Judge: Jon R. Takasugi, Case: 24STCV02379, Date: 2024-08-13 Tentative Ruling

Case Number: 24STCV02379    Hearing Date: August 13, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENATIVE RULING

Plaintiff’s motion for a preliminary injunction is DENIED.

            On 1/30/2024, Plaintiff Linda Jie Cai, individually and as Trustee of the Jie Cai Separate Property Trust, dated February 26, 2013, filed suit against Michael J. Gelskey, Emily Gelskey, as individuals and as Co-Trustees of the Gelskey Family Trust U/D/T February 18, 1999, alleging: (1) trespass; (2) private nuisance; (3) negligence; (4) ejectment; (5) quiet title; (6) declaratory relief; and (7) breach of governing documents.

            On 5/28/2024, Plaintiff moved for a preliminary injunction.

Discussion 

            Plaintiff seeks an for an order and injunction requiring adjoining landowner and Defendant Michael J. Gelskey to remove encroachments from Plaintiff’s land installed without consent by Defendant, and consist of the following: (1) a ficus tree; (2) assorted shrubbery and groundcover plants; (3) supporting irrigation lines; and (4) supporting lights, with 20 days of entry of the Court’s Order; ejecting Michael J. Gelskey from Plaintiff’s property, located at 7186 Vista De Oro, La Verne, CA 91750, also known as Assessor Parcel Number (APN) 8678-066-009.

To obtain a preliminary injunction, a moving party must show that it is likely to succeed on the merits of its claims, that it will suffer irreparable harm if alleged conduct is not enjoined, and that its entitlement to an injunction outweighs any harm to the opposing parties. (Cal. Civ. Proc. § 526(a); Shoemaker v. County of Los Angeles (1995) 37 Cal. App.4th 618, 624; Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)  California courts have recognized that injunctive relief is extraordinary and should only be granted when the stringent requirements for such relief are met. “The power to issue preliminary injunctions is an extraordinary one and should be exercised with great caution and only where it appears that sufficient cause for hasty action exists.” (West v. Lind (1960) 186 Cal.App.2d 563, 565.)

To justify “the exercise of the rather extraordinary power to restrain defendant’s actions prior to a trial on the merits,” a plaintiff must show a real and imminent threat of “irreparable injury” if injunctive relief is not granted. (Tahoe Keys Prop. Owners’ Ass’n v. State Water Res. Control Bd. (1994) 23 Cal.App.4th 1459, 1471.) An irreparable injury is typically “one for which either (1) its pecuniary value is not susceptible to monetary valuation, or (2) the item is so unique its loss deprives the possessor of intrinsic values not replaceable by money or in kind.” (Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal.App.3d 454, 457.)  “If monetary damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be granted.” (Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal. App. 2d 300, 306; see also Doyka v. Superior Court (1991) 233 Cal. App. 3d 1134, 1136 (injunction will not issue where “only money is involved”).

            After review, the Court has insufficient evidence to conclude that imminent, irreparable harm will result if Defendant is not ordered to remove various plants, irrigation lines, and supporting lines. Moreover, Plaintiff has not shown that any losses or harm to her property are neither susceptible to monetary valuation or would result in losses which could not be replaced or remedied. (Jessen, supra, 142 Cal.App.3d at p. 457.)  Given that monetary damages could afford adequate relief, an injunction cannot be granted. (Thayer, supra, 255 Cal. App. 2d at p. 306.)

            Based on the foregoing, Plaintiff’s motion for a preliminary injunction is denied.  

It is so ordered.

Dated:  August    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.  

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENATIVE RULING

Defendant Gelskey’s motion to set aside entry of default is GRANTED.

On 1/30/2024, Plaintiff Linda Jie Cai, individually and as Trustee of the Jie Cai Separate Property Trust, dated February 26, 2013, filed suit against Michael J. Gelskey, Emily Gelskey, as individuals and as Co-Trustees of the Gelskey Family Trust U/D/T February 18, 1999, alleging: (1) trespass; (2) private nuisance; (3) negligence; (4) ejectment; (5) quiet title; (6) declaratory relief; and (7) breach of governing documents.

On 4/22/2024, default was entered against Defendant Michael J. Gelskey (Defendant or Gelskey).

Now, Gelskey moves to set aside the entry of default.

Discussion

Code of Civil Procedure (CCP) section 473, subdivision (b) provides:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

            Here, default was entered on 4/22/2024, and Gelskey moved to set aside the entry of default on 6/11/2024. Accordingly, Gelskey’s motion is timely.

            In his motion, Gelskey explains that:

In the midst of settlement negotiations, Defendant traveled to Buza, Tanzania for two weeks for a long-awaited mission trip where he did charity work at the Valentines Children’s Home orphanage. After returning to Baja California, Mexico, where Defendant lives full time, Defendant flew out again to Europe. Nonetheless, Defendant continued to communicate with Plaintiff’s counsel regarding settlement. Towards the end of March, Defendant believed the parties had reached a settlement in principle and even sent the settlement check while he and Plaintiff’s counsel worked on finalizing the written settlement agreement. When certain disputes arose with respect to the specific terms, Defendant advised Plaintiff’s counsel that he would follow up after his counsel returned. After ignoring Defendant’s emails for a week, Defendant was surprised to hear from Plaintiff’s counsel that she had requested the Court to enter his default. At that point, Defendant did not appreciate the nature of the legal documents he received or the significance of entry of default. Nonetheless, Defendant immediately retained counsel he had previously worked with, David Prince (“Prince”), to take over the settlement negotiations. Unfortunately, after a breakdown between him and Prince, Defendant was forced to hire new counsel. After retaining new counsel, Schorr Law, Defendant promptly seeks to respond to the lawsuit filed against him so that this case can be resolved on the merits. Unfortunately, due to Defendant’s mistake, inadvertence, and/or excusable neglect, the Court has already entered Defendant’s default.

            (Motion, 2: 17-3:5.)

            After review, the Court finds relief should be granted based on inadvertence and excusable neglect. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal. 2d 523, 527; Hodge Sheet Metal Products v. Palm Springs Riveriera Hotel (1961) 189 Cal.App.2d 652, 656.)

            Based on the foregoing, Defendant Gelskey’s motion to set aside entry of default is granted.

It is so ordered.

Dated:  August    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.