Judge: Elaine Lu, Case: 22STCV36524, Date: 2024-01-23 Tentative Ruling
Case Number: 22STCV36524 Hearing Date: February 5, 2024 Dept: 26
Superior Court of California
|
david
johnston, Plaintiff, v. do
hwan kim, Defendant. |
Case No.:
22STCV36524 Hearing Date: February 5, 2024 [TENTATIVE] order RE: plaintiff’s motion to compel entry upon land |
Procedural Background
On November
21, 2022, Plaintiff David Johnston (“Plaintiff”) filed the instant action
against Defendant Do Hwan Kim (“Defendant”).
On March 21, 2023, Plaintiff filed a First Amended Complaint (“FAC”) against
Defendant.
On
December 29, 2023, Plaintiff filed the instant motion to compel entry upon
land. On January 29, 2024, the Court
sustained Defendant’s demurrer to the FAC with leave to amend. (Order 1/29/24.) On January 29, 2024, the Court continued the
instant motion to February 5, 2024. No
opposition or reply has been filed as to Plaintiff’s motion to compel entry
upon land.
Lack of Service of
the Instant Motion
“[A]ll moving and
supporting papers shall be served and filed at least 16 court days before the
hearing.” (CCP § 1005(b).) Moreover, “[p]roof of service of the moving
papers must be filed no later than five court days before the time appointed
for the hearing.” (Cal. Rules of Court,
Rule 3.1300(c).)
Here, no proof of service has been
filed with the moving papers indicating service on Defendant. The fact that Plaintiff is pro per does not excuse
the lack of service as “pro per litigants are not entitled to special
exemptions from the California Rules of Court or Code of Civil Procedure.” (Gamet v. Blanchard (2001) 91
Cal.App.4th 1276, 1284.) Rather, in pro
per litigants are “entitled to treatment equal to that of a represented
party.” (Ibid.)
Accordingly, as no proof of service of the instant motion
has been filed, and there is no indication that Defendant was properly served
the instant motion, the instant motion must be denied.
The
Instant Motion Also Fails on the Merits
By way of the instant motion, “[p]ursuant to CCP 2031.010
(a), CCP 4775 sections (a)(1), (a)(3) and-by way of reference- FRCP 26,34 and
45, plaintiff requests that respondent Kim and his wife be ordered to allow me
to enter upon their land [= back yard of Unit A] to do periodic essential [and
currently critical] Maintenance on plaintiff’s and his wife’s Unit B [0.5 ],
the building exterior of which includes and is also next to certain Common
Areas [i}.” (Motion at p.2:4-6.)
The Federal Rules of Civil Procedure – i.e., the FRCP – are inapplicable to the instant
action as those rules apply only in federal court. In California state court proceedings
such as the instant one, the California Code of Civil Procedure – i.e., the CCP or Code of Civil Procedure -- govern.
Code of Civil Procedure section 2031.010 does permit the
inspection of land pursuant to a discovery request propounded on a party as set
forth in Code of Civil Procedure sections 2031.030 and 2031.040. However, only after an improper response to a
request to inspect land or lack of timely response may the Court order such
inspection. (CCP §§ 2031.300, 2031.310, 2031.320.) Moreover, the entry of land under Code of
Civil Procedure section 2031.010 is explicitly limited to only “inspect[ing]
and to measur[ing], survey[ing], photograph[ing], test[ing], or sampl[ing] the
land or other property, or any designated object or operation on it.” (CCP § 2031.01(d).) Code of Civil Procedure section 2031.010 does
not permit entry upon land for Plaintiff to conduct repairs as requested by the
instant motion. Thus, Code of Civil
Procedure section 2031.010 is inapplicable to the instant motion.
Code of Civil Procedure section 4775 does not exist. Presumably, Plaintiff is referring to Civil
Code section 4775 which provides that “unless otherwise provided in the
declaration of a common interest development, the association is responsible
for repairing, replacing, and maintaining the common area.” (Civ. Code, § 4775(a)(1).) Moreover, “[u]nless otherwise provided in the
declaration of a common interest development, the owner of each separate
interest is responsible for maintaining the exclusive use common area
appurtenant to that separate interest and the association is responsible for
repairing and replacing the exclusive use common area.” (Civ. Code, § 4775(a)(3).) In sum, Civil Code section 4775 provides that
common areas in common interest developments – such as a Homeowners Association
– are the responsibility of the common interest development, and areas adjacent
to the common areas are the responsibility of the separate homeowner unless
stated otherwise in the governing documents for the common interest
development.
