Judge Melvin D. Sandvig, Case Number: 22CHCV01116, Date: 2023-11-16 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV01116, Date: 2023-11-16 Tentative Ruling

Case Number: 22CHCV01116 Hearing Date: November 16, 2023 Dept: F47

Dept. F47

Date: 11/16/23 TRIAL DATE: 10/21/24

Case #22CHCV01116

PRELIMINARY INJUNCTION

Motion filed on 10/19/23.

MOVING PARTY: Plaintiffs Anderson Boyce and Rosie Boyce

RESPONDING PARTY: Defendants Jessica Skinfield and Francesca Vargas

RELIEF REQUESTED: A preliminary injunction to abate a private nuisance as against Defendants Jessica Skinfield and Francesca Vargas enjoining and requiring the Defendants to abate the private nuisance and/or perform any and all actions necessary to assess, investigate, remove, remediate, monitor, treat, or cleanup the resulting damages from the nuisance.

RULING: The request for a preliminary injunction is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a dispute between neighboring residential landowners/occupiers. Plaintiffs Anderson Boyce and Rosie Boyce (collectively, Plaintiffs) own and occupy real property located at 29402 Plymouth Road, Castaic, California 91384 (Plaintiffs’ Property). (A. Boyce Decl. ¶2). Defendants Jessica Skinfield and Francesca Vargas (collectively, Defendants) currently own, lease, occupy and/or control real property located at 29403 Fenway Court, Castaic, California 91384 (Defendants’ Property). (A. Boyce Decl. ¶3). Defendants Jason McCune and Andrea McCune (the McCunes) owned, leased, occupied and/or controlled the Defendants’ Property prior to the Defendants. (Complaint ¶5).

Plaintiffs’ Property and Defendants’ Property are situated so that the properties’ backyards are directly adjacent and separated by two adjoining fences. (A. Boyce Decl. ¶5). There are five eucalyptus trees on Defendants’ Property along the adjoining fence line which Plaintiffs contend have large branches extending beyond the fence line onto Plaintiffs’ Property over Plaintiffs’ pool filtration and pump system. (Id. ¶6).

Plaintiffs claim that for almost two decades debris from the eucalyptus trees on Defendants’ Property have caused, and are continuing to cause, significant damage to Plaintiffs’ Property. (A. Boyce Decl. ¶¶7-8, Ex.1-3). Plaintiffs also claim that the eucalyptus trees have presented and continue to present an unreasonable and substantial risk of causing bodily injury to Plaintiffs and/or other individuals on Plaintiffs’ Property. (Id., Ex.4). Plaintiff further contend that the eucalyptus trees’ root system is increasingly invading/encroaching under the property line into the Plaintiffs’ Property causing Plaintiffs’ pool deck, vinyl fence and other portions of the Boyce Property to crack and lift due to the pressure of the root system. (Id. ¶¶ 7-9, Exs.1-3).

On 11/10/22, Plaintiffs filed this action for damages and injunctive relief against the Defendants and the McCunes. In January 2023, Plaintiffs served the McCunes. On 2/28/23, the Court granted Plaintiffs’ ex parte application to serve the Defendants by publication. On 4/3/23, the McCunes answered the complaint. On 4/5/23, Plaintiffs filed proof of publication as to the Defendants. Defendants have not responded to the Complaint.

On 9/12/23, the Court denied Plaintiffs’ ex parte application for a temporary restraining order to abate private nuisance and order to show cause re preliminary injunction. (See 9/12/23). The Court noted that Plaintiffs may properly serve and notice a motion re preliminary injunction and reserve a hearing date for same via the court’s online reservation system. Id.

On 10/19/23, Plaintiffs filed the instant motion seeking a preliminary injunction to abate a private nuisance as against Defendants Jessica Skinfield and Francesca Vargas enjoining and requiring these Defendants to abate the private nuisance and/or perform any and all actions necessary to assess, investigate, remove, remediate, monitor, treat, or cleanup the resulting damages from the nuisance. On 10/19/23, Plaintiffs filed a proof of service indicating that the motion was personally served on Defendant Jessica Skinfield on 10/15/23. No proof of service of the motion on Defendant Francesca Vargas has been filed.

No opposition or other response to the motion has been filed. On 11/13/23, Plaintiffs’ counsel filed a declaration regarding non-receipt of an opposition to the motion.

ANALYSIS

An injunction may be granted “[w]hen it appears by the complaint that the plaintiff is entitled to the relief demanded,” “[w]hen it appears by…affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action,” “[w]hen it appears, during the litigation, that a party to the action is doing. . .some act in violation of the rights of another party to the action respecting the subject of the action,” “[w]hen pecuniary compensation would not afford adequate relief,” and “[w]here it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief See CCP 526(a)(1)-(5).

