Judge: Stephen Morgan, Case: 22AVCV00477, Date: 2022-08-11 Tentative Ruling
Case Number: 22AVCV00477 Hearing Date: August 11, 2022 Dept: A14
Background
This is a contract action. Plaintiff Will M. Pryor (“Plaintiff”) presents that he had five accounts with Defendant Bank of America, N.A. (“Defendant”), consisting of:
A checking and savings account under Reo Assets and Investment Servicing Co., LLC; and
A checking and savings account under Will Pryor; and
One account (unspecified type) under happiibook, LLC.
Plaintiff alleges that all accounts were maintained without interruption until around May 07, 2021 when they were closed without any warning, notification, cause, or reason. Plaintiff further alleges that the funds for the Reo Assets and Investment Servicing Co., LLC accounts ($3,000.00) were returned in the form of a check without a reason, but that the money from the other three accounts (approximately $153,000.00 were not returned). Plaintiff contends that he made numerous attempts to have his money returned, but was told in May 2021 that Defendant had a legal right to hold the funds for 90 days and to investigate, that they would give a reason, and resolve the situation. Plaintiff alleges that, to date, he has not received the money from his accounts.
On July 21, 2022, Plaintiff filed his Complaint alleging five (5) causes of action for: (1) Negligence, (2) Negligent Performance of Contract, (3) Negligent Failure to Warn, (4) Breach of Contract, and (5) Conversion.
On July 27, 2022, Plaintiff filed his First Amended Complaint (“FAC”) alleging four (4) causes of action for: (1) Negligence, (2) Negligent Performance of Contract, (3) Negligent Failure to Warn, and (4) Conversion.
On August 02, 2022, Plaintiff filed an Ex Parte Application for Preliminary Injunction.
No Opposition was filed.
On August 02, 2022, a hearing on the matter was held. Defendant did not appear. The Court continued the matter to August 11, 2022 and ordered Plaintiff to (1) direct Plaintiff to file a proof of service for the original Complaint, the FAC, and the Ex Parte Application, and (2) include a time of service on the Proof of Service for the Ex Parte Application.
On August 03, 2022, Plaintiff filed a Proof of Service showing that he walked the Ex Parte Application into a Bank of America branch located at 1028 West Ave. K Lancaster, CA 93534 on August 03, 2022 at 11:30 am and gave it to Dolly Ramirez.
On August 09, 2022, Defendant fled its Opposition.
No Reply has been filed.
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Legal Standard
Standard for Preliminary Injunction – “A preliminary injunction is an interim remedy designed to maintain the status quo pending a decision on the merits.” (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623; see also Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.) “[A] cause of action must exist before injunctive relief may be granted.” (Id. (citing Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168).)
The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. (See Code Civ. Proc. § 527(a).) For this reason, a pleading alone rarely suffices. (Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).) The burden of proof is on the plaintiff as moving party. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307.)
The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a); Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.) Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. (Doe v. Wilson (1997) 57 Cal.App.4th 296, 304.) The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1255.)
A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc. § 529(a); Cal. Rules of Court, rule 3.1150(f); City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 920.)
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Discussion
Application – Plaintiff seeks a preliminary injunction prohibiting Defendant from continuing their practice of closing accounts and retaining the funds, which they have done for over fourteen months in this action.
The first five paragraphs of the memorandum are taken almost verbatim from Yick v. Bank of Am., N.A. (2021) 539 F.Supp.3d 1023 (“Yick”). Plaintiff has interspersed some statements related to his case, but relies heavily on the wording of Yick in order to meet his burden. However, Yick is a class action suit filed federal court and, as such, is not entirely applicable in this instant action.
The following paragraphs appear to be (1) what Plaintiff hopes to achieve from this preliminary injunction (Ex Parte Application ¶¶ 6-8), (2) what is alleged in this action (Id. at ¶ 9), and (3) what Plaintiff has already lost (Id. ¶ 10).