Here, there is no indication that the back yard of unit A
– to which Plaintiff seeks entry – is a common area that the Homeowners
Association would have a duty to maintain.
Moreover, Plaintiff has not filed the governing documents for the
Homeowners Association such that the Court could even determine who has an
obligation to maintain any specific area.
Regardless, Plaintiff is not the Homeowners Association. Plaintiff is merely a neighbor within a
homeowner’s association. Thus, Civil
Code section 4775 could not and does not give any right to Plaintiff to enter
Defendant’s backyard to make repairs.
Further, Civil Code section 4775 merely provides the obligations of
repairing and maintaining common areas.
This section does not separately provide the Court authority to compel
the entry upon land.
Plaintiff
Fails to Show that a Preliminary Injunction is Warranted
Though not specifically noted by Plaintiff, the sole
basis for the requested relief of authorization to enter Defendant’s backyard
to conduct repairs would be pursuant to a preliminary injunction.
The purpose of a
preliminary injunction is to preserve the status quo pending final resolution
upon a trial. (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. (14859
Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.)
Preliminary injunctive relief requires the use of competent evidence to create
a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink
Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle
Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) Injunctive relief may be granted based on a
verified complaint only if it contains sufficient evidentiary, not ultimate,
facts. (CCP § 527(a).) For this reason,
a pleading alone rarely suffices. (Weil & Brown, California Procedure
Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).) The burden of proof is on the
Cross-Complainant as the moving party. (O’Connell
v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) A Plaintiff seeking injunctive relief must
show the absence of an adequate damages remedy at law. (CCP § 526(4); Thayer Plymouth Center,
Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307.)
The trial court considers
two factors in determining whether to issue a preliminary injunction: (1) the
likelihood the moving party will prevail on the merits of its case at trial,
and (2) the interim harm the moving party is likely to sustain if the injunction
is denied as compared to the harm the defendant is likely to suffer if the
court grants a preliminary injunction. (CCP § 526(a); Husain v. McDonald’s
Corp. (2012) 205 Cal.App.4th 860, 866-67.)
The balancing of harm between the parties “involves consideration of
such things as the inadequacy of other remedies, the degree of irreparable
harm, and the necessity of preserving the status quo.” (Id. at p.867.) Thus, a preliminary injunction may not issue
without some showing of potential entitlement to such relief. (Doe v. Wilson (1997) 57 Cal.App.4th
296, 304.) The decision to grant a preliminary injunction generally lies within
the sound discretion of the trial court and will not be disturbed on appeal
absent an abuse of discretion. (Thornton v. Carlson (1992) 4 Cal.App.4th
1249, 1255.)
A preliminary injunction
ordinarily cannot take effect unless and until the moving party provides an
undertaking for damages that the enjoined defendant may sustain by reason of
the injunction if the court finally decides that the moving party was not entitled
to the injunction. (See CCP § 529(a); Cal. Rules of Court, rule
3.1150(f); City of South San Francisco v. Cypress Lawn Cemetery Assn.
(1992) 11 Cal.App.4th 916, 920.)
Here, there currently is
no operative pleading, and thus, Plaintiff cannot show any possibility of
success on the underlying merits of the case.
“‘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.’ [Citation.]
Accordingly, the trial court must deny a motion for a preliminary injunction if
there is no reasonable likelihood the moving party will prevail on the
merits.” (SB Liberty, LLC v. Isla
Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.)
As Plaintiff fails to
show any basis for the requested relief and has failed to properly serve the
instant motion, the instant motion must be DENIED.
Conclusion and Order
Based on the foregoing, Plaintiff David
Johnston’s motion to compel entry upon land is DENIED.
Court Clerk to give notice.
DATED: February___, 2024 ___________________________
Elaine
Lu
Judge
of the Superior Court