Judge Michael P. Linfield, Case 21STCV37378 2023-05-18 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV37378, Date: 2023-05-18 Tentative Ruling

Resp. Party: Defendants Betty Sharafi Shalom, Daniel Shalom, and Jordan Shalom

Plaintiff Nichols Canyon Neighborhood Association’s Motion for Preliminary Injunction is GRANTED in part.

The Court ENJOINS Defendants from removing any further protected trees or placing construction debris within the protected root zones of protected trees.

On October 12, 2021, Plaintiff Nichols Canyon Neighborhood Association filed its Complaint against Defendants Betty Sharafi Shalom and Daniel Shalom on causes of action of breach of contract, specific performance of contract, injunctive relief, and fraud in the inducement.

On April 4, 2022, Plaintiff filed its Lis Pendens on the Subject Property, located at 2251 Nichols Canyon Road, Los Angeles, CA 90046.

On February 14, 2023, Plaintiff filed its First Amended Complaint (FAC) against Defendants Betty Sharafi Shalom, Daniel Shalom, and Jordan Shalom.

On April 24, 2023, Plaintiff filed its Motion for Preliminary Injunction. In support of its Motion, Plaintiff concurrently filed: (1) Declaration of William Marvez; (2) Declaration of Jamie T. Hall; (4) Declaration of David B. Kelley; (5) Declaration of Julie Kremkus; (6) Request for Judicial Notice; and (7) Proposed Order.

On May 5, 2023, the Court sustained Defendants’ Demurrers to the third and fourth causes of actions in the First Amended Complaint.

On May 11, 2023, Plaintiff filed its Reply. Plaintiff concurrently filed Supplemental Declaration of Jamie T. Hall.

On May 12, 2023, Defendants filed their Objections to Declaration of Julie Kremkus. Defendants concurrently filed their Proposed Rulings.

Defendants filed evidentiary objections to the Declaration of Julie Kremkus. The following are the Court’s rulings on these objections.

Objection		OVERRULED
1	SUSTAINED
2	SUSTAINED
3	SUSTAINED
4	SUSTAINED
5	SUSTAINED
6	SUSTAINED
7	SUSTAINED
8	SUSTAINED
9		OVERRULED
10		OVERRULED
11		OVERRULED
12		OVERRULED
13		OVERRULED
14		OVERRULED
15		OVERRULED
16		OVERRULED
17		OVERRULED
18		OVERRULED
19		OVERRULED
20		OVERRULED
21		OVERRULED
22		OVERRULED

“An injunction may be granted in the following cases: (1)¿When it appears by the complaint that the plaintiff 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 period or perpetually.” (Code Civ. Proc., § 526, subd. (a)(1).)

“[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction.¿The first is the likelihood that the plaintiff will prevail on the merits at trial.¿The second is the interim harm that the plaintiff is likely to¿sustain if the injunction were denied as compared to the harm that the¿defendant is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69–70, citations omitted.)

“Thus, the court examines all of the material before it¿in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it’ . . . In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights.” (Cont’l Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, quoting Santa Cruz Fair Bldg. Ass’n. v. Grant (1894) 104 Cal. 306, 308, other citations omitted.)

“The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.” (IT Corp., supra, at 73.)

“In seeking a preliminary injunction, [the party seeking the injunction bears] the burden of demonstrating both likely success on the merits and the occurrence of irreparable harm.” (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571; Citizens for Better Streets v. Bd. of Sup'rs of City and County (2004) 117 Cal.App.4th 1, 6.)

“The law is well settled that¿the decision to grant a preliminary injunction rests in the sound discretion of the trial court.” (IT Corp., supra, at 69.)

(1) that Plaintiff has a high likelihood of prevailing on the second cause of action for breach of contract by demonstrating that Defendants removed protected trees in violation of a settlement agreement;

(2) that Plaintiff has a high likelihood of prevailing on the second cause of action for breach of contract by demonstrating that Defendants damaged the conservation easement in violation of a settlement agreement;

(3) that Plaintiff has a high likelihood of prevailing on the first cause of action for breach of contract by demonstrating Defendants failed to convey a conservation easement in violation of a settlement agreement;

(4) that Plaintiff will be irreparably harmed without an injunction preventing the removal of the remaining protected trees on the property at issue; and

(5) that Plaintiff will be irreparably harmed without an injunction preventing further damages or encroachment upon the conservation easement area.

