Judge: Robert C. Longstreth, Case: 37-2023-00020726-CU-BC-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00020726-CU-BC-CTL CENTRAL LIQ INC VS GEORGES FAMILY TRUST 2013 [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's Motion for Preliminary Injunction is DENIED. (ROA 38.) Plaintiff Central Liq Inc. seeks a preliminary injunction enjoining Defendants Georges Family Trust 2013, Helen Georges, George Georges, and Xinia Gomez Perez from leasing the premises located at 3013 Juniper Street in San Diego ('Premises'), and from operating, parking, and storing a food truck in the parking lot of the Premises.

'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, if the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.' (Code Civ. Proc. § 527(a).) '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 v. State of California (1992) 4 Cal.4th 668, 677-78.) '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.' (Id. at p. 678.) Plaintiff asserts it will suffer irreparable harm if the injunction is not issued because it has lost and continues to lose business and goodwill due to the food truck operating in the parking lot of the Premises during certain hours. These alleged harms are compensable as monetary damages and do not justify imposition of a preliminary injunction. Plaintiff's speculation that it will not be able to quantify its lost profits is unsupported; lost profits are routinely pled and proven as an element of damages. In fact, this argument underscores Plaintiff's failure to produce any evidence, other than the conclusory verified allegations in its First Amended Complaint, that it has in fact suffered or will suffer any loss of profits.

And its failure to do so is unsurprising, since Plaintiff itself allowed the food truck to operate in the parking lot of the Premises for years leading up to this lawsuit. Given these facts, it appears issuance of an injunction would disrupt, rather than preserve, the status quo. Tellingly, neither Plaintiff's initial Complaint, filed almost three months before Plaintiff sought interim injunctive relief, nor its First Amended Complaint specifically seeks permanent injunctive relief. (Complaint, ROA 1 at 12; First Amended Complaint, ROA 27, at 13.) Plaintiff has not demonstrated that it will suffer irreparable harm absent a preliminary injunction.

Because the court finds Plaintiff has not sufficiently met the interim harm factor, the court need not address whether Plaintiff has a probability of prevailing on the merits. However, the court notes that Calendar No.: Event ID:  TENTATIVE RULINGS

3041424  6 CASE NUMBER: CASE TITLE:  CENTRAL LIQ INC VS GEORGES FAMILY TRUST 2013 [IMAGED]  37-2023-00020726-CU-BC-CTL there appears to be a real dispute over whether Plaintiff was itself in breach of the lease when it attempted to exercise the renewal option therein. Plaintiff asserts it requested permission from George Georges (via text message) on February 19, 2019 for a food truck to operate on the premises, and that George Georges generally consented to this. (FAC ¶ 14.) However, the lease contained specific requirements for a sublease. (FAC at Exh. A, ¶ 14(B).) Plaintiff did not present evidence that it complied with those requirements.

Plaintiff also asserts it is likely to prevail on the merits because Defendants engaged in unfair business practices pursuant to Business and Professions Code section 17200. It is not clear to the court why Plaintiff raised this argument, given that Plaintiff does not allege a cause of action for violation of Business and Professions Code section 17200.

The Court also need not consider whether the balance of harms favors Plaintiff, since no threshold showing of irreparable harm has been made; however, it is apparent that the speculative unquantified harm alleged by Plaintiff if the injunction is denied would be far outweighed by the harm to Defendant Perez if the injunction were granted, since she would lose her business location entirely. Although this harm too is quantifiable in money damages, this situation underscores that disruption of the status quo that would result from granting the relief Plaintiff seeks.

Finally, the court notes Plaintiff submitted, but failed to electronically file, a Supplemental Brief. In order for the court to consider any papers pertaining to a motion, the papers must be timely 'served and filed' prior to hearing. (Code Civ. Proc. § 1005(b), emphasis added; see also Cal. R. Court, rule 3.1300(a) and San Diego Superior Court Local Rules, Rule 2.1.4.) Because Plaintiff failed to file the papers with the court, the court cannot and has not considered them. The court further notes Plaintiff did not file any proof of service as to the Supplemental Brief.

Defendants Georges Family Trust 2013, Helen Georges, and George Georges filed a 'Reply' in response to Plaintiff's Supplemental Brief. Therein, they state the Supplemental Brief provides no new arguments or evidence of irreparable harm. Accordingly, even if the Supplemental Brief had been properly filed with the court such that the court could have considered it, it does not appear there has been any material change in circumstances that would affect the court's conclusion that Plaintiff did not sufficiently demonstrate irreparable harm.

Once confirmed, this ruling shall be the final ruling of the court and no further order is required.

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