Judge: Maurice A. Leiter, Case: 21STCV28185, Date: 2022-12-14 Tentative Ruling

Case Number: 21STCV28185    Hearing Date: December 14, 2022    Dept: 54

Hearing Date: December 14, 2022

Department 54, Judge Maurice Leiter

Motion for Preliminary Injunction

Moving Party: Plaintiff Martina A. Silas

Responding Party: Defendants The Fox Law Corporation and Steven

T/R:    PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION IS DENIED.

            PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

On February 24, 2022, Plaintiff Martina Silas filed the operative first amended complaint against Defendants The Fox Law Corporation, Inc., Steven Robert Fox and Barry Roger Wegman, asserting causes of action for fraudulent transfer, fraud, conversion, and money had and received. Plaintiff alleges she obtained a judgment and assignment order against third-party James Arden for approximately $300,000.00 in 2011. At some point, Arden filed for bankruptcy. Plaintiff alleges that Arden paid Defendants, his purported attorneys in the bankruptcy proceedings, with money that belonged to Plaintiff per the assignment order.

ANALYSIS

In deciding whether to issue a preliminary injunction, the court looks to two factors: “(1) the likelihood that the Petitioner 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.)

Plaintiff moves for a preliminary injunction ordering Defendants to (1) deposit an undertaking twice the amount Arden paid Defendants; (2) deposit the amount Arden paid Defendants plus 10% interest into a trust account; (3) immediately release the amount in trust if Plaintiff prevails at trial; and (4) provide a full accounting of all funds within 10 days of ruling on this motion.

Plaintiff argues she will be irreparably harmed if this injunction is not granted because she is 67 years old and in ill health. Plaintiff represents that she has been trying to collect this money for more than a decade and cannot spend more years trying to collect from Defendants. This is insufficient to show irreparable harm. Plaintiff’s age and past efforts to collect from the debtor do not justify an order requiring that Defendants deposit over $200,000.00 into a trust account before trial. If Plaintiff believes her age and health entitle her to a preferential trial, she may file a motion for trial preference.

Plaintiff contends that Civil Code § 3447 and Professional Rule 1.15 entitle her to an undertaking. Civil Code § 3447 allows a transferee in a voidable transfer action to post an undertaking and dispose of or encumber the underlying properly. This does not mandate an undertaking here. Professional Rule 1.15 requires attorneys to place money received for the benefit of a client or third person into a trust account. This rule does not state that attorneys must place their own money into a trust account when a third person sues the attorney for money damages.

            Plaintiff has failed to establish irreparable harm. The Court need not address the probability of success on the merits. Plaintiff’s motion is DENIED.