Judge Melvin D. Sandvig, Case Number: 21CHCV00269, Date: 2023-09-11 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21CHCV00269, Date: 2023-09-11 Tentative Ruling

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Case Number: 21CHCV00269 Hearing Date: September 11, 2023 Dept: F47

Dept. F47

Date: 9/11/23

Case #21CHCV00269

PRELIMINARY INJUNCTION

Motion filed on 8/17/23.

MOVING PARTY: Defendants/Cross-Complainants Ryan Culver Ealing and Adriana Velasquez Vacca

RESPONDING PARTY: Plaintiffs/Cross-Defendants Kelly Condon and Caroline Condon

NOTICE: ok

RELIEF REQUESTED: A preliminary injunction enjoining Cross-Defendants Kelly Condon and Caroline Condon and their officers, agents, employees, representatives, and all persons acting in concert or participating with them, from engaging in or performing, directly or indirectly, any and all of the following acts:

1. Traversing in any manner onto, over or through 30-foot-wide strip of the easterly boundary of the EALING/VACCA’s real property located at 9505 Hierba Road, Agua Dulce 91390 (EALING/VACCA PROPERTY).

2. Performing any maintenance to, making any improvements to, or removing any items or improvements from any portion of the EALING/VACCA PROPERTY.

3. Removing, cutting or trimming in any manner the plants or trees on the EALING/VACCA PROPERTY or that belong to EALING/VACCA.

RULING: The request for a preliminary injunction is granted as set forth below.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a dispute between neighboring landowners regarding the existence, use, maintenance, and control of two easements.

Plaintiffs/Cross-Defendants Kelly Condon and Caroline Condon (Condons) are the owners of 35646 Dormer Road, Agua Dulce 91390 (Condon Property). The legal description of the Condon Property provides that it is comprised of “Parcel 3 of Map No. 8384." (Ealing/Vacca RJN, Ex.4, 5).

Directly south of the Condon Property and adjoining its southern boundary is 9323 Hierba Road, Agua Dulce, CA 91390 (9323 Hierba) which is Parcel 4 of Map No. 8384. (Ealing/Vacca RJN, Ex.6). Parcel Map 8384 shows a 30-foot-wide strip of the westerly boundary of the Condon Property and 9323 Hierba delineated as “Dormer (Private and Future Street) Road” for use by the owners of real property in Parcel Map 8384 (East Easement). (Ealing/Vacca RJN, Ex.7).

Defendants/Cross-Complainants Ryan Culver Ealing and Adriana Velasquez Vacca (Ealing/Vacca) are the owners of 9505 Hierba Road, Agua Dulce 91390 (Ealing/Vacca Property). (Ealing/Vacca RJN, Ex.8). The top northeasterly boundary of the Ealing/Vacca Property adjoins almost the entirety of the westerly boundary of the Condon Property. (Ealing/Vacca RJN, Ex.9). Per the legal description of the Ealing/Vacca Property on their 2019 deed, it is “Parcel 1 of Parcel Map No. 10382.” Parcel Map No. 10382 shows a 30-foot-wide strip of the easterly boundary of the Ealing/Vacca Property delineated as “Dormer (Private and Future Street) Road” for the owners of real property in Parcel Map 10382 (West Disputed Easement). (Ealing/Vacca RJN, Ex.10).

On 4/6/21, the Condons filed this action against Ealing/Vacca contending that Ealing/Vacca are

improperly interfering with the Condons’ and others’ use and maintenance of the East Easement and West Disputed Easement. The Condons’ original Complaint against Ealing/Vacca alleged causes of action for (1) Preliminary and Permanent Injunction, (2) Nuisance, (3) Abatement of Interference and Obstruction of Private/Public Easement and (4) Abatement of Private/Public Nuisance - Change in Grading of Adjoining Property Causing Water, Soil and Debris Deposits on Plaintiffs’ Property.

