Judge: Ralph C. Hofer, Case: 24NNCV01935, Date: 2024-09-13 Tentative Ruling
Case Number: 24NNCV01935 Hearing Date: September 13, 2024 Dept: D
TENTATIVE RULING
Calendar: 9
Date: 9/13/2024
Case No: 24 NNCV01935 Trial Date: None Set
Case Name: Cavafian v. Nese
MOTION FOR PRELIMINARY INJUNCTION
Moving Party: Plaintiff Gary Cavafian
Responding Party: Defendant John F. Nese
FACTUAL BACKGROUND:
Plaintiff Gary Cavafian alleges that he is the owner of real property in South Pasadena, and that over the last year, the house next door to plaintiff’s home has been completely demolished by the owner, defendant John F. Nese. Plaintiff alleges that defendant has submitted plans to the City of South Pasadena indicating that he will be building a new structure that is in violation of the Building Code.
In particular, plaintiff alleges that in March of 2024 defendant began installing pilings and excavating space for a basement that is less than six inches from the boundary line between the two lots and intends to build a new structure in that spot. Plaintiff alleges that this construction violates the minimum set-back rules for new construction under the Building Code, which requires a minimum set-back of at least 30 inches.
Plaintiff alleges that he has written letters and sent an email to the Building Division of the City and to the City raising his concerns but has not received a response, and in the meantime, construction on defendant’s lot has continued unabated and plaintiff fears that if it is allowed to proceed it will jeopardize the lateral and subjacent support of plaintiff’s home, and create a fire hazard. Plaintiff alleges that the acts and omissions of defendant violate Civil Code section 832(2) and SPMC section 36.300.030, and amount to a common law private nuisance.
The complaint alleges one cause of action for private nuisance.
The file shows that on July 16, 2024, plaintiff filed an ex parte application for an OSC re preliminary injunction and temporary restraining order or for an order shortening time, which was noticed to be heard on July 18, 2024. The hearing was continued pursuant to oral stipulation, and on August 22, 2024, plaintiff’s counsel indicated plaintiff was withdrawing his ex parte application, and counsel stipulated to a hearing date of September 13, 2024 for a hearing on a motion for preliminary injunction.
ANALYSIS:
Plaintiff Gary Cavafian seeks a preliminary injunction against his neighbor defendant John Nese, to enjoin defendant from engaging in construction on defendant’s property (the Nese property) in violation of Article 3 of the Site Planning and General Development Standards of the South Pasadena Building Code, including enjoining defendant and his agents from installing pilings and excavating a space for a basement on defendant’s property less than 6 inches from the boundary line between plaintiff’s property (the Cavafian property) and the Nese property, as well as to enjoin defendant and his agents from engaging in actions that violate plaintiff’s right to use and enjoyment of the Cavafian property.
Plaintiff seeks relief under CCP § 526, which provides, in pertinent part:
“ (a) An injunction may be granted in the following cases:
(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….
(4) When pecuniary compensation would not afford adequate relief.
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 section 2009. CCP § 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.
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 matter concerns real property, which is generally subject to an inference that loss of property rights would be irreparable, as real property is considered unique. See Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 457-458.
The parties here concede that the Cavafian property at issue is plaintiff’s home.
Plaintiff seeks relief on the ground plaintiff is likely to prevail in this case on its merits.
In Butt v. State of California, (1992) 4 Cal.4th 668, the California Supreme Court set the following criteria in connection with preliminary injunction applications under subdivision (a) (1):
“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.”
Butt, at 677-678.
As noted above, the complaint in this matter alleges a cause of action for private nuisance.
The elements of a cause of action for nuisance are: Plaintiff’s ownership or occupancy of real property; defendant used its property (ownership is not required) in violation of the courses of conduct proscribed in Civil Code § 3479 (including conduct offensive to the senses or an obstruction to the free use of the property so as to interfere with the comfortable enjoyment of life or 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.
