Judge: James C. Chalfant, Case: 24STCV32422, Date: 2025-02-06 Tentative Ruling

Case Number: 24STCV32422    Hearing Date: February 6, 2025    Dept: 85

Plaintiff Rosalva Martinez (“Martinez”) seeks a preliminary injunction against Defendants Martha Gonzalez (“Gonzalez”), Carlos Del Cid (“Del Cid”), and Nati Ardon (“Ardon”) enjoining Defendants from (1) claiming any ownership in, (2) conducting any business with, (3) taking any monetary benefit from, (4) occupying the premises of, and (5) preventing Martinez’ physical access to, La Poblanita Meat Market.

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. Complaint

On December 9, 2024, Plaintiff Martinez filed the Complaint against Defendants Del Cid, Ardon, and Gonzalez alleging causes of action for (1) fraud – promise without intent to perform, (2) civil conspiracy to defraud, (3) conversion, (4) trespass to land, (5) constrictive trust and/or equitable lien, (6) money had and received, and (7) temporary restraining order, preliminary injunction, permanent injunction. The Complaint alleges in pertinent part as follows.

On or about January 28, 2024, Martinez purchased La Poblanita Meat Market (“Market”), located at 139 W. Arbor Vitae St., Inglewood, CA 90301, from Martha Martin (“Martin”).  Compl., ¶7.  Martinez applied for her seller’s permit in February 2024, installed Clover machines for payment processing in the store, and opened her business credit card with Wells Fargo.  Compl., ¶7.

Not long after Martinez began operating the Market, her store manager, Mr. Cervantez, became very ill.  Compl., ¶8.  Because of their personal relationship, Martinez decided to take care of Mr. Cervantez, and stayed with him in Las Vegas where he was ultimately hospitalized and seen by a specialist.  Compl., ¶8.  Martinez asked Mr. Cervantez’s brother-in-law, Mr. Neponucemo, to temporarily fill in the store manage position and take care of the store.  Compl., ¶9. 

Plaintiff was able to check how the store was doing through the Wells Fargo Mobile App because many of the Market’s customers made purchases through their debit or credit cards.  Compl., ¶10.  For cash payments, Mr. Neponucemo maintained daily records that he would text to Plaintiff.  Compl., ¶10.  With Mr. Neponucemo as the Market’s store manager, the Market generated about $8,000 to $9,000 a month, net income.  Compl., ¶11.  During this time, Gonzalez was the only employee at the Market and worked mainly as a cashier.  Compl., ¶12.

Martinez spent five months driving between Los Angeles and Las Vegas to support Mr. Cervantez.  Compl., ¶13.  Whenever Martinez returned to California, she would visit the Market to check up on it.  Compl., ¶13.

On June 26, 2024, Plaintiff received a phone call from Mr. Neponucemo informing her that he had to return to Mexico and could no longer work for the Market.  Compl., ¶14.  Martinez did not have the time to any necessary arrangements or find a suitable replacement.  Compl., ¶14.  With no other options available, Mr. Neponucemo left the store keys with Gonzalez.  Compl., ¶14.  Gonzalez assured Martinez that she would take good care of the Market.  Compl., ¶15. 

In July 2024, Mr. Cervantez was finally transferred back to California and admitted to the Valley Presbytery Hospital.  Compl., ¶16.  Around this time, Martinez noticed there were no purchases coming through the Clover machines and no income entered on the Wells Fargo account for many weeks.  Compl., ¶17.  When Plaintiff asked, Gonzalez represented that things were very slow at the Market and that no one was purchasing things via debit or credit card.  Compl., ¶18. 

By August 2024, there was still no transaction made on the Clover machines and no income recorded on the Wells Fargo account.  Compl., ¶19.  Martinez became suspicious and asked some friends to make purchases at the Market using their debt or credit cards.  Compl., ¶20.  She discovered that Gonzalez had been asking customers to pay in cash instead of debit or credit cards.  Compl., ¶20.  For customers who did not have cash, Gonzalez would send them to the store next door, have them pay there with debit or credit cards, and receive cash back.  Compl., ¶20.

In October 2024, Martinez decided to take control over her Market.  Compl., ¶21.  When she showed up at the Market, Gonzalez refused to give back the keys, claiming the Market was now hers.  Compl., ¶21.  Martinez called the police but Gonzalez presented a seller’s permit that was different than Martinez’ and told the police she was the owner of the Market.  Compl., ¶22.  Martinez later discovered Gonzalez’ seller’s permit was under Defendant Del Cid’s name and obtained in January 2024.  Compl., ¶23.

Martinez also discovered that Gonzalez contacted all the utility companies to remove Martinez from the account, changed the locks, and contacted the landlord to add herself and Defendant Del Cid to the lease agreement and remove Martinez.  Compl., ¶24.

In November 2024, Martinez discovered that Defendant Ardon had applied for the ABC license as the owner of the Market.  Compl., ¶25.  Plaintiff never consented for Ardon to do so.    Compl., ¶25. 

