Judge: James C. Chalfant, Case: 24STCV34331, Date: 2025-01-23 Tentative Ruling

Case Number: 24STCV34331    Hearing Date: January 23, 2025    Dept: 85

Plaintiff Arcadia Royale, LLC (“Landlord”) seeks a preliminary injunction against Defendant Goldwater Sag Holdings, LLC (“Goldwater”) to prevent it and its employees or agents from: (i) removing residents from the Residential Care Facility for the Elderly located at 607 West Duarte Road, Arcadia, California 91007 (the “Facility”), except as authorized by law; (ii) telling residents that they are required to move from the Facility; (iii) removing any resident records, resident medications, pharmacy supplies, medical supplies, office supplies, maintenance supplies, foodstuffs and other fixtures, furniture, and equipment necessary for the operations of the facility; and (iv) interfering with or shutting down utilities at the Facility.

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

A. Statement of the Case

            1. The Complaint

On December 30, 2024, Plaintiff Landlord filed the Complaint against Defendants Goldwater, Helen Pak, Crystal Pak, and Dr. Shin Woo Kang, alleging claims for breach of contract (lease), breach of contract (guaranty), and declaratory relief.  The Complaint alleges in pertinent part as follows.

Plaintiff Landlord owns certain real property, improvements and personal property located at 607 West Duarte Road, Arcadia, California 91007 (the “Property”). 

On or about December 22, 2014, GKHB Royale Investments, L.P. (“GKHB”), the owner of the Property at that time, and Goldwater entered into a Lease Agreement for Existing Facilities (the “Lease”).  Goldwater operates a RCFE at the Property. 

On or about May 1, 2019, GKHB entered into an Assignment and Assumption Agreement with Landlord pursuant to which GKHB transferred all its interest in the Property to Landlord.

At the time of the execution of the Lease, Goldwater was owned and controlled by Mohamed Sellami and Lourdes Garcia.  In or around March 2020, Landlord entered into a Landlord Consent to Change of Ownership and Control and Issuance of New Guaranty and Amendment to Lease (“Amendment”) pursuant to which Guarantors Crystal Pak and Dr. Shin Wook Kang took ownership and control of Goldwater.

The Lease term was January 1, 2015 through December 31, 2024. The Lease provides an Option to Extend the Lease (the “Option”) for another five years if Goldwater was not in default and delivered to the Landlord a written notice of the exercise of the Option nine to twelve months prior to the date upon which the Option period would commence.  The Lease further provides that, if Landlord failed to receive Goldwater’s written notice within that period, the Option would automatically expire and be of no further force or effect.  Goldwater failed to deliver timely written notice to Landlord exercising the Option. The Lease is thus set to expire on December 31, 2024.

The Lease also provides that Goldwater “shall have no right to exercise” the Option (a) during the time commencing from the date Landlord gives to Goldwater a notice of default and continuing until the noncompliance alleged in said notice of default is cured.  Throughout the Lease term, Goldwater has been in default of its obligations under the Lease, including requirements to timely pay rent, provide evidence of insurance of the Property, and maintain and repair the Property.  As a result, Landlord sent Goldwater seven Notices of Default during the Lease term. To date, Goldwater has not made any of the necessary repairs to the Property or otherwise conducted the necessary maintenance and continues to be in breach of the Lease.  As a result of Goldwater’s multiple breaches of the Lease, Goldwater had no right to exercise the Option, independent of Goldwater’s failure to deliver to Landlord written notice of any attempt to exercise the Option.

On October 24, 2024, Landlord sent Goldwater a written notice that it was exercising its right under Section 13.1 of the Lease to complete repairs to the Property at Goldwater’s expense. Pursuant to Section 24.3 of the Lease, Goldwater must “permit Landlord and Landlord’s agents, employees and contractors to enter onto and upon the Premises at all reasonable times for the purpose of inspecting the same...”, and Section 19 authorizes the Landlord to reenter the Property with “the right to make alterations and repairs to the Premises.”  Despite Goldwater’s obligations under Sections 13.1, 19, and 24.3 of the Lease, Goldwater refused to allow Landlord’s contractors to enter the Property to repair the HVAC system and the roof.

After the lapse of the Option, Landlord began to search for a new tenant who could operate a RCFE on the Property. Landlord ultimately entered negotiations with Savant Senior Living (“Savant”), a highly respected operator of RCFE properties.  Savant applied for a license to operate the Facility.  Landlord notified Goldwater that Savant would be taking over operations of the Facility. Inexplicably, Goldwater began to demand that it be paid millions of dollars in exchange for cooperation during the transition of the Facility from Goldwater to Savant.  