Civil Code section 3479 provides:
“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
To claim a private nuisance, plaintiff must establish an interference which is “substantial and unreasonable,” and must show special injury different in kind than that suffered by the general public. See Oliver v. AT & T Wireless Services (1999) 76 Cal.App.4th 521, 534; quoting Koll-Irvine Center Property Owners Assn v. County of Orange 24 Cal.App.4th 1041.
Plaintiff argues that plaintiff is requesting that defendant cease construction at the Nese property because the construction plans, as submitted to the City of South Pasadena, call for construction of a structure in violation of Article 3 of the Site Planning and General Development Standards of the South Pasadena Building Code. Plaintiff argues that Article 3, Section 36.300.030(A)(1) of the South Pasadena Building Code entitled “Setback Requirements,” states, “[a]ll structures shall comply with the with the setback requirements of the applicable zoning districts established by Article 2 (Zoning Districts, Allowable Land Uses, and Zone-Specific Standards), and with any special setbacks established for specific land uses by this Zoning Code.” Plaintiff argues that the City of South Pasadena Municipal Code further defines “structure” as used in Section 36.300.030 as “[a]nything constructed or erected, the use of which requires attachment to the ground or attachment to something located on the ground. For the purposes of this Zoning Code, the term ‘structure’ includes ‘buildings.’” Plaintiff argues that the specification that a “structure” includes a “building,” means that the term “structure” is not limited to “buildings.”
Plaintiff argues that Article 3, Section 36.300.030(B)(2) provides an exemption to the setback requirement for “[d]ecks, earthworks, pavement, steps, terraces, and other site design elements which are placed directly upon the finish grade and do not exceed a height of 18 inches above the surrounding finish grade at any point.” Plaintiff argues that pursuant to this language, although earthworks may be exempt from the setback requirements, this exemption only applies if the earthworks “are placed directly upon the finish grade and do not exceed a height of 18 inches above the surrounding finishing grade at any point.” Plaintiff argues that the fact that the City of South Pasadena Municipal Code accounted for an exemption for certain earthworks further supports plaintiff’s position that shoring piles are a part of the “structure” subject to the setback requirements of Article 3, Section 36.300.030. Plaintiff argues that in this case defendant has acknowledged that the shoring piles were approximately 22 feet deep by 2 feet wide, admitting that the shoring piles do not qualify for the earthworks exemption.
Plaintiff also argues that this acknowledgement is also an admission that defendant has departed from the approved plans which provide for “Soldier Piles for Temporary Shoring Detail,” consisting of “2’-0 dia. x 20 ft. deep holes…” Plaintiff argues that despite plaintiff’s complaints regarding defendant’s violation of Article One of the Building Code, defendants refuse to cease construction, so that plaintiff has a reasonable probability of prevailing at trial, in light of defendant’s gross negligence.
This argument does not address each element of a private nuisance cause of action, and it is not clear how plaintiff is claiming defendant has violated Civil Code section 3429, or how plaintiff claims that defendant has engaged in an interference which is “substantial and unreasonable.”
More fundamentally, the argument that defendant has engaged in alleged violations based on specific provisions of the City of South Pasadena Building Code is difficult to follow or analyze because plaintiff has failed to submit with the moving papers the pertinent section or articles of the various building and zoning provisions upon which plaintiff relies, and from which he repeatedly quotes.
The court notes that while the Declaration of Gary Cavafian submitted with the moving papers makes reference to Exhibit 1 as a copy of the pertinent Article from the South Pasadena Municipal Code, and to correspondence attached as Exhibits 2, 3, and 4, there were in fact no exhibits submitted with the moving papers.
The court may accordingly find that plaintiff has failed to meet any burden on this motion by failure to submit to the court the provisions on which he relies to establish a reasonable probability of establishing there was any provable violation or wrongful conduct to support his nuisance cause of action.
The court notes, however, that the opposition does not object on this ground, but also quotes from the South Pasadena Municipal Code. [Opposition para. 11]. The opposition papers also do not submit a copy of the pertinent requirements or language.
