Judge: Daniel M. Crowley, Case: 23STCV25168, Date: 2024-05-22 Tentative Ruling

Case Number: 23STCV25168    Hearing Date: May 22, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Jason Zumberge’s unopposed motion for preliminary injunction is granted in part and denied in part.   

Defendant Barbara L. Anderson is enjoined from allowing the continuance of trespassers on her residential property located at 800 N. La Jolla Ave., Los Angeles, CA 90046; failing to secure her residential property located at 800 N. La Jolla Ave., Los Angeles, CA 90046; and allowing further nuisance activities on her residential property located at 800 N. La Jolla Ave., Los Angeles, CA 90046. 

Plaintiff’s motion to enjoin Defendant Barbara L. Anderson from selling, gifting, and/or transferring ownership of ownership of her residential property located at 800 N. La Jolla Ave., Los Angeles, CA 90046, is denied.

Plaintiff Jason Zumberge (“Zumberge”) (“Plaintiff”) moves unopposed for a preliminary injunction enjoining Defendant Barbara L. Anderson (“Anderson”) (“Defendant”) from selling, gifting, and/or transferring ownership of her residential property located at 800 N. La Jolla Ave., Los Angeles, CA 90046 (“Subject Property”) and to enjoin Defendant from allowing the continuance of trespassers on the Subject Property, failing to secure the Subject Property, and allowing further nuisance activities on the Subject Property.  (Notice of Motion, pgs. 1-2.)

Background

Plaintiff filed his operative Complaint against Defendant on October 16, 2023, alleging three causes of action: (1) private nuisance, (2) preliminary injunction; and (3) declaratory relief, arising from alleged illegal activity occurring at the Subject Property.

Plaintiff alleges he owns real property located at 808 N. La Jolla Ave., Los Angeles, CA 90046 (“Plaintiff’s Property”), from which he earns rental income for leasing Plaintiff’s Property to tenants.  (Complaint ¶8.)  Plaintiff alleges he charges tenants $33,000.00 per month and the market value of Plaintiff’s Property as reported by Zillow is $3,450,000.00.  (Complaint ¶8.)  Plaintiff alleges he substantially increased the value of Plaintiff’s Property by performing upgrades to Plaintiff’s Property.  (Complaint ¶8.) 

Plaintiff alleges ever since, and even prior to June 14, 2018, the Subject Property has been a nuisance property for the neighboring property owners on North La Jolla Ave. in the City of Los Angeles, due to the illegal activity occurring thereon and the resulting interference from said activities with the quiet enjoyment of said neighboring property owners.  (Complaint ¶9.)  Plaintiff alleges on or about June 14, 2018, pursuant to LAMC §§91.8903 and 91.8904, the Department of Building and Safety ordered the owners or other parties in interest, including Defendant, within thirty (30) days to secure all openings accessible for entry from the exterior of the buildings and weatherproof the barricades installed, fence the lot, on the parcel located at the Subject Property.  (Complaint ¶10.)

Plaintiff alleges by July 14, 2018, Defendant failed to comply with the Los Angeles Department of Building and Safety’s order and LAMC §§91.8903 and 91.8904.  (Complaint ¶11.)  Plaintiff alleges after determining that the owners or other parties in interest, including Defendant, failed to comply with the time prescribed by LAMC §§91.8903 and 91.8904, the Los Angeles Department of Building and Safety solicited bids, and awarded a contract and caused said abatement of nuisance on the Subject Property.  (Complaint ¶12.) 

Plaintiff alleges on or about March 14, 2023, the Los Angeles Department of Building and Safety caused a barricade to be installed around the perimeter of the Subject Property, which is referenced by Work Order No. B4764, and cost $1,673.00.  (Complaint ¶13.)  Plaintiff alleges the same day, the Los Angeles Department of Building and Safety caused a fence to be installed around the perimeter of the Subject Property, which is referenced by Work Order No. F4304, and cost $18,834.82.  (Complaint ¶13.)  Plaintiff alleges the same day, the Los Angeles Department of Building and Safety contracted for the Subject Property to be cleaned, which is referenced by Work Order No. C4832, and cost $1,680.00.  (Complaint ¶13.) 