Section 24.6 of the Lease provides that “Goldwater agrees to fully cooperate with Landlord in turning possession and operation of the Premises over to Landlord (or for any successor tenant) so as to assure the uninterrupted care of all residents of the Premises. Any violation of this provision shall be a material default under this Lease.” By removing or wrongfully attempting to remove residents from the Property, threatening to remove resident records, and demanding millions of dollars for its cooperation, Goldwater has violated section 24.6 of the Lease. This constitutes a material default of the Lease.  

Despite Goldwater’s clear and unambiguous obligations under the Lease, when Savant and Landlord refused Goldwater’s request for millions of dollars, Goldwater began to secretly move residents into an affiliated facility in La Habra, California.  Goldwater began to make threatening comments that all residents would be moved out on or before December 31, 2024, implying the residents would be moved out quickly unless Landlord and/or Savant caved to its extortionate threats.

Landlord prays for (1) general damages, according to proof at trial, (2) an injunction requiring Goldwater to comply with its obligations under the Lease, (3) a judicial declaration with respect to Goldwater’s obligations, (4) special and consequential damages, according to proof, (5) costs of suit, including reasonable attorneys’ fees, and (6) any other relief the court may deem just and proper.

            2. Course of Proceedings

            On December 30, 2024, Landlord applied ex parte for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) against Goldwater.  The court (Dept. 1) granted the TRO/OSC in large part and ordered Landlord to serve the OSC on Goldwater’s counsel no later than January 9, 2025. 

Proof of service on file shows that the TRO/OSC was served electronically on December 31, 2024.  There is no proof of service on file for the Summons and Complaint.

            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[3]

Goldwater operates a Residential Care Facility for the Elderly (an “RCFE” or the “Facility”) on property Plaintiff Landlord leased to Goldwater located at 607 West Duarte Road, Arcadia, California 91007 (the “Property”). Goldwater’s lease will expire on December 31, 2024. Cimino Decl., ¶2, Ex. A. 

Goldwater operates a Residential Care Facility for the Elderly, which is regulated by California Department of Social Services (“DSS”). Throughout Goldwater’s lease, DSS has received numerous complaints about the facility, many of which DSS has substantiated. RJN Ex. A; Goldman Decl., Ex. B.  Since November 27, 2021, DSS has investigated a total of 60 complaints about Goldwater’s operations at the facility and substantiated 31 of the complaints. Id.

Because of multiple complaints to DSS regarding Goldwater’s operations, the condition of the Property, and Goldwater’s numerous defaults under the Lease, Landlord has located a new operator, Savant Senior Living (“Savant”), to lease the Property and operate the Facility beginning January 1, 2025.

Despite having no grounds to continue operations at the Property, and despite clear provisions of the Lease requiring Goldwater’s cooperation in transitioning possession of the Property and operation of the Facility to any successor tenant, Goldwater has obstructed an orderly transition. For example, in direct contravention of the Lease and DSS protocol, Goldwater sent residents “60 Day Notices”, falsely stating they are being evicted or their leases are being terminated and will be moved to another facility owned by Goldwater or its agents. Cimino Decl., ¶¶ 24-27, Exs. K-L; RJN Ex. C; Goldman Decl., Ex. D.  DSS confirmed this in a report finding that Goldwater had misled residents into believing that they were required to leave the Facility by failing to inform them that they had the right to stay put. RJN Ex. C; Goldman Decl., Ex. D.  In communications with Savant, Goldwater threatened to remove all residents from the facility. Cimino Decl., ¶36; Zenou Decl., ¶20.

One of the substantiated complaints to DSS alleged that Goldwater failed to ensure the Facility was in good condition. DSS determined that Goldwater had failed to keep the facility “clean, safe, sanitary and in good repair.” RJN Ex. B; Goldman Decl., Ex. C; 22 Cal. Code Regs. (“CCR”)_§ 87303(a).

Other substantiated complaints included that Goldwater was misleading residents to relocate to another facility and that an excluded individual was present at the facility. Cimino Decl., ¶ 30; RJN Ex. C; Goldman Decl., Ex. D. DSS determined that Goldwater had violated residents’ rights, including the right to be free from intimidation.  RJN Ex. C; Goldman Decl., Ex. D; 22 CCR §87468.1(a)(3).

Goldwater also has violated the terms of its Lease. Landlord has sent Goldwater seven notices of default, including for safety issues, and Goldwater has failed to cure any of them.  Cimino Decl., ¶ 6-14 & Exs. D-J. The grounds for Goldwater’s various defaults include failure to pay rent, failure to repair and maintain the Property, including electrical systems, the roof, plumbing, elevators, and HVAC, and failure to level walkways, repair gates, and fencing, and repaint fire lanes, among other issues. Id.

