Judge James C. Chalfant, Case 22STCV21021 2022-08-09 Tentative Ruling

Revina Thomas v. I&K Properties, Rebecca Arellano, Ramsundar Indrasain, Ramsundar I&K 2020 Trust, and Managers “Mahla” and “Camille”, 22STCV21021
Tentative decision on application for preliminary injunction: denied

Plaintiff Revina Thomas (“Thomas”), individually and as representative of decedent Sharlene Thomas (“Sharlene” or “Decedent”), applies for a preliminary injunction to compel Defendants I&K Properties (“I&K”), Rebecca Arellano (“Arellano”), Ramsundar Indrasain (“Indrasain”), Ramsundar I&K 2020 Trust (“2020 Trust”), and Managers “Mahla” and “Camille” to restore Thomas’s status as a tenant and her right to possession of Unit 14 of 13608 Chadron Street, Hawthorne, CA (“Property” or “Unit”), as well was to enjoin them from interfering with her enjoyment thereof.

The court has read and considered the moving papers and opposition (the reply was not considered) and renders the following tentative decision.

Plaintiff filed the Complaint on June 28, 2022, alleging claims against Defendants for (1) forcible entry, (2) forcible detainer, (3) breach of the implied covenant of enjoyment, and (4) wrongful eviction. The Complaint alleges in pertinent part as follows.

From 2012 to May 14, 2022, Thomas was in actual possession of the Property with the Decedent in an open and obvious manner, including via parking and receiving mail there and enrolling her daughter in the corresponding school. On May 15, 2022, I&K forcibly entered the premises in Thomas’s absence, changed the locks, and has denied reentry since because she is not listed on the lease.

Since then, Thomas has only been allowed in the Property when a manager deems so for and for the time he or she deems reasonable. Defendants never filed any legal action to enforce their supposed right to eject her from the premises. Underscoring this decision is the fact that the Defendants were aware that Decedent, who had signed a lease in 2022 that remains active, passed while at the Property and Thomas is responsible for her affairs.

Defendants continue to bar Thomas from the Property while asking her to remove her belongings from it – including laptops that she needs – by the end of June. This rendered Thomas and her daughter homeless. Attempts to informally reconcile have failed.

The value of occupancy is $28.76 per day, based on the lease’s monthly rent of $863. General damages are calculated at that rate from the date of eviction – May 15, 2022 – plus emotional and mental distress, for a total in excess of $50,000. Thomas additionally seeks possession of the Property, injunctive relief preventing further unlawful action to remove her personal property, statutory damages for each offense, and attorney’s fees and costs.

On June 29, 2022, Thomas applied for a temporary restraining order (“TRO”) and order to show cause (“OSC”) re: preliminary injunction to compel Defendants to restore her status as a tenant and her right to possession of the Property, as well was to enjoin them from interfering with her enjoyment thereof.

On July 1, 2022, Dept. 82 (Hon. May H Stroebel) granted the TRO for Thomas’ personal property within the Property but denied it for possession of the Property itself. The OSC was granted for all relief sought for a hearing, with Thomas ordered to personally serve Defendants with the Summons, Complaint, and moving papers by July 5, 2022 and file proof of service by July 11, 2022.

On July 5, 2022, Thomas personally served I&K, 2020 Trust, Indrasain, and Arellano with the Complaint, Summons, and the ex parte application.

On July 7, 2022, Thomas personally served “Mahla” with the Complaint, Summons, and the ex parte application.

The OSC came on for hearing on July 21, 2022. Because Thomas’ proof of service and Defendants’ opposition had been timely filed but neither appeared in the electronic court file and the court did not have courtesy copies, this court re-issued the TRO and set the OSC hearing date for the instant date. The court also ordered the parties to meet and confer to discuss Thomas staying in the Property as a licensee paying daily rent and Thomas’ reply was to reflect results of the meet and confer.

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. Code of Civil Procedure (“CCP”) §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

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. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. 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. See 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 plaintiff as 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; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable 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. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. 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 plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

Thomas and Decedent lived in the Property together until Decedent’s passing on May 11, 2022. Thomas Decl., ¶2. During that time, Thomas interacted regularly with neighbors and management alike, parked on the premises, enrolled her daughter in a local school, and all the Property utilities were in her name. Thomas Decl., ¶4. The monthly rent of $863 was paid through May 31, 2022. Thomas Decl., ¶19.

As of June 27, 2022, Decedent’s death certificate has not been issued due to multiple autopsies that have generally complicated efforts to lay her affairs to rest; the memorial service was held on June 24, 2022. Thomas Decl., ¶¶ 3, 15.

Decedent signed a new lease in May 2022 sometime before her death, but Thomas’s requests to Defendants for a copy of the lease have failed. Thomas Decl., ¶¶ 2, 19; Heckard-Bryant Decl., ¶15.