On 4/6/21, the Condons also filed a motion for preliminary injunction seeking an order enjoining Ealing/Vacca and their agents, employees and representatives during the pendency of this action: (1) from interfering and/or obstructing the Condons’ use of the road (west and east) easements on Dormer Road, Agua Dulce, CA 91390; (2) from permitting water, soil, debris, etc. to being diverted from the natural water course on Ealing/Vacca’s property to overflow and seep onto the Condons’ property; (3) from allowing railroad ties, tree trunks, rocks, dirt, mulch, steel stakes, No Trespassing signs, debris, etc. from being deposited on and blocking the Condons’ use of the easement on the Ealing/Vacca Property; and (4) from entering within 30 feet of the Condons, cease and desist from yelling, screaming, threatening, or attempting to intimidate the Condons, ordering them off easements, or exhibiting threatening gestures, while the Condons are using or performing maintenance and/or repair on easements.

After counsel for the parties met and conferred regarding Ealing/Vacca bringing a demurrer and motion to strike, on 7/1/21, the Condons filed a First Amended Complaint which contained causes of action for: (1) Interference With Easement, (2) Nuisance, (3) Abatement of Nuisance and (4) Declaratory Relief.

On 8/19/21, this Court granted the Condons’ request for a preliminary injunction, in part, and denied the request, in part. (See 8/19/21 Minute Order).

Ealing/Vacca claimed that after the issuance of the 8/19/21 order, the Condons began denuding the West Disputed Easement by, among other things, cutting trees, removing plants and rocks on both the West Disputed Easement and the East Easement. As a result, Ealing/Vacca sought a preliminary injunction enjoining the Condons and their employees, agents, tenants and persons acting with them or on their behalf from committing or performing the following described acts during the pendency of this action: (1) Performing any work including, but not limited to, (a) construction, modification of or removal of any improvements or encroachments, (b) excavation or (c) grading on Dormer Road, Agua Dulce, CA 91390 (west and east) without permits from Los Angeles County pursuant to Title 16, Division 1, chapter 16.06 of the Los Angeles County Code; (2) Performing any work including, but not limited to, (a) construction, modification of or removal of any improvements or encroachments, (b) excavation or (c) grading on Ealing/Vacca’s real property located at 9505 Hierba Road, Agua Dulce 91390; (3) Trimming, pruning, cutting, breaking, defacing, destroying, burning or removing any tree, hedge, plant, shrub or flower growing on Dormer Road, Agua Dulce, CA 91390 (west and east) without permits from Los Angeles County pursuant to Title 16, Division 5, chapter 16.76 of Los Angeles County Code; (4) Entering upon Ealing/Vacca’s real property located at 9505 Hierba Road, Agua Dulce, CA 91390; and (5) Trimming, pruning, cutting, breaking, defacing, destroying, burning or removing any tree, hedge, plant, shrub or flower growing on Ealing/Vacca’s real property located at 9505 Hierba Road, Agua Dulce, CA 91390.

On 10/7/21, Ealing/Vacca’s request for a preliminary injunction was denied without prejudice because they had not shown a likelihood of prevailing at trial on any claim made against the Condons as they had not yet filed a cross-complaint. (See 10/7/21 Minute Order).

On 3/30/22, this Court overruled Ealing/Vacca’s demurrer to the First Amended Complaint and granted their motion to strike with 20 days leave to amend. (See 3/20/22 Minute Order). On 5/20/22, Ealing/Vacca filed their answer to the First Amended Complaint and a cross-complaint against the Condons for: (1) Quiet Title, (2) Declaratory Relief, (3) Trespass and (4) Damages to Trees. On 7/12/22, pursuant to a stipulation between the parties, the Condons filed their operative Second Amended Complaint which contains causes of action for: (1) Interference With Easement, (2) Nuisance, (3) Abatement of Nuisance, (4) Declaratory Relief and (5) Negligence. On 8/17/22, Ealing/Vacca filed their answer to the Second Amended Complaint.

