Judge: James C. Chalfant, Case: 24STCV25372, Date: 2024-12-03 Tentative Ruling

Case Number: 24STCV25372    Hearing Date: December 3, 2024    Dept: 85

Plaintiffs Junius J. Joyner (“Joyner”) applies for a preliminary injunction prohibiting Defendants United States Veterans Initiative (“USVI”), Cantwell-Anderson, Inc. dba Cloudbreak Communities (“Cloudbreak”), and Nathans Towing, LLC (“Nathans”) from conducting a lien sale or from otherwise unlawfully disposing of his vehicle.

            The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

            A. Statement of the Case

            1. The Complaint

            Plaintiff Joyner filed the Complaint on October 1, 2024, alleging claims against Defendants for (1) Negligence, (2) Violation of California Business and Professional Code section 17001, and (3) Unlawful Business Practices.  The Complaint alleges in pertinent part as follows.

             Since 2020 Joyner has been involved in two separate ongoing litigation matters that have led to him living in his vehicle since September 8, 2022.  One of the matters directly limited his ability to find on-going employment in the legal field.  Since approximately October 2023 Joyner has supplemented his income by working on a temporary basis with Labor Finders.

            On or about August 19, 2024, Joyner, after leaving work at a Labor Finders, was the victim of a hit-and-run accident on Interstate 405.  The accident damaged the left rear quarter panel and partially disabled the left rear wheel of his vehicle.  Joyner later learned that his employment with Labor Finders ended the same day.

            Joyner drove his vehicle from the site of the crash to Hawthorne, California and continued to live out of his vehicle until September 12, 2024, when City of Hawthorne case workers informed him that they could facilitate relocating him to USVI in Inglewood, California.  Joyner informed the case workers that he had to arrange for storage of his vehicle.

            Joyner arranged for his vehicle to be stored later that week.  Hawthorne case workers arrived and transported Joyner to USVI and he began in-processing.  After he provided the USVI employee with his military service record, the employee informed Hawthorne caseworkers that Joyner would be admitted as a service veteran and the caseworkers departed.

            During intake, the USVI employee asked Joyner if he had a vehicle that he would like to store at the facility.  Having no previous knowledge of USVI, Joyner was surprised to learn that he could store his vehicle onsite.  He informed the USVI employee that his vehicle had been damaged in a hit-and-run accident, the rear tire was missing, and only the rim remained.  The employee informed Joyner that he could store the vehicle at the facility so long as he maintained insurance for it.

            Joyner immediately contacted AAA and arranged for his vehicle to be transported to USVI.  Joyner's vehicle arrived at 733 S. Hindry Avenue at approximately 2:00 a.m. on September 13, 2024.  Joyner's intake had been completed the previous evening before a parking pass could be issued.  The USVI employee stated that Joyner could park his vehicle that evening at the facility and return in the morning to receive his parking pass.  After Joyner provided copies of his registration and proof of insurance, another USVI employee issued Joyner a parking pass on the morning of September 13, 2024.

            Joyner immediately hung the parking pass in plain sight from his rear-view mirror.  It was not until he went to retrieve some additional items from his vehicle on Saturday, September 14, 2024, that he became aware that his vehicle had been towed.  Joyner immediately called Cloudbreak’s leasing office, the property manager of property 733 S. Hindry Avenue, to inquire why his vehicle had been towed.  To date, Cloudbreak has not returned any of his voicemails or emails inquiring about the vehicle.

            Joyner contacted All City Tow, one of several tow companies listed throughout the property.  All City Tow stated that they no longer serviced the property and did not have his vehicle.  Joyner then contacted the Inglewood Police Department and learned that his vehicle had been towed by Nathans on September 13, 2024, the same day he had been issued the parking pass for the vehicle.

