Judge: Stephen I. Goorvitch, Case: 24STCV13399, Date: 2024-08-26 Tentative Ruling

Case Number: 24STCV13399    Hearing Date: August 26, 2024    Dept: 82

Lukas Richter v. Shahin Manesh Safae

Case No. 24STCV13399

[Tentative] Order Granting in Part and Denying in Part

Plaintiff’s Ex Parte Application for Temporary Restraining Order

and Order to Show Cause why Preliminary Injunction Should Not Issue

BACKGROUND

            Plaintiff Lukas Ricther (“Plaintiff”) filed this action against his neighbor, Shahin Manesh Safae (“Defendant”), asserting causes of action for trespass, private nuisance, negligence, and unfair competition under Business and Professions Code section 17200.  In the operative complaint, Plaintiff alleges as follows:

Defendants have been engaging in significant unpermitted construction and grading activity, which has damaged Plaintiff’s property.  (Complaint ¶ 2.)  As a result, on March 27, 2024, the City of Los Angeles (the “City”) issued a “Substandard Order and Notice of Fee” that identified at least seven separate violations, including construction and grading work done without permits and work being done contrary to code requirements.  (Complaint, ¶ 4.)  Plaintiff also alleges that Defendants installed a large heating and air conditioning condenser unit on the roof without proper structural engineering considerations, as noted in the substandard order, and without consideration for the excessive noise it causes.  (Complaint, ¶ 8.)   

Now, Plaintiff seeks a temporary restraining order and preliminary injunction prohibiting Defendant from doing the following at the subject property, which is 5251 Veronica Street, Los Angeles, California 90008: (1) Performing or continuing any construction or grading activity without express authorization based on a validly issued permit from the City; (2) Performing or continuing any construction activity “under permits obtained in the name of any person other than the actual owner;” (3) Failing to provide required lateral support for the property and its improvements; (4) Failing to comply with the requirements of the Substandard Order; (5) Not operating the HVAC system until “the required engineering is completed, the applicable building permit is issued and all work is completed; (6) Maintaining or operating the HVAC system in a manner creating a nuisance; and (7) Engaging in certain alleged nuisances, including short-term rentals or allowing more than five persons to gather without a permit from the City. 

LEGAL STANDARD

In deciding whether to grant a preliminary injunction, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.”  (White v. Davis (2003) 30 Cal.4th 528, 553-54.)  The factors are interrelated, with a greater showing on one permitting a lesser showing on the other.  (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.)  If the balancing of harms strongly favors the moving party, there need only be “some possibility” that the moving party will prevail on the merits.  (Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 362, citing Butt v. State of California (1992) 4 Cal.4th 668, 678.)  A preliminary mandatory injunction is rarely granted.  (See Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295; see also Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625.)  “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.”  (Teachers Ins. & Annuity Ass’n v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)

EVIDENTIARY ISSUES

            A.        Reliance on Hearsay – Both parties rely on inadmissible hearsay.  For example, Plaintiff states: “In my conversations with Inspector Michalak of [the City], he has confirmed that [Defendant] has not sufficiently addressed the matters in the Substandard Order, despite many orders to do so, and many visits to the property.”  (Richter Decl. ¶ 32.)  Similarly, Mr. Mgdesyan states:

“I have spoken to Los Angeles City Inspector, William Michalak as recent [sic] as on August 19, 2024, to confirm the status of the March 27, 2024, Substandard Order issued to [Defendant].  Mr. Michalak informed me that [Defendant] has complied with all requirements of the Substandard Order and the only reason the Substandard Order is outstanding is due to the grading plans that have been submitted by [Defendant] and are pending City approval.  Mr. Michalak informed me that the Substandard Order would be deemed ‘closed’ upon approval by the City of the grading plans which are currently in plan check.”

(Mgdesyan Decl. ¶¶ 3-4.)  The court will not consider such hearsay from either party.

            B.        Public Records – Defendant relies on records from the Los Angeles Department of Building and Safety website.  Both Mr. Mgdesyan and Defendant authenticate these records.  The records clearly satisfy the requirements of Evidence Code section 1280.  Therefore, the court shall consider them in ruling on this ex parte application.

DISCUSSION  

            Plaintiff seeks a broad temporary restraining order (and preliminary injunction).  The court will address each request separately. 

1.         Performing or continuing any construction or grading activity without express authorization based on a validly issued permit from the City – The court is not persuaded that there is exigency.  Therefore, the ex parte application for a TRO is DENIED.  This order is without prejudice to Plaintiff filing a noticed motion for a preliminary injunction in Department 69 seeking this relief pursuant to Local Rule 2.8(b). 

