Judge: Stephen P. Pfahler, Case: 23CHCV01701, Date: 2023-10-04 Tentative Ruling
Case Number: 23CHCV01701 Hearing Date: October 4, 2023 Dept: F49
Dept.
F-49
Date:
10-4-23
Case
# 23CHCV01701
Trial
Date: Not Set
INJUNCTION
MOVING
PARTY: Plaintiff, Gary Nevieux
RESPONDING
PARTY: Defendant, Douglas Hews
RELIEF
REQUESTED
Motion
for Preliminary Injunction
SUMMARY
OF ACTION
Defendant
Douglas Hews occupies a residence identified as 34448 Agua Dulce Canyon Road,
Agua Dulce, and allows for the storage of vehicles on said property. According
to plaintiff Gary Nevieux, third party Arren Kroul stores three vehicles and a
trailer at said property—a 1981 Chevy truck, a 1991 Chevy Truck, and a 1997
Ford truck, and 1999 vehicle trailer. Various equipment is also identified in
the list of equipment. Plaintiff maintains an ownership interest in all
identified vehicles and equipment.
In
November 2022, Defendant allegedly denied Plaintiff access to all equipment by
expressly barring Plaintiff from entering the property. Defendant subsequently
filed a small claims action on December 2, 2022, seeking payment for storage of
the vehicles. Plaintiff apparently refuses to pay any claimed storage costs,
and seeks to retrieve the vehicles.
On
June 12, 2023, Plaintiff filed a complaint for Conversion, Preliminary
Inunction, and Declaratory Relief. On July 20, 2023, Plaintiff filed an ex
parte application for a writ of possession, and temporary restraining order. On
July 24, 2023, the court, granted the temporary restraining order enjoining the
sale, selling, gifting, transfer, loan, or otherwise dispossession of any
personal property to a third party.
RULING: Granted in Part/Denied
in Part.
Plaintiff
Gary Nevieux moves for a preliminary injunction enjoining defendant Douglas
Hews “from further possessing” certain personal property, including three
trucks, a trailer, a generator, welder, air compressor, two vehicle ramps, a
drill press, electric wench, and five tool boxes. Plaintiff
additionally/alternatively moves for a preliminary injunction from “selling,
gifting, transferring, loaning, or otherwise disposing” of said property.
Defendant in opposition contends the motion fails to establish a probability of
success on the merits, a lack of irreparable harm, and an insufficient showing
of favorable balance of equities. Plaintiff filed a reply on September 27, 2023
reiterating his arguments in the moving papers.
In
ruling on a motion for preliminary injunction, the court first considers both the
likelihood of prevailing on the merits and irreparable harm. (Millennium Rock Mortg., Inc. v. T.D. Service
Co. (2009) 179 Cal.App.4th 804, 812.) “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.) “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. Procedurally, an application for a preliminary
injunction, must be based upon sufficient evidence. (Code Civ. Proc., §527 subd. (a); Bank of America v. Williams (1948) 89
Cal.App.2d 21, 29.)
“[T]he general
rule is that an injunction is prohibitory if it requires a
person to refrain from a particular act and mandatory if it
compels performance of an affirmative act that changes the position of the
parties.” (Davenport v. Blue Cross of California (1997)
52 Cal.App.4th 435, 446.) “An injunction designed to preserve the status quo as
between the parties and to restrain illegal conduct is prohibitory,
not mandatory, and does not require heightened appellate scrutiny.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1048.) “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 Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)
The subject motion seeks both a return of all identified property,
or at least an order enjoining any change to the location, condition, and
ownership of the property. On the showing of the likelihood of the merits, Plaintiff relies
on the first cause of action for conversion. Plaintiff asserts ownership of the
property, with Defendant knowingly and wrongfully asserting dominion and
control over the property to the exclusion of Plaintiff.
The
property itself was stored by third party Arren Kroul, a tenant of Defendant,
and business partner of Plaintiff. It’s not clear whether Kroul resides on the
property any longer and/or is also barred from retrieving the property on
behalf of Plaintiff, as a business partner, but the denial of access remains
undisputed. [Declaration of Gary Nevieux.] Plaintiff presents evidence of vehicle
ownership through Department of Motor Vehicle records as to the vehicles,
though otherwise lacks documentation on the other equipment. [Id., Declaration
of Ian Mackins.]
