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 

 

Plaintiff/Cross-Defendant, WVBAGD LLC, filed a renewed motion to enforce and disburse a preliminary injunction bond by WVBAGD LLC. Defendants and Cross-Complainants, Bradley Barnes and BABBB LLC, filed a motion to disburse the bond. This ruling will be a combined ruling for both motions.

 

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.