The court does not consider it the court’s responsibility to track down the Building Code and Municipal Code requirements which plaintiff claims were violated. However, the court also notes that during previous ex parte proceedings, it came to the court’s attention that some portion of the South Pasadena Municipal Code was attached to the previously filed Declaration of Gary Cavafin [sic] in support of his ex parte application as Exhibit 1, and a further “excerpt” of the pertinent provisions were attached to the correspondence sent to the Building Division of City of South Pasadena on April 5, 2024, and attached to the ex parte declaration as Exhibit 3, at pp. 3-6. The court accordingly considers those documents in connection with this motion.
The court notes that for purposes of the court’s analysis even the provisions attached to the ex parte declaration do not appear to be complete copies of the Building or Zoning provisions which could be pertinent here. For example, the provisions included as Exhibit 1 to the ex parte declaration entitled South Pasadena Municipal Code—Chapter 36, Zoning Code, lists the sections of that chapter, but includes only the first three sections of eleven sections, and is dated September of 2002. [See Ex Parte Carafian Decl., Ex. 1].
The “Excerpt” from the South Pasadena Site Planning and General Development Standards attached to the ex parte declaration as Exhibit 3, does not on its face identify it as such a document, starts in mid-sentence, states at its heading that it is part of “Article 3,” with no section number designated, and evidently consists of only pages 7 through 10 of 159 pages.
This presentation does not provide the court with much confidence that the court has been provided all of the provisions which potentially impact the question before it.
The parties appear to agree that the Setback requirements are subject to South Pasadena Municipal Code—Chapter 36, Zoning Code, General Property Development and Use Standards section 36.300.030 (A)(1), which provides:
“A. Setback requirements.
1. All structures shall comply with the setback requirements of the applicable zoning districts established by Article 2 (Zoning Districts and Allowable Land Uses), and with any special setbacks established for specific land uses by this Zoning Code.”
[Ex Parte Decl., Ex. 1, section 36.300.030 (A)(1)].
No one has bothered to provide the court with a copy of Article 2 to confirm that there has or has not been compliance with that Article.
There appears to be no dispute that the provision applies to all “structures.” There also does not appear to be a dispute that the allowable setback is no closer than 30 inches to a lot line. It is not clear from what provision the parties have drawn this conclusion, but the excerpt in Exhibit 3 includes a table of Allowed Projections Into Setbacks, which, as applied to sills, cornices, roof overhang or eaves, states that the allowed projection is “No closer than 30 in. to a lot line, provided that the lowest edge of the feature is at least 8 feet above ground level.” [Ex. 3, p. 4 of 11, pp. 8/159, Table 3-1]. It is not clear to the court if this is actually the applicable section. No citations to evidence are provided by the parties.
There also appears to be no dispute that the pilings, the construction of which have been approved by the City, are located closer than 30 inches to the property line of defendant.
Assuming the 30-inch figure is applicable, the question remains whether the reference to “structures” being required to comply with setback requirements would include the shoring holes into which slurry has been poured on this project. The plans on the grading plan refers to shoring piles, which are to be drilled, with a steel column inserted, and then leveled. [Laub Decl., Exs. A, B, “Detail, Soldier Piles for Temporary Shoring Detail.”].
Defendant submits the declaration of Stephen Laub, a principal of STL Consulting, Inc., which renders consulting services to defendant concerning the project on the Nese property, who explains that the plans for the construction, including the shoring pilings and their placement, has been approved by the City:
“3. A soils company was employed to test and report regarding the soils conditions of the property. That work was performed and a soils report issued by Geo Concepts. The soils report was then provided to the structural engineer for evaluation and recommendations regarding construction. For this project, the structural engineer required shoring. The plans were drafted and submitted to the city. The city reviewed the plans as well as the soils report and approved the plans. A true and correct copy of the approved plans is attached hereto as Exhibit "A". For the courts convenience attached hereto as Exhibit "B" is the page of the plans which shows the property line in green, the shoring holes in red, and the outline of the proposed structure in blue.