On May 12, 2022 – the day after Decedent’s death – Thomas called Camille, an I&K manager, to ask about how she could proceed on the Property. Thomas Decl., ¶4. Camille sternly replied that Thomas had no right to access the Property as her name was not on the lease. Thomas Decl., ¶4. Camille told Thomas that she could stay until June 30, 2022 to get her things out of the Unit and would not need to pay rent for that period. Thomas Decl., ¶5. Thomas responded that this was not sufficient time to move out, as Thomas and her daughter had lived in the apartment for an extended time. Thomas Decl., ¶6. She offered to pay rent for July and August to buy more time. She did not want to stay in the Property for the duration of the lease anyway because of her mother’s passing there. Thomas Decl., ¶6.

On May 15, 2022, upon returning with her daughter after a day of making funeral arrangements for the Decedent, Thomas found that she was locked out of the apartment. Thomas Decl., ¶7. The note on the door said the Unit would only be accessible upon contacting the resident manager during business hours. Thomas Decl., ¶7, Ex. B. In denying her entry to the Unit, Defendants have denied Thomas access to all personal property therein, including her and Decedent’s laptops. Thomas Decl., ¶10.

Thomas sent Defendants a letter that same day by certified mail, requesting again to stay on the Property until August 2022 to remove all belongings, and offering to pay the rent through that month. Thomas Decl., ¶9, Ex. C.

On Monday, May 16, 2022, Thomas texted Camille that she (Thomas) is a former property manager and knew that Defendants were violating the law by locking her out of the Property without written notice when she and the Decedent had paid rent to that point. Thomas Decl., ¶4, Ex. A. Camille replied by reiterating that Thomas was not a tenant, but I&K would provide access until June 30, 2022 so that she could take care of her mother’s possessions. Thomas Decl., ¶4, Ex. A. Thomas replied by stating that switching the locks without notice violated the law and that other property managers agree. Thomas Decl., ¶4, Ex. A.

On May 19, 2022, counsel for Thomas called I&K at the number listed on the May 15, 2022 notice. Heckard-Bryant Decl., ¶¶ 4-5. She first called a supposed property manager “Brian,” and was redirected to Arellano, to ask about providing keys to Thomas because she is a resident. Arellano to her that she (Arellano) would redirect her to a property manager named “Camille”, but Thomas’ counsel was disconnected. Heckard-Bryant Decl., ¶¶ 4-5. After twice trying to call Camille and reaching her voicemail, Thomas’ counsel tried and failed to separately verify I&K’s number via the website for the Secretary of State. Heckard-Bryant Decl., ¶¶ 6-8.

Thomas’ counsel again called Brian, and again was redirected to Arellano, who confirmed that Decedent had paid rent through May. Heckard-Bryant Decl., ¶9. Rather than give counsel the contact information for I&K’s legal department, however, Arellano told counsel to call Camille again and gave a company email address. Heckard-Bryant Decl., ¶9.

Several messages later, Camille finally answered and maintained that Thomas was only a visitor and not a tenant. Heckard-Bryant Decl., ¶10. She then recounted her conversation with Thomas before adding that I&K’s counsel advised I&K to change the locks. Heckard-Bryant Decl., ¶10. She did not give the name of I&K’s counsel, simply stating that she would call back. Heckard-Bryant Decl., ¶10.

Thomas’ counsel then tried sending an email to the company address Arellano had provided, only for the server to claim it was not a proper email address. Heckard-Bryant Decl., ¶11, Ex. A. Phone calls made on May 25, 2022 remained unanswered. Heckard-Bryant Decl., ¶12.

On May 26, 2022, Defendants posted a notice on the Property’s door that the water would be shut off on May 27, 2022, from 9:00 a.m. to 1:00 p.m. to make repairs. Thomas Decl., ¶13, Ex. D. This memo was addressed to “Tenants.” Thomas Decl., ¶13, Ex. D. Thomas’s California ID and a voting form also identify the Property as her residence. Thomas Decl., ¶14, Ex. E.

On June 29, 2022, Defendants posted a notice on the door announcing that I&K would put Thomas’s belongings up for sale, apply the proceeds to the state, and discard whatever no one buys. Heckard-Bryant Decl., ¶16, Ex. B.

Arellano is currently the only property manager who responds to Thomas’s calls, but she is restricting access. Thomas Decl., ¶11. Since May 15, 2022, Thomas has only been able to access the premises by calling Arellano or another manager to let her in at their convenience. Heckard-Bryant Decl., ¶14. Defendants have not filed any legal action asserting their right to regain the premises. Heckard-Bryant Decl., ¶15.

