Judge: Richard S. Whitney, Case: 37-2024-00002985-CU-BC-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2024-00002985-CU-BC-CTL T-MOBILE WEST LLC VS SAN DIEGO ROCK CHURCH [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: T-MOBILE'S MOTION FOR PRELIMINARY INJUNCTION is GRANTED.

Plaintiff T-MOBILE WEST LLC ('Plaintiff') seeks a preliminary injunction against Defendant SAN DIEGO ROCK CHURCH ('Defendant') to prevent Defendant from blocking access to the Premises at issue so that Plaintiff may activate antennas. Defendant opposes the motion. This action is based on one cause of action of breach of contract based on the breach of a lease.

'[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. 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.) '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.) 'A plaintiff seeking a preliminary injunction bears the burden of presenting facts which show a reasonable probability that he will succeed on the merits.' (Citizens for Better Streets v. Board of Sup'rs of City and County of San Francisco (2004) 117 Cal.App.4th 1, 6.) Preliminary injunctions that mandate an affirmative act that changes the status quo are closely scrutinized and are rarely granted. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) It is undisputed that Defendant leased the subject Premises to Plaintiff under a lease agreement that provides, in part, Plaintiff was to 'furnish, at no additional charge to [Plaintiff], unimpeded and secure access to the Premises on a 24-hours-a-day, 7-days-a-loyees, agents, contractors and other designees.' (Decl. Handy, Exhibit 1, ¶ 9.) Defendant also does not deny that the lease provides '[f]ailure to provide [Plaintiff] access to the Premises, as required above, within 24 hours after receiving telephonic notice of such failure shall be deemed a Default (as defined in Section 12 below) of this Agreement.' (Decl. Handy, Exhibit 1, ¶ 9.) It is also undisputed that Defendant has refused Plaintiff access to the Premises, as agreed in the lease, for more than a year. Plaintiff also does not deny that Plaintiff properly provided Defendant with notice of Default under the lease nor that the Defendant still has not provided Plaintiff access to the Premises to this day.

Defendant contends that Plaintiff is seeking a mandatory injunction. The Court disagrees. Status quo is defined as 'the last actual peaceable, uncontested status which preceded the pending controversy.' (14859 Moorpark Homeowner's Ass'n v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1408 [Citation omitted].) 'On or around August 15, 2022, T-Mobile began construction and installation of the wireless Calendar No.: Event ID:  TENTATIVE RULINGS

3101857  36 CASE NUMBER: CASE TITLE:  T-MOBILE WEST LLC VS SAN DIEGO ROCK CHURCH [IMAGED]  37-2024-00002985-CU-BC-CTL facilities pursuant to the Lease Agreement and the City's approval of necessary permits.' (Decl. Handy, ¶ 4.) After Plaintiff already had access to the Premises, '[o]n or around February 24, 2023, Rock Church's in-house attorney Brandon T. Willenberg emailed T-Mobile's employees Tyler Gentry and Deidre Ransavage asking if T-Mobile can delay activating the facilities until June 1, 2023.' (Decl. Handy, ¶ 5.) 'On or around March 13, 2023, Rock Church sent T-Mobile a notice of suspended performance, claiming that T-Mobile was not complying with City of San Diego's rule and citing concerns raised by parents of children enrolled at Rock Academy and Rock Early Education Center.' (Decl. Handy, ¶ 6.) Ultimately, a concerned citizens group filed an action challenging the permitting of Plaintiff's Wireless Facilities, but that challenge was dismissed by the San Diego Superior Court. (See Protect Our Schools v. City of San Diego (Jan. 5, 2024 Sup. Ct.) Case No. 37-2023-00016581-CU-WM-CTL; ROA No. 126.) The plaintiff in that action, Protect Our Schools, has filed an appeal, which is currently pending.

Plaintiff already had access to the Premises prior to the dispute. Since the dispute arose, Defendant has blocked Plaintiff's access to the Premises. Therefore, the injunction would be to restore the status quo that existed prior to the dispute. Further, Defendant would not be required to take any affirmative action.

Rather, Defendant merely needs to not prevent Plaintiff's access to the Premises. While Plaintiff seeks access so that it can activate the antennas, that does not alter the fact the Court merely needs to enjoin Defendant from blocking Plaintiff's access to the Premises. The Court does not need to order Defendant to take an affirmative action. The Court concludes this motion is not a motion for a mandatory injunction.

Defendant asserts Plaintiff should have filed this motion as soon as the need arose. Defendant filed this action on January 23, 2024, and filed this motion on March 11, 2024. The Court does not believe Defendant unfairly delayed seeking this injunction. Plaintiff sought to informally resolve the dispute with Defendant and Protect Our Schools. Plaintiff filed this action shortly after the judgment was entered in the action by Protect Our Schools, which pertains to the same concerns Defendant raises here – the safety of the antennas and proper permitting. It would have been premature for Plaintiff to seek an injunction before the court in the other action had ruled on the demurrer. It was reasonable for Plaintiff to wait for the results in the related action and after attempting informal resolution before filing this action.