4. …. All of the shoring holes are within the property owned by John F. Nese…. The structure is four feet from the property line.
5. We received approval by the structural engineer to pour slurry instead of the days schedule to pour structural concrete around set I beams.
6. On March 29, 2024 we started the pour. This is a slurry pour to fill the holes. I was supervising the work on the property on that day as well as the soils inspector.”
[Laub Decl., paras. 3-6].
The Laub declaration describes a confrontation with plaintiff while the pour was proceeding, and plaintiff’s disruption of the construction, and the resolution of removing one particular worker from the project, and also indicates that despite plaintiff’s protests, there has been no withdrawal of approval or action to the contrary of continued approval by the City:
“9. The city inspector was also out to the property on that day. The inspector asked for a copy of all of the paperwork to be in his office the following Monday. I provided him with all of the documents including the plans, the soils report, the permits shoring deputy inspector report and the pour log.
10. We have not received a stop notice or anything to indicate that there are any problems with the construction.
[Laub Decl., paras. 7-10].
Plaintiff argues that the shoring pilings are “structures” subject to the set back requirement, with no exception applying.
As noted above, plaintiff argues that the City of South Pasadena Municipal Code further defines “structure” as used in Section 36.300.030 as “[a]nything constructed or erected, the use of which requires attachment to the ground or attachment to something located on the ground. For the purposes of this Zoning Code, the term ‘structure’ includes ‘buildings.’” Plaintiff argues that the specification that a “structure” includes a “building,” means that the term “structure” is not limited to “buildings.” [Motion, p. 6:20-25]. This quoted language is not followed by a citation to evidence or to a code section and does not seem to appear in any of the code sections submitted to the court. No code sections are submitted with the reply papers. Although not obligated to do so, the court has reviewed the papers submitted on this matter, including those submitted on the ex parte application, and cannot find this language. The language suggests it is included somewhere other than Section 36.300.030 itself, and perhaps even other than in Article 3.
In any case, even if the language exists, the court is not persuaded that the shoring pilings could reasonably be determined to constitute “structures,” or things “constructed or erected” in these circumstances.
The shoring pilings do not appear to constitute things constructed or built up or produced, nor erected, as those terms are ordinarily construed, and the term “structures” was evidently construed by the City in approving the plans, and in evidently requiring the shoring pilings based on the soils report.
Defendant argues that the only thing which could be considered a “structure” with respect to this project would be the residential building, which, as set forth in the plans and approved by the City, is “four feet from the property line,” well beyond the 30 inches required here. [Laub Decl., para. 4].
Moreover, plaintiff’s moving papers point out that the language which has been submitted by plaintiff includes an express exemption which appears to apply here. Specifically, Article 3, Section 36.300.030(B)(2) provides:
“B. Exemptions from setback requirements. The minimum
setback. requirements of this Zoning Code apply to all uses except the following:…
2. Decks, earthworks, pavement, steps, terraces, and other site design elements which are placed directly upon the finish grade and do not exceed a height of 18 inches above the surrounding finish grade at any point.”
[Ex Parte Decl., Ex. 1, Section 36.300.030(B)(2)].
This language would appear to directly apply to the “earthworks” here, or “other site design elements,” as it appears that the shoring pilings, which are directed to be leveled, and do not appear to have any height at all, would qualify under this exception.
Plaintiff argues that the fact that the City of South Pasadena Municipal Code accounted for an exemption for certain earthworks further supports plaintiff’s position that shoring piles are a part of the “structure” subject to the setback requirements of Article 3, Section 36.300.030. Plaintiff argues that in this case defendant has acknowledged that the shoring piles were approximately 22 feet deep by 2 feet wide, admitting that the shoring piles do not qualify for the earthworks exemption. This argument makes no sense, as plaintiff depends on the depth of the shoring pilings, not their height or relationship to the finished grade. Even if the shoring pilings were considered structures by the City, the City could have also reasonably determined that they were subject to this express exemption.
