Judge Ralph C. Hofer, Case 22GDCV00379 2022-08-05 Tentative Ruling

Order forbidding defendant Linda K. Lee and all agents, servants, employees, renters, representatives, and persons acting in concert from engaging in construction activities on plaintiff’s property at 945 Flanders Road in La Canada, digging holes and pouring concrete on the property, erecting a fence on the property, leaving construction debris and detritus on the property and trespassing in any form on the property.

Plaintiff Jean Kechichian alleges that plaintiff owns a parcel of residential property located at 945 Flanders Road in La Canada, and that defendant Linda K. Lee owns an adjacent parcel of property located immediately to the north of plaintiff’s property. Plaintiff alleges that a dilapidated wooden fence between the two properties has for the past several years become rotted, broken apart and overgrown with vines and shrubbery, and has most recently begun sliding down a small incline onto plaintiff’s property.

The complaint alleges that when plaintiff looked into replacing the fence, he discovered that it had slid down from its original placement on the property line by approximately ten feet. After having a survey completed, plaintiff approached defendant and her husband about having the fence re-built on the property boundary line. Defendant refused and began planting vegetation and depositing construction debris on plaintiff’s property, and then began to verbally threaten and harass plaintiff, which caused plaintiff great distress and fear, as plaintiff is an elderly man.

Plaintiff alleges that when plaintiff decided to simply pay for the wall himself and hire contractors to construct it, defendant called the police, and that, rather than negotiating to work out a solution, defendant recently initiated construction of a new fence on plaintiff’s property.

The file shows that on July 7, 2022, the court, Judge Rosen presiding, heard an ex parte application for a temporary restraining order and OSC re preliminary injunction brought by plaintiff. The ex parte application was granted, and the court signed an order restraining defendant and persons acting with defendant from erecting or taking any steps toward erecting a fence or wall along the boundary or within 20 feet of the boundary with plaintiff’s property, including digging holes, pouring concrete, setting poles or installing fencing, depositing construction related debris on the property line, and planting vegetation in the disputed area between the properties. The OSC re preliminary injunction was scheduled for July 28, 2022.

On July 28, 2022, the matter was called for hearing, the court noted that due to a calendaring error the matter had not been calendared for a law and motion hearing, and the hearing was continued to this date. The original ex parte application papers are to be considered the moving papers.

(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

An application for a preliminary injunction is considered a motion procedure and must be supported by affidavits or declarations which provide evidentiary facts under CCP § 2009. CCP section 527(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 therefor.”) See also Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 149-150. The burden is on the party seeking injunctive relief “to show all elements necessary to support issuance of a preliminary injunction.” O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481, citing Weil & Brown, Civil Procedure Before Trial, at 9:632.1.

Granting or denying a preliminary injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion. Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458. Such a remedy is intended to preserve the status quo until a full trial on a permanent injunction may be conducted.

Plaintiff Kechichian’s declaration does not clearly indicate that the subject property is plaintiff’s residence. However, the declarations both in support of and in opposition to the application suggests this is a dispute between neighbors, who reside on their respective adjacent homes. [Kechichian Decl., paras. 2, 7-11, 16; Lee Decl., paras. 3, 4, 8]. This situation gives rise to an inference that any loss of or damage to plaintiff’s property would be irreparable, as real property is considered to be unique. See Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 457-458.

Plaintiff seeks relief on the ground plaintiff is likely to prevail in this case on its merits, as plaintiff will be able to establish that defendant has trespassed onto an area which a recent survey establishes is defendant’s property, without legal right, damaging his property, and that such conduct also can support a claim for nuisance.

“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.”

The elements of a cause of action for trespass are: Plaintiff’s lawful possession or right to possession as owner or otherwise of described property; Defendant’s wrongful act of trespass thereon; proximately causing damage to plaintiff or the property. Morgan v. French (1948) 70 Cal.App.2d 785, 787.

The elements of a cause of action for nuisance are: Plaintiff’s ownership or occupancy of real property; defendant’s substantial and unreasonable interference with the comfortable enjoyment of the property; separate and ongoing acts by defendant constituting nuisance; and past and future damages. Kafka v. Bozio (1923) 191 Cal.746; Alonso v. Hills (1950) 95 Cal. App.2d 778; Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668.

The moving papers include a declaration from plaintiff indicating that he had a survey completed regarding the property line between the subject property and the neighboring property, that the Deputy County Surveyor for the County of Los Angeles reviewed and examined the survey and confirmed the determination of plaintiff’s legal boundary lines, and that plaintiff informed defendant of the boundary and that the existing fence was presently located approximately ten feet from the legal boundary, on plaintiff’s land. [Kechichian Decl., paras. 3-8]. Plaintiff also states that defendant insisted that any new fence be built where the old fence was located, which was entirely on plaintiff’s property, that plaintiff saw defendant planting trees beyond the property line on defendant’s land, and that beginning in June of 2022, defendant hired workers to conduct construction activities where the old fence used to be, on defendant’s property. [Kechichian Decl., paras. 12, 13, 17]. The declaration states:

“On or about July 2, 2022, I observed that a crew of workers were building a fence on my property, including removal of the steel posts that had previously been installed and placing new steel posts with concrete footings well inside my property line in complete disregard for the stakes that had been previously placed demarcating the two properties.”

These allegations constitute a sufficient showing to establish a likelihood that plaintiff will prevail on his claims for trespass or nuisance, and that the relative harm to plaintiff would outweigh any harm to defendant if any further construction activity or entering onto plaintiff’s property is delayed until the legal boundary between the properties can be established.

