Judge Stephen P. Pfahler, Case 21CHCV00215 2022-10-12 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21CHCV00215, Date: 2022-10-12 Tentative Ruling

Case Number: 21CHCV00215 Hearing Date: October 12, 2022 Dept: F49

Dept. F-49

Date: 10-12-22 c/f 9-22-22

Case # 21CHCV00215

Trial Date: 2-6-23 c/f 5-23-22

INJUNCTION

MOVING PARTY: Plaintiff, Ryan Canning

RESPONDING PARTY: Unopposed/Defendant, Shawn Kerwin, pro per

RELIEF REQUESTED

Motion for Preliminary Injunction

SUMMARY OF ACTION

On March 19, 2021, Plaintiffs Ryan Canning and Patricia Bogarin, in pro per, filed a complaint for conversion, breach of written agreement, breach of oral partnership agreement, breach of fiduciary duty, unjust enrichment, abuse of process, and breach of oral rental agreement. On April 23 and 26, 2021, Defendant Kerwin, in pro per, filed a cross-complaint for assault and battery, defamation of character, corporate defamation, abuse of personal credit, embezzlement and misuse of business funds negligence leading to theft of all personal property, fraud, profiteering and investment fraud, then answered the complaint.

On July 13, 2021, the court granted the motion of Plaintiff Canning ONLY to expunge the December 14, 2020 recorded mechanics lien. Plaintiffs Ryan Canning and Patricia Bogarin, in pro per, answered on September 14, 2021.

Counsel for Plaintiffs substituted into the case on December 29, 2021. The substitution of counsel only indicates representation for Ryan Canning.

RULING: Denied.

Plaintiff Ryan Canning moves for a preliminary injunction enjoining any withdrawal of funds from certain bank accounts in the name of defendant Shawn Kerwin, or alternatively the appointment of a receiver. Plaintiff initially appeared ex parte before the court on August 23, 2022 requesting a temporary restraining order, based on in part on the scheduled release of Kerwin from the Los Angeles County Jail, which prompted concern from Plaintiff of an immediate withdrawal of funds from the accounts and therefore greater difficulty in recovering on any judgment. The ex parte motion was denied as to any temporary restraining order, but the court set the subject hearing for preliminary injunction. The original hearing was continued due to a clerical error outside the courtroom, but Plaintiff served Kerwin at a new address. The motion remains unopposed.

Given Plaintiff seeks to enjoin the withdrawal of funds from the three identified bank accounts, Plaintiff seeks a prohibitory injunction. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) In considering the elements of an injunction, the court considers both irreparable harm and the likelihood of prevailing on the merits. (Millennium Rock Mortg., Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804, 812.) “The ultimate questions on a motion for a preliminary injunction are (1) whether the plaintiff is 'likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant,’ and (2) whether there is ‘a reasonable probability that the plaintiffs will prevail on the merits’” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408.) “An evaluation of the relative harm to the parties upon the granting or denial of a preliminary injunction requires consideration of: ‘(1) the inadequacy of any other remedy; (2) the degree of irreparable injury the denial of the injunction will cause; (3) the necessity to preserve the status quo; [and] (4) the degree of adverse effect on the public interest or interests of third parties the granting of the injunction will cause.’” (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 435.) “‘[T]he more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue .... [I]t is the mix of these factors that guides the trial court in its exercise of discretion.’” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 342.) Procedurally, an application for a preliminary injunction, must be based upon sufficient evidence. (CCP §527(a); Bank of America v. Williams (1948) 89 Cal.App.2d 21, 29.)

The argument of Plaintiff depends on a showing that Plaintiff will likely prevail on the merits, and enforcement of the judgment will be rendered more difficult, if not impossible, due to the disappearance of identified assets. The motion relies on an assumption that plaintiff will prevail without any actual discussion on the substantive merits of the action other than a statement of “fraudulent transfers of money” by Defendant. The court therefore finds the showing on prevailing on the merits lacks sufficient evidentiary support.

Even assuming, however, Plaintiff will prevail, the motion lacks a showing of irreparable harm/inadequate legal remedy and balance of equities. Enforcement of the assumed judgment constitutes a post-judgment issue, rather than an actual issue related to the underlying causes of action in the operative complaint. The court also finds a lack of sufficient support for a finding of potential post-judgment collection issues outweighing any need for funds potentially in the rightful possession of Defendant and necessity for said funds following his release from the Los Angeles County Jail.

The motion otherwise lacks any legally supported argument for the appointment of a receiver. (Code Civ. Proc., §564). The court declines to consider unmade arguments.

The motion is denied in its entirety.

Trial date remains set for February 6, 2023.

Plaintiff to provide notice.