Judge: Mark H. Epstein, Case: 24SMCV01938, Date: 2024-05-02 Tentative Ruling

Case Number: 24SMCV01938    Hearing Date: May 2, 2024    Dept: I

The court is inclined to GRANT the TRO and issue an OSC re: Preliminary Injunction and set a hearing and briefing schedule.

For a TRO, the court considers the traditional preliminary injunction factors—likelihood of success and balance of hardships.  It also considers whether the harm is irreparable and also the need to maintain the status quo ante.  The latter two are more important in the TRO context than the PI context because of the TRO’s short duration and the fact that the opposing party does not have a full opportunity to be heard.

Here, the issue is about a lease.  Plaintiff is the tenant and defendant is the landlord.  There is a lease that has expired, but it was subject to extensions options in the tenant’s favor.  The tenant here timely exercised the first of those options.  If exercised, the rent during the extension is to be determined by an appraisal panel with each side picking one appraiser and those appraisers picking a third.  The rent is the average of each panel-member’s appraised amount.  The rent for the first year of the extension is subject to a collar.

When plaintiff exercised its option, it suggested that the parties either agree to a rental amount or that they begin the appraisal process.  The landlord delayed responding.  Eventually, though (last November) the landlord wrote with an appraised amount (and an appraisal) that plaintiff believes is unreasonably high.  Be that as it may, the rent issue will be worked out either by the panel or, apparently, by way of an arbitration, in which the landlord has agreed to participate (in its opposition).  In the interim, though, plaintiff contends that the landlord is acting inappropriately as to that most precious of LA commodities: parking.

The lease provides that plaintiff will have five spots in the lot.  However, the lot is configured such that there are 5 tandem spots (two cars each) and two single spots.  From the start of the lease until last month, the landlord had a valet on site so that the tandem spots could be used.  The cost was shared pursuant to the lease.  In April, though, the landlord said that the valet would be removed, which makes the 5 tandem spots unusable in that the car in the inner spot could be blocked and, absent a valet, there would be no way for that car to leave.  Plaintiff responded by hiring its own valet, but the landlord said that plaintiff’s valet was acting inappropriately and would leave or be subject to trespass.  Defendant initially agreed to restore the prior valet, but that entity was present for less than a day.  Now, according to plaintiff, defendant has put pylons on many of the spots.

Plaintiff seeks a TRO to restore the status quo as it was before the valet was removed.  Plaintiff notes that parking is crucial for its business and that the landlord knows as much.

Turning, then, to the test.  The court believes that plaintiff has made out a strong showing of a likelihood of success on the merits.  At first blush, this certainly looks retaliatory.  As to the balance of hardships, plaintiff notes that without parking its business will lose customers.  The court does not know plaintiff’s financials, but it could well be that absent immediate relief the impact on the business will not be temporary.  Clients go elsewhere to get their hair done, and once gone, they might never come back.  From the defense, the hardship is only the shared cost of the valet, if that.  Irreparable harm would depend on whether the business is lost for a few weeks or longer.  For TRO purposes, the evidence is not all that strong.  But it could well be that the loss is not just for a couple of weeks.  And finally, the status quo ante is clear: the valet was there.  The landlord argues that plaintiff has other options.  He notes there is metered parking on the street and a lot nearby.  The landlord states that plaintiff can hire a valet so long as the valet is not on the property.  The court understands that, but the lease itself provides for five spots.  The landlord cannot deprive plaintiff of five spots.  The tandem spots will not suffice, at least they cannot count as two.  Without a person who can move cars on the premises (which the landlord will not allow), the spot cannot feasibly be used for two cars.

Having said all of that, plaintiff is not entitled to more than 5 spots.  Even though (especially on the weekend) defendant might have no need for parking (or more than 1 spot), that is a question of niceness, not a question of contractual rights.  Thus, defendant will need to allow the five spots, but it need not allow for more.  It can be done in any of the following ways: (1) prohibiting the landlord from interfering with the plaintiff’s hiring of a valet, with the costs allocation to be determined later but plaintiff fronting the costs; (2) having the landlord provide the valet; or (3) prohibiting the landlord from stopping the plaintiff from converting three of the tandem spots to single spots (by obstructing the inner spot) and allowing plaintiff to use the two single spots and prohibiting the landlord from plaintiff’s exclusive use of those five spots (perhaps by plaintiff putting up appropriate signage), or having plaintiff convert one or two other tandem spots to single spots but not use the like number of single spots.  The court is open to other suggestions.

The TRO will last until the preliminary injunction hearing, which will be set at today’s hearing.  There will be no bond required for the TRO, although a bond may be required for any PI.

The court strongly urges the parties to work this out.