In response to the motion, defendant submits a declaration in which defendant indicates that defendant began construction on the new perimeter fence “using the same footing as its predecessor on July 2, 2022.” [Lee Decl., para. 12]. Defendant indicates that the fence was “finalized” on July 6, 2022, before the ex parte hearing at which the TRO was issued on July 7, 2022. [Lee Decl., para. 12].

It would appear that the activities which plaintiff by this application seeks to enjoin have been completed and ceased, so that the injunction may no longer be necessary. However, it would also appear that defendant has interposed no objection to the TRO continuing, which defendant indicates she has not violated, and evidently has no intention of violating. [Lee Decl., para. 12]. Defendant should have no objection to the court entering the injunction as requested, and the court will enter the injunction to prevent any further activity on the part of defendant in connection with the fence or the area between plaintiff’s property and the stakes representing the surveyed property line.

The declaration indicates that any court order removing the now new fence would create an unsafe condition because once the old fence was removed, a fall hazard was created along a sloped area which defendant walks through to the rear of her property. [Lee Decl., paras. 8, 10, 13].

Defendant does not challenge the survey, or that defendant erected the fence on property which is subject to the legal title of plaintiff. Defendant indicates, however, that the legal description of plaintiff’s parcel is subject to a “reservation of easements,” and argues that no harm can be shown by either party be proceeding to a full investigation by trial on the merits as to the existence of easements. [Lee Decl., para. 16]. Lee indicates she is cross-complainant in this case on a complaint for quiet title which she will relate. [Lee Decl., para. 1]. There is no cross-complaint yet on file in this matter, and no notice of related cases showing Lee has filed another case to quiet title.

This case now in a posture where the relief sought in the application and in the OSC, enjoining the construction activities connected with erecting a new fence, have taken place unabated before the application was brought and heard. Plaintiff has made no request for an affirmative mandatory injunction to remove the new fence and construction, which is the anticipated situation to which the declaration in opposition seems to be directed. The opposition, as analyzed in connection with the application and relief sought, fails to call into question that plaintiff has a likelihood of prevailing on plaintiff’s trespass and nuisance causes of action, or that the burdens favor prohibiting any further activity by defendant on the subject property.

Under CCP § 529 (a), if the court grants the injunction it “must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.”

“It is now well settled that reasonable counsel fees and expenses incurred in successfully procuring a final decision dissolving the injunction are recoverable as ‘damages’ within the meaning of the language of the undertaking, to the extent that those fees are for services that relate to such dissolution.”

“That estimation is an exercise of the trial court’s sound discretion and will not be disturbed on appeal unless it clearly appears that the trial court abused its discretion by arriving at an estimate that is arbitrary or capricious, or is beyond the bounds of reason.”

“Thus, in calculating the amount of the undertaking to be required in this case, the trial court should have considered at least (1) the profits to be lost by the defendants from the elimination of the vast majority of their existing customers, and (2) the attorney’s fees and expenses to be incurred in either prosecuting an appeal of the preliminary injunction, or defending at trial against those causes of action upon which the preliminary injunctive relief had been granted.”

Here, there is nothing to be lost by defendant here given that defendant concedes that the construction of the new fence has been completed, and no harm can be claimed by defendant if it remains in place pending this proceeding. The bond accordingly is limited to the fees and expenses to be incurred in defending at trial against the causes of action upon which the injunctive relief is based.

“The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.”

Plaintiff has failed to submit any evidence in support of the application concerning plaintiff’s financial resources or attempting to show that plaintiff is indigent and unable to obtain sufficient sureties. The court accordingly cannot make the required determination under this section required to waive the provision for bond. While plaintiff argues that the potential harm to the beneficiary would be non-existent, given that the construction can be later completed (and this argument is even stronger now that the construction has in fact been completed), defendant would still face the harm of incurring fees and costs to defend this action if it turns out the injunction was wrongfully granted. In any case, the court is not required to consider the factors concerning the beneficiary given the absence of proof concerning the indigency of plaintiff.

Application for preliminary injunction is GRANTED. Plaintiff has presented facts which establish a probability of prevailing on a claim that defendant has trespassed and created a nuisance on plaintiff’s property by planting vegetation and engaging in construction activities on the property.

The Court further finds that the harm to plaintiff if the injunction is not granted (damage to his real property interests, and the property which serves as his primary residence) is greater than the harm to defendant if it is not (delay in access to the area of property on which defendant has already completed construction of a new fence).

Plaintiff is ordered to post a bond in the sum of $18,000 with the court by 4:00 p.m. on August 19, 2022 (following second Friday). (See CCP section 529 (“On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction….”) In determining the amount of the undertaking, the “trial court’s function is to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum.” Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14. The damage includes expenses and attorneys’ fees incurred in successfully procuring a final decision dissolving the injunction. Russell v. United Pacific Ins. Co. (1963) 214 Cal.App.3d 78, 88-89; Abba Rubber Co., supra, 235 Cal.App.3d at p. 16. Here, the court estimates it will take approximately 60 @ the approximate rate of $300 an hour in attorney’s fees (total $18,000) to defend against the causes of action upon which the preliminary injunction is based through trial. Accordingly, the court sets the sum of the bond at $18,000.

The Court in its discretion has reluctantly considered the opposition papers, but only because a timely reply has been filed addressing those pleadings. However, counsel for plaintiff is cautioned that in the future the court may refuse to consider papers not filed in compliance with this court’s clear and unambiguous orders.

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines. In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask. The Department D Judge and court staff will continue to wear face masks. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.