Judge: John J. Kralik, Case: 23BBCV00880, Date: 2023-10-06 Tentative Ruling

Case Number: 23BBCV00880    Hearing Date: October 6, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiffs Jonathan Tyree Evans and Melanie Nichole Melendrez (“Plaintiffs”) allege that they are residents and tenants of 423 East San Jose Avenue, Apartment B, in Burbank.  Defendant Lucia Laura Torres (“Defendant”) is alleged to be the owner and landlord of the subject property.  Plaintiffs allege that they entered into the lease agreement with Defendant for the property.  Plaintiffs allege that Defendant had a duty to provide them with a habitable premise and she had represented that the property was legally permitted; however, Plaintiffs allege that this was false and the property was an illegal unit with a certificate of occupancy.  Plaintiffs allege that the lease agreement was for an illegal purpose and therefore unlawful and void.  Plaintiffs seek the return of the rental payments they made (amounting to over $12,000). 

They also allege that the premises had damaged electrical and mechanical equipment and appliances, pest infestation, and accumulation of rubbish/garbage.  They allege that they gave notice of the conditions to Defendant on several occasions, but Defendant failed to take remedial action. Instead, they allege that Defendant retaliated against Plaintiffs by filing an unlawful detainer action in July 2022, which Defendant dismissed on November 7, 2022. 

The complaint, filed April 25, 2023, alleges causes of action for: (1) rescission; (2) fraud – intentional misrepresentation; (3) breach of implied warranty of habitability; (4) breach of implied covenant of quiet enjoyment; (5) negligent; and (6) retaliatory acts (retaliatory eviction) – violation of Civil Code, § 1942.5.    

B.     Relevant Background and Motion on Calendar

On September 13, 2023, Plaintiffs filed an ex parte application for temporary restraining order (“TRO”) against Defendant. 

On September 18, 2023, Judge Frank M. Tavelman granted the ex parte application for TRO.  The Court issued the TRO, enjoining Defendant, along with her agents and contractors, from continuing to illegally lock out Plaintiffs from the subject property and shutting down utilities at the subject property, as well as ordering Defendant/agents/contractors to return to Plaintiffs all their belongings.  The Court additionally ordered Plaintiffs to continue to pay rent under the terms of the lease.  The Court scheduled an OSC re why a preliminary injunction should not issue for October 6, 2023. 

The Court will consider Plaintiff’s application papers as the motion papers for the preliminary injunction hearing. 

The Court is not in receipt of an opposition brief.  The Court notes that though Plaintiffs caused Defendant to be personally served with the summons and complaint, Defendant has not yet filed an answer or appeared in the action.

LEGAL STANDARD

“[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.”  (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.)  “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.”  (Id.)

“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.)

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

Plaintiffs move for a preliminary injunction against Defendant regarding rental property at issue. 

A.    Probability of Success on the Merits

In support of the request for preliminary injunction, Plaintiffs provide their declarations. 

Ms. Melendrez states that Plaintiffs entered the lease agreement for rental of the property on April 23, 2021 with Defendant.  (Melendrez Decl., ¶2; Compl., Ex. A [lease agreement].)  She states that Defendant marketed and represented to Plaintiffs that the property was legal and permitted, but unbeknownst to Plaintiffs, the property was an illegal unit that did not have a certificate of occupancy and lacked required permitting.  (Melendrez Decl., ¶3.)  She states that at no time did Defendant correct the issue.  (Id., ¶4.)  She states that the property also had substantial untenantable and substandard conditions that were not disclosed to Plaintiffs and that at least on 3 occasions, Defendant’s son harassed and assaulted Plaintiffs and engaged in illegal drug use in their presence on the property.  (Id., ¶¶5-6.)  Ms. Melendrez states that they gave notice to Defendant about these conditions, but Defendant has taken no remedial measures but instead tried to evict them and initiated 3 UD actions against them in July 2022 (22PDUD01581), February 2023 (23BBCV00414), and July 2023 (23PDUD01598).  (Id., ¶¶7-9, 11.)  She states that Defendant has lost or dismissed each of the UD actions.  (Id., ¶15.)

