Judge Lee W. Tsao, Case Number: 23NWCV03498, Date: 2024-05-07 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV03498, Date: 2024-05-07 Tentative Ruling

Case Number: 23NWCV03498 Hearing Date: May 7, 2024 Dept: C

Noemi Garza vs Marko Kosta, et al.

Case No.: 23NWCV03498

Hearing Date: May 7, 2024 @ 9:30 AM

Tentative Ruling

Plaintiff Noemi Garza’s request for a Preliminary Injunction is GRANTED.

Plaintiff to give notice.

Background

Plaintiff Noemi Garza (“Plaintiff”) and Defendant Marko Kosta (“Defendant”) were formerly in a dating relationship. The Complaint alleges that Defendant told Plaintiff he would purchase a car for her in his name and she could make payments. (Id., ¶ 17.) On or about November 3, 2019, Defendant purchased a 2020 Land Rover Evoque in his name with a down payment of $40,000 and financed the balance. (Id., ¶¶ 18-19.) On or about December 16, 2019, Plaintiff repaid Defendant for the down payment with a $40,000 check. (Id., ¶ 21.) Plaintiff made the payments on the VEHICLE except when Defendant was living in Plaintiff’s home or when Defendant prevented Plaintiff from making payments. (Id., ¶ 22.) When Defendant moved out of Plaintiff’s home, he left the VEHICLE with Plaintiff. (Id., ¶ 23.) On or about April 2021, Defendant changed the delivery address for the loan statements so that Plaintiff could no longer access them. (Id., ¶ 24.) Plaintiff continued making payments, but without the statements was unsure how much to pay. (Id., ¶ 25.) On or about March 1, 2021, Defendant told Plaintiff that he wanted “his” car back. (Id., ¶ 26.) Plaintiff insisted that she had made the down payment and other payments and that she was the true owner of the vehicle. (Id., ¶ 27.) On or about March 1, 2021, Defendant falsely reported the vehicle to the police as stolen. (Id., ¶ 28.) The bank has refused to accept payments from Plaintiff because the loan was not in her name. (Id., ¶ 29.) The Complaint was filed on October 30, 2023 seeks Monetary and Equitable Relief for Fraud, Breach of Trust, and Employment Law Violations.

On April 11, 2024, the Court granted Plaintiff’s ex parte application for a Temporary Restraining Order to allow her attorney, Charles L Larson, to communicate directly with Wells Fargo Bank and obtain information regarding the auto loan. The Court ordered Defendant Kosta to show cause why a preliminary injunction should not issue. (Minute Order, April 11, 2024.)

No opposition has been filed as of May 3, 2024.

Counsel for Defendants Kosta and SK8 Gym Corp. has filed a motion to be relieved as counsel. That motion is scheduled to be heard on September 17, 2024.

Legal Standard

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal. App. 4th 618, 623.)

In deciding whether or not to grant a preliminary injunction, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) However, the party seeking an injunction must demonstrate at least a reasonable probability of success on the merits. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74.) The party seeking the injunction bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show an inadequate remedy at law. (CCP § 526(a).)

Discussion

1. PROBABILITY OF SUCCESS ON THE MERITS

A preliminary injunction may not be issued unless it is “reasonably probable that the moving party will prevail on the merits.” (San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442; see Costa Mesa City Employees’ Association v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309 [no injunction may issue unless there is at least “some possibility” of success].)

On April 11, 2024, the Court found that Plaintiff had made a reasonable proof of harassment by alleging Defendant changed the address for the loan documents so Plaintiff could not continue to make payments. (Garza Decl., ¶¶ 12, 14.) Based upon Plaintiff’s down payment and payment history, as well as the lack of opposition by Defendant, the Court finds that it is probable that Plaintiff will succeed on the merits.

2. IMMEDIATE AND IRREPARABLE HARM

Under Code of Civil Procedure section 526, an injunction may be granted “[w]hen 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.” (Code Civ. Proc., § 526, subd. (a)(2).) The threat of irreparable harm must be imminent as opposed to a mere possibility of harm sometime in the future. “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.) Plaintiffs need not wait until they have suffered actual harm before applying for an injunction, however, they may seek injunctive relief against threatened infringement of their rights. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.)

Plaintiff contends that Defendant’s unwillingness to allow her access to the loan statements and the false police report has caused the bank to refuse to accept payments from Plaintiff. Plaintiff also contends that she had to garage the vehicle to prevent it from being repossessed due to Defendant's harassment tactics. (Complaint, ¶ 32.)

The Court finds Plaintiff has sufficiently alleged immediate and irreparable harm because she faces the threat of repossession of her car.

Accordingly, Plaintiff’s request for a Preliminary Injunction is GRANTED.

Undertaking

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Pro. § 529(a); City of South San Francisco v. Cypress Lawn Cemetery Ass’n. (1992) 11 Cal. App. 4th 916, 920.)

The Court orders Plaintiff to post an undertaking in the amount of $5,000.