Judge: John J. Kralik, Case: 21BBCV00328, Date: 2022-08-05 Tentative Ruling

Case Number: 21BBCV00328    Hearing Date: August 5, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

            This action involves the real property located at 2309 N. Naomi St., Burbank, CA 91504.   

            Plaintiff Diana Gomez, Plaintiff William Antonio Barrera Jr., and Defendant Sadie Gomez-Rosas are siblings.  Defendant Esperanza P. UC-Barrera is their mother.  Defendants The Barrera Family Trust Agreement Dated 10/03/1996, The Barrera Living Trust Agreement, The Barrera 1996 Trust Agreement, and Barrera Trust are living trusts.

            Plaintiffs allege that on October 3, 1996, a living trust was created by their father under one of the aforementioned “possible” names.  On March 14, 1997, Plaintiffs’ father passed away leaving the property under the living trust in possession of its beneficiaries, which includes Plaintiffs.  They allege that though they have an interest in the property, Defendants have put the property up for sale without Plaintiffs’ consent. Plaintiffs allege that Defendants have refused to provide a copy of the living trust agreement to Plaintiffs.  Diana Gomez alleges that she moved into the subject premises in 2015 and has acted as the onsite manager for over 20 years.  On April 7, 2022, Defendants served Diana Gomez with a 30-Day Notice to Vacate. 

            The complaint, filed May 11, 2022, alleges causes of action for: (1) quiet title; (2) promissory estoppel; (3) promissory fraud; (4) breach of fiduciary duty; (5) constructive and/or resulting trust; and (6) declaratory relief.   

            On July 6, 2022, the following defaults were entered: The Barrera Family Trust Agreement Dated 10/03/1996, a living trust; The Barrera Living Trust Agreement, a living trust; The Barrera 1996 Trust Agreement, a living trust; and Barrera Trust, a living trust. 

B.     Motion on Calendar

On June 17, 2022, Plaintiffs filed a motion for preliminary injunction, seeking an order for Defendants to halt the sale of the subject property to ensure that the property will not be subject to a sale to satisfy any judgments. 

On July 19, 2022, Defendants Sadia Gomez-Rosas and Esperanza Barrera filed opposition papers.

On August 1, 2022, Plaintiffs filed an untimely reply brief.

LEGAL STANDARD

“Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.”  (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.)  “[T]he greater the ... showing on one, the less must be shown on the other to support an injunction.”  (Id. [quoting Butt v. State of California, (1992) 4 Cal.4th 668, 678].)  The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.”  (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)  “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.”  (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) 

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 upon a verified complaint only if it contains sufficient evidentiary as opposed to ultimate facts.  (CCP § 527(a).)  For this reason, a pleading alone rarely suffices.  (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2016) ¶¶ 9:579-580.)  A plaintiff seeking injunctive relief must also show the absence of an adequate damages remedy at law.  (CCP § 526(a)(4).)

DISCUSSION

A.    Probability of Success on the Merits

Plaintiffs seek the issuance of a preliminary injunction against Defendants, arguing that they want to ensure that title will not be transferred.  They argue that further, unnecessary and avoidable legal action will be taken if the sale of the home is finalized.  Plaintiffs also argue that they have been unable to enjoy and use the premises as a result of Defendants’ breach.  In their memorandum of points and authorities, Plaintiffs do not specifically address the probability of success of the merits of their causes of action. 

With the moving papers, Plaintiffs provide the declarations of Diana Gomez and William Antonio Barrera Jr.  In their declarations, Plaintiffs state that they were the true and rightful beneficiaries to the subject property.  (D. Gomez Decl., ¶1; W. Barrera Decl., ¶1.)  They state that their father created a living trust on October 3, 1996 under the potential names of The Barrera Family Trust Agreement Dated 10/03/1996, The Barrera Living Trust Agreement, The Barrera 1996 Trust Agreement, and Barrera Trust.  (D. Gomez Decl., ¶3; W. Barrera Decl., ¶3.)  Though Plaintiffs had asked Defendants numerous times for a copy of the living trust agreement after Diana Gomez surrendered her personal copy to Defendants in error in 2016, Plaintiffs’ letters have been ignored, violating their right to have a copy as a beneficiary pursuant to Probate Code, § 16060.  (D. Gomez Decl., ¶4; W. Barrera Decl., ¶4.)  On March 14, 1997, Plaintiffs’ father passed away, leaving the property under the trust in possession of the beneficiaries/Plaintiffs.  (D. Gomez Decl., ¶5; W. Barrera Decl., ¶5.)  Plaintiffs state that despite knowing that they are the beneficiaries, Defendants put the property up for sale without Plaintiffs’ notice and consent and refused to halt the sale.  (D. Gomez Decl., ¶5; W. Barrera Decl., ¶5.)  Ms. Gomez states that in accordance with the living trust, she moved into the premises in 2015 and has acted as the property manager for 20 years.  (D. Gomez Decl., ¶6.)  She states that despite knowing this, Defendants served her with an unlawful 30-Day Notice to Vacate.  (Id.)  Plaintiffs argue that Defendants fraudulently put up the sale of the property without the beneficiaries’ consent, causing Plaintiffs irreparable harm by depriving them of peaceful enjoyment of the property without permission or legal consent.  (D. Gomez Decl., ¶7; W. Barrera Decl., ¶6.)  They also argue that Defendants have failed to provide any sufficient consideration for listing the property for sale and never provided them with a copy of the living trust. (D. Gomez Decl., ¶8; W. Barrera Decl., ¶7.) 

