Judge Mary H. Strobel, Case 22STCV21528 2022-08-18 Tentative Ruling

Plaintiff Rona Gioia (“Plaintiff”) moves for a preliminary injunction ordering Defendants Frank C. Gioia (“Frank”)^{^[1]} and Monica Gioia (“Monica”) (collectively “Defendants”) to: (1) not remove or damage any of Plaintiff's personal property located at 2080 Clover Drive, Monterey Park, California 91755 (the “Clover Property”); and (2) replace and/or return Plaintiff's personal property taken from the Clover Property by Defendants.

On July 1, 2022, Plaintiff filed her initial complaint against Frank and Does 1 to 5.

On July 12, 2022, Plaintiff filed her operative first amended complaint (“1AC”) against Defendants and Does 1 to 5. The 1AC contains eight causes of action: (1) declaratory relief; (2) fraud; (3) unjust enrichment; (4) constructive trust; (5) wrongful eviction; (6) intentional infliction of emotional distress; (7) breach of contract; and (8) common counts. The 1AC is not signed, even though there is a place for a signature by Plaintiff’s counsel. (1AC 13:2-4.)

The pertinent allegations in the 1AC are as follows. The parties are related to each other: Plaintiff is Frank’s mother and Defendants are married to each other. (1AC ¶¶ 1, 3.) This action generally involves the Weinstock Living Trust for the Benefit of Charles Weinstock and Lillian Weinstock and Their Issue Under Instrument Dated February 7, 1985 (the “Weinstock Trust”), which was created by Plaintiff’s parents and made Plaintiff the Successor Trustee and Plaintiff and her sister beneficiaries. (Id. ¶¶ 7-8.) The Weinstock Trust includes the Clover Property. (Id. ¶ 9.) During Plaintiff’s divorce, she transferred her interest in the Clover Property to Frank and Frank purchased Rona’s sister’s interest in the Clover Property using a loan. (Id. ¶¶ 10-15.) Frank coerced Plaintiff to live with Defendants, and Plaintiff agreed and moved into the Clover Property with them. (Id. ¶¶ 18-19.) While the parties lived with each other and Defendants had a fight, Frank asked Plaintiff to leave for a few days, but refused to allow Plaintiff to return home, even changing the locks and doing so without an ejectment or unlawful detainer action. (Id. ¶¶ 22-24, 26.) Defendants stored all of Plaintiff’s belongings located at the Clover Property in a storage facility and have requested Plaintiff to remove all items from a storage shed located at the Clover Property. (Id. ¶ 27.)

On July 20, 2022, Plaintiff served an ex parte application for a temporary restraining order (“TRO”) and order to show cause (“OSC”) re: preliminary injunction on Defendants. Plaintiff sought

On July 21, 2022, the court heard argument on Plaintiff’s ex parte application for a TRO and OSC re: preliminary injunction. The court granted the request for an order restraining Defendants form removing or damaging any of Plaintiff’s property located at the Clover Property.

The court granted an OSC re: why the court should not issue a preliminary injunction ordering Defendants to (1) not remove or damage any of Plaintiff's personal property located at the Clover Property; and (2) replace and/or return Plaintiff's personal property taken from the Clover Property by Defendants.

On August 11, 2022, Defendants filed an opposition to the OSC (the “Oppo.”).

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).)

Plaintiff’s application for a preliminary injunction appears to be based on her constructive trust and wrongful eviction causes of action:

Here, order restraining the defendant from removing RONA personal property from the shed, and ordering them to replace items taken from the Clover Property must be granted because, the Amended Complaint alleges the facts above and has causes of action for Constructive Trust in which FRANK holds in trust RONA’s interest in the Clover Property, and a cause of action for Wrongful Eviction, in which Defendants use extra judicial force to wrongful evict RONA from her home.

(Ex parte 7:1-6.) Plaintiff’s theory is that Defendants do not have any ownership rights to Plaintiff’s property, regardless of whether it was located at the Clover Property or in a storage. Though not stated clearly, Plaintiff seems to argue two alternative theories: (1) Plaintiff owns the Clover Property with Frank merely holding her interest in the Clover Property in a constructive trust; and/or (2) Plaintiff as a tenant in common with Defendants was wrongfully evicted from the Clover Property and she retains ownership in her personal items. Because Plaintiff’s request for injunction is premised on these theories, the court does not need to analyze whether all causes of action in the First Amended Complaint are well-pled or supported.

Defendants argue that the 1AC does not contain any allegations as it relates to the personal property that is the focus of this application. That claim is inaccurate. (1AC ¶ 64 [“In or about March 2022, Defendants and each of the wrongfully evicted RONA, by telling her that she could not return to the Clover Property, by changing the locks and by removing her personal belongings from the Clover Property and putting them in storage without RONA’s consent.”].)

Also as a threshold matter, Defendants argue that an independent cause of action for a constructive trust does not exist. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023 at fn. 3.) Whether or not that is an accurate statement of law, the 1AC states other causes of actions, which could theoretically provide a basis to support a claim for constructive trust or injunctive relief. “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” (Civ. Code § 2224.) “Fraud or intentional misrepresentation is not required for a constructive trust to be imposed.¿A breach of contract or intentional interference with contract can make the offending party a constructive trustee.” (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 878.) “In California, as in most jurisdictions, an action in equity to establish a constructive trust does not depend on the absence of an adequate legal remedy.¿A constructive trust is [t]he usual theory upon which a plaintiff recovers wrongfully acquired assets.” (Heckmann v. Ahmanson (1985) 168 Cal.App.3d 119, 134-136.)