Specifically:

·         On June 13, 2019, Landlord sent Goldwater a Notice of Default for failure to: (i) timely pay rent, resulting in late fees; (ii) notify Landlord of investigations and notices received from licensing agencies; (iii) make health and safety repairs required under a Safety Inspection Report; and (iv) provide Landlord Goldwater’s financial reporting. Cimino Decl., Ex. D.

·         On July 9, 2020, Landlord sent Goldwater a Notice of Default for failure to provide evidence of insurance. Cimino Decl., Ex. E.

·         On April 27,2021, Landlord sent Goldwater a Notice of Default for failure to (i) pay over $400,000 owed in rent and late payment charges; (ii) repair and maintain the Property—including 40-60 broken HVAC units, and correcting issues identified in a Safety Inspection Report; and (iii) provide Landlord a copy of Goldwater’s financial information. Cimino Decl., Ex. F.

·         On February 13, 2023, Landlord sent Goldwater a Notice of Default for failure to (i) timely pay rent; (ii) make tax payments; and (iii) provide Landlord evidence of insurance. Cimino Decl., Ex. G.

·         On February 28, 2024, Landlord sent Goldwater a Notice of Default for failure to: (i) timely pay rent; (ii) make tax payments; (iii) provide Landlord evidence of insurance; (iv) provide Landlord a copy of Goldwater’s financial reporting; and (v) repairing and maintaining the Property, including, but not limited to, the electrical, the roof, the plumbing, the landscape, and the elevators. Cimino Decl., Ex. H.

·         On August 23, 2024, Landlord sent Goldwater a Notice of Default for failure to repair and maintain the Property by failing to: (i) post a Proposition 65 Sign; (ii) replace exposed wiring; (iii) level walkways and paths; (iv) repair gates and fencing; (v) remove trash from the parking lot; (vi) repaint fire lanes; (vii) repair broken parking lot gates; (viii) replace the roof; (ix) replace the HVAC; and (x) re-stucco the Property’s exterior. Cimino Decl., Ex. I.

Goldwater failed to cure any of the above breaches of the lease and continues to be in default. See Cimino Decl., ¶14.

The Lease included an option (the “Option”) for Goldwater to extend the Lease for another five years (the “Option Period”) if Goldwater (1) was not in default and (2) delivered to Landlord timely written notice of Goldwater’s intent to exercise the option. Lease, § 2.2.  Goldwater had no right to exercise the Option because it was in default.  Cimino Decl., ¶18.

Even if Goldwater could have exercised the Option, it failed to deliver to Landlord written notice of Goldwater’s intent to do so. Cimino Decl., ¶18. The Lease provides that:

Goldwater shall exercise the option by delivering to Landlord, on a date that is prior to the date upon which the Option Period would commence (if such option is exercised) by at least nine (9) but not more than twelve (12) months, a written notice (“Goldwater’s Notice”) of the exercise of the Option to extend this Lease for the Option Period, time being of the essence. If Landlord fails to receive Goldwater’s Notice within the time period provided, the Option shall automatically expire and be of no further force or effect.  Lease, § 2.2.

Thus, Goldwater was required to deliver to Landlord written notice of Goldwater’s exercise of the Option at least nine months prior to January 1, 2025. Although Goldwater has claimed that it had oral discussions with Landlord about the potential to extend the Lease, there is no evidence of any such discussion.  Regardless, it is undisputed that Goldwater never gave notice per the terms of the Lease, or in any written fashion, in the period provided for under the terms of the Lease. See Cimino Decl., ¶18.

Landlord arranged for another operator, Savant Senior Living (“Savant”), to take over the facility on January 1, 2025 at 12:00 a.m. upon the expiration of Goldwater’s Lease. Zenou Decl., ¶13; Cimino Decl., ¶19. DSS will issue a license to Savant to operate the Facility, effective January 1, 2025 at 12:00 a.m. Goldman Decl., ¶ 9 & Ex. A; Zenou Decl., ¶ 13.  DSS has informed counsel that it will issue the license reflecting a January 1, 2025 effective date on December 30, 2024. Goldman Decl., ¶ 9, Ex. A.

Upon DSS issuing Savant a license to operate the facility, Goldwater’s license will immediately expire. Goldman Decl., ¶11; Zenou Decl., ¶14; Health & Safety Code §1569.19. Goldwater’s continued operation of the facility beyond December 31, 2024, therefore, would be unlawful and constitute a criminal act.  Health & Safety Code §§ 1569.10, 1569.40(b).

