Judge: James L. Crandall, Case: 20-1279273, Date: 2022-10-06 Tentative Ruling
Motion for Preliminary Injunction
Plaintiffs Gary O. Poteet, Jr. and Sandra K. Poteet’s motion for a preliminary injunction against defendant Tiburon North Homeowners Association, and its agents, from foreclosing on the real property known as 16108 Mount Musala Court, Fountain Valley, California 92708, and legally described as Parcel 1, Lot 48, Tract 7753 as shown by map recorded in Book 307, page 3 to 6 of Maps, in the Office of the County Recorder of Orange County, California, until such time as the title and the causes of action of this lawsuit affecting title thereof are resolved is GRANTED.
Defendant’s request for judicial notice of Exhibits 1 through 5 is GRANTED.
Code of Civil Procedure section 527, subdivision (a) provides: “A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.”
The burden is on Plaintiff to show all elements necessary to support issuance of the injunction. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)
“A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.)
The court employs a more probable than not standard. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.) Further “[t]he trial court's determination must be guided by a “mix” of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal. 4th 668, 678.) “A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.” (Ibid.)
Likelihood of prevailing on the merits:
Plaintiff’s Complaint alleges causes of action for: (1) Slander of Title; (2) Quiet Title; (3) Breach of Contract; (4) Fraud; (5) Abuse of Process; (6) Declaratory Relief; and (7) Equitable Relief.
Breach of Contract:
“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
Plaintiffs have filed a verified Complaint in which they allege that on February 1, 2022, Defendants offered/promised to settle the dispute for $13,468.68. (Complaint, ¶ 36.)
This offer/promise was not conditioned and did not have an expiration date. (Complaint, ¶ 36.)
On May 9, 2022, Plaintiffs accepted the offer/promise of $13,468.68 to settle the dispute and notified Paul W. Windust of the acceptance and a contract was formed. (Complaint, ¶ 37.)
Plaintiffs further allege that Defendants refused to acknowledge the acceptance, falsely claiming that the offer/promise had expired. (Complaint, ¶ 38.)
Plaintiffs contend that at no time had notice been given by Defendants, nor received by Plaintiffs that the offer/promise was no longer good before acceptance. (Complaint, ¶ 39.) Plaintiffs further contend that they have performed all that was required of them under the contract. (Complaint, ¶ 40.)
Plaintiffs also contend that Defendants knowingly and falsely refuse to accept and perform the contract, instead seeking in excess of four times the contract amount. (Complaint, ¶ 41.) Lastly, the Complaint states that Plaintiffs have suffered, and continue to suffer, loss of use of funds, interest thereon, has become improperly indebted, placing Plaintiffs in financial turmoil, all causing pain and suffering. (Complaint, ¶ 43.)
Based on the allegations in the verified Complaint and the declaration of Gary O. Poteet, Plaintiffs have sufficiently shown that there is a likelihood that they will prevail on their claim for breach of contract.
Balancing of Harm:
“An evaluation of the relative harm to the parties upon the granting or denial of a preliminary injunction requires consideration of: ‘(1) the inadequacy of any other remedy; (2) the degree of irreparable injury the denial of the injunction will cause; (3) the necessity to preserve the status quo; [and] (4) the degree of adverse effect on the public interest or interests of third parties the granting of the injunction will cause.’ ” (Vo v. City of Garden Grove (2004) 115 Cal. App. 4th 425, 435.)
“The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal. 4th 668, 678.)
The balancing of harm lies in Plaintiffs’ favor. Real property is generally considered to be “unique” such that injury or loss cannot be compensated in damages, and injunctive relief is therefore generally granted. (Civ. Code § 3387.)
Plaintiff have lived in the home since 1999, therefore, Plaintiffs have sufficiently shown irreparable harm.
Plaintiffs have sufficiently shown irreparable harm and established a probability of prevailing on the merits on the breach of contract cause of action. Accordingly, Plaintiffs have satisfied the elements necessary to support injunctive relief.
Posting of a Bond:
A bond is required upon granting a preliminary injunction. (Code Civ. Proc. § 529; Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10 (Abba Rubber).)
In Abba Rubber, the court noted, in setting the sum for the bond, that: “The sole limit imposed by statute is that the harm must have been proximately caused by the wrongfully issued injunction. [Citation.] Case law adds only the limitation that the damages be reasonably foreseeable. [Citations.]” (Abba Rubber, supra, 235 Cal.App.3d at 14.) Further, the Abba Rubber court noted that such damages include reasonable attorney’s fees and costs that would be incurred to procure a final decision dissolving the injunction. (Id., at 15, citing Russell v. United Pacific Ins. Co. (1963) 214 Cal.App.2d 78, 88 to 89.)
Defendant requests that Plaintiffs post a $20,000 bond. The amount requested is reasonable.
The Court issues a Preliminary Injunction effective subject to the posting of an undertaking in accordance with Code of Civil Procedure Section 529 in the amount of $20,000.
Plaintiffs to give notice.
Future hearing dates
No future hearing dates