(1) that Plaintiff does not identify any prong of Code of Civil Procedure section 526 upon which the Motion is based;

(2) that Plaintiff may be likely to succeed on its first and second causes of action is irrelevant because the settlement agreement terminated by its own terms on March 8, 2023, meaning there are no future obligations to enforce and no future breaches that can occur;

(3) that Plaintiff cannot establish any potential future irreparable injury because the contract on which Plaintiff’s request for an injunction is based has expired;

In their Reply, Plaintiffs reiterate their arguments and respond to Defendants’ arguments.

Defendants bring up multiple threshold issues. None of these issues preclude injunctive relief here.

Defendants argue that Plaintiff has not identified any prong of Code of Civil Procedure section 526 upon which the Motion is based. Plaintiff argues in its Reply that any of sections (a)(1) through (a)(5) provide an adequate basis for injunctive relief. (Reply, p. 3:26–28.)

Defendants argue that Plaintiff waited too long before seeking injunctive relief. Plaintiff argues that they brought the Motion at the earliest possible time, as they discovered for the first time on April 10, 2023 at an inspection of the property that additional protected trees were removed, damaged, or threatened. (Reply, p. 7:3–12.)

Defendants argue that there is no basis for a preliminary injunction because the settlement agreement terminated on March 8, 2023. The Court disagrees with this argument.

The settlement agreement — officially titled Support Agreement and Release, and signed on March 8, 2018 by Julie Kremkus (the President of Plaintiff) and Defendant Daniel Shalom — contains, among other things, the following two provisions: a provision about the conservation easement and a provision about the expiration of the agreement:

2) Conservation Easement: Owner shall grant a conservation easement to a resource agency (e.g. Santa Monica Mountains Conservancy. [sic] Mountains Recreation and Conservation Authority, etc.) along the stream and the northern sideyard setback of the property. Owner agrees to enter into an easement in substantial conformance with the model easement attached as Exhibit 5. Said easement must be finalized within 180 days of the execution of this Agreement.

17. Binding Effect; Assignment. The terms and conditions contained in this Agreement will run with the Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators, successors, and assigns for a period of 5 years from the execution of this agreement.

These two contractual provisions are not in conflict. The plain language indicates: (1) that Defendant Daniel Shalom agreed to grant a conservation easement to a resources agency within 180 days of the agreement; and (2) that the agreement was binding for a period of five years from the execution of the agreement.

It is true that certain portions of the agreement would become unenforceable after the agreement expired on March 8, 2023. However, for the following reasons, the granting of a conservation easement pursuant to the agreement would have created a new, separate obligation that would not expire on March 8, 2023.

First, conservations easements are defined by statute as being perpetual in duration. (Civ. Code, § 815.2, subd. (b) (“A conservation easement shall be perpetual in duration.”).)

Second, the agreement required the granting of a conservation easement that was perpetual in duration. (Civ. Code, § 815.2, subd. (d) (“The particular characteristics of a conservation easement shall be those granted or specified in the instrument creating or transferring the easement.”) This can be seen by the reference to “Exhibit 5” in the agreement’s provision for the conservation easement.

Exhibit 5 is a template conservation easement that contains, among other things, the following provision:

NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions and restrictions contained herein, and pursuant to the laws of the State of California and in particular California Civil Code Section 815, et seq., GRANTOR hereby grants to GRANTEE a Conservation Easement as described and depicted in Exhibit B, in perpetuity of the nature and character and to the extent hereinafter set forth over a portion of the Property described in Exhibit A hereto.”

(Decl. Hall, Exh. 5 of Exh. 6 [located at actual page 130 of 206], emphasis added.)

Therefore, if Plaintiff is ultimately successful in arguing that there was a breach of contract regarding the conservation easement (i.e., if Plaintiff is successful on its first cause of action), an appropriate remedy could be specific performance regarding the conservation easement, which in turn would provide a basis for the injunctive protection Plaintiff seeks.

The Court notes, however, that success on any of the other remaining causes of action would not support an injunction. The remedies for those other causes of action are not prospective because they are based on prior alleged acts by (and responsibilities of) Defendants, not future acts or responsibilities. Further, any items covered by the Support Agreement and Release but not covered by the conservation easement would not be enforceable.

Plaintiff provides the Court with multiple forms of evidence, including: (1) photographic evidence of the property, taken by drones (Decl. Marvez); (2) declaratory evidence of the property, including the trees cut or removed (Decl. Kelley); and (3) the signed Support Agreement and Release, which contains the above-listed provision regarding the conservation easement (Decl. Hall, Exh. 6).

