Judge: Douglas W. Stern, Case: 22STCV21576, Date: 2022-09-15 Tentative Ruling
Case Number: 22STCV21576 Hearing Date: September 15, 2022 Dept: 52
Tentative Ruling:
Plaintiff
Shaul Havivy’s Motion for Preliminary Injunction
Plaintiff
Shaul Havivy moves for an order enjoining defendant Nicole Gutierrez “and her
employees, agents, and persons acting with her or on her behalf, from
transferring ownership of or further disposing of the $44,490 at issue in this
lawsuit and directing her to transfer such funds to a blocked account pending
outcome of trial.”
Legal Standard for Preliminary Injunction
“In deciding whether to issue a
preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the
likelihood that the moving party will ultimately prevail on the merits and
(2) the relative interim harm to the parties from issuance or nonissuance of
the injunction.” (Butt v. State of
California (1992) 4 Cal.4th 668, 677–678 (Butt).) The second factor concerns “the
comparative consequences of the issuance and nonissuance of the
injunction” before trial. (Common
Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442 (Common
Cause).) “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.” (Butt,
supra, 4 Cal.4th at p. 678.)
Likelihood of Prevailing on the Merits
Plaintiff shows a significant likelihood
of prevailing on the merits of his second causes of action for conversion. “The
basic elements of [conversion] are (1) the plaintiff’s ownership or right to
possession of personal property; (2) the defendant’s disposition of the property
in a manner that is inconsistent with the plaintiff’s property rights; and (3)
resulting damages.” (Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) Plaintiff’s evidence supports
his allegations that (1) he owned or had the right to possess the $44,490 at
issue; (2) defendant possesses the money; and (3) plaintiff therefore suffered
$44,490 in damages.
Plaintiff states under penalty of perjury
that he worked with defendant’s late father, Roy Moorefield. (Havivy Decl., ¶ 2.) Moorefield agreed to let plaintiff use his
contractor’s license to do home renovations.
(Ibid.) When Moorefield
passed away, Gutierrez “orally assumed the written contracts” between plaintiff
and Moorefield and “consent[ed] to continue to her [plaintiff] use her father’s
contractor’s license. (Ibid.) In December 2021, defendant “took possession
of” $44,490 from US Bank, which was “the gross proceeds from the completion of
a home improvement job” plaintiff did using Moorefield’s contractor’s license. (Id., ¶ 3.) Defendant refused to give it to plaintiff and
“instead kept the money for herself and further denied that she had received
the $44,490.” (Ibid.)
Defendant’s opposition provides no
evidence to rebut plaintiff’s showing.
Instead, she confirms, “In November 2021, U.S. Bank informed me that
$45,000 had been deposited to my father’s R & R account with him as
beneficiary.” (Gutierrez Decl., ¶
16.) “The funds were cleared for release
to me as my father’s heir.” (Ibid.)
The opposition argues plaintiff is not
entitled to the money because it was a payment for an illegal and unlicensed
contract. Defendant provides evidence
her late father’s Moorefield’s contractor’s license had already been cancelled
when plaintiff began the job. (Gutierrez
Decl., ¶¶ 6-10.)
But defendant fails to show the validity
of the contract that resulted in the $44,490 payment to US Bank constitutes a
defense to plaintiff’s cause of action for conversion (or his other causes of
action). The undisputed evidence is that
the money was paid to Moorefield’s account as payment for a home improvement
job plaintiff did. Even if the contract
was illegal, defendant fails to explain why that would make her entitled
to keep it—rather than returning it to the customer who paid plaintiff and
defendant’s late father for unlicensed work.
As between the parties to this case, the undisputed evidence at this
stage shows the money belongs to plaintiff, not defendant.
Balance of Harms
Plaintiff, however, fails to show the balance of harm favors him or that
he lacks an adequate remedy at law. “[I]n
order to obtain injunctive relief the plaintiff must ordinarily show that the
defendant’s wrongful acts threaten to cause irreparable injuries,
ones that cannot be adequately compensated in damages.” (Intel Corp. v. Hamidi (2003) 30
Cal.4th 1342, 1352; accord CCP § 526(a).)
Typical examples of inadequate remedies at law include a dispute over
“unique real property” (Fonteno v. Wells Fargo Bank, N.A. (2014)
228 Cal.App.4th 1358, 1380) or claims where damages are not available as a
matter of law (Department of Fish & Game v. Anderson-Cottonwood
Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1567).
The Court of Appeal has held that inability to
collect on a potential judgment supports a finding of inadequate remedy at law.
“[I]nsolvency of the defendant is not an
independent ground for an injunction, but may be considered in determining
whether damages provide an adequate remedy.”
(Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528,
1538; accord West Coast Constr. Co. v. Oceano Sanitary Dist. (1971)
17 Cal.App.3d 693, 700 (West Coast).)
Plaintiff’s evidence fails to show defendant is
insolvent or that defendant has or will transfer the money to avoid enforcement
of a potential judgment. “An injunction
cannot issue in a vacuum based on the proponents’ fears about something that
may happen in the future. It must be
supported by actual evidence that there is a realistic prospect that the party
enjoined intends to engage in the prohibited activity.” (Korean Philadelphia Presbyterian Church
v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.)
Plaintiff relies largely on conjecture. He states defendant “may have spent some of
the money. I believe that Defendant may
not have all the money and that she is likely to spend some or all of any remaining
money. If she is allowed to keep and
spend the money, I may obtain an uncollectable judgment against her.” (Havivy Decl., ¶ 5.) After defendant’s father died, defendant
often told plaintiff “how much she needed the money that I was giving to
her.” (Id., ¶ 6.) Defendant is “self-employed as a mobile dog
groomer, so she is not a traditional wage earner with wages that can be
garnished to satisfy a judgment.” (Ibid.) Finally, plaintiff states, “It is highly
unlikely that I will be able to get that money back in one lump sum as it was
taken from me.” (Id., ¶ 7.)
This evidence is insufficient. Plaintiff shows no independent grounds for an
injunction. He provides only minimal
evidence that defendant may be insolvent.
And a plaintiff is not necessarily entitled to recover a judgment “in
one lump sum.”
Plaintiff’s reliance on West Coast is
misplaced. There, the evidence showed
that “the maximum amount the [defendant] had available to it, including the
proceeds from all sources” was just over half of the amount of its debt to the
plaintiff, that defendant was insolvent and had no other way “to obtain from
any source sufficient funds,” and “threaten[ed]
to, and [would] enter into a contract with, and pay out to, a certain firm
(therein named) the sum of $20,000.” (West
Coast, supra, 17 Cal.App.3d at pp. 700-701.) In its opposition, the defendant admitted it
did not have enough money to pay the entire purported debt: “[A]ll of the funds
on hand admittedly fell short of a sufficiency to meet plaintiff’s demands.” (Id. at p. 701.)
Here, plaintiff Shaul Havivy has far
weaker evidence of defendant’s insolvency.
There is insufficient evidence showing that damages
will be an inadequate remedy at law. Plaintiff relies on little more than
speculation.
Disposition
Plaintiff’s motion for preliminary injunction is denied.