Ms. Melendrez and Mr. Evans state that on September 10, 2023, after the third UD matter was decided in Plaintiffs’ favor at trial, Defendant and her son locked Plaintiffs out of the house and boarded up the doors, such that they have not been able to get into the property to retrieve their belongings.  (Melendrez Decl., ¶12; Evans Decl., ¶2.)  They state that they tried to involve the police to no avail.  (Melendrez Decl., ¶13; Evans Decl., ¶3.)  They state that Plaintiffs are currently staying with friends or family who are willing to put up with them, but are currently homeless otherwise.  (Melendrez Decl., ¶14; Evans Decl., ¶4.)  They state that they will suffer great and immediate irreparable harm in that they have no permanent place to stay and cannot afford to move and replace their personal property, work equipment, furniture, which were unlawfully taken by Defendant.  (Melendrez Decl., ¶14; Evans Decl., ¶4.) 

Plaintiffs also include photographs of the subject property being boarded up so that they cannot access the property.  (Melendrez Decl., Ex. 1.)  In addition, they provide Notices of Violation from the City of Burbank Community Development, showing that substandard conditions exist at the property, including the accumulation of items/rubbish on the property, the wall heater, kitchen fan, and electrical switches being in disrepair, missing smoke/CO2 detectors and egress windows in the bedroom, the kitchen window not staying open, missing screens or windows, and the tub needing caulking.  (Whitney D. Ackerman Decl., Exs. B-C.) 

Here, the Court finds that Plaintiffs have made a preliminary showing regarding the probability of success on the merits of their claims.  They have shown that substandard conditions existed on the property and that they have been improperly locked out even though they have prevailed in unlawful detainer actions.

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 they will be harmed if a preliminary injunction is not granted because Defendant will be allowed to continue to harass them, turn off utilities, and change the locks.  In contrast, they argue that Defendant would not suffer injury as Defendant need only fix the front door and side door that are locked and boarded up, as well as cure the list of obligations as stated in the City of Burbank notices. 

It bears note that a primary remedy sought by the Plaintiffs here is the recission of the rental agreement and the return of rent collected. No evidence is offered here regarding the alleged illegality on which this claim is based. This remedy is inconsistent with the relief sought here, which is the maintenance of possession of the property based on their rights under the agreement. For now, the Court will assume that Plaintiffs intend to embrace the agreement and sue for its breach. If Plaintiffs truly seek rescission of the rental agreement and return of rent paid, then it will be appropriate for them to return possession.

To maintain the status quo of the parties, the Court grants the motion for preliminary injunction. 

C.     Bond

Plaintiffs argue that the Court should not issue a bond because they are being forced into homelessness and the conditions that are paramount to their safety, health, and well-being would be unduly burdensome and contrary to the interest of justice. 

The Court has no evidence regarding the amount of rent arrearages, or the appropriate amount of rent reduction in the event that the property is partially untenantable. At this time, the Court will not require a bond. Within 30 days, Plaintiffs and Defendants should provide evidence that rent has been fully paid, or if habitability is an issue, what the reduced amount of rent should be. If there are rent arrearages, or rent is not currently being paid, then the Court will set the amount of bond accordingly at a future date. The Court’s injunction does not prevent Defendants from filing an unlawful detainer action to seek possession of the premises if there are appropriate grounds for such an action.  

CONCLUSION AND ORDER

Plaintiffs Jonathan Tyree Evans and Melanie Nichole Melendrez’s motion for preliminary injunction is granted.  Defendant, along with her agents and contracts, are enjoined from continuing to illegally lock out Plaintiffs from the subject property and shutting down utilities at the subject property.  Defendant, along with her agents and contracts, are ordered to return to Plaintiffs all their belongings. 

            No bond shall be required at this time.  However, Plaintiffs are ordered to continue to pay rent under the terms of the lease and to provide evidence regarding rent arrearages at a continued hearing where bond will be set. The further submissions for both parties that are contemplated here are to be made by October 18, 2023. The further hearing regarding the bond will be held on October 27, 2023 at 8:30 a.m. 

Plaintiffs shall provide notice of this order.