Plaintiff alleges on or about May 25, 2023, the Los Angeles Department of Building and Safety caused a barricade to be installed around the perimeter of the Subject Property, which is referenced by Work Order No. B4801, and cost $351.33.  (Complaint ¶14.) 

Plaintiff alleges as a result of the nuisances on the Subject Property, Plaintiff has had one (1) tenant terminate the rental lease agreement for rental of Plaintiff’s Property.  (Complaint ¶15.)  Plaintiff alleges the rental tenant complained to Plaintiff that the Subject Property was flooded with homeless/transient people and/or squatters, and the Subject Property was being used for criminal activity, including trespassing, illicit and illegal drug use, and uncontrolled and uncontained fires.  (Complaint ¶15.)  Plaintiff alleges the rental tenant requested that Plaintiff do something about the nuisance activities as those activities threatened the rental tenant’s safety and enjoyment of Plaintiff’s Property.  (Complaint ¶15.)  Plaintiff alleges he and neighboring property owners reported the nuisance activity to law enforcement many times, however, the nuisance activity still continues.  (Complaint ¶15.)  Plaintiff alleges due to the continued nuisance activity, Plaintiff’s rental tenant terminated the lease agreement with Plaintiff and vacated Plaintiff’s Property in May 2023.  (Complaint ¶15.) 

Plaintiff alleges since May 2023, Plaintiff has been unable to rent Plaintiff’s Property, despite numerous rental inquiries for Plaintiff’s Property.  (Complaint ¶16.)  Plaintiff alleges he specifically lost rental opportunities due to the fact that potential renters would tour Plaintiff’s Property and contemporaneously discover that there were substantial nuisance activities occurring at the Subject Property.  (Complaint ¶16.)  Plaintiff alleges many potential tenants expressed significant interest in Plaintiff’s Property, but ultimately decided not to rent Plaintiff’s Property.  (Complaint ¶16.)  Plaintiff alleges said potential tenants expressed to Plaintiff/Plaintiff’s agents that the Subject Property’s nuisance activities presented a safety threat and the potential tenants believed that those nuisance activities would interfere with their enjoyment of Plaintiff’s Property.  (Complaint ¶16.) 

Plaintiff alleges on or about June 10, 2023, the Los Angeles Department of Building and Safety caused a barricade to be installed around the perimeter of the Subject Property, which is referenced by Work Order No. B4811, and cost $300.00.  (Complaint ¶17.) 

Plaintiff alleges on or about June 29, 2023, Defendant, as Trustor/Owner of the Subject Property, executed a Short Form Deed of Trust and Assignment of Rents to Defendant DANCO, Inc. and JDCA Holdings, LLC, for a mortgage.  (Complaint ¶18.) 

Plaintiff alleges on or about June 12, 2023, the Los Angeles Department of Building and Safety caused a fence to be installed around the perimeter of the Subject Property, which is referenced by Work Order No. F4339, and cost $482.94.  (Complaint ¶19.) 

Plaintiff alleges on or about July 12, 2023, the Los Angeles Department of Building and Safety caused a barricade to be installed around the perimeter of the Subject Property, which is referenced by Work Order No. B4819, and cost $501.90.  (Complaint ¶20.) 

Plaintiff alleges on or before July 14, 2023, the Los Angeles Department of Building and Safety issued Defendant a Code violation inspection fee as a result of Defendant’s failure to correct the nuisance, and/or pay invoices for fees assessed by the Los Angeles Department of Building and Safety.  (Complaint ¶21.)

Plaintiff alleges on or about July 14, 2023, the Los Angeles Department of Building and Safety caused a fence to be installed around the perimeter of the Subject Property, which is referenced by Work Order No. F4349, and cost $845.15.  (Complaint ¶22.)

Plaintiff alleges on or around August 7, 2023, the City of Los Angeles’ Board of Building and Safety Commissioners and the Department of Building and Safety provided notice to Defendant that a lien for the total amount of $25,060.30 be recorded against the real property (Subject Property) upon which services were rendered.  (Complaint ¶23.)