The delay of a couple months from the entry of judgment to this motion is not significant.

Defendant asserts there is no irreparable injury to Plaintiff. Plaintiff asserts reputational harm based on service issues. Mr. Handy, Director of Network Engineering & Operations of Plaintiff, declares Defendant's 'denial of access has also caused significant harm to T-Mobile, including, but not limited to, interfering with T-Mobile's ability to provide critical wireless services to its customers.' (Decl. Handy, ¶ 9.) Mr. Handy explains 'it is impossible to calculate how many customers T-Mobile has lost or may lose due to Rock Church's breach or what harm to T-Mobile's reputation among customers has been suffered short of complete loss of customers,' but notes it is known 'the wireless communication industry is highly competitive' and that 'T-Mobile will not be able to provide critical wireless services to its customers in the surrounding areas' if Defendant continues denying access. (Decl. Handy, ¶ 9.) Further, Mr. Handy notes Plaintiff is 'losing money daily as it is still required to pay its monthly rent under the Lease Agreement as well as paying for the equipment since they were delivered and integrated in December 2022.' (Decl. Handy, ¶ 9.) The Court find Mr. Handy's declaration is sufficient to demonstrate Plaintiff would suffer irreparable harm.

While Defendant asserts that Plaintiff can be adequately compensated with money, an injunction may be granted '[w]here it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.' (Code Civ. Proc., § 526(a)(5).) Defendant does not contradict Mr. Handy's declaration as to the difficulty to determine the amount of damages that will arise as a result of Defendant's breach of the lease.

Defendant also asserts the lease is illegal. Defendant does not assert that Plaintiff has not demonstrated a reasonable probability that Plaintiff will succeed on the merits, but that 'there are legitimate questions about whether the Lease is legal.' Without citing any evidence, Defendant asserts 'the Church and the Church Schools are located within a commercial zone and are at least 100 feet from another nearby school. Accordingly, installation of the Antennas requires a Process 2 Neighborhood Use Permit under Calendar No.: Event ID:  TENTATIVE RULINGS

3101857  36 CASE NUMBER: CASE TITLE:  T-MOBILE WEST LLC VS SAN DIEGO ROCK CHURCH [IMAGED]  37-2024-00002985-CU-BC-CTL San Diego Municipal Code § 141.0420(b)(2)C).' Further, Defendant does not dispute that the other action made such assertions and it was dismissed in Plaintiff's favor as a result of the sustaining of a demurrer. While the ruling is currently on appeal, there is nothing before this Court to find the ruling will be overturned or that Plaintiff in fact failed to get a required permit that renders the lease illegal. The Court finds Plaintiff has presented sufficient evidence to demonstrate it will likely prevail on the merits and Defendant has not presented evidence to demonstrate a valid defense that is likely to prevail.

Finally, Defendant asserts the balance of harm weighs in its favor. While Defendant asserts 'there is a legitimate question about the legality of the Antennas' placement, which suggest that the harm from allowing the Antennas to be activated is high,' Defendant fails to cite any evidence to support such an assertion. Defendant also points to its assertion that it could lose $1 million to $1.5 million in decreased tuition revenue for the Church Schools. To support this assertion, Defendant provides the declaration of Charles Leslie, the Head of Schools for the Rock Academy and an Early Education Center, who declares '[m]ore than fifty families representing over 100 students implied that they would most likely pull their children out of the Church Schools if the Antennas were activated.' (Decl. Leslie, ¶ 7.) This is speculation based on hearsay. In any event, Defendant appears to be a sophisticated entity that was capable of determining the risk of the lease prior to execution. The Court is unpersuaded.

Defendant is correct that Plaintiff has not presented evidence to quantify the exact harm in terms of wireless coverage or lost customers, but that just proves Plaintiff's point that it is nearly impossible to quantify, which supports granting the motion. Mr. Handy's assertion in his declaration is reasonable. In a competitive industry where coverage and service matter to customers, it is reasonable to surmise that failing to provide coverage will cause harm to Plaintiff's reputation. The fact the harm is very difficult to quantify does not mean Plaintiff has not and will not suffer significant harm.

Balancing the likelihood of Plaintiff prevailing on the merits and the potential interim harm that could occur to the parties, the Court finds it is appropriate to impose an injunction to prevent Defendant from blocking Plaintiff's access to the Premises, as defined in the parties' lease. The motion is granted.

Defendant requests an undertaking in the amount of no less than $2,000,000. As the Court finds Defendant has not presented admissible evidence to support a $2,000,000 undertaking, the Court will attempt to estimate the amount Defendant 'may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.' (Code Civ. Proc., § 529.) The Court estimates $10,000. The Court sets the undertaking amount at $10,000. Under CCP section 529, Defendant may object to the undertaking within five days after the service of the injunction. If Defendant objects, the Court will then determine whether Plaintiff's undertaking is insufficient and if a sufficient undertaking is not timely filed, the order granting the injunction must be dissolved. (Code Civ. Proc., § 529.) Calendar No.: Event ID:  TENTATIVE RULINGS

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