Judge James C. Chalfant, Case 23STCV02134 2023-03-09 Tentative Ruling

Plaintiffs Charles Bernal (“Bernal”) and Artist Worldwide Agency, LLC (“Agency LLC”) apply for a preliminary injunction enjoining Defendants Christopher Maggiore (“Maggiore”) and Artists Worldwide (“Artists Worldwide”) from interfering with Agency LLC’s promoter and client relationships by threatening them with lawsuits if they continue to work with Agency LLC.

The court has read and considered the moving papers and ex parte opposition (no opposition was filed after a temporary restraining order (“TRO”) was granted) and renders the following tentative decision.

Plaintiffs filed the Complaint on January 31, 2023, against Maggiore, Artists Worldwide, Jamison Properties, Inc. (“Jamison”), and Force Protection Agency, Inc. (“Force”). Plaintiffs allege (1) conversion; (2) breach of contract; (3) fraud via concealment; (4) intentional interference with prospective economic advantage; (5) negligent interference with prospective economic advantage; (6) intentional interference with contractual relations; (7) negligence; (8) assault; (9) battery; (10) intentional infliction of emotional distress;(11) negligent hiring, retention, and supervision; (12) premises liability; (13) interference with exercise of civil rights; and (14) violation of Business and Professions Code section 17200. The Complaint alleges in pertinent part as follows.

Bernal and Maggiore had a partnership in 1999 and jointly operated Artists Worldwide via oral agreement. Artists Worldwide specializes in talent recruitment, and it connected clients with bands for public or private events. In 1999, Maggiore contributed approximately $3,000 to the business.

From 1999 to 2002, Maggiore contributed little work and took most of the profits from Artists Worldwide. Maggiore also assaulted multiple people. In 2003 or 2004, Maggiore transferred Artists Worldwide’s bank accounts, emails, and office cell phone accounts into his own name without permission or authorization. Between 2002 and 2021, Maggiore treated Artists Worldwide’s money like it was his own and incurred significant debt on its account. Bernal was required to run the business himself even though Maggiore never shared its financials with Bernal.

From 2005 to 2022, Maggiore abandoned the partnership but continued to appear at the office a few times a year, usually disheveled and possibly intoxicated. Bernal and Artists Worldwide tolerated Maggiore’s presence to avoid confrontation, but physical confrontations still occurred. He vanished from the office around March 2019 when the COVID-19 pandemic began.

In February 2022, Bernal created Agency LLC, obtained his own talent recruitment license, and ran the business on his own. He renewed the office lease in Agency LLC’s name and operated it on his own.

In January 2023, Maggiore learned about Agency LLC. On January 17, 2023, Maggiore threatened that Bernal would lose millions and be arrested for what Maggiore alleged was the movement of his property. The next day, Maggiore told landlord Jamison that Agency LLC was not the proper tenant of the offices at 3660 Wilshire Blvd. Suite 924, Los Angeles, CA (“Premises”) and that Jamison should throw Agency LLC out. Jamison went to Bernal, who informed it that he had signed the lease. On January 19, either Magiorre or Jamison changed the locks.

On January 26, 2023, Maggiore tricked Jamison into letting him sign a lease for the Premises that supplanted Agency LLC’s lease. On January 27, Bernal and another employee went to the Premises and found that Magiorre hired an armed security guard and stationed him at the Premises. The guard informed Bernal that he is not allowed into the offices. Bernal went to Jamison, which told Bernal that he was not allowed on the Premises that he was not on the lease. When Bernal informed Jamison about the guard, Jamison replied that the guard should not be there.

The Premises had important Agency LLC documents like checkbooks, client lists, band lists, contact information for clients, trade secrets, awards, and employee personal items. Later that day, Bernal returned to the Premises to find that the guard was moving Agency LLC property out. The guard gave Bernal the equipment and called Maggiore, who told him to take the equipment away and stop Bernal from entering. The guard assaulted and threw Bernal, injuring his knee, back, and neck. Bernal fled, called the police, and visited the hospital.

Maggiore has disabled Bernal’s phone and locked all Agency LLC employees out of their emails.