Without a preliminary injunction, Thomas is unsure if she will have a home past June 30, 2022 or be able to retrieve her belongings. Thomas Decl., ¶12. Rent in the surrounding area has dramatically increased such that nothing is comparable to the rent for the Property. Thomas Decl., ¶20. Thomas is still willing to tender rent for the extra time she requests. Thomas Decl., ¶15.

The Property’s managers do not enter into leases with tenants, only month-to-month rental agreements. Ramkishun Decl., ¶6. Whenever a tenant has additional occupants, their names are added to the agreement. Ramkishun Decl., ¶6. The rental agreement prohibits sub-renting, subleasing, and temporary occupancy of the Unit by any other person without written permission; such will be considered trespassing. Ramkishun Decl., ¶7, Ex. 1. Only those persons listed on the rental application shall occupy the Unit, with a $10 fine per unauthorized person per day. Ramkishun Decl., ¶7, Ex. 1.

On August 26, 2011, Arellano rented the Property to Decedent. Arellano Decl., ¶2, Ex. 1. Decedent did not have a lease. She had a month-to-month rental agreement. Ramkishun Decl., ¶6. Neither Decedent’s month-to-month rental agreement nor her rental application list Thomas as a tenant. Ramkishun Decl., ¶7, Exs. 1-2; Brooks Decl., ¶7. Decedent’s name was the only one on all receipts for rent paid from January to May 2022. Arellano Decl., ¶8, Ex. 3.

Thomas is not, and has never been, a tenant. Ramkishun Decl., ¶3. Each manager walks the building each day and Arellano walks the building several times a day. Ramkishun Decl., ¶2. According to Arellano and Manager Brian Brooks (“Brooks”) – who lived next door to Decedent– Thomas spent a few nights at the Property when Decedent was alive; she did not live there. Ramkishun Decl., ¶¶ 1, 3; Arellano Decl., ¶5; Brooks Decl., ¶2. At no time prior to May 11, 2022 did Thomas ever indicate to Brooks that she was a tenant or occupant of the Unit. Brooks Decl., ¶3. Arellano would occasionally see Thomas visiting her mother, but Thomas never indicated that she was a tenant or occupant of the Unit and there was never a vehicle parked in the Unit’s spot other than Decedent’s. Arellano Decl., ¶3. Arellano often did not see Thomas for some period. Arellano Decl., ¶4.

On May 11, 2022, Brooks became aware that Decedent was suffering from cardiac arrest on the walkway outside the Property. Brooks Decl., ¶8. Brooks texted his superior to keep her informed. Brooks Decl., ¶8. Brooks first met Thomas later that day after Decedent died when Thomas was outside the Property door crying. Brooks Decl., ¶¶ 3, 6. Brooks and Arellano offered their condolences and support. Brooks Decl., ¶3.

Thomas asked if she could rent the Property, but she was advised she could not. Ramkishun Decl., ¶5. Brooks provided Thomas with access to the Property once, and Arellano provided Thomas with access on May 20, 21, 26, 31, and June 7, 15, 29, and 30, 2022. Arellano Decl., ¶¶ 6-7. Arellano has not seen Thomas since June 30, 2022. Arellano Decl., ¶9.

Brooks’ photographs of the Property following Decedent’s death show that debris covers the entire apartment with no area to sit or sleep. Ramkishun Decl., ¶4; Brooks Decl., ¶¶ 9-10, Ex. 4. This condition severely impacts the value of the Property. Ramkishun Decl., ¶4.

Plaintiff Thomas seeks a preliminary injunction compelling Defendants to return possession of the Property, including working keys, and enjoining them from future interference with her right to possession.

The OSC initially came on for hearing on July 21, 2022. Because the court did not have Thomas’ proof of service and Defendants’ opposition in the electronic court file, even though both had been timely filed, the court re-issued the TRO and set the OSC hearing date for the instant date. To avoid the problem of the parties’ briefs not appearing on the court’s computer, however, the court ordered both parties to provide courtesy copies of all papers directly in Department 85 on the date they are e-filed.

Thomas’ reply was due to be filed and served on or before August 2, 2022. It was not filed and served until August 5. Thomas’ counsel offers an excuse of a family emergency. Heckard-Bryant Decl., ¶5. Assuming that this excuses the tardiness of the reply, it does not excuse the failure to follow the court’s order that Thomas is required to provide a courtesy copy on the day of e-filing. Thomas’ disobedience of the court’s order means that her reply will not be considered.

Thomas asserts a probability of success on her claims for forcible entry, forcible detainer, and wrongful eviction.

Every person is guilty of a forcible entry who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. CCP §1159(a)(2). A party of possession is any person who hires real property and includes a boarder or lodger, except those persons whose occupancy is described in CCP section 1940(b) – transient occupancy in a hotel or motel. CCP §1159(b); Spinks v. Equity Residential Briarwood Apartments, (“Spinks”)¿(2009) 171 Cal.App.4th 1004, 1037.