Aside from these declarations, Plaintiffs do not provide any other evidence or documents with their moving papers.  Although Plaintiffs make reference to assets being seized and used to satisfy judgment(s) in other civil pending litigation, Plaintiffs have not provided any documentary evidence or judicially noticeable documents that there are other civil litigations pending, such that the Court is unaware whether these other litigations involve the property, Plaintiffs, Defendants, etc.  Plaintiffs also do not provide any evidence showing that the property has been listed or that a potential sale is about the occur.  Finally, most of Plaintiffs’ statements in the declaration about the contents of the living trust are hearsay.  (While the Court understands that Plaintiffs do not have a copy of the living trust agreement, the Court cannot ascertain whether each of the causes of action can be established based on the agreement’s terms.)

Based on the papers submitted to the Court, Plaintiffs have not satisfied their burden in showing that they have the probability of succeeding on the merits of their causes of action. 

In opposition, Defendants argue that Plaintiffs wrongly claim they are beneficiaries.  Esperanza Barrera provides her declaration with the opposition papers.  Mrs. Barrera states that she created The Barrera 1996 Trust Agreement dated October 3, 1996 (“Trust”) with her late husband on October 3, 1996 and her husband died the following year.  (E. Barrera Decl., ¶3.)  She states that she amended and restated the Trust on May 31, 2016 (“Restatement”), though the original name of the trust was maintained, and amended the Restatement on February 14, 2022 (“Amendment”).  (Id., ¶4.)  Per the most recent Restatement and Amendment, Esperanza Barrera states that she is the sole acting trustee and vested beneficiary, and Plaintiffs have each been disinherited from the Trust.  (Id., ¶5.)  Mrs. Barrera states that she expressed this to Plaintiffs prior to the filing of the Court action, but they have not accepted this.  (Id., ¶6.)  She states that she did not make any promises or representation to Plaintiffs and that they have filed this action against her to harass her and prevent her from selling the property.  (Id., ¶¶7-8.)  She states that the Trust owns the property and she has attempted to sell the property but the escrow has been stalled due to Plaintiffs’ actions such that she has been unable to finalize the sale.  (Id., ¶9.)  She states that the Trust does not require her to obtain the consent of any beneficiary to effectuate the sale, nor does it require her to notify Plaintiffs of a sale.  (Id.)  Mrs. Barrera states that the sale is at risk if this action persists, and she is attempting to sell the property to raise funds to support herself.  (Id., ¶10.) 

Defendants too fail to provide any documents to support their opposition papers.  They do not provide a copy of the Trust, Restatement, and Amendment for the Court’s review to ascertain whether Mrs. Barrera had the authority to amend the trust, is the sole trustee, and the only vested beneficiary.  However, this motion for preliminary injunction is not a motion to compel documents and thus the Court will not order production of these relevant documents by way of this order on the motion for preliminary injunction.  Further, it is Plaintiffs’ burden as the moving party to establish their burden on this element of preliminary injunction relief. 

The Court finds that Plaintiffs have not made a showing regarding their beneficiary status of the Trust and that they have an interest in the property. 

B.     Balance of Harms

Before a court will grant a preliminary injunction, the moving party must establish at least some probability of success on the merits.  (Butt v. State of California (1992) 4 Cal.4th 668, 678.)  “If a moving party is able to make such a showing, a court will then “examin[e] all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it, ....’ [Citations.]”  (Take Me Home Rescue v. Luri (2012) 208 Cal.App.4th 1342, 1353.)

“An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.”  (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.)  Thus, the threat of “irreparable harm” must be imminent, as opposed to a mere possibility of harm sometime in the future.  (Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2018 Update) Ch. 9(II)-A, §9:508.)

Plaintiffs argue that the balance of harms weighs in their favor because denying interim injunctive relief would be detrimental to their rights as a resulting sale may occur or the assets of the property may be seized to satisfy the judgment of other pending civil cases.  In reply, they also argue (without evidence) that Defendants previously sold another property without Plaintiffs’ consent, so they believe Defendants will sell the subject property as well.  (Reply at p.3.)  

However, the Court only considers the balance of harms after a finding that Plaintiffs have established the probability of success on the merits.  As discussed above, Plaintiffs have failed to establish their initial burden in showing the probability of prevailing on the merits of their claims.  As they have failed to do so, the Court declines to consider this factor at this time.   

CONCLUSION AND ORDER

Plaintiffs’ motion for preliminary injunction is denied without prejudice. 

            Plaintiffs shall provide notice of this order.