An injunction may be an appropriate remedy for a trespass or nuisance. Posey (1991) 229 CA3d 1236; County of Santa Clara (2006) 137 CA4th 292.

A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. CCP 527(a).

When determining whether to issue a preliminary injunction, the court must weigh two interrelated factors: (1) the likelihood the moving party will ultimately prevail on the merits, and (2) the relative interim harm to the parties from the issuance or non-issuance of the injunction. Monterossa (2015) 237 CA4th 747, 754. “Weighing these factors lies within the broad discretion of the superior court.” Smith (2010) 182 CA4th 729, 749; Robbins (1985) 38 C3d 199, 205. The greater a plaintiff’s showing on one, the less that must be shown on the other factor to support an injunction. Butt (1992) 4 C4th 668, 678.

Plaintiffs contend that they have shown a high likelihood of prevailing on the merits and continuous injury to their unique real property caused by the trees. (A. Boyce Decl.). Plaintiffs argue that they are in need of immediate injunctive relief because Defendants’ trees have encroached on Plaintiffs’ property and their refusal to remove their encroachment has already resulted in: (1) branches falling onto and damaging Plaintiffs’ property; (2) encroaching roots damaging Plaintiffs’ vinyl fence, pool deck, pool filtration and pump system, and other portions of the property as well as inhibiting other plants from growing; (3) substantial risk of causing bodily injury that poses a risk to both Plaintiffs and their guests; and (4) continued injury, continued loss of property value, and loss of Plaintiffs’ comfortable enjoyment of the property unless enjoined. (A. Boyce Decl. ¶¶7-10, Ex.1-4).

However, 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. Injunctions may be classified as “prohibitory” or “mandatory.” 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 or the status quo. See Davenport (1997) 52 CA4th 435, 446-448; Oiye (2012) 211 CA4th 1036, 1048; URS Corp. 15 CA5th 884. Mandatory preliminary injunctions are rarely granted. See Teachers Insurance & Annuity Association (1999) 70 CA4th 1487, 1493 (“The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” internal quotes omitted); Integrated Dynamic Solutions, Inc. (2016) 6 CA5th 1178, 1184; Brown (2019) 34 CA5th 915, 925.

Here, Plaintiffs are requesting that “Defendants, and each of them, and any of their officers, directors, agents, servants, employees, and attorneys, and all persons acting in concert or in participation with Defendants, and each of them,” be “enjoined and required to engage in the following acts/conduct: 1. To abate said nuisance and/or to perform any and all actions necessary to assess, investigate, remove, remediate, monitor, treat, or cleanup the resulting damages from the nuisance.” (emphasis added) (See proposed Order, Motion, pdf p.152:21-27; Notice of Motion, p.2:4-12). Based on the foregoing, it is not clear exactly what Plaintiffs expect Defendants to do (i.e., cut down the trees; come onto to Plaintiffs’ Property to clean up the leaves/branches from the trees). See CRC 3.1110(a) (“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”).

The relief requested seems to constitute, at least in part, a mandatory preliminary injunction.

The Court finds that such extreme relief is not warranted at this point in the litigation as it could correlate to the removal of the trees and/or Defendants, or their agents, accessing Plaintiffs’ Property to comply with the order. Plaintiffs concede that the situation which they seek to abate by way of the preliminary injunction has been ongoing for almost twenty years. (A. Boyce Decl. ¶7). Despite the conditions purportedly existing for “nearly two decades,” Plaintiffs seemingly made no effort to resolve the conditions during the first decade of problems. (Id. ¶¶7, 12). In January 2013, Plaintiffs attempted to address the issue with the prior owners, the McCunes, of the Defendants’ Property without receiving any response. (Id. ¶13, Ex.5). Plaintiffs fail to explain why they took no steps for approximately five years when they sent another letter to the McCunes in December of 2018, to which they also failed to respond, and/or why they waited another approximately 3 ½ years to attempt to address the issue with the Defendants in May of 2022. (Id. ¶¶14-15, Ex.6, 7). Nor have Plaintiffs offered any evidence of efforts they have made to resolve the issue without Defendants’ assistance (i.e., cutting limbs of the trees which overhang the Plaintiffs’ Property). (See A. Boyce Decl., generally).

Plaintiffs have failed to establish that allowing the conditions to exist until the matter goes to trial will cause them any more damage/harm than they contend they have already suffered as a result of the trees. The Court finds that granting the requested relief is not warranted as doing so will not preserve the status quo. Additionally, as noted above, Plaintiffs have failed to clearly set forth what Defendants would be required to do or not do, if the motion is granted. Further, if Defendants are required to remove the trees before trial and it is ultimately determined at trial that Plaintiffs are not entitled to such relief, Defendants will likely not be able to replace the trees with mature trees or doing so would be at great expense.

CONCLUSION

The motion is denied.