Finally, although not argued by the parties, an interpretation that the shoring pilings are structures, subject to the standard set back would not further the stated reason for the zoning provisions, as set forth in the first provision of Section 36.300.030 itself:
“Setback Measurement and Exceptions:
This Section provides standards for the use and minimum size of required setbacks. These standards are intended to provide open areas around structures for: visibility and traffic safety; access to and around structures; access to natural light, ventilation and direct sunlight; separation of incompatible land uses; and space for privacy, landscaping, and recreation.”
[Ex Parte Decl., Ex. 1, section 36.300.030].
Here, the shoring piles are to be leveled, and would not implicate visibility, traffic safety, access to structures, access to natural light, ventilation and direct sunlight on the part of anyone, and plaintiff has not established how he would directly suffer any impact from the shoring pilings. Plaintiff has not established by admissible evidence any incompatible land uses, or an impact on his privacy, landscaping or recreation. The purposes suggest that the standards apply to structures above the ground, not components of a construction project such as the instant shoring pilings.
Overall, the court’s interpretation that the shoring pilings would not constitute structures at all, subject to any set back, or fall within the express exception in the Code, appears to be in alignment with the interpretation by the City of its own set-back requirements, which interpretation should be entitled to deference. Plaintiff accordingly has failed to show any likelihood of success on the merits in this action. In such a case, a preliminary injunction cannot be granted. As explained in Doe v. Wilson (1997) 57 Cal.App.4th 296, 303-304:
“It is well established that we may only review the trial court's order granting a preliminary injunction for an abuse of discretion. ( Butt v. State of California (1992) 4 Cal. 4th 668, 678 [15 Cal. Rptr. 2d 480, 842 P.2d 1240]; accord, Common Cause v. Board of Supervisors (1989) 49 Cal. 3d 432, 447 [261 Cal. Rptr. 574, 777 P.2d 610] (Common Cause).) The trial court abuses its discretion in granting such a preliminary injunction when "there is no likelihood" that the movants will prevail on the merits of their claims for relief. (Ibid.) "A preliminary injunction may not issue without some showing of potential entitlement to such relief." (Ibid.)”
Doe, at 303-304.
The motion is denied on the ground plaintiff has failed to establish any likelihood of success on the merits of his private nuisance claim against defendant in this action.
Moreover, with respect to the relative interim harm to the parties from issuance or nonissuance of the injunction, the evidence clearly weighs in favor of denying any order for a preliminary injunction.
Plaintiff argues that plaintiff will suffer irreparable harm, and that pecuniary damages cannot properly compensate plaintiff for the potential loss or damage to the Cavafian property caused by the negligent construction of the neighboring Nese property. Plaintiff argues that allowing defendants to continue construction in violation of the minimum set-back law will harm plaintiff by jeopardizing the lateral and subjacent support of any structures on the Cavafian property, as well as creating a fire hazard.
The only evidence supporting this argument is plaintiff’s own declaration, in which he states:
“[C]onstruction on Mr. Nese’s lot has continued unabated and I fear that if it is allowed to proceed it will, in my professional opinion, jeopardize the lateral and subjacent support of my own home. Building another structure that close to my home will also create a fire hazard.”
[Cavafian Decl., para. 9].
This statement is expressly stated as plaintiff’s “opinion.”
Under Evidence Code § 800:
“If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is:
(a) Rationally based on the perception of the witness; and
(b) Helpful to a clear understanding of his testimony.”
The opinions and conclusions of plaintiff here, do not appear to fall within this standard. Plaintiff has not established anything within plaintiff’s perception which would support a conclusion concerning the subjacent support of his property or the risk of fire.
Plaintiff has not offered his testimony as that of an expert witness or designated himself as an expert witness testifying in this case. At best, plaintiff’s declaration states:
“I am a bridge structures and civil engineer and the holder of license number C55023 issued by the Board of Professional Engineers, Land Surveyors and Geologists of the State of California.”