Rather than cooperate with Landlord or Savant, Goldwater has impeded any transition efforts by:

·         Refusing to provide Savant with information about Facility’s approximately 76 residents;

·         Telling residents that they must move out of the Facility and that the Facility is closing, including by impermissibly sending residents “60 Day Notices” falsely stating that residents are being evicted or that their leases are being terminated;

·         Moving residents to an unlicensed facility owned by Goldwater or its agents;

·         Threatening that it will move all residents out of the Facility.

Zenou Decl., ¶¶ 9-12, 16-22; Cimino Decl., ¶36, Exs. K-M; RIN Ex. C; Goldman Decl., Ex. D.

Goldwater’s actions not only violate the Lease’s mandate that Goldwater cooperate with any successor tenant, but also endanger the facility’s residents. The severe stress and anxiety elderly residents may experience when moving from one environment to another is a well-recognized phenomenon known as Relocation Stress Syndrome or “transfer trauma”. Goldman Decl., ¶16.  In some cases, transfer trauma can cause elderly residents to pass away. Given this, public policy favors ensuring stable housing for residents to prevent and minimize transfer trauma. Indeed, when residents are required to be relocated, DSS requires operators to plan for, and take, “all necessary steps ... to reduce stress to the resident which may result in transfer trauma.” See, e.g., 22 CCR §87701.3.

Moreover, Health & Safety Code section 1569.481(a)(1) empowers DSS “to take quick, effective action to protect the health and safety of residents of residential care facilities for the elderly and to minimize the effects of transfer trauma that accompany the abrupt transfer of residents by appointing a temporary manager ....” (emphasis added). DSS has already concluded that Goldwater misleading residents by telling them that they must move out of the Facility violated residents’ rights, including the right to be free from intimidation. RJN Ex. C; Goldman Decl., Ex. D; Cal. Code Regs., tit. 22, § 87468.1.

E. Analysis

Plaintiff Landlord seeks a preliminary injunction against Defendant Goldwater to prevent it and its employees or agents from: (i) removing residents from the Facility, except as authorized by law; (ii) telling residents that they are required to move from the Facility; (iii) removing any resident records, resident medications, pharmacy supplies, medical supplies, office supplies, maintenance supplies, foodstuffs and other fixtures, furniture, and equipment necessary for the operations of the facility; and (iv) interfering with or shutting down utilities at the Facility.

No supplemental opposition has been filed. Defendants’ ex parte opposition concedes injunctive relief for (i) as they has no interest or ability at this point in removing residents, (ii) as they will not tell residents to move, and (iii) as they have no interest in removing anything as they assert the right to remain in possession for five more years and if evicted will have time to properly remove what they are legally permitted to remove.  Defendants only dispute (iv) because they contend they have a right to remain in operation of the Facility.  Opp. at 5.

Although it is likely that the interference issue is moot, there is no evidence that Savant has taken control of the Facility.  Therefore, the court will address it.

1. Probability of Success

Landlord argues that Goldwater’s Lease expires on December 31, 2024. Goldwater cannot continue to operate the Facility on a Property it does not lawfully possess. While Goldwater has argued that it orally told Landlord that Goldwater wanted to extend the Lease, Goldwater had no right to exercise the Option to extend because of Goldwater’s many defaults under the Lease.  Cimino Decl., ¶5-18, Exs. A, D-J.  Moreover, Goldwater failed to effectively exercise the Option because it did not deliver timely written notice to Landlord.  Cimino Decl., ¶18.  Mem. at 19-20.

DSS will issue a license to Savant to operate the Facility effective January 1, 2025 at 12:00 a.m., at which time Goldwater’s license will cease to be valid.  Goldman Decl., ¶9, Ex. A; Zenou Decl., ¶¶13-14; Health & Safety Code §1569.19.  Goldwater cannot lawfully operate the Facility without a valid license. (Health & Safety Code §§ 1569.10, 1569.40(b).  The Lease unambiguously requires Goldwater’s cooperation in transitioning the Facility to a new operator. Lease §24.6 [requiring Goldwater to “fully cooperate with Landlord in turning possession and operation of the Premises over to Landlord (or to any successor tenant) so as to assure the uninterrupted care of all residents of the Premises”).  Mem. at 20.

Goldwater’s ex parte opposition merely argues that the Option is the focus of the dispute between the parties.  Goldwater alleges that it did in fact exercise the option and should remain in possession for an additional five years. Opp. at 3.  Goldwater also argues that the Lease was not breached.  Opp. at 7.

Goldwater fails to present any evidence supporting its position.  Landlord has shown a probability of success on its claims for breach of contract and declaratory relief.