            Joyner immediately contacted Nathans and an employee named Mike answered the phone.   He told Joyner they were closed and would not provide any information regarding the vehicle.  Joyner explained that he only wanted to verify that the vehicle was there before reporting it stolen.  Mike stated that Joyner "sounded like a cop" and he did not have to answer any of his questions, and then hung up the phone.

            On September 18, 2024, Joyner contacted Nathans and spoke to Mike, who informed him that the vehicle was in Nathans’ possession and that a lien for the tow had been placed on the vehicle.  Joyner asked why the vehicle had been towed with a valid parking pass.  Mike stated that property management had requested the tow, and Joyner should take it up with Cloudbreak.  Joyner stated he wanted to retrieve property from his vehicle that day and Mike informed him that the only time he had available was 4:30p.m.

            Joyner arrived at Nathans' impound lot located at 6020 S. Western Ave. Los Angeles 90047 at 4:30 p.m. and found the property locked.  At approximately 4:50 p.m., an employee of Nathans arrived and opened the facility.  Upon looking at the vehicle Joyner immediately noticed the entire rear axle had been dislodged and separated.  The vehicle was damaged to the point where it was no longer drivable.  Upon further inspection, Joyner found tools, a book, and medical equipment missing from the vehicle.

            On or about September 23, 2024, Joyner contacted Nathans to find out how much money was owed to retrieve the vehicle and to inform Nathans that it had damaged the vehicle and that items were missing.  Joyner also asked if any notice had been sent informing him that the vehicle was in Nathans’ possession and how the vehicle could be returned.  Mike stated that the vehicle had been in Nathans’ possession for 11 days and the balance owed was $1,236.50.  Mike stated that Nathans did not send any notices or provide an itemized report, that there was no damage to the vehicle, and that no items were taken.

            Joyner has since inspected USVI’s property and determined that the property does not display any sign at its entrance regarding prohibited parking.  Moreover, signs that are displayed inconspicuously on the property do not contain the telephone number of local law enforcement or contain Nathans’ name or telephone number.

            2. Course of Proceedings

            A proof of service on file shows that Defendant Nathans was served with Summons and Complaint on November 4, 2024.  

            On November 6, 2024, Defendant USVI filed its Answer.

            On November 12, 2024, Defendant Cloudbreak filed its Answer.

On November 12, 2024, the court granted Plaintiff’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”).  Proofs of service on file show that Defendants were served with the TRO/OSC by mail on November 14, 2024.

            B. Applicable Law

            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.

            C. Governing Law

“The owner or person in lawful possession of private property…may cause the removal of a vehicle parked on the property to a storage facility in any of the following circumstances: (1) there is displayed in plain view at all entrances to the property a sign of specific size and lettering prohibiting public parking and indicates that vehicles will be towed at the owner’s expense and containing the telephone number of the local traffic law enforcement agency and the name and telephone number of the towing company;…(3) the vehicle is on private property and lacks an engine, transmission, wheels, tires, doors windshield, or any other major part or equipment  necessary to operate safely, the owner or person in lawful possession as notified the local traffic law enforcement agency, and 24 hours have elapsed since that notification.  Vehicle Code §22658(a).

A towing company shall not remove or commence the removal of a vehicle from private property without first obtaining the written authorization from the property owner or lessee, including an association of a common interest development, or an employee or agent thereof, who shall be present at the time of removal and verify the alleged violation…. For the purpose of this subparagraph, a person providing the written authorization who is required to be present on the private property at the time of the tow does not have to be physically present at the specified location of where the vehicle to be removed is located on the private property.  Vehicle Code § 22658(l)(1)(A) (emphasis added).

D. Statement of Facts

1. Plaintiff’s Evidence

On or about August 19, 2024, after leaving work in Torrance, California, Joyner was the victim of a hit-and-run accident on Interstate 405.  Joyner Decl., ¶2.  The accident damaged the left rear quarter panel and partially disabled the left rear wheel of his vehicle.  Joyner Decl., ¶2, Ex. 1.

