Judge: Joel L. Lofton, Case: 23AHCP00074, Date: 2023-04-25 Tentative Ruling

Case Number: 23AHCP00074    Hearing Date: April 25, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     April 25, 2023                         TRIAL DATE: No date set.

CASE:                         ATLANTIC SQUARE, LLC, d/b/a TRC, a Delaware limited liability company, v. CITY OF MONTEREY PARK; CITY COUNCIL OF CITY OF MONTEREY PARK; RON BOW, an individual, in his capacity as CITY MANAGER OF THE CITY OF MONTEREY PARK; JESSICA SERRANO, an individual, in her capacity as INTERIM DIRECTOR OF COMMUNITY DEVELOPMENT OF THE CITY OF MONTEREY PARK, and DOES 1-5.

Real parties in interest: RAISING CANE’S RESTAURANTS, L.L.C., a Louisiana limited liability company, RAISING CANE’S USA, L.L.C., a Louisiana limited liability company; CHAPMAN W. LEW, an individual, and DOES 6-10.

CASE NO.:                 23AHCP00074

MOTION FOR PRELIMINARY INJUNCTION

MOVING PARTY:              Plaintiff Atlantic Square, LLC dba TRC

RESPONDING PARTY:      Real party in Interest Raising Cane’s Restaurants, LLC

SERVICE:                              Filed March 21, 2023

OPPOSITION:                       Filed March 30, 2023

REPLY:                                   Filed April 18, 2023

RELIEF REQUESTED

            Plaintiff moves for an injunction requiring Raising Cane’s to cease encouraging or directing customer from using an alley adjacent to Plaintiff’s property (“North Alley”), Plaintiff’s property, or public roadways to queue for Raising Cane’s drive-through.

BACKGROUND

             This case arises out of Plaintiff Atlantic Square, LLC (“Plaintiff”) claim that Raising Cane’s Restaurant, L.L.C.’s (“Raising Cane’s”) operation of the drive-through causes dangerous conditions on the road and blocks access to Plaintiff’s own parking lot. Plaintiff alleges that Defendants have failed to take proper action to prevent the conditions caused by Raising Cane’s operations of its drive-through.

            Plaintiff’s claims are based on the manner in which Raising Cane’s operates its drive-through. Plaintiff alleges that the North Alley is a public right of way that connects Atlantic Boulevard to the northern section of the parking lot of Atlantic Square. (FAPC ¶ 18.) Plaintiff alleges that Raising Cane’s is located at 1970 S. Atlantic Boulevard, which is immediately north of Atlantic Square. (Id. ¶ 19.) Plaintiff alleges that shortly after Raising Cane’s opened on or around June 1, 2022, Raising Cane’s began directing drive-through customers to use the North Alley to queue for the drive-through windows. (Id. ¶¶ 30-31.) Plaintiff alleges that cars queueing for the drive-through occasionally block off the North Alley or even spill over onto Plaintiff’s property. (Id. ¶¶ 32-38.)

            Plaintiff filed a first amended petition and complaint (“FAPC”) on April 6, 2023, alleging 5 causes of action for (1) writ of mandate, (2) public nuisance, (3) private nuisance, (4) nuisance per se, (5) violation of California Business and Professions Code section 17200, et seq. (“UCL”), and (6) declaratory relief.

TENTATIVE RULING

            Plaintiff’s motion for a preliminary injunction is DENIED.

OBJECTION TO EVIDENCE

Raising Cane’s objections are overruled.

REQUEST FOR JUDICIAL NOTICE

Plaintiff’s requests for judicial notice for exhibits A through E are granted pursuant to Evidence Code section 452, subdivision (c).

DISCUSSION

            Motion for Preliminary Injunction

            Plaintiff moves for an injunction requiring Raising Cane’s to cease encouraging or directing customer from using the North Alley,  Plaintiff’s property, or public roadways to queue for Raising Cane’s drive-through.

            “A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the ‘interim harm’ to that party if an injunction is denied is greater than ‘the [interim] harm the [opposing party] is likely to suffer if the ... injunction is issued.’ [citation.] These two showings operate on a sliding scale: ‘[T]he more likely it is that [the party seeking the injunction] will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue.’ [citation.] ” (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183.)

            “Although preliminary injunctions are generally designed to ‘preserve the status quo pending a determination on the merits of the action’ [citation], they are not so limited.” (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc, supra, 6 Cal.App.5th at p. 1183-84.) Preliminary injunctions may also be issued to mandate “an affirmative action that changes the status quo”. (City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291, 299.) However, “[t]he granting of a mandatory injunction pending trial ‘ “is not permitted except in extreme cases where the right thereto is clearly established.” ’ ” (Ibid.)

