Judge: Matthew C. Braner, Case: 37-2023-00029890-CU-OR-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 15, 2023

09/15/2023  02:30:00 PM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2023-00029890-CU-OR-CTL LORRAINE S MORRISON TRUSTEES OF THE GLENN L DRIGGERS AND LORRAINE S MORRISON FAMILY TRUST DATED 08/08/2014 VS WEYERMAN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs Glenn Driggers and Lorraine Morrison's motion for preliminary injunction is DENIED.

Plaintiff's request for judicial notice is granted.

All evidentiary objections are overruled.

'In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.' (Butt v. State of California (1992) 4 Cal.4th 668, 677-678.) 'The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.' (Id. at p. 678.) The moving party bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm before a final judgment can be entered. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Plaintiffs seek a preliminary injunction that will enable them to access the portion of Defendants' property over which the parties dispute the scope and propriety of an easement granted exclusively for horticulture and animal husbandry use, in order to maintain the 'existing trees, vegetation, hardscape, and irrigation within' the disputed area, while preventing Defendants from accessing the portion of Plaintiffs' property over which the parties dispute the scope and existence of the same type of easement.

Plaintiffs generally contend they and prior owners have used the easement on Defendants' property without issue for many years (possibly decades), whereas neither Defendants nor prior owners have ever used the easement on Plaintiffs' property. Essentially, Plaintiffs argue that the easement on their property favoring Defendants has been extinguished based on theories of estoppel, adverse possession, and/or assent pursuant to Civil Code section 811(3).

Based on the legal authority and analysis and evidence in the record, Plaintiffs have not met their burden on this application.

First, it is readily apparent from a review of the briefing and evidence submitted that a litany of disputed facts involving witness credibility need to be resolved by a factfinder. Second, and more importantly, Plaintiffs have not shown a sufficient degree of irreparable harm if a preliminary injunction is not granted.

Plaintiffs' sole argument appears to be that unless they are granted an injunction, the plants and tree planted in the planter box will not be watered or otherwise maintained, leading to their destruction. But otherwise, much of the materials listed in their injunction proposal can easily be moved to their side of Calendar No.: Event ID:  TENTATIVE RULINGS

3012435  73 CASE NUMBER: CASE TITLE:  LORRAINE S MORRISON TRUSTEES OF THE GLENN L  37-2023-00029890-CU-OR-CTL the property line to ensure access for maintenance pending a final resolution of the dispute at trial. As for the hardscaped plants in the planter box on Defendants' side of the property line, which it also appears may be disputed as to ownership rights, Plaintiffs have not shown any particular or special attachment to these specific plants whereby their destruction could not easily be remedied monetarily. In any case, a more limited order can easily be fashioned to ensure the plants are adequately maintained, either by Defendants or by Plaintiffs' tenants.

The court is inclined to instead issue an order along the lines proposed by Defendants that will generally keep the parties to their own side of the property line until the dispute is resolved at trial. The court will hear from the parties regarding this issue.

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