Judge: Daniel S. Murphy, Case: 22STCV12029, Date: 2023-02-17 Tentative Ruling

Case Number: 22STCV12029    Hearing Date: February 17, 2023    Dept: 32

BACKGROUND

            On April 8, 2022, Plaintiffs filed this action for prescriptive easement, declaratory relief, quiet title, and injunctive relief. Plaintiffs are the owners of certain real property located on Ventura Boulevard in Sherman Oaks, California (“Gross Property”). (Compl. ¶ 1.) The property is a one-story commercial building containing various restaurants and retail businesses. (Id., ¶ 7.) Defendant owns an adjacent property (“Castelo Heights Property”). (Id., ¶ 2.)

There is a public alleyway abutting both properties, which patrons of the businesses access by traversing a driveway in between the properties. (Compl. ¶ 7.) The driveway begins from Ventura Boulevard to the south and exits onto the public alleyway to the north. (Abitboul Decl., Ex. H.) Although an express easement to use the driveway expired in 1979, Plaintiffs allege that they have continued to use the driveway in an open, notorious, and hostile manner since then. (Compl. ¶¶ 9-10.)

Around March 10, 2022, Defendant installed a chain fence blocking access to the driveway from Ventura Boulevard and along the length of the driveway, preventing patrons and employees of the Gross Property from accessing the driveway to exit onto the public alleyway. (Compl. ¶¶ 20-21.) As a result, vehicles could only enter through a side street, Lemona Avenue, and could only exit by backing out onto Lemona Ave. (Id., ¶ 21.) Plaintiff contended that this was a safety hazard, as cars would be backing out onto oncoming traffic. (Ibid.)

On April 26, 2022, this Court granted Plaintiff’s ex parte application for a temporary restraining order prohibiting Defendant from restricting ingress and egress to the driveway. The Court then granted a preliminary injunction to the same effect on May 16, 2022.

On January 10, 2023, Defendant filed the instant motion to modify the preliminary injunction to allow the driveway to be fenced off while Defendant performs repairs to its building.

LEGAL STANDARD

“In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” (Code Civ. Proc., § 533.)

DISCUSSION

            The rear structure of Defendant’s property suffered fire damage in April 2022. (Sarshar Decl. ¶ 5, Ex. C.) In September 2022, the Los Angeles Department of Building and Safety (LADBS) issued an order requiring Defendant to redress substandard conditions caused by fire damage, among other violations such as graffiti. (Id., Ex. B.) Defendant obtained a demolition permit from LADBS in October 2022, and demolition proceeded in December 2022. (Id., ¶¶ 8, 10.) The demolition involved large construction vehicles which occupied the rear portion of Defendant’s property and the driveway area. (Id., Ex. F.)

Defendant argues that the LADBS order of September 7, 2022, constitutes a material change in facts justifying a modification of the preliminary injunction. (Mtn. 1:12-14, 3:4-16.) According to Defendant, “construction work mandated by the City . . . also has damaged the driveway area of the rear portion of the property. Thus, there is a significant concern for any vehicles that exiting the parking lot will become damaged due to the condition of the driveway caused by the machinery . . . .” (Id., ¶ 13.) “Defendant wishes to be allowed to complete the demolition and repair of the surfaces, including the driveway area in the vicinity of the exit from the parking lot.” (Id., ¶ 14.)

            The demolition work in December 2022 appears to be complete. Defendant does not dispute that there is currently no construction machinery on the premises. (See Abitboul Decl., Ex. B, C.) Defendant also does not dispute that the driveway remains undamaged despite the demolition work in December 2022. (Ibid.) Presently, there is no evidence of what further construction work is necessary or how such work would require blocking of the driveway.

CONCLUSION

            Defendant’s motion to modify preliminary injunction is DENIED without prejudice. Should a need to block the driveway arise in the future, the parties should stipulate to a modification of the preliminary injunction. If the parties are unable to do so, Defendant may file the motion again.

            OSC re: Contempt is DENIED as the Court finds no willful violation of a Court order.