Defendants have been acting together to take the Market over.  Compl., ¶26.  Gonzalez maintains control over the Market and its income.  Compl., ¶67.  Despite demand that Gonzalez stop her wrongful conduct and give the control of the Market back to Martinez, she has refused to do so.  Compl., ¶68. 

Plaintiff seeks (1) damages as set forth above according to proof not less than $50,000, (2) punitive damages, (3) attorney fees, (4) interest at the legal rate, (5) costs of suit, and (6) such other and further relief as the court may deem just and proper.  Compl., Prayer at 1-6.

2. Course of Proceedings

On January 17, 2025, the court issued a temporary restraining order (“TRO”) and issued an order to show cause (“OSC”) against Defendants Martha Gonzalez, Carlos Del Cid, and Nati Ardon.

Proof of service on file show that Defendant Gonzalez was personally served with the TRO/OSC and moving papers on January 17, 2025 and with the Summons and Complaint on January 26, 2025.

A proof of service on file shows that Defendant Arden was personally served with summons and Complaint, but not the TRO/OSC, on January 24, 2025.

Proofs of service on filed shows that Defendant Del Cid was personally served with summons and Complaint, moving papers, and TRO/OSC, on February 3, 2025.

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.  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. Statement of Facts

On January 30, 2024, Martinez and Martha Martin (“Martin”) entered into a Purchase and Sale Agreement, in which Martinez purchased the Market.  Martinez  Decl., ¶2, Ex. A; Martin Decl., ¶2.

On or about February 15, 2024, Martinez entered into a lease agreement with the landlord, 139 W. Arbor Vitae St., LLC, for a term of February 15, 2024 to February 14, 2026.  Martinez Decl., ¶3, Ex. B.  On or about the same day, Martinez also applied and received a seller’s permit under the Market’s name and address.  Martinez Decl., ¶4, Ex. C.

Not long after purchasing the Market, the store manager, Mr. Cervantez, became very ill.  Martinez Decl., ¶5.  Since Martinez had personal relationship with Mr. Cervantez, she decided to take care of him.  Martinez Decl., ¶5.  Martinez needed someone else to temporarily replace Mr. Cervantez.  Martinez Decl., ¶5.  Even though Martinez was not at the Market physically, she was in constant communication with the new manager to operate the Market.  Martinez Decl., ¶5.  Martinez and the new manager would frequently talk and text for any updates, concerns, or questions.  Martinez Decl., ¶5. 

In addition, all card payments were posted on Martinez’s bank app, which she was able to check whenever needed, and Martinez was getting text messages containing daily records of cash payments.  Martinez Decl., ¶5.  During this time, the Market was generating about $8,000 to $9,000 a month, net income.  Martinez Decl., ¶6.  Gonzalez was the only employee at the Market who was mainly working as a cashier.  Martinez Decl., ¶7.

Martinez spent the next five months driving between Los Angeles and Las Vegas where Mr. Cervantez was being treated.  Martinez Decl., ¶8.  Martinez tried to visit the Market to check up on it whenever she was in Los Angeles, but she was only able to make a handful of visits.  Martinez Decl., ¶8. 

On or about June 26, 2024, the new manager informed Martinez that he had to move back to Mexico for family-related reasons.  Martinez Decl., ¶9.  Because his departure was unexpected, Martinez did not have the time to find a suitable replacement.  Martinez Decl., ¶9.  With no other options available, the manager left the store keys with Gonzalez.  Martinez Decl., ¶9.  When Martinez spoke with Gonzalez, she assured Martinez that she would take good care of the Market.  Martinez Decl., ¶10. 

After Gonzalez became the de facto manager of the Market starting in late June 2024, Martinez noticed there were no card payments coming through the Clover machines in July.  Martinez Decl., ¶11.  Martinez also realized that there had been no income entered on the Wells Fargo account for many weeks.  Martinez Decl., ¶11.  When Martinez asked Gonzalez about this, Gonzalez told Martinez that things were very slow at the Market and that no one was purchasing things via debit or credit card.  Martinez Decl., ¶11.  At first, Martinez thought it was possible to have bad month or two and she did not question Gonzalez’s explanation any further.  Martinez Decl., ¶11.

By August, there still were no transaction on the Clover machines and no income recorded on the Wells Fargo account.  Martinez Decl., ¶12.  Martinez became suspicious and asked some of her friends to go in and make purchases at the Market using their debit or credit cards.  Martinez Decl., ¶12.  It turns out that Gonzalez had been asking customers to pay in cash instead of debit or credit cards.  Martinez Decl., ¶12.  For the customers who did not have cash, Gonzalez would send them to the store next door, have them pay there with debit or credit cards, and receive cash back.  Martinez Decl., ¶12.  At this point, Martinez was still attending to Mr. Cervantez almost daily and could not confront Gonzalez.  Martinez Decl., ¶13.

In October 2024, after Mr. Cervantez became more stabilized, Martinez decided that it was time for her to go back and take control over the Market.  Martinez Decl., ¶14.  However, when Martinez showed up to the Market to inform Gonzalez that she was no longer needed, Gonzalez refused to return the keys.  Martinez Decl., ¶14.  Gonzalez said that she would not leave “empty-handed” and claimed the Market was now hers.  Martinez Decl., ¶14.

