Judge: Mark H. Epstein, Case: 22STCV30200, Date: 2023-03-07 Tentative Ruling

Case Number: 22STCV30200    Hearing Date: March 7, 2023    Dept: R

The court has before it an unopposed motion for a preliminary injunction to stop plaintiffs’ neighbors from allowing their adult son, Arturo, to live at their home.  (The court uses Arturo’s first name to avoid confusion with other defendants, who share the same surname.  No disrespect is intended.)  Plaintiffs have demonstrated that Arturo is a danger.  In the past, he trespassed with a bat and machete and lighter fluid and set plaintiffs’ home on fire.  He has committed other crimes as well and there has been an unrebutted showing that he is dangerous.  He was arrested and charged, but apparently the criminal court determined that he is not competent to stand trial, although the district attorney purportedly believes that Arturo is still a danger.  He was confined under the LPS Act for a while, but he has, or is about to be, released pursuant to that act.  Plaintiffs believe that Arturo will be allowed to live on defendants’ property in an separate dwelling unit absent an order from this court.  Plaintiffs therefore seek an order that he not live at his parents’ home because he is a nuisance.

The standard for resolving preliminary injunction motions is well settled.  “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.  (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 286.) Weighing these factors lies within the broad discretion of the superior court.  (Ibid.)”  (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749, parallel citations and further parenthetical omitted.)  The court also looks to preserve the status quo ante.

The court’s problem is that a person is not a nuisance in the legal sense.  A person can be a danger, but not a nuisance.  Or at least plaintiffs have provided no authority that nuisance law applies to a human as opposed to a condition or activity.  Given that, the court does not believe it can issue the injunction, which, it appears, is what the judge presiding over the criminal matter believed as well.  Nuisance is defined in Civil Code section 3493 as “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway.”  (Civ. Code, § 3479.)  A human person does not meet this definition.  To the extent plaintiffs are arguing that the fires Arturo sets are the nuisance (which is what is alleged in the complaint), the court is not sure that gets them where they want to go.  It could well be that the court can enjoin Arturo from starting fires, and if the fire were long term or permanent they would be a nuisance.  But the fact that Arturo started a fire does not make him a nuisance under the statute. 

That said, plaintiffs are not without remedies.  For example, plaintiffs can seek a civil or criminal restraining order.  The violation of such an order is itself a crime and can be punished as such.  Similarly, given Arturo’s impending release, it could be that the criminal courts will take a second look at Arturo’s competence to stand trial.  The court also notes that Arturo’s parents, assuming Arturo is in fact emancipated, have no legal obligation to house him if he is a danger to others.  While the court will not opine about future events, the court believes that plaintiffs could well seek to hold Arturo’s parents liable for any harm that Arturo causes or that they allow him to cause given their knowledge of the situation.  (That does not mean that liability will in fact extend that far; it is just to say that plaintiff could well seek to hold defendants liable and accountable.  The court would obviously need to consider any such effort on its merits after giving defendants a full opportunity to be heard.)  The court also notes that, boiled to its essentials, plaintiff is asking the court to order Arturo to live elsewhere.  That is not a prohibitory injunction; it is a mandatory one.  The standards for such an injunction are even more rigorous and the court does not think they are met.

In short, the court has sympathy for plaintiffs’ position.  They have made a compelling case that Arturo is dangerous and that their fear is real and justified.  No one has filed any opposition to the motion, which suggests that there is really no opposition that can be made as to the factual showing.  However, the court sees no possibility that plaintiffs will prevail on their nuisance claim to the extent it is based on Arturo being the nuisance.  Given that, the court need not balance the hardships, as even if the hardships tilt decidedly in plaintiffs’ favor, they must still have some chance of success on the merits.

Normally, the court might consider issuing the preliminary injunction simply because it is unopposed.  But a lack of opposition is not consent, and the court will not issue an injunction about which the court has doubts on that basis.  If plaintiffs believe that there is a real threat (and the court can certainly see how they would), the proper court would be one that could issue a civil or criminal restraining order.

To the extent that plaintiffs are seeking an order barring Arturo from trespassing on plaintiffs’ property, that would be a different story, and the court might be prepared to issue a different order that is more limited in scope.  Similarly, if plaintiffs seek an injunction prohibiting Arturo from engaging in other activities (like starting a fire), the court would consider issue an order along those lines as well.  The injunction sought, however, is one that is beyond the court’s power to give.