Judge Olivia Rosales, Case 22NWCV00326 2022-08-04 Tentative Ruling

Judge: Olivia Rosales, Case: 22NWCV00326, Date: 2022-08-04 Tentative Ruling

Case Number: 22NWCV00326 Hearing Date: August 4, 2022 Dept: SEC

GONZALEZ v. CHAVEZ

CASE NO.: 22NWCV00326

HEARING: 08/04/22

JUDGE: MARGARET M. BERNAL

TENTATIVE ORDER

Plaintiff’s Application for a Preliminary Injunction is DENIED.

Opposing Party to give Notice.

This action for trespass to land was filed by Plaintiff RAMON GONZALEZ (“Plaintiff”) against Defendant ELVIRA CHAVEZ (“Defendant”) on April 27, 2022. Plaintiff alleges, in pertinent part, “Plaintiff is the owner of that certain real property commonly known as 22201 Horst Avenue, Hawaiian Gardens, California 90716 (‘Plaintiff’s Property’). [¶] Defendant is the owner of that certain real property commonly known as 22128 Horst Avenue, Hawaiian Gardens, California 90716 (‘Defendant’s Property’). Defendant’s Property is located directly behind Plaintiff’s Property.” (Complaint ¶¶5-6.) “Plaintiff is in the process of obtaining permits to build an Accessory Dwelling Unit (ADU) upon Plaintiffs Property, and in that process, obtained a survey, revealing a substantial encroachment upon Plaintiff’s Property by Defendant. [¶] There is currently a fence which encroaches on Plaintiff’s Property by three feet in the back and one foot on the side, a substantial amount. Plaintiff demanded that said trespass and encroachment be removed from his Property, but the Defendant refused, and instead erected a sign which stated ‘Private Property, No Trespassing.’” (Complaint ¶¶7-8.)

Plaintiff’s Complaint asserts the following causes of action: (1) Trespass to Land; (2) Nuisance; (3) Permanent Injunction; and (4) Declaratory Relief.

Plaintiff now moves for a preliminary injunction to enjoin Defendant and anyone acting in concert with her, anyone living at or visiting her property, from trespassing upon, encroaching upon, fencing off and in any way interfering with Plaintiff’s rights to access and enjoyment of Plaintiff’s Property, that certain three foot rear portion of Plaintiff’s Property commonly known as 22201 Horst Avenue, Hawaiian Gardens, California 90716 pending adjudication of this action.

In Opposition, Defendant argues that Plaintiff improperly seeks an order allowing him to occupy and possess the disputed land before there is a determination on the merits as to who owns the Property. “In doing so, Plaintiff seeks to irreversibly change the status quo by building an ADU on the property, so that if [Defendant], who is a 93 year old widow, prevails on the merits, it is possible that she may never be able to recover the property which Plaintiff has stolen from her by way of this preliminary injunction.” (Opp. 2:5-7.)

A preliminary injunction is to preserve the status quo pending a trial on the merits. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) “An injunction may be granted…. When it appears by the complaint or 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.” (CCP §526(a)(2).) “In deciding whether to issue a preliminary injunction, a trial court weighs two unrelated factors: the likelihood the moving party will prevail on the merits, and the relative interim harm to the parties from the issuance or non-issuance of the injunction.” (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999.)

Ownership of the disputed land is at issue in this action. For purposes of maintaining the status quo until the issue of ownership is adjudicated, Plaintiff’s application for a preliminary injunction is DENIED. The status quo between the parties would not be preserved by permitting Plaintiff to remove any portion of, or gain access onto the disputed property before the issues are adjudicated, on the merits.