Every person is guilty of a forcible detainer who by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise. CCP §1160(a)(1). This statute protects the “occupant of real property,” meaning one “in the peaceable and undisturbed possession of such lands.” CCP §1160(b); Spinks, (2009) 171 Cal.App.4th at 1038.

Thomas’ evidence shows that Defendants changed the locks on the door on May 15, 2022, and she could enter thereafter only by having a property manager let her in. Thomas Decl., ¶7, Ex. B; Heckard-Bryant Decl., ¶14. This is so despite the facts that (1) Decedent paid rent through May 31, 2022; and (2) Camille told Thomas that she could stay until June 30 to get everything out. Thomas Decl., ¶¶ 5, 19. Thomas has since asked for permission to stay until August 30, 2022, and offered to tender rent until then. Thomas Decl., ¶¶ 9, 15, Ex. C.

If Thomas is a tenant, the decision to lock her out of the apartment, let her in only accompanied by management, and refuse to negotiate terms for letting her repossess even temporarily would render Defendants guilty of forcible entry and forcible detainer.

Thomas asserts that she is a tenant entitled to all protections against self-help eviction. App. at 7, 10. As early as May 12, 2022, I&K staff informed her that her name is not on the rental agreement, and she cannot access the Property. Thomas Decl., ¶4. Thomas asserts that she asked for the lease to show that she is a tenant and Defendants never provided it. Thomas Decl., ¶19.

Defendants have now provided the rental agreement and Decedent is the only named tenant. Ramkishun Decl., Ex. 1. Not only is Thomas not named on the lease or rental application, but the lease explicitly prohibits anyone not named therein from occupying the Property. Ex. 1. Thomas’ reliance on a May 26, 2022 form notice to all tenants that was posted on the Property’s door (Thomas Decl., Ex. D) does not undermine this fact. Thomas’ evidence of her California ID and mail addressed to the Property (Ex. E) shows that Thomas used the address and is some evidence that she lived there as a tenant but is not conclusive. The fact that Thomas did not have a copy of the rental agreement supports the conclusion that she is not a tenant. See Thomas Decl., ¶¶ 2, 19; Heckard-Bryant Decl., ¶15.

Statutory remedies for forcible entry and detainer are not limited to tenants. They can also apply to lawful occupants. Spinks, (2009) 171 Cal.App.4th at 1037-08. Thomas asserts that she lived with Decedent until her death, which would mean that she was in peaceable and undisturbed possession of the Property. Thomas Decl., ¶2. Her declaration supports this. Her California ID, key to the Unit, and receipt of mail reflect that she at least was affiliated with her mother’s Unit, but not necessarily that she lived there. Although she claims that neighbors will testify to that she lived in the Unit, none have come forward. See Thomas Decl., ¶16.

In contrast, I&K’s property managers state that they walked the Property regularly and saw Thomas only sporadically prior to Decedent’s passing. She was never seen parking her car in the Unit’s parking space. Ramkishun Decl., ¶¶ 1, 3; Arellano Decl., ¶¶ 3, 5; Brooks Decl., ¶¶ 2-3, 6. Thomas never indicated to the managers that she was an occupant of the Unit. Arellano Decl., ¶5. The photographs of the Unit show that it would be difficult for two persons to live in it. Brooks Decl., ¶10, Ex. 4. Thomas does not state where her daughter was during this time. Is she also claiming that her daughter lived in the Unit? If so, why did no one see her? Defendants’ evidence is more persuasive.

In sum, Thomas is not a tenant, and the evidence that she is a lawful occupant of the Property is not sufficiently persuasive. Consequently, she is not a “party in possession” who can be a victim of forcible entry, nor an “occupant of real property” protected from forcible detainer. CCP §§ 1159(b), 1160(b). Thomas has failed to show a probability of success on the merits.

The second factor which a trial court examines is the interim harm that 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. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

Thomas asserts that she will be irreparably harmed if Defendants permanently bar her from entry and discard her possessions. App. at 14. This harm would be significant except that Defendants have given her time to retrieve her possessions and Thomas does not want to remain in the Unit after August 2022. At this stage, it is not clear whether Thomas has any interest in occupying the Property as opposed to removing her belongings. Nonetheless, she will incur some harm in being precluded from the Unit.

Defendants’ harm from a preliminary injunction is monetary; it would cause them to incur the time and expense of an unlawful detainer action to evict Thomas.

While the balance of hardships favors a preliminary injunction, Thomas must make some showing on both prongs of injunctive relief, and she has not shown a probability of success. The application is denied.

[1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

[3] The court has ruled on Thomas’ written evidentiary objections by placing “S” for “sustained” and “O” for “overruled” next to the objection. The clerk is directed to scan and electronically file the rulings.