Plaintiff alleges on or about October 11, 2023, an uncontained and severe fire was started in the backyard of the Subject Property.  (Complaint ¶24.)  Plaintiff alleges the fire blaze spread high into the air above the Subject property, Plaintiff’s Property, and other neighboring properties, causing damage to each property.  (Complaint ¶24.)  Plaintiff alleges he and neighboring property owners had to use garden hoses to try and contain the fire. The Los Angeles Fire Department responded to the Subject Property.  (Complaint ¶24.)  Plaintiff alleges the Los Angeles Police Department also responded to the Subject Property and made several arrests of persons who started the fire.  (Complaint ¶24.)

Plaintiff alleges he has and continues to lose monthly rents for Plaintiff’s Property, and despite incurring substantial marketing costs in attempting to rent Plaintiff’s Property.  (Complaint ¶25.)  Plaintiff alleges as a result of the nuisances on the Subject Property, Plaintiff’s Property has significantly decreased in value.  (Complaint ¶25.)

Procedural History

Plaintiff filed the instant motion on January 16, 2024.  As of the date of this hearing Defendant has not filed an opposition.

Legal Standard

The purpose of a preliminary injunction is to preserve the status quo pending final judgment in the case.  (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.)  The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy.  (Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court (1916) 172 Cal. 80, 87.) 

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial; and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.  (C.C.P. §526(a); 14859 Moorpark Homeowner’s Association v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402; Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, 1283.)

The Court’s determination is 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.  (Butt v. State of California (1992) 4 Cal.4th 668, 678.)  However, 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.) 

The court must consider both factors.  The two factors are a sliding scale— the stronger the showing of probability of prevailing, the lesser showing is required for irreparable harm.  (Id.; The Right Side Coalition v. Los Angeles Unified School District (2008) 160 Cal.App.4th 336 [reversing denial of preliminary injunction based solely on balancing of hardships without considering probability of prevailing].)  The plaintiff must make some showing of each factor.  (Jessen v. Keystone Savings & Loan Association (1983) 142 Cal.App.3d 454, 459.)  A court may not issue a preliminary injunction if the plaintiff cannot possibly prevail on the merits even if a strong showing of irreparable harm has been made.  (Butt, 4 Cal.4th at pgs. 677-678.)

On the first factor, a preliminary injunction may not issue unless the judge is persuaded that it is “reasonably probable” that the plaintiff will prevail on the merits.  (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442.)  The judge does not determine the merits of the action or decide that the plaintiff necessarily will prevail.  The judge only determines whether there is a reasonable probability that the plaintiff will prevail.  (Youngblood v. Wilcox (1989) 207 Cal.App.3d 1368, 1372.)

 For the second factor, “irreparable harm” means that the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award.  (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)  A plaintiff is not required to wait until suffering actual harm; threatened harm is enough.  (Southern Christian Leadership Conference v. Al Malaikah Auditorium Co. (1991) 230 Cal.App.3d 207, 223.)

The issue of irreparable harm is closely related to the issue of damages as an adequate remedy at law.  Monetary loss will not constitute irreparable harm unless the plaintiff also shows that the defendant is insolvent or unable to pay damages.  (Friedman v Friedman (1993) 20 Cal.App.4th 876, 890.)  While both residential and commercial real property are considered unique for purposes of irreparable harm (see Civ. Code §3387), damages may adequately compensate property owned for investment property which has an established value, and the foreclosing entity is solvent.  (Jessen, 142 Cal.App.3d at pg. 458.)  Where the owner intends to use the investment property and not simply sell it, money damages may not suffice, and irreparable harm may justify injunctive relief.  (Id.)

The showing must demonstrate the specific harm claimed; mere allegations of irreparable injury are insufficient.  (Leach v. City of San Marcos (1989) 213 Cal.App.3d 648, 661 [“A mere allegation that such injury will result is not sufficient”.])  Conclusory statements, lay opinion, and attorney declarations will not suffice.  The irreparable harm must be imminent; a mere possibility or fear of harm is insufficient.  (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.)  The court’s ruling on a preliminary injunction is not an adjudication of the merits, is not a trial, and does not require a statement of decision.  (Cohen v. Board of Supervisors, (1985) 40 Cal.3d 277, 286; People v. Landlords Professional Services, Inc., (1986) 178 Cal.App.3d 68, 70-71.)  The Court is not required to state its reasons for granting or denying a preliminary injunction; a cursory statement is sufficient.  (City of Los Altos v. Barnes, (1992) 3 Cal.App.4th 1193, 1198.)