2. Balancing of Harms

Landlord argues that Goldwater’s actions threaten the orderly transition of the Facility, putting the health and safety of its residents in serious jeopardy. Reducing the stress and anxiety elderly patients experience when transitioning facilities, known as transfer trauma, is paramount to DSS.  See Health & Safety Code §1569.481(a)(1) (empowering DSS “to take quick, effective action to protect the health and safety of residents of residential care facilities for the elderly and to minimize the effects of transfer trauma that accompany the abrupt transfer of residents by appointing a temporary manager ....”); 22 CCR §87701.3 (requiring operators to plan for, and take, “all necessary steps ... to reduce stress to the resident which may result in transfer trauma”).  Mem. at 18.

Goldwater falsely told residents that they are being evicted or that their leases are terminating, and this is precisely the sort of abrupt and traumatic transition DSS regulations aim to avoid.  DSS recently determined in a November 19, 2024 report that Goldwater misled residents into believing they were required to relocate to another facility and that this violated residents’ rights, including the right to be free from intimidation. RJN Ex. C; Goldman Ex. D; 22 CCR §87468.1.  Mem. at 18-19.

Goldwater’s refusal to provide Landlord or Savant with information regarding the Facility or its residents impedes Savant’s ability to promptly provide care, thus jeopardizing the care the elderly residents rely on.  Savant’s staff need to know all residents’ medications, schedules, and dietary needs to immediately care for the residents when it becomes operator of the Facility on January 1, 2025. Goldwater’s threatened refusal to provide this information hinders Landlord and Savant’s ability to appropriately transition operations away from Goldwater and to Savant.  Mem. at 19.

Goldwater’s removal of property from the Facility, such as portable HVAC units, endangers residents, subjecting them to stressful changes to their living conditions. The harm to the Facility’s approximately 76 residents would be irreparable. The residents are elderly individuals who are dependent on full-time care. Goldwater’s actions, and threatened actions, endanger the residents” health and safety in ways that cannot be made right after the fact, such as through monetary damages alone.  Mem. at 19.

Defendants’ ex parte opposition argues that there is no evidence that Defendants will remove residents or documents from the property as they have no intention of leaving the property given that it currently had a license in good standing to continue operating. The harm that Plaintiff cites to the residents is a red herring argument as it is more manufactured hysteria that the residents will be put in harm’s way.  The residents would likely be better taken care of with the current licensee Goldwater in possession as it knows the residents well having cared for them for years.  Opp. at 6.  Landlord’s complaint and request for injunctive relief is essentially an eviction action which Landlord is trying to speed through.  There should be no irreparable harm to anyone. This is especially true as Landlord and Savant will have their day in court.  Opp. at 7.

Landlord has presented evidence of irreparable harm to residents, and ultimately to Savant and Landlord, from interference with the transition to Savant.  Defendants have presented no evidence of harm to Goldwater.

The balance of harms works in favor of Landlord.

3. Other Issues

Defendants argue that an injunction would force the court to monitor the transition process, making factual determinations on what property Defendants would be allowed to take with them, what may be told to residents, and the entitlement to Medi-Cal reimbursements or other payments that are received once Goldwater is removed, all of which will be unnecessarily burdensome for the court.  Opp. at 8.  There is no evidence to support this position, which concerns the scope of the court’s involvement and not entitlement to injunctive relief anyway.

Defendants argue that Landlord’s proposed injunction is constitutionally inform as vague and overbroad because it seeks to restrain Goldwater from preventing a smooth transition as required by the Lease, which is too vague.  Opp. at 8-9.  The court finds nothing vague in an injunction preventing Goldwater from interfering with or shutting down utilities at the Facility.

F. Conclusion

The application is granted.  Defendant Goldwater and its employees and agents are restrained from: (i) removing residents from the Facility, except as authorized by law; (ii) telling residents that they are required to move from the Facility; (iii) removing any resident records, resident medications, pharmacy supplies, medical supplies, office supplies, maintenance supplies, foodstuffs and other fixtures, furniture, and equipment necessary for the operations of the facility; and (iv) interfering with or shutting down utilities at the Facility.

However, the court cannot issue a preliminary injunction if Goldwater has not been served with Summons and Complaint in the manner required by law.  The court will discuss this issue with counsel.

Additionally, an undertaking is required.  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 attorney’s fees necessary to successfully procure a final decision dissolving the injunction also are damages that should be included in setting the bond.  Id. 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.  Given the lack of supplemental opposition and possible mootness for the only remaining issue, the bond may be modest.  The court will discuss this issue with counsel at hearing.