Service
and Appearance
Prior
to considering the merits of the motion, the court addresses Plaintiff’s represented acknowledgment regarding the
inability of the Los Angeles County Sheriff’s office to execute personal
service of the summons and complaint, as ordered in the July 24, 2023, ex parte
order. Plaintiff submitted a proof of service via e-mail on August 22, 2023,
representing “service” on July 24, 2023. Such service is invalid. (Code Civ.
Proc., §§ 415.10, et seq.) The inability to effect personal service requires an
application for service by publication. (Code Civ. Proc., § 415.50.)
On August 22, 2023, Defendant, in pro per, filed a Declaration of
Demurring or Moving Party in Support of Automatic Extension.” Plaintiff
contends said subsequently filed document constitutes an appearance and allows
for service of the summons and complaint via electronic service, which
Plaintiff purportedly transmitted on August 22, 2023. [Mackins Decl., Ex. 5-6.]
Nothing in the motion establishes the filing of the declaration
for an extension constitutes an appearance. (Code Civ. Proc., § 1014.) Even if
Defendant “appeared” via the filing of the request for an extension, the court
declines to find a waiver of required personal service otherwise statutorily
required. Regardless, Defendant apparently retained counsel and filed an
opposition on the motion. The opposition constitutes an appearance and waiver
of any potential jurisdictional considerations.
Probability of Success on the Merits
“‘A cause of action for conversion requires allegations of
plaintiff's ownership or right to possession of property; defendant's wrongful
act toward or disposition of the property, interfering with plaintiff's
possession; and damage to plaintiff. [Citation.] Money cannot be the subject of
a cause of action for conversion unless there is a specific, identifiable sum
involved.’” (PCO, Inc. v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150
Cal.App.4th 384, 395.)
Defendant maintains the vehicles and equipment were
“abandoned” from May to September 2022. Defendant offered Plaintiff multiple
opportunities to retrieve the property, but the requests were met with no
response. [Declaration of Douglas Hews.] Defendant subsequently engaged in the
lien sale process following the lack of any response to the notice of storage
charges. [Id., Ex. 2.] Defendant denies any wrongful dispossession of the
property as a result of the storage charges and engagement of the lien sale process.
The notice of lien itself fails to comply with the statutory
service provision of personal service or certified mail with return receipt,
and instead only shows mail and e-mail service to counsel. (Civ. Code, §§ 3068,
subd. (b)(4), 3071, subd. (b)(2), Veh. Code, §
10652.5, subd. (a).) Given the lack of compliance with the lien sale statutes,
the court finds no basis vitiating the claim for possession. Furthermore, the
opposition only addresses the vehicles, and provides no address of the
purported personal property also remaining on the premises. The court
finds the claim of ownership and denial of access constitutes a sufficient
showing of legal merit on the conversion claim.
Irreparable Harm
On the irreparable harm showing Plaintiff
only cites to conclusions of irreparable harm without any specific address of
inadequate legal remedy. The court assumes the property is subject to
valuation, and the motion otherwise lacks any specific basis for considering
the property as particularly unique and/or irreplaceable. The request to
maintain a status quo is not part of the criteria for showing of irreparable
harm/inadequate legal remedy. The court therefore finds no particular factual
basis of support on this element.
Balance of Equities
On balance of equities, the court
finds support. Although it’s not clear why Defendant refuses to allow Plaintiff
access to the property, including the circumstances involving the third-party
tenant and business partner, Kroul, the court finds that a potential dispute
between Kroul and Defendant should not render Plaintiff subject to the loss of
property without at least first further examining the circumstances of the
dispute. The alleged effort to negotiate the return of the vehicles and the
property after notice of the (invalid) lien sale and three small claims actions
in no way alters the circumstances of the underlying dispute. The court
therefore finds the preservation of the status quo as a valid basis for the
prohibitory relief only. In other words, the court finds support enjoining
Defendant from any sale or transfer of the property off the premises,
The motion is therefore granted,
in part. Defendant is enjoined from any lien sale, personal sale, gift,
disposal, change of title, or transfer of the property off the premises pending
adjudication of the action. The court denies any request for mandatory
relief demanding immediate return of the property pending further adjudication
of the action. The outstanding payment for storage fees remains unaddressed by
Plaintiff. Nothing in this order in any way relieves Plaintiff of potential
charges for storage costs.
Case Management Conference set for
December 13, 2023.
Plaintiff to provide notice.