Discussion

Plaintiff demonstrates he has a reasonable likelihood of success on his claims.  Plaintiff’s Complaint sets forth three causes of action: (1) private nuisance, (2) preliminary injunction; and (3) declaratory relief.  Plaintiff only moves in this motion on the basis of his private nuisance cause of action, presumably in light of the fact that the nuisance cause of action is inclusive of the other two causes of action.  Therefore, the Court only examines the first cause of action for private nuisance.

1.     Likelihood of Success

a.      Private Nuisance

A cause of action for private nuisance must allege the following elements: (1) Plaintiff owned the property; (2) that Defendant, by acting or failing to act, created a condition or permitted a condition to exist that was harmful to health, was indecent or offensive to the senses, was an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property, or was a fire hazard to Plaintiff’s property; (3) that Defendant’s conduct in acting or failing to act was intentional and unreasonable or unintentional but negligent or reckless, or created or permitted a condition to exist was the result of an abnormally dangerous

activity; (4) that this condition substantially interfered with Plaintiff’s use or enjoyment of Plaintiff’s land; (5) that an ordinary person would reasonably be annoyed or disturbed by Defendant’s conduct; (6) that Plaintiff did not consent to Defendant’s conduct; (7) that Plaintiff was harmed; (8) that Defendant’s conduct was a substantial factor in causing Plaintiff’s harm; and (9) that the seriousness of the harm outweighs the public benefit of Defendant’s conduct.  (CACI No.

2021; Lussier v. San Lorenzo Valley Water District (1988) 206 Cal.App.3d 92, 100.)

          Here, Plaintiff is likely to prevail on the merits of his private nuisance cause of action because Plaintiff’s Property, a neighboring property of the Subject Property, has suffered damage from the fire that was created by trespassers, and has caused Plaintiff’s Property’s value to diminish due to the nuisances caused by unhoused and transient people entering the Subject Property, which remains unsecured, and said unhoused and transient people have engaged in further illegal activity.  (Decl. of Zumberge ¶¶2, 5.) 

Defendant has failed to take steps to eliminate the conditions causing nuisance of the Subject Property because Defendant has failed to adhere to any notices issued by any code enforcement departments of the City of Los Angeles.  (Decl. of Zumberge ¶2.)  Plaintiff has requested via telephone conversation with Defendant that Defendant take steps to correct the nuisance activity, but Defendant refuses to do so.  (Decl. of Zumberge ¶3.)  

Defendant has interfered with Plaintiff’s ability to rent Plaintiff’s Property, which has caused Plaintiff substantial monetary loss and harm, as well as

resulting damage to Plaintiff’s Property from the fire.  (Decl. of Zumberge ¶4.)  Defendant has failed to correct the nuisance activity/conditions and continues to ignore notices from the code enforcement departments of the City of Los Angeles. (Decl. of Mackins ¶¶3-4, Exhs. 2-3.)  Defendant’s failure to correct the nuisance has substantially interfered with Plaintiff’s use or enjoyment of Plaintiff’s Property.  (Decl. of Zumberge ¶5.)  

Furthermore, it is reasonable to assume that an ordinary person would reasonably be annoyed or disturbed by Defendant’s conduct, especially in light of the fact that the Los Angeles City Council approved a lien on the Subject Property and the Board of Building and Safety Commissioners conducted a public hearing and subsequently took action finding and designating the Subject Property a public nuisance. (Decl. of Mackins ¶¶3-4, Exhs. 2-3.)  

Plaintiff did not consent to Defendant’s conduct and put Defendant on actual notice of the nuisances on the Subject Property and resulting damage to Plaintiff’s Property.  (Decl. of Zumberge ¶4.)  