Regarding her claim for ownership based on breach of contract or fraud, Plaintiff states that she made an oral agreement whereby she transferred her own interest in the Clover Property to Frank (Rona Decl. ¶ 11 [“I transferred the Clover Property to FRANK to hold my interest in this property. FRANK acknowledged and agreed that he would hold Clover Property for me.”]) and Frank purchased the remaining half interest of the Clover Property from Plaintiff’s sister (id. ¶¶ 12-13.) Plaintiff claims Frank breached this agreement by claiming ownership to the entire property. While short on detail or supporting documentation, this declaration supports a claim for breach of contract or fraud. Frank denies making this agreement, instead claiming that he had agreed to buy the Clover Property in exchange for $150,000, which financing he secured by a loan. (Frank Decl. ¶¶ 4-7.) Frank’s declaration is similarly lacking in detail or documentary support. Based on this evidence, the court finds Plaintiff has shown at least some probability of success on the merits of her claim for breach of contract or fraud with respect to ownership of the property.

Further, it is undisputed that Plaintiff did in fact live at the Clover Property. Defendants only dispute the permanence of that residency, claiming that Plaintiff did so temporarily without paying rent. (Frank Decl. ¶ 8 [“When Rona’s partner died, she demanded to temporarily live with the us. She would not be a tenant and would not pay rent. Rona stated she just needed a little time to get back on her feet. We were reluctant because Rona had been combative previously, but being that she was family mother, we cautiously accepted.”]; see also id. ¶¶ 10-12.) It is also undisputed that Plaintiff left behind certain property in the shed. (Id. ¶ 13 [“Rona is in possession of all the items she had left on the Subject Property except for those in the shed. . . . .”].) Additionally, Plaintiff declares that Defendants put some of her other personal property located at the Clover Property in a storage facility. (Rona Decl. ¶¶ 32-33.) Defendants do not dispute that this occurred. Therefore, at minimum, although not expressly alleged, Plaintiff has a claim for conversion that is sufficient to support an application for this preliminary injunction.

The court finds that Plaintiff shows a reasonable and likelihood of success on her claim that Defendants are depriving her of her personal property rights, regardless of whether Frank is the sole owner of the Clover Property.

For the second factor, the court must consider “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.” (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) “Irreparable harm” generally means that the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award. (See Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

Plaintiff does not discuss this element in much detail, but claims there is a lifetime of valued items that would cause her harm if she no longer had them. (Rona Decl. ¶ 36 [“I have a lifetime of memories and collectibles in the shed and storage place FRANK and MONICA took my personal things to. To lose these items would cause irreparable unnecessary harm.”].)

Defendants do not address this element. Defendants have not identified any harm they would suffer by continuing to store Plaintiff’s belongings.

Plaintiff has shown some likelihood of success on the merits of her claim and that the balance of harms favors her. While neither showing is particularly strong, it is sufficient to support issuance of the Preliminary Injunction.

Plaintiff’s request for an injunction contains two separate requests: (1) not removing or damaging personal property located at the Property; and (2) replacing and/or returning Plaintiff's personal property taken from the Clover Property by Defendants.

“The general rule is that an injunction is prohibitory if it requires a person¿to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties. [Citations.] The substance of the injunction, not the form, determines whether it is mandatory or prohibitory.” (Davenport v. Blue Cross of Calif. (1997) 52 Cal.App.4th 435, 448.) “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Ass’n v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) “A preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.” (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295.)

The first request involves a prohibitory injunction, i.e., prohibiting Defendants form doing anything to damage Plaintiff’s personal property. The second request involves a mandatory injunction, i.e., requiring Defendants to return property to the Clover Property or replacing any property that was damaged or destroyed. Plaintiff’s showing is insufficient to support a mandatory injunction requiring Defendants to restore or replace property located at the storage facility. To the extent Plaintiff requests return of the property located at the storage facility, that request is denied. However, for the same reasons discussed above, Plaintiff’s showing is sufficient to enjoin Defendants from removing or damaging her personal property, wherever located.

As to property remaining in the storage facility, neither party has addressed the relative harm associated with storage fees. Plaintiff filed a supplemental declaration on August 4, 2022 suggesting she may shortly be able to store all of her property at a different location. (Rona Decl., filed August 4, 2022, ¶¶ 5-7.) The parties should be prepared to discuss at the hearing the issue of storage costs associated with the off-site facility.

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 CCP § 529(a); City of South San Francisco v. Cypress Lawn Cemetery Ass’n. (1992) 11 Cal.App.4th 916, 920.)

An undertaking is mandatory. Neither party addresses the appropriate amount of undertaking in their briefs. Subject to argument at the hearing including the monetary value of the personal property and the cost for the storage facility, the court finds that an undertaking of $1,000.00 is appropriate.

The application for a preliminary injunction is GRANTED IN PART subject to the posting of a $1,000.00 undertaking. Defendants are ordered not to remove or damage any of Plaintiff's personal property located at the Clover Property in the storage shed or the property removed from the Clover Property and placed in a storage facility. Defendants are not ordered to return any personal property to the Clover Property.

[1] “The parties and relevant individuals share a last name. For clarity, convenience, and in order to avoid confusion, we refer to them by their first names and intend no disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)