Afterwards, Martinez found out that Del Cid obtained a seller’s permit under the name of La Poblanita Market LLC, and that Gonzalez has been holding herself out as the owner of the Market under that permit.  Martinez Decl., ¶15.  Martinez also discovered that Gonzalez had contacted all the utility companies to remove Martinez accounts and put everything under her own name.  Martinez Decl., ¶15.  In addition, Gonzalez and Del Cid contacted the landlord of the Market and tried to add themselves to the lease and remove Martinez.  Martinez Decl., ¶15.  Furthermore, in November 2024, Ardon applied for the ABC license as the owner of the Market.  Martinez Decl., ¶15.

Soon after Martinez’s visit in October 2024, Gonzalez changed the locks to the Market without Martinez’s permission, effectively locking Martinez out of her own store.  Martinez Decl., ¶16.  On or about October 15, 2024, Martinez filed a Fictitious Business Name Statement with the County of Los Angeles under the Market’s full and complete name, “La Poblanita Meat Market.”   Martinez Decl., ¶17, Ex. D.  On or about October 28, 2024, Martinez requested and obtained a letter from Positive Investments, Inc., the property manager for 139 W. Arbor Vitae St., Inglewood, CA 90301, which stated that Martinez is the owner of the Market.  Martinez Decl., ¶18, Ex. E. 

On or about November 27, 2024, Martinez applied and obtained a Retailer’s License under Cigarette and Tobacco Products Licensing Act of 2003 from the California Department of Tax and Fee Administration.  Martinez Decl., ¶19, Ex. F.

Since Gonzalez became the de facto manager of the Market around July 2024, Martinez has not received any profit from the Market due to Defendants’ misconduct.  Martinez Decl., ¶20.  Martinez has no way of accessing her own Market.  Martinez Decl., ¶20.  If Defendants are not enjoined, Martinez will continue to suffer harm.  Martinez Decl., ¶20.

D. Analysis

Plaintiff Martinez seeks a preliminary injunction against Defendants Gonzalez, Del Cid, and Ardon to enjoin them from (1) claiming any ownership in, (2) conducting any business with, (3) taking any monetary benefit from, (4) occupying the premises of, and (5) preventing Martinez’ physical access to, the Market.  No opposition has been filed.

1. Jurisdiction

In issuing the TRO/OSC, the court (Dept. 82) ordered Martinez to serve all Defendants with summons, Complaint, moving papers, and TRO/OSC by January 23, 2025.

Proof of service on file show that Defendant Gonzalez was personally served with the TRO/OSC and moving papers on January 17, 2025 and untimely served with the Summons and Complaint on January 26, 2025.

A proof of service on file shows that Defendant Arden was personally served with summons and Complaint, but not the TRO/OSC, on January 24, 2025.

Proofs of service on filed shows that Defendant Del Cid was untimely personally served with summons and Complaint, moving papers, and TRO/OSC, on February 3, 2025.

As a result, the court has jurisdiction over Defendant Arden but he was not served with the TRO/OSC and moving papers.  Defendants Gonzalez and Del Cid were untimely served.  If any Defendant appears and asks for a continuance, it will be granted.

2. Probability of Success

Martinez argues that she is highly likely to succeed on the merits of her claims.  She bought the Market from the previous owner and has not sold or assigned the ownership interest to anyone. While she was away on a personal matter, Defendants saw an opportunity to steal the Market. Defendants have been falsely claiming that the Market belongs to them, have been running the Market without Martinez’ permission, have been converting and stealing the income generated from the Market, have been occupying the physical premises of the Market without Plaintiff’s permission, and have been preventing Plaintiff from physically accessing the Market by changing the lock.  App. at 8.

There is more than enough evidence, such as the purchase and sales agreement dated January 30, 2024 between Plaintiff and the previous owner Martha Martin, the declaration of Martha Martin, the lease agreement entered into on February 15, 2024 with the landlord, and the seller’s permit Plaintiff received with the start date of February 15, 2024, to prove that Martinez purchased the Market on January 30, 2024 and should be the right owner.  App. at 8.

The court agrees.  See Martinez Decl., Exs. A-C; Martin Decl., ¶2.

3. Balancing of Harms

Defendants’ conduct has harmed Martinez in that they have been wrongfully converting and stealing her profits.  Since June 2024, Martinez has not received any of the Income generated from the Market.  In October 2024, Defendants changed the locks to the Market, denying her access.  In the absence of an injunction, Martinez will lose income, her ownership of the Market, and  its good will.  App. at 8.

If a preliminary injunction is granted, Defendants will simply be restrained from operating a Market which they do not own.

The balancing of harms works in Martinez’ favor.

E. Conclusion

The preliminary injunction is granted as to Defendants Gonzalez and Del Cid and their agents.  The application is denied as to Defendant Arden.  If any Defendant appears and asks for a continuance, it will be granted.

A bond is required for any preliminary injunction, but the court will require only a modest bond of $200.  No proposed preliminary injunction has been submitted and Martinez is required to do so in two court days, or it will be deemed as waived.