Putting aside two mostly irrelevant Google Maps images of the property, Defendants provide the Court with one primary form of evidence: the Declaration of Daniel Shalom. Among other things, Defendant Shalom declares: (1) that Defendant Daniel Shalom signed the Support Agreement and Release, although it is different from the version appearing in the First Amended Complaint; (2) that Defendant Daniel Shalom believed the agreement would only last for five years; (3) that there is a dispute about exactly which trees were slated to be removed; (4) that one of the trees which was not slated to be removed was accidentally cut down in approximately April 2019 by workers preparing the property for grading and excavation; (5) that Defendant Daniel Shalom never agreed to any conservation easement based on anything shown in Exhibit 7 (a map) to the Support Agreement and Release; (6) that Defendant Daniel Shalom never would have agreed to a conservation easement based on the boundaries shown in Exhibit 7; (7) that an injunction in the area represented by Exhibit 7 to the agreement would prohibit further construction work on the property because it would effectively cut off all access to the property; (8) that Defendant Daniel Shalom never agreed, and never would have agreed, to an easement that prevented him from developing the property; (9) that stopping construction on the project now would increase costs by at least $158,000.00; and (10) that an injunction would not be fair because Plaintiff has been aware of the construction activity for years. (Decl. Shalom, ¶¶ 3–4, 7, 11, 13–15, 17.)

Notably, Defendant Daniel Shalom does not dispute signing the agreement, nor does he dispute that he agreed to a conservation easement. Defendant Daniel Shalom’s disputes are about the boundaries of the conservation easement and whether construction will be prohibited by the conservation easement (and possibly about the duration of such an easement).

Based on the evidence presented, Plaintiff has established a reasonable probability of prevailing on the merits of this litigation. Specifically, Plaintiff has established a reasonable probability of prevailing on the first cause of action for breach of contract for failure to convey easement. Success on this cause of action may require specific performance for the defining, granting, and recording of a conservation easement, among other remedies requested. (First Amended Complaint, p. 11:3–5.)

The equities in favor of Plaintiff include protecting the trees at issue and the environment that sustains the trees at issue, as opposed to the potential destruction and/or degradation of the trees and their environment. The equities in favor of Defendants include allowing Defendants to use their property as they wish, which includes construction and potential removal of the protected trees, as opposed to having to wait to build on and enjoy the use of the property, as well as incurring significant monetary cost.

Upon a balancing the equities, the Court finds that a preliminary injunction would be appropriate here.

Defendants are restrained and enjoined from engaging in, committing or performing, directly or indirectly, any of the following acts (together, the “Activities”) while the underlying complaint is pending in this Court:

(1) from removing any further protected trees or placing construction debris within the protected root zones of protected trees;

(2) from engaging in any further construction activity within the area of the property that was to be subject to a conservation easement outlined in Exhibit 7 to the Settlement Agreement, including the stream that runs through the property; and

(3) from causing any change to the physical environment to the northwestern portion of the property at 2251 Nichols Canyon Road at the top of the slope that has been designated by the City of Los Angeles Board of Public Works as a potential restoration/mitigation zone for the planting of (in particular) black walnuts or other species.

The second provision is overbroad, particularly given the evidence that there was no specific agreement regarding the exact boundaries of the conservation easement and that some of that area is not owned or controlled by Defendants. After all, Defendant Daniel Shalom states that he did not agree to the boundaries listed in Exhibit 7, and the agreement itself references Exhibit 5 — not Exhibit 7 — for the characteristics of the conservation easement. Moreover, Plaintiff has not provided and/or pointed to sufficient evidence that would indicate it is impossible for construction to continue according to the Support Agreement and Release in a way that would protect the trees and their environment.

The third provision is also overbroad. Plaintiff asks the Court to enjoin Defendants from making “any change to the physical environment” in a certain area. It is not clear to the Court what “any change” means. Every human activity – from cutting down trees, to constructing a dwelling, to walking and even breathing – changes the physical environment. The Court does not know how or when it could enforce such an injunction.

The Court ENJOINS Defendants from removing any further protected trees or placing construction debris within the protected root zones of protected trees.

Plaintiff argues that the Court should require no more than a nominal bond for the preliminary injunction because this case involves environmental issues. (Motion, p. 20:4–12.)

Defendant argues that an undertaking should be made to pay for any damages that might be sustained should the Court finally decide that Plaintiff is not entitled to injunctive relief. (Opposition, p. 14:10–15.) Defendant claims the bond amount should be at least $158,000.00. (Id. at p. 14:21–24 and Decl. Shalom, ¶¶ 17–18.)

Given that the Court has narrowed the scope of the injunction to allow for continued construction, a nominal bond suffices at this time.

Plaintiff Nichols Canyon Neighborhood Association’s Motion for Preliminary Injunction is GRANTED in part.

The Court ENJOINS Defendants from removing any further protected trees or placing construction debris within the protected root zones of protected trees.