Bernal and Agency LLC seek over $5,000,000 in compensatory damages, exemplary and punitive damages, statutory penalties, injunctive relief, attorney’s fees and costs, and pre-judgment interest at the maximum legal rate.

On February 6, 2023, Bernal personally served Maggiore and Artists Worldwide with the Complaint, summons, and an ex parte application for a TRO and order to show cause for a preliminary injunction (“OSC”) compelling Defendants to return passwords for Agency LLC email accounts. On February 8, 2023, the court denied the ex parte application.

On February 16, 2023, the court granted Bernal’s ex parte application for a TRO/OSC enjoining Maggiore and Artists Worldwide from contacting Agency LLC promoters and clients or threatening them with lawsuits if they continue to do business with Agency LLC. The court ordered Plaintiffs to submit a revised TRO/OSC by February 17, 2023. No revised proposed order has been filed. The court also set the deadline for electronic service of any opposition as March 2, 2023.

On March 3, 2023, Artists Worldwide and Maggiore filed and served an Answer dated February 10, 2023.

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. 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.

A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP §1008(b). For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion. CCP §1008(b).

A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment, or revocation of an order.¿ Morite of Calif. v. Sup. Ct. (1993) 19 Cal.App.4th 485, 490.¿ To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier.¿ Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence.¿ Garcia v. Hejmadi, (“Garcia”) (1997) 58 Cal.App.4th 674, 690.¿ A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling.¿ Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.¿

Bernal and Maggiore had a partnership in 1999 and jointly operated Artists Worldwide. Bernal Decl., ¶5. Artists Worldwide connected clients with bands for public or private events. Bernal Decl., ¶6.

From 1999 to 2019, Maggiore appeared at work about two to three times per year and sometimes never during the year. Bernal Decl., ¶7. When he did appear, he was unkempt and dirty and may have been on drugs or alcohol. Bernal Decl., ¶7. He was also violent and threatened Bernal and Artists Worldwide’s clients and employees. Bernal Decl., ¶8. Maggiore took the lion’s share of company profits and left Bernal with little for profit splitting purposes. Bernal Decl., ¶9. Maggiore vanished from the office around March 2020 when the COVID-19 pandemic began. Bernal Decl., ¶11.

In February 2022, Bernal created Agency LLC, obtained his own talent recruitment license, and ran the business on his own. Bernal Decl., ¶10. From late 2022 to January 2023, Agency LLC and Trapt Unplugged (“Trapt”) entered multiple agreements whereby Agency LLC helped it secure bookings at specific events. Bernal Decl., ¶25, Ex. 3. In January and February 2023, Agency LLC and the Chris Duarte Group (“Duarte”) entered multiple agreements for bookings at specific events. Bernal Decl., ¶25, Ex. 4. While the relationship with Trapt started before Agency LLC was created, Duarte never had a relationship with Artists Worldwide and its only relationship was with Agency LLC. Bernal Decl., ¶¶ 26, 29. Agency LLC’s relationships with both continue to date. Bernal Decl., ¶26.

In January 2023, Maggiore resurfaced and learned about Agency LLC. Bernal Decl., ¶11. On January 17 and 18, 2023, Maggiore sent Bernal extortionate threats and make misrepresentations to Jamison, which is Artists Worldwide’s former landlord and Agency LLC’s current landlord. Bernal Decl., ¶12.

On January 26, 2023, Maggiore tricked Jamison into letting him sign a lease for the Premises that supplanted Agency LLC’s lease. Bernal Decl., ¶13. On January 27, 2023, Bernal and another employee went to the Premises. Bernal Decl., ¶14. They found that Magiorre hired a Force armed security guard and stationed him at the Premises. Bernal Decl., ¶14. The guard refused them access to the Premises. Bernal Decl., ¶15.

After several exchanges, Jamison informed Bernal that the guard should not be there. Bernal Decl., ¶16. During this conversation, the guard was moving Agency LLC assets from the Premises into a vehicle. Bernal Decl., ¶17. The guard relinquished the property to Bernal and called Maggiore, who told the guard to take it back by force. Bernal Decl., ¶18. The guard assaulted Bernal, injuring Bernal’s knee, back, and neck. Bernal Decl., ¶19.