[Cavafian Decl, para. 3].
There is no indication that plaintiff is being offered as an expert. Under the circumstances, the court will not regard plaintiff as an expert witness. Hence, the court will disregard the subject opinions in this matter.
Even if plaintiff intends to offer his opinion testimony as an expert witness, the court finds that plaintiff has not sufficiently qualified himself as an expert by sufficiently explaining his qualifications in the declaration.
With respect to opinions of expert witnesses, Evidence Code § 801 provides:
“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.
(b) Based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
Under Evidence Code § 720 (a):
“(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”
The declaration here fails to sufficiently testify concerning plaintiff’s special knowledge, skill, experience, training, or education sufficient to qualify him as a soil expert or a geologist expert concerning earth structure, stability and soil content.
Moreover, based on this showing, plaintiff has failed to sufficiently establish expertise, training or education “on the subject matter to which his testimony relates. The court would not, based on the declaration submitted deem plaintiff an expert entitled to state a professional opinion concerning geology, soil issues, fire hazards, or the geological effects on plaintiff’s property of the construction occurring solely on defendant’s property. It is of note that the construction project has been approved by the City, based on a soils report issued by a soils company which was reviewed by the City before the City approved the plans. [Laub Decl., para. 3]. Plaintiff is not a geologist or a soils expert, or a fire expert, which are all very different from being a licensed civil engineer.
The court also notes that plaintiff has demonstrated no geological expertise and has had weeks since the original ex parte hearing to obtain a geological or soils expert and has failed to do so. In addition, no studies, documentation, soils report or other materials are referred to which would support plaintiff’s opinion. The subject opinion testimony accordingly is disregarded by the court. This outcome leaves plaintiff with no admissible evidence to support any claim of irreparable harm, or hardship if the injunction is not issued.
Defendant in the opposition argues that the balancing of the equities in this case favors defendant, as defendant is in the middle of the construction of a single-family residence. Defendant argues that delays in construction create additional costs as well as damage to the property in the interim. Specifically, defendant argues that the shoring holes have been dug and filled with slurry, and that such work will deteriorate if it is left unattended with the construction not completed.
The Laub declaration states that defendant has to “complete the work,” which has already begun, and states, “Mr. Cavafian has already interrupted the construction of the property as well as forced Mr. Nese to incur additional expenses. Further delaying this project will damage Mr. Nese additionally.” [Laub Decl., paras. 8, 11].
In this case, defendant reasonably relied on permits issued by the City after following a complex process to begin and properly conduct construction, including specifically with respect to the slurry work performed on the shoring holes. [See Laub Decl., paras. 3, 5, Exs. A, B]. Defendant has clearly incurred expense, and delays have unquestionably compounded the complication of the project moving forward.
Under the circumstances, it would be inequitable to permit plaintiff to now derail the project when defendant has followed all steps to obtain the proper permits from the City, and it is not clear why plaintiff did not participate in planning department hearings to question such matters before the construction began and significant expense was incurred.
The City, by its issuance of the permits, and its inaction with respect to plaintiff’s communications and complaints concerning the project, has signaled that the City has no issue with the continuing construction pursuant to the approved plans. The City evidently has approved the interpretation of the set off provisions in the same manner as the court is interpreting it here.
The balance of hardships clearly favor defendant here, and no preliminary injunction is issued.
RULING:
Plaintiff Gary Cavafian’s Motion for Preliminary Injunction is DENIED. Plaintiff has failed to meet the burden of establishing the likelihood that the moving party will ultimately prevail on the merits.
The Court further finds that the relative interim harm to defendant if the injunction is granted is greater than the harm to plaintiff if it is not.
Plaintiff Gary Cavafian’s Evidentiary Objections in Support of Reply Memorandum to Defendant John F. Nese’s Opposition to Motion for Preliminary Injunction:
Objections Nos. 4 and 5 are SUSTAINED.
All other objections are OVERRULED.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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