Judge: Michael P. Linfield, Case: 22STCV14150, Date: 2022-07-26 Tentative Ruling

Case Number: 22STCV14150    Hearing Date: July 26, 2022    Dept: 34

SUBJECT:                 Motion of Plaintiff Big Bus Tours Los Angeles, Inc. for Preliminary Injunction Against Defendant Starline Tours of Hollywood, Inc.

Moving Party:          Plaintiff Big Bus Tours Los Angeles, Inc. (“Big Bus”)

Resp. Party:             Defendant Starline Tours of Hollywood, Inc. (“Starline”)

Plaintiff Big Bus Tours Los Angeles, Inc.'s Motion for Preliminary Injunction is CONTINUED to allow for a substantive opposition.

I.           BACKGROUND

On April 28, 2022, Plaintiff Big Bus Tours Los Angeles, Inc., filed a Complaint against Defendant Starline Tours of Hollywood, Inc., to allege the following causes of action:

1.           Unfair Competition Under UCL § 17200

2.           Common Law Unfair Competition

3.           Intentional Interference with Prospective Economic Advantage

4.           False Advertising

On June 21, 2022, Plaintiff Big Bus Tours Los Angeles, Inc. moved the Court “for the issuance of a preliminary injunction against defendant Starline Tours of Hollywood, Inc. (“Starline”) restraining and enjoining Starline from operating any vehicle in violation of the rules and regulations promulgated by the California Air Resources Board (“CARB”), including but not limited to CARB’S Truck and Bus Regulation, codified at California Code of Regulations, Title 13, Section 2025, or operating any vehicle that is not properly registered with the California Department of Motor Vehicles (DMV).” (Motion, p. 2:4-10.)

On July 13, 2022, Defendant Starline Tours of Hollywood, Inc. specially appeared before the Court to object to Big Bus’s motion “before Defendant Starline’s appearance in the action” on the grounds that the motion “fails to meet the requirements of the California Rules of Court and notice and due process requirements of the law.” (Objection, p. 2:6-8.)

On July 19, 2022, Big Bus replied to Starline’s objection.

II.        ANALYSIS

A.          Legal Standard

1.           Motion for Preliminary Injunction

Injunctions may be issued on a temporary, emergency basis via a temporary restraining order (“TRO”), via a preliminary injunction (“PI”), which usually lasts through the end of trial, and via a permanent injunction issued after trial and as part of the judgment. (“Injunctions”, Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) Ch. 9(II)-A.) Issued ex parte, the purpose of a temporary restraining order is “to preserve the status quo or prevent irreparable harm pending the hearing of an application for preliminary injunction on notice.” (Id. at ¶ 9:538.) Where a TRO is sought, courts may issue the TRO and order the defendant to “show cause” why a preliminary injunction should not be issued. (Id. at ¶ 9:561.) Conduct to be restrained must be set forth with particularity and must be specific enough to provide defendant with adequate notice for contempt purposes. (Id. at ¶ 9:564.1.)

“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 therefore.” (CCP, § 527(a).) The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361; Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal. App. 4th 618, 623.) Whether requested by order to show cause or notice of motion, a preliminary injunction is a motion procedure, and proof of facts “is ordinarily made by affidavits or declarations. (“Injunctions”, Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) Ch. 9(II)-A, ¶ 9.574.)

In deciding whether to issue a preliminary injunction, courts “should evaluate two interrelated factors . . . 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; Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633; Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.) "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." (Butt v. State of California (1992) 4 Cal.4th 668, 678.) “Before issuing a preliminary injunction, the trial court must ‘carefully weigh the evidence and decide whether the facts require[ ] such relief.’ [Citation.] The court evaluates the credibility of witnesses and makes factual findings on disputed evidence.” (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356.) 

“In seeking a preliminary injunction, [the party seeking the injunction] b[ears] 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. Board of Sup'rs of City and County (2004) 117 Cal.App.4th 1, 6.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (CCP, §526(a)(4).) Injunctions will rarely be granted (absent specific statutory authority) where a suit for damages provides a clear remedy. (Pacific Designs Sciences Corp. v. Sup.Ct. (Maudlin) (2004) 121 Cal.App.4th 1100, 1110.) A preliminary injunction must not issue unless "it is reasonably probable that the moving party will prevail on the merits." (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442.)