On 5/11/23, the Condons filed an ex parte application to continue the 7/17/23 trial date and all related pre-trial dates. Ealing/Vacca filed an opposition to the ex parte application wherein they indicated that they had offered to stipulate to the continuance if the Condons would agree to maintain the status quo and refrain from entering, removing items from, cutting down existing trees and plants, or making improvements to the Ealing/Vacca Property pending the resolution of this action. (See Opposition to Ex Parte Application filed 5/11/23). The Condons refused to so stipulate. On 5/12/23, the Court granted the ex parte application, vacated the trial date and scheduled a trial setting conference for 8/17/23 which has since been continued to 9/11/23. (See 5/12/23 Minute Order; 8/1/23 Notice of Continuance and Order).

On 8/17/23, Ealing/Vacca filed and served the instant motion seeking a preliminary injunction enjoining Cross-Defendants Kelly Condon and Caroline Condon and their officers, agents, employees, representatives, and all persons acting in concert or participating with them, from engaging in or performing, directly or indirectly, any and all of the following acts:

2. Performing any maintenance to, making any improvements to, or removing any items or improvements from any portion of the EALING/VACCA PROPERTY.

3. Removing, cutting or trimming in any manner the plants or trees on the EALING/VACCA PROPERTY or that belong to EALING/VACCA.

The Condons have opposed the motion and Ealing/Vacca have filed a reply to the opposition.

ANALYSIS

Ealing/Vacca’s Request for Judicial Notice (RJN) is granted.

Condons’ Request for Judicial Notice (RJN) is granted.

Condons’ objections to the declarations of Ryan Culver Ealing (numbers 1-10), Adriana Velasquez Vacca (numbers 1-9), Dickey Beer (numbers 1-3), Irmgard Quint (numbers 1-3), Cody Starr (numbers 1-13), George Starr (numbers 1-8), Shannon Starr (numbers 1-8) and Tiffany Hyatt Krog (number 1) are overruled.

Ealing/Vacca’s objections to the declarations of Kelly Condon (numbers 1-23) and Caroline Condon (numbers 1-23) are overruled.

As noted in the Court’s 8/19/21 ruling on the Condons’ request for a preliminary injunction, the purpose of a preliminary injunction is to preserve the status quo pending a trial on the merits. Continental Baking Co. (1968) 68 C2d 512, 528; SB Liberty, LLC (2013) 217 CA4th 272, 280.

In determining whether to issue a preliminary injunction, the Court must consider two interrelated factors: (1) the likelihood that the plaintiff/cross-complainant will prevail on the merits at trial and (2) the interim harm that the plaintiff/cross-complainant would likely suffer if the preliminary injunction were denied as compared to the harm the defendant/cross-defendant would be likely to suffer if the preliminary injunction were issued. Midway Venture LLC (2021) 60 CA5th 58, 76; Smith (2010) 182 CA4th 729, 749; Brown (2019) 34 CA5th 915, 925; Amgen Inc. (2020) 47 CA5th 716, 731. The greater the plaintiff’s/cross-complainant’s showing on one factor, the less that must be shown on the other to support the issuance of a preliminary injunction. Butt (1992) 4 C4th 668, 678; King (1987) 43 C3d 1217, 1226-1228.

A preliminary injunction may be issued when it appears by the complaint/cross-complaint that the plaintiff/cross-complainant is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited time or perpetually. CCP 526(a)(1).

With regard to the first factor, Ealing/Vacca have made a sufficient showing that they have a likelihood of prevailing on their claims. The evidence indicates that the Condons do not have an express grant of easement over the West Disputed Easement. (Ealing/Vacca RJN, Ex.7, 8). It also appears that Ealing/Vacca may ultimately be able to establish that the Condons do not have implied easement rights over the West Disputed Easement because they do not own land in Parcel Map 10382 wherein owners of land in the parcel were given such rights. (Ealing/Vacca RJN, Ex.10; Ealing Decl., Ex.5). The evidence also indicates that the Condons do not have an easement by necessity over the West Disputed Easement as they have been able to access their property for decades without the West Disputed Easement being fully accessible for vehicle travel. (See Ryan Culver Ealing Decl.; Adriana Velasquez Vacca Decl.; Dickey Beer Decl.; Irmgard Quint Decl.; Cody Starr Decl.; George Starr Decl.; Shannon Starr Decl.) Similarly, the majority of evidence currently before the Court indicates that the Condons have not met the requirements to establish prescriptive easement rights over the West Disputed Easement. Id.

