Judge: Michael P. Linfield, Case: 22STCV14150, Date: 2022-08-10 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 22STCV14150    Hearing Date: August 10, 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”)

TENTATIVE RULING

Plaintiff Big Bus Tours Los Angeles, Inc.'s Motion for Preliminary Injunction is DENIED.

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.

On July 26, 2022, the Court continued the hearing of the Motion for Preliminary Injunction to August 10, 2022.

On August 1, 2022, Starline opposed Big Bus’s motion for preliminary injunction.

On August 4, 2022, Big Bus replied to Starline’s August 1, 2022 opposition.

II.        ANALYSIS

A.          Evidentiary Objections

The Court declines to rule on the numerous evidentiary objections submitted by both parties because the Court’s analysis does not require the Court to assess the admissibility of the contested evidence.

B.          Requests for Judicial Notice

1.           First Request

On June 21, 2022, Plaintiff Big Bus Tours Los Angeles, Inc. requested that the Court take judicial notice of the following documents in connection with its motion for preliminary injunction.

1.           California Truck and Bus Regulation, codified at Cal. Code Regs., tit. 13, § 2025, attached hereto as Exhibit A.

2.           Vehicle Industry News (VIN) Memo 2019-15 entitled “Heavy Duty Vehicle Registration Compliance”1, issued by the California Department of Motor Vehicles on October 10, 2019, attached hereto as Exhibit B.

3.           California Senate Bill (SB) 1, filed with the Secretary of State on April 28, 2017, attached hereto as Exhibit C.

4.           Carfax vehicle history reports attached to the Appendix of Exhibits as Exhibits 15-25 and described in detail in the Declaration of William A. Meyers.

Defendant Starline Tours of Hollywood, Inc. object to Big Bus’s request for judicial notice of the Carfax vehicle history reports on the grounds (1) that Evidence Code § 452(c) has no application to these records, (2) that Evidence Code § 452(h) is similarly inapplicable, (3) that Carfax records are not “public” records, but rather report compilations from a private, for-profit company compiled by gathering information from multiple sources, only some of which are public databases, (4) that Carfax reports are hearsay, (5) that the reports lack foundation, and (6) there is no basis to consider Carfax reports’ contents even were there a basis to request judicial notice. (Starline’s Objections to Big Bus’s  Request for Judicial Notice, p. 2:14—5:19.)

Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9, 84 Cal.Rptr.2d 843, 976 P.2d 214.) StorMedia stated: “In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)” (Ibid.)

The Court GRANTS judicial notice of Request No. 1. (Evidence Code § 452(b).) The Court GRANTS judicial notice of Requests Nos. 2. (Evidence Code § 452(c).) The Court GRANTS judicial notice of Request No. 3. (Evidence Code § 452(a).) The Court DENIES judicial notice of Request No. 4 as outside the scope of Evidence Code § 452 and hearsay.

2.           Second Request

On July 19, 2022, Big Bus requested that the Court take judicial notice of the following documents in connection with its reply to the objection Starline filed against Big Bus’s motion for preliminary injunction.

1.           Declarations of Gwendolyn Slaughter filed on behalf of Starline between October and December 2021 in the action styled Vector Media South v. Starline Tours of Hollywood, Inc., USDC, C.D. Cal., Case No. 2:20-cv-06738-DSF-JC, attached hereto collectively as Exhibit 1.

2.           Declaration of Gwendolyn Slaughter in Support of Starline Defendants’ Motion to Decertify Class Certification, filed May 8, 2017 in the action styled Joan Harp, et al. v. Starline Tours of Hollywood, Inc., et al., USDC, C.D. Cal., Case No. 2:14-cv-07704-CAS-E, attached hereto as Exhibit 2.

3.           Declaration of Gwendolyn Slaughter in Support of Opposition by Starline Defendants to Plaintiffs’ Motion for Class Certification, filed July 6, 2015 in the action styled Joan Harp, et al. v. Starline Tours of Hollywood, Inc., et al., USDC, C.D. Cal., Case No. 2:14-cv-07704-CAS-E, attached hereto as Exhibit 3.

4.           Declaration of Gwendolyn Slaughter in Opposition to Plaintiffs’ Motion for Class Certification, filed July 11, 2011 in the action styled Ms. Wheelchair California Pageant, Inc., et al. v. Starline Tours of Hollywood, Inc., et al., USDC, C.D. Cal., Case No. 2:11-cv-02620-JFWCW, attached hereto as Exhibit 4.

The Court GRANTS judicial notice of Requests Nos. 1-4. (Evidence Code, § 452(d).)  However, the Court does not take judicial notice of the facts adduced in these declarations.  (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“While courts may notice official acts and public records, we do not take judicial notice of the truth of all matters stated therein.”])

3.           Third Request

On August 4, 2022, Big Bus requested that the Court take judicial notice of the following documents in connection with its concurrently filed reply to Starline’s opposition to its motion for preliminary injunction.

1.           Printout of page from the official website of the California Department of Motor Vehicles labeled “International Registration Plan,” attached hereto as Exhibit 1.

The Court GRANTS judicial notice of Request No. 1. (Evidence Code § 452(c).)

C.          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.)

“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.’ 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).)

3.           Injunctive Relief Under the Unfair Competition Law

Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. (Bus. & Prof. Code, § 17203.) In order to grant injunctive relief under the UCL, “there must be a threat that the wrongful conduct will continue. ‘Injunctive relief will be denied if, at the time of the order of judgment, there is no reasonable probability that the past acts complained of will recur..." (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1326–1327.)