Maggiore has disabled Bernal’s phone and locked all Agency LLC employees out of their emails. Bernal Decl., ¶20. This action shut Agency LLC out of its own business. Bernal Decl., ¶20. Maggiore and Artists Worldwide has also converted email addresses under the domain name “artist-worldwide.com,” which belonged to Bernal and Agency LLC. Bernal Decl., ¶28. The access to these email accounts and the Premises would put Maggiore and Artists Worldwide on notice of Agency LLC’s contracts. Bernal Decl., ¶36.

On February 10, 2023, Maggiore and AW sent emails to Agency LLC and Bernal’s clients that threatened litigation if they continued to do business with Agency LLC. Bernal Decl., ¶21, Exs. 5-6; Ching Decl., ¶¶ 9-10. In these emails, Maggiore called himself the “sole owner and CEO” of Artists Worldwide. Bernal Decl., ¶21, Exs. 5-6.

Bernal learned about the emails because either Maggiore carbon-copied him on the emails or Trapt forwarded them to him. Bernal Decl., ¶21. Bernal told Chris Taylor Brown (“Brown”) of Trapt not to email Maggiore again because he was an ex-partner with no talent agency license. Bernal Decl., ¶21, Ex. 5. Brown replied that he never contacted Maggiore and did not even know he existed until the email. Bernal Decl., ¶21, Ex. 5.

Because Duarte has only worked with Agency LLC, the only way Maggiore could have known about their relationship and sent the emails was by going through Agency LLC’s email accounts or its files on the Premises. Bernal Decl., ¶29.

After the emails, Denise Gordon (“Gordon”), acting on Duarte’s behalf, left Bernal a voicemail that asked what was going on and begged Bernal not to “f**k over Chris Duarte.” Bernal Decl., ¶30.[3] Ron Bruman, apparently another Chris Duarte representative, has asked about the impact those threats will have on Duarte’s bookings. Bernal Decl., Ex. 7.

Because the relationship between Duarte and Agency LLC is new, Duarte will scrutinize the agency’s services. Bernal Decl., ¶32. Whether Duarte or Trapt will continue to work with Agency LLC after Magiorre’s threats is unclear. Bernal Decl., ¶31. At minimum, these threats require Agency LLC to spend extra time and labor costs to service both clients, communicate with them to assuage concerns regarding litigation, provide them with semi-regular updates, and make assurances that this will not affect scheduled performances for either group. Bernal Decl., ¶¶ 33, 42. Since performance under contracts for these clients is underway, Maggiore’s actions may have additional unforeseen harm. Bernal Decl., ¶34.

Duarte and Trapt are the only Agency LLC clients that Bernal knows Maggiore contacted. Bernal Decl., ¶43. The loss of access to emails has left Agency LLC with only a few clients it can contact. Bernal Decl., ¶43. If Defendants’ actions cause Agency LLC to lose this business, Agency LLC will likely go bankrupt and fire its three employees. Bernal Decl., ¶43.

Maggiore and Artists Worldwide are not doing any business. Bernal Decl., ¶45. Even if they wanted to do so, they cannot because Maggiore does not have an active talent recruitment license. Bernal Decl., ¶45.

Bernal was always an independent contractor for Artists Worldwide with an “at will” association and never had an ownership interest. Maggiore Decl., ¶14. Maggiore has always been the sole corporate officer, CEO, and shareholder of Artists Worldwide. Maggiore Decl., ¶14. Artists Worldwide has always owned the artists-worldwide.com and all email addresses thereunder. Maggiore Decl., ¶14.

Agency LLC’s February 1, 2022 registration on the California Secretary of State’s website uses the Premises address, which is Artists Worldwide’s business address. Maggiore Decl., ¶¶ 14, 16, Ex. 3.