With regard to the second factor, the Court must exercise its discretion in favor of the party most likely to be injured. See Robbins (1985) 38 C3d 199, 205. Irreparable harm (i.e., inadequate legal remedy) is one of the traditional considerations for the issuance of a preliminary injunction. CCP 526(a)(2). The threat of irreparable harm must be imminent and not a mere possibility of harm sometime in the future. See Korean Philadelphia Presbyterian Church (2000) 77 CA4th 1069, 1084. However, plaintiffs/cross-complainants need not wait until they have suffered actual harm and may seek injunctive relief against threatened infringement of their rights. Maria P. (1987) 43 C3d 1281, 1292; Costa Mesa City Employees’ Assn. (2012) 209 CA4th 298, 305-306.

Here, the majority of conduct/evidence relied on by Ealing/Vacca to support their claim that they will suffer irreparable injury if the preliminary injunction requested is not granted occurred in 2021. (See Ealing Decl.; Vacca Decl.). The only recent conduct complained of by Ealing/Vacca allegedly occurred on 5/8/23 when Ealing claims to have seen a stranger looking at his pepper tree and informing him that the Condons had hired the stranger to provide them with a quote for cutting down trees on the Ealing/Vacca Property. (See Ealing Decl. ¶11). No other information regarding this encounter is provided (i.e., the name of and/or contact information for the stranger; a declaration from the stranger).

Similarly, the Condons have failed to establish that they will suffer irreparable injury if the status quo is maintained during the pendency of this action as Ealing/Vacca previously requested they stipulate to when seeking a trial continuance. The Condons have not shown that their, or any of their service providers’ or emergency vehicles’, ingress and/or egress to the Condon Property will be impacted by maintaining the status quo. However, the Court notes that Ealing/Vacca’s prior offer of a stipulation excepted the portion of the Ealing/Vacca Property upon which there currently exists Hierba Road and the portion of the Ealing/Vacca Property designated on the survey as “Garbage Truck Turn Around Area.”

Based on the foregoing and in order to maintain the status quo during the pendency of this action, the Court finds that a preliminary injunction is warranted.

CONCLUSION

The Court enjoins Cross-Defendants Kelly Condon and Caroline Condon and their officers, agents, employees, representatives, and all persons acting in concert or participating with them, from engaging in or performing, directly or indirectly, any and all of the following acts:

1. Traversing in any manner onto, over or through 30 foot wide strip of the easterly boundary of the EALING/VACCA’s real property located at 9505 Hierba Road, Agua Dulce 91390 (EALING/VACCA PROPERTY), except for (a) the portion of the Ealing/Vacca Property upon which there currently exists Hierba Road as designated on the survey referred to in the prior stipulation proposed by Ealing/Vacca and (b) the portion of the Ealing/Vacca Property designated on the same survey as “Garbage Truck Turn Around Area.” (underlined portion is in addition to the language in proposed Order submitted by Ealing/Vacca).

2. Performing any maintenance to, making any improvements to, or removing any items or improvements from any portion of the EALING/VACCA PROPERTY.

3. Removing, cutting or trimming in any manner the plants or trees on the EALING/VACCA PROPERTY or that belong to EALING/VACCA.

If a preliminary injunction is granted, the court must require an undertaking or allow a cash deposit in lieu thereof. CCP 529; CCP 995.710; Stevenson (2020) 55 CA5th 545, 555. The bond is to cover any damages to the defendant/cross-defendant caused by the issuance of the injunction, if it is ultimately determined that the plaintiff/cross-complainant was not entitled to the injunction. CCP 529. Here, neither the Condons nor Ealing/Vacca address the issue of an undertaking. Based on the fact that the relief granted is intended only to maintain the status quo during the pendency of this action, the Court finds that only a minimal undertaking is warranted. As such, Ealing/Vacca are ordered to post an undertaking in the amount of $5,000.00.