Judge: Mark A. Young, Case: 22SMCV01389, Date: 2022-10-26 Tentative Ruling
Case Number: 22SMCV01389 Hearing Date: October 26, 2022 Dept: M
CASE NO.: 22SMCV01389
MOTION: OSC Re: Preliminary Injunction
HEARING DATE: 10/26/2022
Legal Standard
Under Code of Civil Procedure section 526(a), a preliminary injunction may be issued 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.
In determining whether to issue a preliminary injunction, the trial court considers two factors: 1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)); and 2) a balancing of the “irreparable harm” that the moving party is likely to sustain if the injunction is denied compared to the harm that the non-moving party is likely to suffer if the court grants a preliminary injunction. (CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.) “A preliminary injunction is an interim remedy designed to maintain the status quo pending a decision on the merits.” (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.) “[A] cause of action must exist before injunctive relief may be granted.” (Id., citing Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168).)
The court’s ruling on a preliminary injunction is not an adjudication of the merits, is not a trial, and does not require a statement of decision. (Cohen v. Board of Supervisors, (1985) 40 Cal.3d 277, 286.) The judge is not required to state her reasons for granting or denying a preliminary injunction; a cursory statement is sufficient. (City of Los Altos v. Barnes, (1992) 3 Cal.App.4th 1193, 1198.) A proposed order must be presented to the judge for signature, with any required undertaking, within one day after the preliminary injunction is granted, or other time ordered by the judge. (CRC 3.1150(f).)
Analysis
Plaintiff seeks a preliminary injunction, “enjoining Defendant from selling, encumbering, bailing, pawning, hypothecating, pledging as collateral, gifting, or transferring in any manner ownership, possession or custody of the diamond conditionally given to Joseph by Susskind, and which is the subject of this lawsuit, pending final resolution of this action.”
Plaintiff explains the basis of the cause of action. Plaintiff is the mother of Joshua Leibow. Joshua Leibow “religiously married” Defendant under the Jewish faith on June 20, 2011. (Susskind Decl., ¶¶ 2-3.) They cohabited and raised a family together until their separation on November 20, 2021. On July 12, 2022, they were divorced under Jewish law. At the time of the engagement, Plaintiff gave a diamond to Defendant on the express condition that the diamond would have to be returned to Plaintiff should they divorce. (Id. ¶ 4.) The diamond has immense sentimental value to Plaintiff. (Id., ¶¶ 5-7.) Plaintiff’s mother gave her the diamond when her mother died in 1986 at age 59 from pancreatic cancer. Following the divorce, Plaintiff demanded the diamond back, but Defendant refused and stated that she intended to sell the diamond. (Id., ¶ 8.)
Plaintiff does not attempt to show how these facts support any cause of action under the complaint. Plaintiff does not brief the court on its causes of action for “Equitable Return of Plaintiff’s Mother’s Wedding Ring”, unjust enrichment, and money had and received. Plaintiff fails to cite any legal authority in support of the causes of action. In fact, unjust enrichment is not a cause of action. (Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.) The court is likewise doubtful that “equitable return” of property is a recognized cause of action. Plaintiff fails to plead a cause of action of money had and received based on Defendant’s retaining of a gift. Plaintiff’s pleading does not give any sum certain to Defendant. (See Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [a cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff].)
Plaintiff asserts that this was a “conditional gift” and is thus entitled to claim and delivery. However, a gift, other than a gift in view of impending death, cannot be revoked by the giver. (Civ. Code §1148.) Thus, Plaintiff has failed to meet her burden to demonstrate that she has any reasonable probability that she will be successful on the merits.
Plaintiff also claims that the “sentimental value” of the diamond means that the Diamond's market value cannot possibly compensate her. Plaintiff cites no authority that this is the type of “irreparable” harm that supports an injunction, or that it is even legally compensable harm.
Accordingly, the motion is DENIED.