During the COVID-19 downtown, Bernal tried to usurp authority over Artists Worldwide’s business finances and operations. Maggiore Decl., ¶17. He ran Agency LLC with a similar name as Artists Worldwide from Artists Worldwide’s offices without its consent. Maggiore Decl., ¶17. He signed contracts that belonged to Artists Worldwide with instructions that diverted payment to Bernal’s personal account. Maggiore Decl., ¶17. Bernal forged checks from Artists Worldwide and diverted wire transfers from it to Bernal and Agency LLC’s accounts. Maggiore Decl., ¶17. He falsely represented that he had exclusive authority to act on Artists Worldwide’s behalf to Jamison, among other parties, and directed Jamison to locked Maggiore out of the Premises. Maggiore Decl., ¶17. Bernal also stole Artists Worldwide’s computers, intellectual property, trade secrets, and other professional and personal property in excess of $500,000. Maggiore Decl., ¶17.

In August 2018, Gregg St. Charles (“St. Charles”) was an independent contractor for Artists Worldwide with the email address gregg@artists-worldwide.com. Maggiore Decl., ¶¶ 6-7. On August 21, 2018, Chris Taylor Brown sent an email to St. Charles with details a Trapt rider for contracting and booking shows. Maggiore Decl., ¶9, Ex. 1.

In January 2023, Laurène Vanlichtervelde (“Vanlichtervelde”) was an independent contractor for Artists Worldwide with the email address info@artists-worldwide.com. Maggiore Decl., ¶¶ 10-11. On January 21, 2023, Duarte exchanged emails with Vanlichtervelde about possible places to perform. Maggiore Decl., ¶12, Ex. 2. In contrast, Plaintiff shows that Duarte’s representatives Gordon and Ron Bruman have expressed concern about Duarte’s bookings through Ron Bruman, apparently another Chris Duarte representative, has asked about the impact those threats will have on Duarte’s bookings. Bernal Decl., Ex. 7.

Plaintiffs seek a preliminary injunction enjoining Defendants Maggiore and Artists Worldwide from interfering with Agency LLC’s promoter and client relationships by threatening them with lawsuits if they continue to work with Artists LLC.[4] Defendants opposed only the ex parte and have not filed a more recent opposition.

The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.

Intentional interference with prospective economic advantage has five elements: (1) the existence between the plaintiff and some third party of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action. Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.

Plaintiffs present similar facts to support both causes of action. From late 2022 to February 2023, Agency LLC signed multiple agreements to secure specific bookings for Trapt and Duarte. Bernal Decl., ¶25, Exs. 3-4. Between January 26 and February 10, 2023, Agents Worldwide and Maggiore locked all Agency LLC employees out of their emails under the domain name “artist-worldwide.com.” Bernal Decl., ¶¶ 20, 28. Access to these email accounts gave Maggiore and Artists Worldwide notice of Agency LLC’s contracts. Bernal Decl., ¶36. On February 10, 2023, Maggiore and AW sent emails to Agency LLC’s clients threatening litigation if they continued to do business with Agency LLC. Bernal Decl., ¶21, Exs. 5-6.

Duarte has twice expressed apprehension about how Defendants’ emails affect current bookings. Bernal Decl., ¶30, Ex. 7. At minimum, these threats require Agency LLC to spend extra time and labor costs to service both clients, communicate with them to assuage concerns regarding litigation, provide them with semi-regular updates, and make assurances that this will not affect scheduled performances for either group. Bernal Decl., ¶¶ 33, 42. If Defendants’ actions cause Agency LLC to lose this business, Agency LLC will likely go bankrupt. Bernal Decl., ¶43.

Defendants assert that the business relationships they interfered with belong to them and that Bernal created Agency LLC and began doing business through fraud. Opp. at 4-5.

As to Trapt, Defendants present evidence that in 2018 Artists Worldwide provided Trapt with booking services through an independent contractor. Opp. At 3; Maggiore Decl., ¶¶ 6-7, 9, Ex. 1. This business relationship predated the creation of Agency LLC and does not show that Trapt has any present relationship with Artists Worldwide.

Defendants’ evidence for Duarte is even weaker. The emails from January 2023 are between Duarte and info@artists-worldwide.com (Maggiore Decl., ¶12, Ex. 2), which Defendants assert belongs to Vanlichtervelde, an independent contractor for Artists Worldwide. Maggiore Decl., ¶¶ 10-11. On January 21, 2023, Duarte exchanged emails with Vanlichtervelde about possible places to perform. Maggiore Decl., ¶12, Ex. 2.

