Judge: David A. Rosen, Case: EC068581, Date: 2023-03-24 Tentative Ruling
Case Number: EC068581 Hearing Date: March 24, 2023 Dept: E
Hearing Date: 03/24/2023 – 9:00am
Case No. EC068581
Trial Date: N/A
Case Name: WVBAGD, LLC v. GREG GALLETLY, ET AL.
2
- TENTATIVE RULINGS – MOTIONS TO DISBURSE PRELIMINARY INJUNCTION BOND
Proof
of Service Timely Filed (CRC Rule 3.1300): Ok as to both motions
16/21 Court Days Lapsed (CCP 1005(b)):Ok as to both motions
Proper Address: Ok as to both motions
Papers
Considered: WVBAGD’s motion; Dowdall Declaration in support of WVBAGD motion; Request for judicial notice in
support of WVBAGD’s motion; O’Neill declaration in support of WVBAGD’s motion;
Proposed order for WVBAGD’s motion; Barnes parties’ motion; Barnes and Share
Declarations in support of Barnes parties’ motion; WVBAGD’s Opposition to
Barnes parties’ motion; Anthony O’Neill Declaration in support WVBAGD’s
opposition to Barnes parties’ motion; Dowdall Declaration in support of WVBAG’s
Opposition to Barnes parties’ motion; WVBAGD’s request for judicial notice in
support of WVBAGD’s opposition to Barnes parties’ motion; WVBAGD’s evidentiary
objections to Barnes and Share declarations in support of Barnes parties’
motion; Barnes’ parties opposition WVBAGD’s motion; Barnes and Share declarations
in support of Barnes parties’ opposition; Barnes parties’ evidentiary
objections to the O’Neill and Dowdall declarations in support of WVBAGD’s
motion; WVBAGD’s notice of errata re:corrected Dowdall declaration in support
of WVBAGD’s motion; Reply of WVBAGD in support of motion; WVBAGD’s response to
Barnes parties’ evidentiary objections to the declarations of O’Neill and
Dowdall; WVBAGD’s evidentiary objections to Barnes and Share Declarations; Barnes
parties’ reply to WVBAGD’s opposition; WVBAGD’s notice of errata re:corrected
declaration of Dowdall in support of opposition to motion to disburse bond by
Barnes parties; WVBAGD’s Reply in support of motion; WVBAGD’s response to
Barnes parties’ evidentiary objections to the declarations of O’Neill and
Dowdall.
RELIEF REQUESTED
Plaintiff/Cross-Defendant, WVBAGD LLC (Lender), moves for an order to enforce
and disburse the preliminary injunction bond posted by BABBB, LLC pursuant to CCP
§996.440.
Defendants/Cross-Complainants,
Bradley Barnes and BABBB, LLC (Barnes) move for an order of the Court to
disburse the $40,001.00 deposited with this Court as a preliminary injunction
undertaking to the parties that made the deposits, Mark Share as to $1.00 and
Ray Barnes as to $40,000.00.
BACKGROUND
WVBAGD argues that since it was awarded
$115,266.10 on its successful motion for attorney’s fees and costs for which it
was billed to defend against Barnes’ appeal of the dismissal of the
cross-complaint, it is now entitled to recover the bond pursuant to CCP §996.440(a). WVBAGD also claims that it sustained other
damages as a result of the injunction.
Defendants argue that since
WVBAGD suffered no determinate damages by reason of the preliminary injunction,
the entire undertaking should be returned to the depositors.
TENTATIVE
RULING
The Court notes that each party was apparently
willing to spend more than the value of the bond to argue about who should
receive the bond disbursement. Further,
this is WVBAGD’s second attempt at obtaining the Court’s Order to release the
bond to them; their first such Motion having been denied by the Court without
prejudice on December 23, 2022.
The Court finds both WVBAGD’s
and Barnes’ current moving papers, as well as their respective Opposition
papers, largely unintelligible and indecipherable, and, thus, ultimately
unpersuasive in terms of both their arguments and their arithmetic.
WVBAGD did manage to
show that the law requires the bond to have been in place to compensate for
damages sustained by the enjoined party, the lender, by reason of the
injunction. However, the lender failed here to meet its burden to show by a
preponderance of the evidence that it actually sustained any damage as a result
of the injunction being in place, nor did WVBAGD prove with any clarity, much
less specificity, the amount of damages they actually sustained as a result of
the injunction being in place. Therefore, WVBAGD’s motion is DENIED. “It is
well settled the damage recoverable under an injunction bond, such as the bond
at bench, is for all loss proximately resulting from the injunction; the
factors to be considered in determining the loss depend upon the circumstances
of the case; the measure of damage will vary with those circumstances;
arbitrary rules do not govern; equitable principles are applied; and the
allowance, although often difficult to measure accurately, should furnish just
and reasonable compensation for the loss sustained.” (Surety Sav.
& Loan Assn. v. National Automobile & Cas. Ins. Co. (1970) 8
Cal.App.3d 752, 757-emphasis added.)
The Barnes parties’
motion is essentially moot, because while it too was neither persuasive nor
completely intelligible, the denial of the lender’s motion necessarily results
in those who deposited the money for the required undertaking on the now
dissolved injunction getting their money back. The $40,000.00 that was
deposited by Ray Barnes is now to be released to Ray Barnes, and the $1.00
deposited by Mark Share is now to be released to Mark Share.
WVBAGD’s request for
judicial notice in support of its motion, filed on 2/6/2023 is GRANTED.
WVBAGD’s request for
judicial notice, filed on 3/13/2023, in support of WVBAGD’s opposition to the
Barnes parties’ motion is GRANTED.
WVBAG’s 3/13/2023 evidentiary
objections to Declarations of Bradley Barnes and Mark Share in support of
motion to disburse bond by Defendants and Cross-Complainants Bradley Barnes and
BABBB are OVERRULED.
The Barnes parties’
evidentiary objections, filed 3/13/2023, to the Declarations of Anthony O’Neill
and Tyler Dowdall in support of WVBAGD’s motion to enforce and disburse
preliminary injunction bond are OVERRULED.
WVBAGD’s 3/17/2023
evidentiary objections to declarations of Bradley Barnes and Mark Share are
OVERRULED.