Joyner drove the vehicle from the accident site to Hawthorne, California and continued to live out of the vehicle until September 12, 2024, until City of Hawthorne case workers informed him that they could help relocate him to USVI’s facility in Inglewood, California.  Joyner Decl., ¶3. 

Hawthorne case workers transported Joyner to USVI later that day.  Joyner Decl., ¶4.   During the in-processing, Joyner informed the USVI employee that his vehicle had been damaged in a hit-and-run accident and that the rear tire was missing with only the rim remaining.  Joyner Decl., ¶4.  The employee informed Joyner that he could park the vehicle on the property as long as he maintained insurance on it.  Joyner Decl., ¶4.   

Joyner contacted AAA and arranged for his vehicle to be transported to USVI at 733 S. Hindry Avenue.  Joyner Decl., ¶5.  When the vehicle arrived, Joyner drove the vehicle into a parking space in an enclosed garage.  Joyner Decl., ¶5.  Later that morning, Joyner provided copies of his registration and proof of insurance to another USVI employee and was issued a parking pass.  Joyner Decl., ¶5.  Joyner immediately hung the parking pass in plain sight from the rear-view mirror of the vehicle.  Joyner Decl., ¶5, Ex. 2. 

On the morning of September 14, 2024, Joyner went to retrieve items from the vehicle and did not find the vehicle where he parked it.  Joyner Decl., ¶6.  Joyner immediately called Cloudbreak’s leasing office, the property manager of property 733 S. Hindry Avenue, to inquire why the vehicle had been towed.  Joyner Decl., ¶6.  To date, Cloudbreak has not returned any of Joyner’s voicemails or emails inquiring about the vehicle.  Joyner Decl., ¶6, Ex. 3. 

After not being able to reach the leasing office, Joyner contacted All City Tow, one of several tow companies listed throughout the property.  Joyner Decl., ¶7.  All City Tow stated that they no longer serviced the property and did not have his vehicle.  Joyner Decl., ¶7.  Joyner then contacted the Inglewood Police Department and learned that his vehicle had been towed by Nathans on September 13, 2024.  Joyner Decl., ¶7. 

Joyner immediately contacted Nathans and an employee named Mike answered the phone, told him they were closed, and would not provide any information regarding the vehicle.  Joyner Decl., ¶8.  Joyner explained that he only wanted to verify that the vehicle was there before reporting it stolen.  Joyner Decl., ¶8.  Mike stated that Joyner “sounded like a cop” and that he did not have to answer any of his questions.  Joyner Decl., ¶8.  Mike then hung up the phone.  Joyner Decl., ¶8. 

On September 18, 2024, Joyner contacted Nathans again and Mike informed him that the vehicle was in Nathans’ possession and that a lien for the tow had been placed on the vehicle.  Joyner Decl., ¶9.  Joyner asked why the vehicle had been towed when it had a valid parking pass.  Joyner Decl., ¶9.  Mike stated that property management had requested the tow and Joyner should take it up with Cloudbreak.  Joyner Decl., ¶9.  Joyner stated that he wanted to retrieve property from the vehicle that day and Mike informed him the only time he had available was 4:30 p.m.  Joyner Decl., ¶9. 

Joyner arrived at Nathans’ impound lot located at 6020 S. Western Ave. Los Angeles, California 90047 at 4:30 p.m. and found the property locked.  Joyner Decl., ¶10.  At approximately 4:50 p.m., a Nathans employee arrived and opened the facility.  Joyner Decl., ¶10.  Upon looking at the vehicle, Joyner immediately noticed the entire rear axle had been dislodged and separated.  Joyner Decl., ¶10.  Joyner also found tools, a book, and medical equipment missing from the vehicle that were there when the parking pass was placed on the vehicle.  Joyner Decl., ¶10.  Joyner estimates the value of this property to be approximately $250.  Joyner Decl., ¶10. 