Plaintiff has been harmed by Defendant’s conduct due to the lost rents from not being able to rent Plaintiff’s Property due to concern of safety issues and other quiet enjoyment issues expressed by potential renters.  (Decl. of Zumberge ¶5.)  Defendant’s failure to correct the nuisances on the Subject Property have caused Plaintiff’s harm/damages.  (Decl. of Zumberge ¶5.)  

Finally, the seriousness of the harm, which is allowing the nuisance to continue and the resulting harm to Plaintiff/Plaintiff’s Property outweighs the public benefit of Defendant’s conduct, as there is no public benefit form Defendant’s conduct, as confirmed by various code enforcement departments of the City of Los Angeles and the Los Angeles City Council.  (Decl. of Mackins ¶¶3-4, Exhs. 2-3.)

2.     Balancing of Harm

Plaintiff has sufficiently demonstrated he will suffer irreparable harm if this Court does not grant Plaintiff a preliminary injunction enjoining Defendant from allowing the continuance of trespassers on the Subject Property, failing to secure the Subject Property, and allowing further nuisance activity on the Subject Property.   

Plaintiff intends to use Plaintiff’s Property to rent to tenants, and Defendant’s conduct has prevented Plaintiff’s intended use.  (Jessen, 142 Cal.App.3d at pg. 458; Decl. of Zumberge ¶5.)  Plaintiff declares Defendant’s failure to correct the nuisance created by unhoused and transient people entering the Subject Property, which remains unsecured, has substantially interfered with his use and enjoyment of Plaintiff’s Property.  (Decl. of Zumberge ¶5.) 

On balance, Defendant will not suffer hardship from this Court issuing a preliminary injunction any more than what is required of any reasonable property owner.  (Decl. of Mackins ¶10.)  Defendant must cure the Subject Property of nuisances, which will in turn benefit Defendant by increasing the value of the Subject Property.  (Decl. of Mackins ¶10.)

Therefore, the balance of hardships and equities weighs in Plaintiff’s favor for enjoining Defendant from allowing the continuance of trespassers on the Subject Property; failing to secure the Subject Property; and allowing further nuisance activities on the Subject Property.

Plaintiff has not sufficiently demonstrated he will suffer irreparable harm if this Court does not grant Plaintiff a preliminary injunction enjoining Defendant from selling, gifting, and/or transferring ownership of the Subject Property Plaintiff argues Defendant listed the Subject Property for sale on the MLS/Zillow for $1,995,000, indicating that Defendant is attempting to sell the Subject Property.  (Decl. of Mackins ¶5, Exh. 4.)  Plaintiff argues he will suffer irreparable harm if the Subject Property is sold, and Plaintiff is unable to attach any lien/abstract of judgment on the Subject Property after judgment is entered in Plaintiff’s favor in this Action.  (Decl. of Mackins ¶9.)

Monetary loss does not constitute irreparable harm unless the plaintiff also shows that the defendant is insolvent or unable to pay damages.  (Friedman, 20 Cal.App.4th at pg. 890; Jessen, 142 Cal.App.3d at pg. 458.)  Here, Plaintiff has not demonstrated Defendant is insolvent, in which case, money damages will typically suffice, and injunctive relief is not justified.  (Friedman, 20 Cal.App.4th at pg. 890.) 

Plaintiff has not made a showing that the proposed preliminary injunction enjoining Defendant from selling, gifting, and/or transferring ownership of the Subject Property weighs in his favor.  In fact, Plaintiff acknowledges that such an injunction “may actually cause more harm to Plaintiff and protracted litigation.”  (Motion, pg. 7.)  The Court finds no justification for granting the requested relief.

Accordingly, Plaintiff’s motion is granted in part and denied in part.

Conclusion

Plaintiff’s unopposed motion for a preliminary injunction is granted in part and denied in part. 

Defendant is enjoined from allowing the continuance of trespassers on the Subject Property; failing to secure the Subject Property; and allowing further nuisance activities on the Subject Property.

Plaintiff’s motion to enjoin Defendant from selling, gifting, and/or transferring ownership of the Subject Property is denied.

Moving Party to give notice.

Dated:  May _____, 2024