            Likelihood of Success on the Merits - Elements

            The first issue presented is whether Plaintiff has demonstrated it is likely to prevail on the merits at trial. Plaintiff asserts that it had demonstrated a likelihood of success on its claims for (1) private nuisance, (2) public nuisance, and (3) violation of the UCL.

             The elements for a private nuisance are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

            “The elements of a public nuisance . . . are as follows: (1) the [act or omission] obstructed the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) [act or omission] affected a substantial number of people; (3) an ordinary person would be unreasonably annoyed or disturbed by the [act or omission]; (4) the seriousness of the harm occasioned by the [act or omission] outweighed its social utility; (5) plaintiffs did not consent to the [act or omission]; (6) plaintiffs suffered harm as a result of the [act or omission] that was different from the type of harm suffered by the general public; and (7) the [act or omission] was a substantial factor in causing plaintiffs' harm.” (Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352.)

            “The UCL defines ‘unfair competition’ as ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.’ [Citation.] By proscribing ‘any unlawful’ business act or practice (ibid.), the UCL ‘ “borrows” ’ rules set out in other laws and makes violations of those rules independently actionable. [Citation.] However, a practice may violate the UCL even if it is not prohibited by another statute. Unfair and fraudulent practices are alternate grounds for relief.” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.)

            Likelihood of Success on the Merits – Application

            Plaintiff’s arguments can be divided into two categories. First, Plaintiff argues that Raising Cane’s operation of the drive-through constitutes a nuisance because it interferes with Plaintiff’s access to the North Alley and causes disruptions to Plaintiff’s use of its property. Plaintiff also argues that Raising Cane’s conduct violates Monterey Park Municipal Code sections.

            Plaintiff provides that Raising Cane’s drive-through operations has resulted in Plaintiff’s employees and tenants reporting congestion and access blockage at and around Atlantic Square. (Pettit Decl. ¶ 3.) Plaintiff also relies on the analysis of Dean Arizabal to establish that the interference with its use of its property was substantial. Arizabal provides he analyzed seven consecutive days between October 12-19, 2022, to determine the impact Raising Cane’s drive-through operations had on the surrounding traffic. (Arizabal Decl. ¶ 4, Exhibit A at p. 2.) Arizbal provides that during the hours observed, the Atlantic Square Driveway was blocked for approximately 12 minutes on Wednesday, October 13, 10.5 minutes on Thursday, October 14, 1.5 minutes on Friday, October 15, 1.5 minutes on Saturday October 16, 1 hour and 51 minutes on Sunday October 16 (sic). (Id. ¶ 4, Exhibit 1 at p. 4.)

            Plaintiff’s evidence does not demonstrate a likelihood of success that Raising Cane’s drive-through operations created a substantial or unreasonable interference. Plaintiff has demonstrated some interference but does not show that select periods of blockage to the northern entrance of its parking lot constitutes a substantial or unreasonable interface with its use and enjoyment of its property. Further, Plaintiff’s reliance on Monterey Park Municipal Code section 4.30.030, 4.30.040, and 10.52.060 is not sufficient to establish the first prong for a preliminary injunction. Plaintiff argues and assumes that because patrons of Raising Cane’s idle in the North Alley or on Plaintiff’s property, that Raising Cane’s is liable for creating a nuisance. Plaintiff has not demonstrated that Raising Cane’s conduct creates a nuisance or is otherwise unlawful to sufficiently demonstrate a likelihood of success.

            Balancing of Harm

            Additionally, Plaintiff has not established that the balance of harm weighs in its favor. The relief Plaintiff seeks is not to preserve the status quo but rather to change it. Plaintiff seeks an order preventing Raising Cane’s from using a public area, which is a mandatory injunction that would force Raising Cane’s to change its current operation.

            Further, in support of its claim that it would suffer greater harm, Plaintiff broadly claims that it has been “forced to expend significant resources, including hiring additional personnel” and that “any plans for redevelopment have been impeded”. (Pettit Decl. ¶¶ 6-7.) The harm posited by Plaintiff is conclusory and not established by specific evidence. Plaintiff has also failed to show that the balance of harm weighs in its favor. Plaintiff also relies on the opinions of John Pagliassotti that Plaintiff has suffered harm from the blockage to its northern entrance. However, the harm posited is conclusory and Plaintiff fails to adequately address the harm that Raising Cane’s would face if it had to alter its business operations. Plaintiff argues that assumes that Raising Cane’s would suffer minimal harm but does not make any showing to support this claim.

CONCLUSION

            Plaintiff’s motion for a preliminary injunction is DENIED.

            Moving Party to give notice

Dated:   April 25, 2023                                   ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org