Code of Civil Procedure sections 525-533 “provide the primary statutory authority for injunctions pending trial.” (Stevenson v. City of Sacramento (2020) 55 Cal.App.5th 545, 551.) CCP § 527, together with Cal. Rules of Court 3.1150-3.1152 outline basic injunction-seeking procedure. (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:501.)

2.           California Rules of Court, Rule 3.1150

(a) Manner of application and service

“A party requesting a preliminary injunction may give notice of the request to the opposing or responding party either by serving a noticed motion under Code of Civil Procedure section 1005 or by obtaining and serving an order to show cause (OSC). An OSC must be used when a temporary restraining order (TRO) is sought, or if the party against whom the preliminary injunction is sought has not appeared in the action. If the responding party has not appeared, the OSC must be served in the same manner as a summons and complaint.” (Cal. Rules of Court, Rule 3.1150(a).)

(c) Form of OSC and TRO

“The OSC and TRO must be stated separately, with the OSC stated first. The restraining language sought in an OSC and a TRO must be separately stated in the OSC and the TRO and may not be incorporated by reference. The OSC must describe the injunction to be sought at the hearing. The TRO must describe the activities to be enjoined pending the hearing. A proposed OSC must contain blank spaces for the time and manner of service on responding parties, the date on which the proof of service must be delivered to the court hearing the OSC, a briefing schedule, and, if applicable, the expiration date of the TRO.” (Cal. Rules of Court, Rule 3.1150(c).)

B.          Discussion

Starline objects to Big Bus’s motion for preliminary injunction on the grounds that Big Bus did not comply with California Rules of Court, Rule 3.1150(a) and (c) because it filed the motion for preliminary injunction before obtaining and serving an order to show cause. (Objection, p. 2:25—3:4.) Starline filed a motion to quash service of summons on June 6, 2022 in Department 62 of this Court, with a hearing date of August 18, 2022. (Motion to Quash, filed June 6, 2022, p. 2:2-5.) On June 30, 2022, after this case was reassigned to Department 34 of this Court, Starline filed an amended notice of hearing date for its motion to quash service of summons and noticed the new hearing date as August 4, 2022. (Amended Notice of Hearing Date, p. 2:2-10.)

The Court finds that Starline’s original motion to quash service of summons violated CCP § 418.10(b)’s prohibition against a party designating a hearing date for a motion to quash service of summons more than thirty dates after filing the notice with the Court because there are seventy-three (73) days between June 6, 2022 and August 18, 2022. Further, the Court finds thirty-five (35) days between June 30, 2022 and August 4, 2022, so Starline’s amended notice of hearing date still violates CCP § 418.10(b).

Regardless of the procedural validity of Starline’s motion to quash service of summons, the Court agrees with Big Bus’s contention that Starline’s filing of their motion constituted a special appearance. (Reply, p. 10:14-15.) “A California defendant can preserve objections to personal jurisdiction only by making a special appearance, i.e., an appearance for the sole purpose of objecting to the court's jurisdiction. A special appearance does not confer jurisdiction on the court for any purpose other than determining the question of jurisdiction over the person.” (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8 (cleaned up).)

The Court agrees with Big Bus that California Rules of Court, Rule 3.1150 makes no distinction between a general and special appearance and reserves an order to show cause for instances where a party has not appeared in any capacity whatsoever. (Cal. Rules of Court, Rule 3.1150(a).)

Starline provides no substantive opposition to Big Bus’s motion for preliminary injunction, originally filed in Department 62 on May 18, 2022. The instant motion was filed on June 21, 2022. The Court overrules Starline’s objection to Big Bus’s motion for preliminary injunction because the objection wrongly asserts that Starline has not appeared in the present action. The Court finds that Starline has specially appeared in the present action at least twice, to notice its motion to quash service of summons and to object to the instant motion.

III.     CONCLUSION

Plaintiff Big Bus Tours Los Angeles, Inc.'s Motion for Preliminary Injunction is CONTINUED to allow a substantive opposition to be filed.

The Court will discuss with the parties at the hearing on a mutually convenient date for the preliminary injunction.