Unfair competition refers to “anything that can properly be called a business practice and that at the same time is forbidden by law.” (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 112–113.) Standing to sue for injunctive relief under Bus. & Prof. Code § 17203 is limited to government prosecutors or a private plaintiff “who has suffered injury in fact and has lost money or property as a result of the unfair competition.” (Bus. & Prof. § 17203; Injunctions, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(II)-A.)

An ’injury in fact’ occurs when a plaintiff suffers “a distinct and palpable injury” as a result of the defendants’ actions; the requisite injury is defined as “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural or hypothetical.” (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 814 (cleaned up), disapproved of on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.)

“The unfair competition law affords two types of relief – namely, restitution and injunctive relief. Of the two, injunctive relief is the primary form of relief. Relief does not, however, include damages, whether they be consequential or punitive.” (Long Beach Memorial Medical Center v. Kaiser Foundation Health Plan, Inc. (2021) 71 Cal.App.5th 323, 342–343 (cleaned up).)

D.          Discussion

1.           Big Bus Can be Fully Compensated by Monetary Damages Should It Prevail at Trial

The purpose of the California Air Resources Board’s (“CARB”) Truck and Bus Regulation § 2025, (the “Regulation”) “is to reduce emissions of diesel particulate matter (“PM”), oxides of nitrogen (“NOx”), and other criteria pollutants from in-use diesel fueled vehicles. (First Request for Judicial Notice, Ex. A, p. 1.) Big Bus notes that the Regulation requires that Big Bus and Starline equip all vehicles with a manufacturer’s gross vehicle weight rating (“GVWR”) of 26,000 lbs. or less with a 2010 model year emission equivalent engine depending on the existing engine’s model year for all vehicles in the Big Bus and Starline fleets, beginning January 1, 2015 and extended each year through January 1, 2023. (First Request for Judicial Notice, Ex. A, p. 1.)

Big Bus asserts that it has complied with the Regulation and that it has purchased 18 compliant vehicles at $400,000 each – a $7,200,000 code-compliance investment. (Conway Decl., ¶ 26; White Decl., ¶¶ 6-7.) Big Bus alleges that Starline skirts the Regulation in ways that violate its material and self-reporting requirements, precipitating an unfair market advantage over Big Bus. (Motion, MPA, p. 12:8—13:8, p. 13:18—14:11; Conway Decl., ¶¶ 45-46, 48; White Decl., ¶¶ 17-22, Exs. 2-14.) Big Bus notes that this status quo places it at a disadvantage to Starline, a direct competitor whose ticket prices allegedly place Big Bus at a severe competitive disadvantage. (Conway Decl., ¶¶ 41, 42.)

The elements of a cause of action for injunctive relief are (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award. (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) “An evaluation of the relative harm to the parties upon the granting or denial of a preliminary injunction requires consideration of: (1) the inadequacy of any other remedy; (2) the degree of irreparable injury the denial of the injunction will cause; (3) the necessity to preserve the status quo; and (4) the degree of adverse effect on the public interest or interests of third parties the granting of the injunction will cause.” (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 435 (cleaned up).)

In addition to injunctive relief, Big Bus’ complaint requests monetary damages of at least “$15,000,000 plus interest”, plus “treble, exemplary and punitive damages.”  (Complaint, ¶ 68.)

Big Bus alleges that Starline’s disregard for CARB regulations show “Starline intentionally engaged in wrongful conduct, and Starline knew that such actions were certain or substantially certain to occur in the interference of the prospective relations between Big Bus and its customers.” (Complaint, ¶ 62.) Should a jury after its review of the evidence agree with this assessment, the jury can award adequate damages to make Big Bus whole after years of alleged unfair competition with Starline.

Injunctive relief is reserved for circumstances “when pecuniary compensation would not afford adequate relief.” (CCP § 526(a)(4).) The Court finds that Big Bus fails to provide sufficient evidence that pecuniary compensation at trial would not compensate it for Starline’s alleged actions.

2.           Big Bus is requesting an “Obey the Law” Injunction

Big Bus asks that Starline Tours be “enjoined from further violations of CARB.”  (Motion, p. 20:15.)  More specifically Big Bus requests the “issuance of a preliminary injunction against defendant 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; Notice of Motion, p. 2:4-10.)

Such an injunction simply requires that Starline obey the law.  An “obey the law” injunction is not permissible.  (See, e.g., Long Beach Memorial Medical Center v. Kaiser Foundation Health Plan, Inc. (2021) 71 Cal.App.5th 323, 343; City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 416 [“a court may not issue a broad injunction to simply obey the law. . . .”].)

It would also require this Court to determine if, when and how Big Bus is – or is not – complying with the numerous requirements of CARB.  This the Court will not do.

(The Court notes that Big Bus’ Proposed Order is slightly narrower; it asks the Court to issue a Preliminary Injunction that Starline is “enjoined and restrained from engaging in or performing, directly or indirectly, any and all of the following acts: operating in the State of California any sightseeing or tour buses with an engine that does not comply with the 2010 model year emissions equivalent engine requirements set forth in Title 13, Division 3, Article 4.5, § 2025(f) and § 2025(g) of the California Code of Regulations.”  (Proposed Order Granting Preliminary Injunction, p. 2:10-16, filed 8/4/2022.) However, this does not alleviate the above concerns.)

3.           Big Bus’s Likelihood of Prevailing on the Merits at Trial

The Court does not reach a determination of Big Bus’ likelihood of success at trial because Big Bus fails to show the absence of an adequate damages remedy at law. (CCP § 526(a)(4).)

III.     CONCLUSION

Plaintiff Big Bus Tours Los Angeles, Inc.'s Motion for Preliminary Injunction is DENIED.