the service of the
injunction, the person enjoined may object to the undertaking. If the court
determines that the applicant’s undertaking is insufficient and a sufficient
undertaking is not filed within the time required by statute, the order
granting the injunction must be dissolved.” (CCP §529(a).)
“Notwithstanding rule 3.1312, whenever an
application for a preliminary injunction is granted, a proposed order must be
presented to the judge for signature, with an undertaking in the amount
ordered, within one court day after the granting of the application or within
the time ordered. Unless otherwise ordered, any restraining order previously
granted remains in effect during the time allowed for presentation for
signature of the order of injunction and undertaking. If the proposed order and
the undertaking required are not presented within the time allowed, the TRO may
be vacated without notice. All bonds and undertakings must comply with rule
3.1130.” (CRC, Rule 3.1150(f).)
Opposition argues:
“On granting an injunction, the court or judge
must require an undertaking on the part of the applicant to the effect that the
applicant will pay to the party enjoined any damages, not exceeding an amount
to be specified, the party may sustain by reason of the injunction, if the
court finally decides that the applicant was not entitled to the injunction.”
(Civ. Proc. Code § 529 [emphasis added].) “The sole limit imposed by the
statute is that the harm must have been proximately caused by the wrongfully issued
injunction.” (Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14 [noting
“[c]ase law adds only the limitation that the damages be reasonably
foreseeable”].) “[S]ection 529 requires that the potential damages be estimated
on the assumption that the preliminary injunction was wrongfully issued”. (Id.
at 15.) Another item of “damage which the undertaking must take into account”
is “attorney’s fees.” (Id. at 15-16 [“the prevailing defendant may recover that
portion of his attorney’s fees attributable to defending against those causes
of action on which the issuance of the preliminary injunction had been
based.”].)
If the Court is inclined to grant the requested
injunction, Plaintiff must be required to post a bond that adequately covers
potential damages. Given the suggested loss of use of the Akopyans’ peaceful
use and enjoyment of their home and substantial delay in the project and future
income on the ADU, and the attorneys’ fees anticipated to be incurred in
opposition to the claims asserted by Plaintiff, Plaintiff should be ordered to
post a bond not less than $250,000. (Akopyan Decl. ¶9.)
(Oppo. p. 16.)
The Court will hear argument on this issue—in
the event that the Court considers granting the preliminary injunction.
TENTATIVE RULING
The
Court’s tentative is to DENY the Plaintiff’s motion for a preliminary
injunction, but the Court will hear argument.
Request for Judicial Notice by Plaintiff
The
Court’s tentative is to GRANT Plaintiff’s request for judicial notice of
“Affidavit – Death of Trustee”.
Evidentiary Objections
The
Court will hear argument on the evidentiary objections. The Court’s tentative
is to GRANT the Defendant’s objections.