2.         Performing or continuing any construction activity “under permits obtained in the name of any person other than the actual owner” – Plaintiff relies on a permit application and declaration submitted in the name of the former owner, who was deceased at the time.  (See Richter Decl. Exh. C.)  While the court is concerned, the record is clear that the City knows the identity of the true owner, so it is unclear how the false declaration is material.  The court is not persuaded that there is exigency.  Therefore, the ex parte application for a TRO is DENIED.  This order is without prejudice to Plaintiff filing a noticed motion for a preliminary injunction in Department 69 seeking this relief pursuant to Local Rule 2.8(b). 

3.         Failing to provide required lateral support for the property and its improvements – The court is not persuaded that there is exigency.  Therefore, the ex parte application for a TRO is DENIED.  This order is without prejudice to Plaintiff filing a noticed motion for a preliminary injunction in Department 69 seeking this relief pursuant to Local Rule 2.8(b). 

4.         Failing to comply with the requirements of the Substandard Order – The court is not persuaded that there is exigency.  Therefore, the ex parte application for a TRO is DENIED.  This order is without prejudice to Plaintiff filing a noticed motion for a preliminary injunction in Department 69 seeking this relief pursuant to Local Rule 2.8(b). 

5.         Not operating the HVAC system until “the required engineering is completed, the applicable building permit is issued and all work is completed” – Plaintiff has demonstrated a sufficient likelihood of success on the merits.  According to Defendants’ own records from the City’s website, the permit for the HVAC system was issued on April 5, 2024; the permit expired within 30 days; and the permit was never “finaled.”  This means there is no valid permit for the HVAC system.  Plaintiff demonstrates sufficient irreparable harm, because the HVAC system creates “excessive noise.”  (Richter Decl. ¶ 25.)  Therefore, the ex parte application for a TRO is GRANTED.  The court orders that the HVAC system may not be operated until the City conducts a final inspection and approves the HVAC system. 

6.         Maintaining and operating the HVAC system in a manner creating a nuisance – The court has granted the TRO ordering that the HVAC system may not be operated until the City conducts a final inspection and approves the HVAC system.  The court will not issue a TRO that prohibits use after the City does so.  Moreover, the request is too vague to be enforceable.  Therefore, the ex parte application for a TRO is DENIED. 

7(a).    Using the property for short-term rentals without a permit from the City – Plaintiff has demonstrated a sufficient likelihood of success on the merits.  (See Richter Decl. ¶¶ 36-40.)  Plaintiff has also demonstrated that the balancing of harms favors him.  (See ibid.)  Indeed, Defendant states that he does not intend to engage in any short-term renting.  (Safae Decl. ¶ 18.)  Therefore, the ex parte application for a TRO is GRANTED.  Defendant may not use the property for short-term rentals without any required permit from the City.   

7(b).    Allowing more than five persons to gather without a permit from the City – Plaintiff does not establish that a permit is required for a party with more than five people, i.e., Plaintiff does not demonstrate a sufficient likelihood of success on the merits.  Therefore, the ex parte application is DENIED.    

7(c).    Engaging in certain alleged nuisances – Plaintiff establishes that Defendant has violated the City’s noise ordinance for loud parties, which is 10 p.m.  (Richter Decl. ¶ 37)  The court finds that the balancing of harms favors Plaintiff.  Indeed, Defendants states that he intends to sell the property.  (Safae Decl. ¶ 18.)  Therefore, the ex parte application is GRANTED.  Defendant may not have parties before 7 a.m. or after 10 p.m.   

CONCLUSION AND ORDER

            Plaintiff’s ex parte application is granted in part and denied in part.  The court issues a temporary restraining order on the following terms:

1.         The HVAC system at the subject property may not be operated until the City conducts a final inspection and approves the HVAC system. 

2.         Defendant may not use the subject property for short-term rentals without any required permit from the City.  

3.         Defendant may not have parties at the subject property before 7 a.m. or after 10 p.m.  

The court denies the ex parte application in all other respects without prejudice to Plaintiff filing a noticed motion in Department 69, pursuant to Local Rule 2.8(b).

            The court issues an order to show cause why a preliminary injunction should not issue on these same terms.  The hearing on the OSC shall be held in Department 82 on _________, 2024, at _____.  The  court sets the following briefing schedule: (1) Any supplemental moving papers shall be filed and served on or before _________, 2024; (2) Any supplemental opposition shall be filed and served on or before _________, 2024; and (3) Any supplemental reply shall be filed and served on or before __________, 2024. 

            Plaintiff’s counsel shall provide notice and file proof of service with the court.