It also appears that Plaintiff may be trying to argue that the preliminary injunction in Yick applies to him. (See ¶ 9 [“Bank of America has no defense, because [sic] that was [sic] required to be given no later than Aug. 1, 2021 but [sic] by the Yick vs. Bank of America case no. 3:3-21-cv-00376-VC [sic] Preliminary Injunction no later than June 1, 2021”].) This is not true. Though the plaintiffs in Yick allege similar facts, the cases are unrelated and are filed in different courts.
Defendant first argues that service of the Ex Parte Application was improper. Defendant presents (1) that the first service of the Ex Parte Application was served on August 01, 2022 at 2:00 pm noticing a hearing date on August 02, 2022 at 9:00 am in violation of California Rules of Court, Rule 3.3203, and (2) that the notice for the continued hearing on the Ex Parte Application did not allow nine (9) court days before the hearing in order to allow Defendant a sufficient opportunity to oppose. Cal. Rules of Court, Rule 3.1203 states: “A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice.” Pursuant to Cal. Rules of Court, Rule 3.1203, Defendant has had sufficient notice of the hearing on the Ex Parte Application.
Defendant’s Opposition focuses on the Complaint’s request of $200,000.00. Defendant claims that it is unclear that the $200,000.00 is even part of Plaintiff’s account funds. Next, Defendant opposing the request for attorney fees as there is no evidentiary support in the Complaint, FAC, or Ex Parte Application. Defendant highlights that Plaintiff is a self-represented litigant. Defendant further argues that he has failed to establish that the hardship to him if relief is denied will outweigh the hardship to Defendant if it is forced to liquidate $200,000 in funds and that Plaintiff has not pleaded or proved a likelihood of success on the Merits of his Complaint.
Defendant’s Opposition also includes an argument that Plaintiff’s Prayer for Relief should be stricken under Cal. Code Civ. Proc. § 436(a). The Court does not address this request as it believes that the interests of justice are best served by Defendant filing a Motion to Strike under the procedure set forth in Cal. Code Civ. Proc. § 435 (i.e., a noticed motion).
Regarding Defendant’s claim that it is unclear where the $200,000.00 figure came from (see Opposition p. 4, fn. 2), the Court notes that Plaintiff’s FAC and Ex Parte Application state that the $200,000.00 is based on his funds ($149,000.00) plus 10% daily interest and 10% penalty from May 2021 to the date received.
Plaintiff has not made a showing of the likelihood he will prevail on the merits of its case at trial. The exhibits integrated into the original pleadings seem to allege some sort of fraud occurred with Plaintiff’s accounts as the reason the money in the three remaining accounts was sent to Defendants’ Hold Harmless Unit. (Complaint, Exhibit 1.) There is also evidence that Defendant informed Plaintiff of the conditions surrounding the hold on his money from the remaining accounts via Bank Statements, Claim Correspondence, Copies of Checks, and Account Closure Correspondence. (Ibid.) However this information is not provided to the Court.
Further, as Plaintiff has already gone over 14 months without the money at issue in this action and has already lost both his office housing lease, the injury has already occurred and the granting of a preliminary injunction at this point would not rectify the situation. Plaintiff has not shown the interim harm he is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction.
The Court does note that Plaintiff has stated he is currently homeless. (Ex Parte Application ¶ 10.) There is no doubt that a sum of approximately $153,000.00 would aid an individual who is homeless; however, as mentioned, ante, Plaintiff has not evidenced (1) the harm he is likely to sustain if the preliminary injunction is denied, and (2) the harm Defendant is likely to suffer if the preliminary injunction is granted.
Should Plaintiff elect to re-file a motion for a preliminary injunction it is necessary that he provide enough information for the Court to determine the likelihood he will prevail on the merits of its case at trial, the harm he is to suffer should a preliminary injunction be denied, and the harm Defendant is likely to suffer if the preliminary injunction is granted.
Accordingly, the Ex Parte Application is DENIED.
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Conclusion
Plaintiff Will M. Pryor’s Ex Parte Application for Preliminary Injunction is DENIED.