Judge Ralph C. Hofer, Case 22GDCV00631 2023-02-03 Tentative Ruling

Plaintiffs Samir G. Daher and Sholen Daher allege that they are husband and wife and the owners of real property located in Glendale. Plaintiffs allege that they are the owners of an easement for ingress and egress over the westerly ten feet of an adjoining lot, which is owned by defendant MTMD LLC.

Plaintiffs allege that in August of 2022, defendant MTMD caused or permitted construction works on the MTMD property, including building a fence and preparing ground for concrete across the Daher easement, which unreasonably interferes with plaintiffs’ use of the Daher easement by blocking the easement, and preventing plaintiffs from parking vehicles properly, also causing issues, dust, and pollution. Plaintiffs allege that defendant’s interference and obstruction impede plaintiffs’ access to their chiropractic clinic operating on the subject property and impede the access of plaintiffs’ customers to the clinic, causing substantial damage to plaintiffs’ business.

The operative complaint, the First Amended Complaint, alleges causes of action for quiet title to easement, trespass to real property easement, temporary restraining order and permanent injunctions and damages for interference with easement, and preliminary and permanent injunction to abate private nuisance and for damages.

Defendant MTMD has filed a cross-complaint against plaintiffs as cross-defendants, alleging that cross-complainant MTMD is the owner of two lots of real property in Glendale, Lot 2 and Lot 3, and cross-defendants the Dahers are the owners of Lot 1. The cross-complaint alleges that Lot 2 and Lot 3 adjoin each other at Lot 2’s northern boundaries, and Lot 2 and Lot 1 adjoin each other at Lot 2’s southern and Lot 1’s northern boundaries.

In August of 1936, the original owners of Lots 1, 2, and 3 entered into an easement agreement for an easement over the westerly ten feet of those lots for ingress and egress between the properties and to Elk Avenue, which runs along the southern border of Lot 1.

In November of 2006, the previous owner of Lot 3 contacted the cross-defendants the Dahers, the owners of Lot 1, regarding a termination of the easement as to Lot 3 and Lot 1. It was acknowledged at the time that the easement had been abandoned for some time and that a wall and grade difference further made use of the easement impossible, and the parties subsequently terminated that portion of the easement by way of quitclaim deed.

The cross-complaint alleges that there is no need for ingress or egress over Lot 2 or Lot 3, which have been joined as a single business, but there is still need for use of the easement over Lot 1 for ingress and egress to the merged Lots 2 and 3 in order to access Elk Avenue. This portion of the easement runs though cross-defendants’ parking lot and is partially blocked by a tree and periodically by cars that cross-defendants permit to be parked in a manner that obstructs ingress and egress.

Cross-complainant alleges that as part of its recent construction on Lots 2 and 3, the City of Glendale required the installation of a handicap ramp along the southern border of Lot 2 leading up to cross-defendants’ entry way. Cross-complainant alleges that the ramp is a necessary ramp for ADA compliance, and to ensure accessibility for all citizens and guests in the city, and that although cross-defendants claim that the handicap ramp will interfere with their easement, the easement was already long-abandoned as of 2006 and serves no purpose now that Lots 2 and 3 are being used for a single business.

Plaintiffs Samir Daher and Sholen Daher seek a preliminary injunction against defendant MTMD to enjoin defendant and its agents from doing any acts that interfere with or obstruct plaintiffs’ use of the express easement rights over the portion of MTMD property which plaintiffs use for egress and ingress to the property.

(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.

(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.

The parties here concede that the properties at issue are properties on which the parties operate businesses. Plaintiffs submit with the moving papers a declaration of plaintiff Samir Daher, in which he states, “I currently operate the Property as a chiropractic clinic under Glendale Urgency Chiropractic Clinic.” [Daher Decl., paras. 4-5]. There is accordingly no presumption of irreparable harm.

Plaintiffs seek relief on the ground plaintiffs are likely to prevail in this case on its merits. Plaintiffs argue that they have unequivocal evidence that defendant has willfully interfered with the use and enjoyment of their express and recorded easement over defendant’s property. The moving papers seek an injunction to be issued to “cease the construction, stop blocking access to the disputed area, and prevent any further conduct or action to interfere with or obstruct Plaintiffs’ use of the easement.” [Motion, p. 6:3-5].

“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.”

As pointed out in the opposition, the construction of the ramp which plaintiffs seek to enjoin from proceeding has in fact been completed. The general purpose of a preliminary injunction is the preservation of the status quo until a final determination of the merits of the action. Stewart v. Superior Court of San Diego County (1893) 100 Cal. 543, 545. Defendant argues that the status quo in this case is the existence of an ADA ramp across an unnecessary easement, which defendant in its verified cross-complaint contends has long been abandoned and has been obstructed by plaintiffs themselves. Defendant suggests that in its current posture, the motion is moot.

It is not clear that the motion is moot, as plaintiffs argue in the moving papers that courts can in making preliminary injunction determinations order the removal of existing structures. Plaintiffs rely on case authority under which it is recognized that a mandatory injunction may be issued in equity even if the cost of removal of an encroaching structure is great under certain circumstances, “especially if the encroaching structure was willfully erected with knowledge of the claimed easement.” Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572, citations omitted.

However, it is generally held that in weighing the relative harm from imposition of an injunction, the trial court is permitted to consider “the fact that courts are reluctant in some cases to order the destruction of an expensive encroaching structure.” Keith v. Superior Court (1972, 2nd Dist.) 26 Cal.App.3d 521, 524.

