Judge: Joel L. Lofton, Case: 23AHCV02199, Date: 2024-01-31 Tentative Ruling

Case Number: 23AHCV02199    Hearing Date: January 31, 2024    Dept: X

   Tentative Ruling

 

Judge Joel L. Lofton, Department X

 

 

HEARING DATE:      January 31, 2024                                             TRIAL DATE: No date set.

                                                          

CASE:                         CARMEN CHENG and JOHN GAO, Trustees of the Gao Family Trust v. YVONNE CHU, TRUSTEE OF THE YVONNE CHU FAMILY TRUST, and Does 1 through 10.  

 

CASE NO.:                 23AHCV02199

 

           

 

MOTION FOR PRELIMINARY INJUNCTION

 

MOVING PARTY:               Defendant Yvonne Chu (“Cross-Complainant”)

 

RESPONDING PARTY:      Plaintiffs Carmen Cheng and John Gao

 

SERVICE:                              Filed November 27, 2023

 

OPPOSITION:                       Untimely filed January 23, 2024

 

REPLY:                                   No reply filed.

 

RELIEF REQUESTED

 

             Cross-Complainant moves for a preliminary injunction ordering Plaintiff to remove equipment attached to a wall encroaching on her property.

 

BACKGROUND

 

             This case arises out of Plaintiffs Carmen Cheng and John Gao’s (“Plaintiffs”) claim that Defendants seek to improperly remove a wall between the parties’ properties. Plaintiff filed this complaint on September 21, 2023.

 

TENTATIVE RULING

 

            Cross-Complainant’s motion for a preliminary injunction is DENIED.

 

LEGAL STANDARD

Code of Civil Procedure section 526, subdivision (a), provides:

An injunction may be granted in the following cases: [] (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. [] (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. [] (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. [] (4) When pecuniary compensation would not afford adequate relief. [] (5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. [] (6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings. [] (7) Where the obligation arises from a trust.

DISCUSSION

 

            Cross-Complainant moves for a preliminary injunction ordering Plaintiffs to remove pool equipment and mechanical components that are attached to a wall purportedly on Cross-Complainant’s property.

 

            “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.)

 

            “To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.” (White v. Davis. (2003) 30 Cal.4th 528, 554.)

 

            As a preliminary note, although Cross-Complainant argues that this present motion is an effort to maintain the status quo, this motion is more akin to a mandatory injunction. 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.)  Cross-Complainant is seeking an order, i.e. for Plaintiffs to remove equipment attached to a wall, that goes directly to the core of both the complaint and the cross-complaint. Thus, Cross-Complainant is seeking relief through this motion that effectively could determine the main substantive issues underlying this case.

 

            Cross-Complainant asserts that she is able to demonstrate a likelihood of prevailing on her claim for trespass.

 

“The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

 

            Cross-Complainant argues that the concrete block wall at issue exists entirely on her property, as confirmed by a surveyor. (Chu Decl. ¶ 13, Exhibit E.) She provides she was never asked for permission for the encroaching wall nor provided it. (Id. ¶ 13.) She also provides that a previous listing for Plaintiff’s property stated there was a possible encroachment. (Id. ¶ 14; Wong Decl. ¶¶ 2-6.)

 

            Cross-Complainant also argues that the pool equipment and mechanical equipment have been relocated within the last four years. Cross-Complainant provides that the pool equipment is different than the pool equipment photographed in a 2017 listing. (Kacherian Decl. ¶ 3-5.) Cross-Complainant also argues that the equipment is relatively new. (Id. ¶¶ 7-8.)

 

            Cross-Complainant also argues she will suffer irreparable harm because she would be hindered or prevented in her efforts to complete her $1 million renovation project and have to obtain new or extended permits. (Chu Decl. ¶¶ 27-29.) Cross-Complainant asserts that the harm to Plaintiff’s would be $5,000-$6,000. (Kacherian Decl. ¶ 16.)

 

            In reviewing Cross-Complainant’s evidence, the court finds that Cross-Complainant has demonstrated some level of success on the merits and some showing that the harm balances in her favor. However, Cross-Complainant has not demonstrated that the right to a mandatory injunction is clearly established here. Cross-Complainant’s demonstration of harm as to Plaintiff’s harm is speculative. Further, she has not stated with specificity her harm. Although Cross-Complainant argues her “$1 million” renovation project is in jeopardy, she does not state how much of the project will be hindered by Plaintiff’s action or how much it would cost to obtain permit extensions.

 

            Cross-Complainant seeks extraordinary relief that goes to the direct issues underpinning both Plaintiff’s complaint and the cross-complaint. However, Cross-Complainant has not demonstrated that she is clearly entitled to such drastic relief.

 

CONCLUSION

 

            Cross-Complainant’s motion for a preliminary injunction is DENIED.

 

            Moving Party to provide notice.

 

 

 

           

Dated:   January 31, 2024                                           ___________________________________

                                                                                    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.  alhdeptx@lacourt.org