While Joyner was removing items from his vehicle, the Nathans employee yelled at him to hurry up.  Joyner Decl., ¶11.  Joyner was intimidated to the point that he did not lock the vehicle.  Joyner Decl., ¶11.  When Joyner realized he had not locked the vehicle, he asked the Nathans employee to go back to the vehicle to lock it.  Joyner Decl., ¶11.  The employee told Joyner that Nathans was now closed, and that he would have to return tomorrow when they opened.  Joyner Decl., ¶11. 

On or about September 23, 2024, Joyner contacted Nathans to find out how much money was owed, to inform them that they had damaged the vehicle and that items were missing, and to find out if notice had been sent that the vehicle was in their possession.  Joyner Decl., ¶12.  Again, Mike answered and stated that the vehicle had been in Nathans’ possession for 11 days and that the balance owed was $1,236.50.  Joyner Decl., ¶12.  He stated that Nathans did not send any notices or provide an itemized report, there was no damage to the vehicle, and no items were taken.  Joyner Decl., ¶12. 

Joyner has inspected USVI’s property and determined that the property does not display any sign at its entrance regarding prohibited parking and does not display the telephone number of local law enforcement or contain Nathans name or telephone number.  Joyner Decl., ¶13, Ex. 4-6. 

At no time was Joyner ever informed by USVI or Cloudbreak that he was in violation of any parking policy.  Joyner Decl., ¶14. 

Joyner’s vehicle provides a functional purpose as well as holds years of family memories.  Joyner Decl., ¶15.  He would suffer irreparable harm if the vehicle was auctioned by Nathans.  Joyner Decl., ¶15. 

D. Analysis

Plaintiff seek a preliminary injunction prohibiting Defendants from conducting a lien sale or from otherwise unlawfully disposing of his vehicle.  No opposition has been filed.

“The owner or person in lawful possession of private property…may cause the removal of a vehicle parked on the property to a storage facility in any of the following circumstances: (1) there is displayed in plain view at all entrances to the property a sign of specific size and lettering prohibiting public parking and indicates that vehicles will be towed at the owner’s expense and containing the telephone number of the local traffic law enforcement agency and the name and telephone number of the towing company;…(3) the vehicle is on private property and lacks an engine, transmission, wheels, tires, doors, windshield, or any other major part or equipment  necessary to operate safely, the owner or person in lawful possession has notified the local traffic law enforcement agency, and 24 hours have elapsed since that notification.  Vehicle Code §22658(a).

Plaintiff contends that Cloudbreak did not comply with statutory requirements of Vehicle Code section 22658 (a)(1) and (3) and therefore impoundment of his vehicle was improper.

A towing company shall not remove or commence the removal of a vehicle from private property without first obtaining the written authorization from the property owner or lessee, including an association of a common interest development, or an employee or agent thereof, who shall be present at the time of removal and verify the alleged violation…. For the purpose of this subparagraph, a person providing the written authorization who is required to be present on the private property at the time of the tow does not have to be physically present at the specified location of where the vehicle to be removed is located on the private property.  Vehicle Code § 22658 (l)(1)(A) (emphasis added).

Plaintiff alleges that Nathans violated Vehicle Code section 22658(l)(1)(A) because it did not first obtain written authorization from the property owner or lessee who was present at the time of removal.

The court cannot address the merits of Plaintiff’s claim because he has not properly served Nathans.  On November 12, 2024, the court granted Plaintiff’s ex parte application for a TRO/OSC and ordered that he personally serve all named Defendants.  Proofs of service on file show that Defendants were served with the TRO/OSC by mail on November 14, 2024. 

This is improper for Nathans.  The court ordered personal service because that is the manner of serving a defendant until they appear in the lawsuit.  Cloudbreak has appeared and a preliminary injunction could be issued as to it, but Cloudbreak does not seek to auction the vehicle.  Nathans has not appeared.

The application will be denied or continued for Plaintiff to make proper service on Nathans.