Judge: Gregory Keosian, Case: 23STCV21396, Date: 2023-11-29 Tentative Ruling

Case Number: 23STCV21396    Hearing Date: November 29, 2023    Dept: 61

Plaintiffs Gladney Johnson and Denise Johnson’s Motion for Preliminary Injunction is DENIED.

Defendant to give notice.

I.                MOTION FOR PRELIMINARY INJUNCTION

Code of Civil Procedure, section 526, subdivision (a) provides that the court “may” grant an injunction in the following cases:

(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

(2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.

(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

(4) When pecuniary compensation would not afford adequate relief.

(5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.

(6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.

(7) Where the obligation arises from a trust.

(Code Civ. Proc., § 526, subd. (a).)

In determining whether to issue a preliminary injunction, a trial court considers: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1177.) “‘The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.’ [Citation.]” (Ibid.)

“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 v. State of California (1992) 4 Cal.4th 668, 678.)

Plaintiffs Gladney Johnson, trustee of the Gladney Johnson Family Trust, and Denise Johnson (Plaintiffs) move for a preliminary injunction directing Defendant Commercial Funding, LLC not to sell the real properties subject to this action (the “Van Ness” and “Hawthorne” properties) or collect rent from any tenants thereon. Plaintiffs argue that the $290,000 obligation is in reality merely a recitation of their prior accumulated $177,500.00 obligation to the lender, Del Arroyo, and that interpreting the interest provisions of the $290,000.00 not in this light, the obligation is usurious under Article XV, § 1 of the California Constitution, which limits interest generally to 10 percent per annum. (Cal. Const., art. XV, § 1.)

Plaintiffs’ argument is unpersuasive and inconsistent with the written instruments presented. They present a number of agreements which they claim represent a total indebtedness of $177,500.00, but the agreements actually indicate: (1) two agreements (respectively dated January 2020 and February 2021) whereby Del Arroyo agrees to purchase Plaintiffs interests in the Hawthorn property for a total of $97,500.00, and which are evidently not loans at all, and (2) a loan agreement dated February 2021 in which Auto Pawn Express agrees to lend $80,000, secured on different real property on Crenshaw Boulevard not at issue in this litigation. (Motion Exh. A.) Plaintiffs do not present the purchase agreement forming the basis for the $290,000.00 loan and deed of trust, secured on both the Hawthorne and Van Ness properties. (Motion Exh. B; Opposition Exh. 2.) That purchase agreement, presented by Defendant, lends no support to Plaintiffs’ contentions, and states that interest is at a non-usurious 8% per annum. (Opposition Exh. 1.)

Defendant also presents alternative bases to deny the motion. They note that Gladney Johnson cannot prosecute the claims presented here in their capacity as trustee without counsel. (See Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 548.) Moreover, Defendant notes that Plaintiff Denise Johnson quitclaimed her interest in the Hawthorne Property, upon which she now seeks relief, to Salt Fish, LLC — a company she owns — in July 2023, and therefore lacks standing to bring claims as to that property. (Opposition Exh. 7.)

Plaintiffs have not demonstrated a likelihood of prevailing on the merits, and their motion for a preliminary injunction is DENIED.