“Where, as here, the preliminary injunction mandates an affirmative act that changes the status quo, we scrutinize it even more closely for abuse of discretion. 'The judicial resistance to injunctive relief increases when the attempt is made to compel the doing of affirmative acts. A preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.' " (Board of Supervisors v. McMahon (1990) 219 Cal. App. 3d 286, 295 [268 Cal. Rptr. 219], fn. omitted.) The granting of a mandatory injunction pending trial " 'is not permitted except in extreme cases where the right thereto is clearly established.' " (Ibid., quoting Hagen v. Beth (1897) 118 Cal. 330, 331 [50 P. 425].)”

The moving papers include a declaration from plaintiff Samir Daher, in which he indicates that he and his wife are owners of Lot 1, and an easement for ingress and egress over Lot 2, and attaches a copy of the recorded Easement Agreement from August of 1936. [Daher Decl., paras. 2-3, Ex. A]. The declaration indicates that the easement across the MTMD Property has a paved driveway and ramp which serves as the only ingress to and egress from his property. [Daher Decl., para. 9]. Daher indicates that the MTMD’s construction in the parking lot, constructing a fence, placing new concrete, and building a walkway, restricts plaintiff’s use of the easement for ingress and egress, which is a violation of the easement. [Daher Decl., para. 11]. Daher states that, “The construction makes it impossible for me and my customers to use the driveway to the parking lot.” [Daher Decl., para. 11]. Plaintiffs also argue that the encroachment of the easement was willful, as Daher testifies that he has sent multiple letters to defendants informing them of the easement and asking them to cease further violations. [Daher Decl., para. 13, Ex. C].

Defendant in opposition argues that plaintiffs misconstrue the nature of the easement in question and the impact, if any, on their use of the property. Defendant argues that the Tract Map submitted by plaintiffs in support of the motion actually shows Lots 2, 3 and 4, which are all owned by defendant, and that Lot 4 serves as the parking for the single unit surgery center being developed by defendant on Lots 2 and 3. [See Daher Decl., Ex. B]. Defendant indicates that plaintiffs’ business and parking lot are identified on the map as Lot 1, and that the westerly portion of that lot serves as the parking lot for the building situated on the easterly portion. Defendant argues that visitors to plaintiff’s business can access the parking lot on Lot 1 directly from Elk Avenue, and that there is no need for plaintiffs or their customers to access any lot other than Lot 1 when visiting plaintiffs’ business. It does appear from the Tract Map that if the Lot 1 parking is on Lot 1, there would be no impact on access to the Lot 1 clinic or parking from the outside, and it is not clear why Lot 1 would have to be accessed from the other Lots, specifically Lot 2.

Defendant argues that plaintiffs are not likely to succeed on the merits here, as defendant, through its verified cross-complaint, contends that the easement has been abandoned, and has been obstructed by plaintiffs, but plaintiffs make no attempt to address those arguments.

Defendant also argues that the balance of equities in this matter strongly favors the denial of plaintiff’s request. Defendant argues that plaintiff requests the removal of a City-required ADA ramp, and that, as stated in the verified cross-complaint, defendant’s actions in building the ADA ramp were required by the City and the ADA. Defendant submits a declaration of its manager, Maxim Moradian, M.D., who attaches the approved plans from the City for defendant’s construction, indicates that the only construction on the Daher easement as identified in the complaint is an ADA ramp which the City required to enable access to the business on Lots 2 and 3, and that, “Without this ramp there is no ADA access to the property owned by MTMD LLC, rendering it useless for commercial activity.” [Moradian Decl., para. 4]. The declaration also indicates the ramp in question is complete, that it “cannot be removed without permission from the City,” and concludes, “Requiring the removal of the ramp would be a violation of the ADA, and the City-approved plans and would prohibit MTMD LLC from operating its business.” [Moradian Decl., para. 9].

It does appear that plaintiffs have not specifically explained how the new ramp makes it “impossible” for plaintiffs and their customers to use the driveway to the parking lot, or otherwise access the business and parking on Lot 1. [See Daher Decl., para. 11]. Plaintiff’s declaration does not specify how this circumstance purportedly impacts plaintiff’s business. [See Daher Decl., para. 15].

Plaintiff has failed to file or serve timely reply to the opposition, and it appears from the diagrams submitted by plaintiffs and the description of the businesses by defendant that the balance of harm here would favor maintaining the status quo until the matter can be sorted out on its merits.

Here, defendant concedes that there has been construction on the easement, and does not dispute the existence of an express recorded easement for ingress and egress, and it is unfortunate that the ramp construction was completed before the easement issue was directly addressed. Defendant seems to argue that there can be no finding of willfulness here, as defendant’s declaration states, “I am informed and believe that prior to MTMD’s purchase of Lots 2 and 3, Plaintiffs abandoned the Daher Easement.” [Moradian Decl., para. 10].

Considering all of the circumstances, plaintiffs’ showing is not sufficient to support the heightened showing to support a mandatory injunction that this is an “extreme” case, where the right to immediate injunctive relief is “clearly established.” It also does not appear that the facts support a finding of willfulness to justify the removal of a now existing structure, which provides necessary ADA required access to an adjoining business. The balance of harms strongly favors denying the request for a mandatory injunction which would greatly harm defendant while this matter is litigated, and would have little impact on what appears to be plaintiffs’ self-contained business on Lot 1. In addition, any harm or damage to plaintiffs’ business while the litigation is pending could be compensated in monetary damages.

Motion for Preliminary Injunction is DENIED. Plaintiffs fail to meet the elevated burden required when requesting a mandatory injunction, and the balance of harms favors maintaining the status quo in this matter until a final determination on its merits.

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