Vanlichtervelde may be an independent contractor for Artists Worldwide, but Plaintiffs’ evidence shows that Durate is their client and that they have actual, not potential, bookings for him. Moreover, Vanlichtervelde’s employment status is irrelevant; Maggiore and Artists Worldwide are out of business and could not represent either Trapt or Duarte because Maggiore does not have an active talent recruitment license. Bernal Decl., ¶45. Plaintiffs have shown that the emails to Trapt and Duarte have interfered with their relationship with those clients.

Privileged publications include those in any judicial proceeding. Civil Code §47(b). this privilege extends to statements made as part of steps taken prior to litigation. Malin v. Singer (“Malin”) (2013) 217 Cal.App.4th 1283, 1300. The privilege only extends to prelitigation communications when the litigation at issue is contemplated in good faith and under serious consideration. Id. at 1300. Whether a prelitigation communication meets this standard is an issue of fact. Id. at 1301.

Based on the litigation privilege, Defendants contend that their emails to Duarte and Trapt were not extortion but a warning that Artists Worldwide would pursue litigation if they did not sever ties with Agency LLC. Opp. at 7-8. Defendants fail to demonstrate that they made this threat of litigation in good faith. Given that they cannot represent either client without a talent recruitment license, it appears they cannot do so. The litigation privilege does not apply.

In determining whether to issue a preliminary injunction, 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.

Maggiore and Artists Worldwide assert that the time and expense Plaintiffs claim they have spent, or will spend, on reassuring Duarte and Trapt (Bernal Decl., ¶¶ 31-34) is not irreparable harm. Opp. at 9.

Plaintiffs presented this evidence to show the economic harm needed to demonstrate intentional interference with prospective economic advantage and contractual relations. App. at 11, 14-15, 17. While this effort alone may not be sufficient, if Plaintiffs lose Duarte, Trapt, or other clients to Defendants’ wrongful interference, the damage will be hard to calculate and irreparable to the business. Agency LLC then will likely go bankrupt. Bernal Decl., ¶43.

The harm that Maggiore and Artists Worldwide will suffer from a preliminary injunction is minimal because Defendants have no right to interfere with Plaintiffs’ client relationships and Maggiore cannot compete for the business of Plaintiffs’ clients without an active talent recruitment license. Bernal Decl., ¶¶ 45-46.

The court must require a bond supporting the preliminary injunction.¿ The purpose of a bond is to cover the defendant’s damages from an improvidently issued injunction.¿ CCP §529(a).¿ In setting the bond, the court must assume that the preliminary injunction was wrongly issued.¿ Abba Rubber Co. v. Seaquist, (“Abba”) (1991) 235 Cal.App.3d 1, 15.¿ The damages include any lost profits resulting from the injunction. See Allen v. Pitchess, (1973) 36 Cal.App.3d 321, 327-28. The attorney’s fees necessary to successfully procure a final decision dissolving the injunction also are damages that should be included in setting the bond. Abba, supra, 235 Cal.App.3d at 15-16. While Abba reasoned that the plaintiff’s likelihood of prevailing is irrelevant to setting the bond, a more recent case disagreed, stating that the greater the likelihood of the plaintiff prevailing, the less likely the preliminary injunction will have been wrongly issued, and that is a relevant factor for setting the bond. Oiye v. Fox, (2012) 211 Cal.App.4^th 1036, 1062. In lieu of a bond, the judge may permit a deposit into court. CCP §995.710. Defendants’ failure to submit a substantive opposition means that the bond should be minimal. The court will set the bond at $100.

The application for a preliminary injunction is granted. Plaintiffs have not provided a proposed preliminary injunction and must do so within two court days or it will be waived.

[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] Exhibit 8 to Bernal’s declaration is a placeholder for the recording of this message, which Bernal offered to play at the hearing. No copy is on file.

[4] The court ruled at the ex parte hearing that this is not a renewed motion for the same relief subject to CCP section 1008(b).