Judge: H. Jay Ford, III, Case: 21SMCV01433, Date: 2023-03-02 Tentative Ruling

Case Number: 21SMCV01433    Hearing Date: March 2, 2023    Dept: O

21SMCV01433 ADAM ASKARI vs JAMES HORWICH, et al

03/02/2023 Hearing on Plaintiff’s Motion for Preliminary Injunction

Plaintiff’s exparte application for a TRO & OSC re preliminary injunction was denied on January 27, 2023 without prejudice to Plaintiff filing a separate motion for a preliminary injunction.  At that hearing, the Court told Plaintiff’s counsel he would need to make a stronger evidentiary showing to support Plaintiff’s request for a preliminary injunction.  Plaintiff’s declaration (filed 1-20-2023) was not sufficient to show irreparable harm and there was no declaration authenticating the “exhibits” that were attached to the separately filed memorandum of  points and authorities.  The Court explained Plaintiff’s “verification” attached to exparte application (filed 1-20-23) was not proper.  In that ”verification” Plaintiff stated he had “read the forgoing motion for order to show cause re preliminary Injunction [and TRO] and know its contents thereof, which are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters, I believe the same to be true.”  That verification did not identify what “contents”  in the motion were true. It did not show any foundation for Plaintiff’s personal knowledge of anything.  And, the application could not be based on some unfounded “information and belief.”

Further, at the exparte hearing the Court noted that prior to the exparte hearing Plaintiff had made a reservation for a hearing on an as yet unfiled motion for preliminary injunction set for March 2, 2023. The Court explained the Court requires a motion to be filed within two days of making a reservation. Therefore the Court canceled that reservation, without prejudice to Plaintiff reviving that reservation for the next available hearing date if Plaintiff did decide to file a motion for preliminary injunction.  But the Court admonished Plaintiff’s counsel that if he did want to file such a motion, he would at least need to cure the evidentiary defects in his exparte application and that if he failed to do so, that motion would be denied.

Plaintiff filed his present motion for a preliminary injunction on January 31, 2023.  Instead of reworking the evidentiary support for his motion, Plaintiff attached the same defective “verification” to his “Notice of Motion and Motion for Preliminary Injunction.”  Likewise.  Plaintiff filed the same Memorandum of Points and Authorities with the same unauthenticated exhibits attached to that memorandum.  The only change was the addition of an unauthenticated “medical report” concerning Plaintiff.  (Exhibit 12).  Oddly, Plaintiff did not file any new declaration, including his own.  

Plaintiff’s motion for a preliminary injunction is denied. Plaintiff has failed to show he is entitled to the relief requested by admissible, competent or persuasive evidence.  

Defendant’s request the Court issue an order to show cause why sanctions should not be imposed on plaintiff under CCP 128.7(b)(2) is DENIED.