Judge Stephen P. Pfahler, Case Number: 24STCV03114, Date: 2024-04-26 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 24STCV03114, Date: 2024-04-26 Tentative Ruling

Case Number: 24STCV03114 Hearing Date: April 26, 2024 Dept: 68

Dept. 68

Date: 4-26-24 c/f 4-24-24

Case #24STCV03114

Trial Date: Not Set

INJUNCTION

MOVING PARTY: Plaintiff, Chan Sook Kim

RESPONDING PARTY: Defendant, Jane Choi

RELIEF REQUESTED

Motion for Preliminary Injunction

SUMMARY OF ACTION

Plaintiff Chan Kim owns and occupies certain real property located at 116 S. Berendo St., Los Angeles. On January 4, 2024, Defendant Choi acquired possession of 108 S. Berendo St., Los Angeles. The two properties are adjacent and share a common driveway. Upon the acquisition of 108 S. Berendo, however, according to Kim, Choi claimed exclusive use of the driveway. Choi alternatively demanded payment of $2,000/month for use. On January 29, 2024, Choi began building a fence without a permit purportedly in direct violation of Los Angeles Municipal Code section 12.21. Choi also parked two to three cars to block the driveway.

On February 6, 2024, Plaintiff filed a verified complaint for Quiet Title to an Implied Easement, Quiet Title to a Prescriptive or Equitable Easement, and Nuisance. On February 8, 2024, the court granted the temporary restraining order enjoining defendant Choi from interfering with or blocking Plaintiff’s right to vehicular ingress and egress to Plaintiff’s property via the paved shared common driveway straddling the properties. The order included removal of any objects or posts placed by Defendant, as well, that block or obstruct Plaintiff’s access rights. The court set a hearing for preliminary injunction.

On February 15, 2024, the court vacated the February 8, 2024, and granted Plaintiff’s renewed ex parte application. The order was entered in part to rectify the prior, acknowledged improper service issue. The court reiterated the temporary restraining order parameters, and additionally ordered the posting of a $5,000 undertaking. The court again set the hearing for the preliminary injunction.

On February 16, 2024, Plaintiff filed a civil bond showing the posting of the $5,000 bond. On March 6, 2024, the court denied Plaintiff’s motion for clarification of the amended temporary restraining order. The court however ordered the removal of “the full, complete, and entire fence/barrier” within seven (7) days of the order. If the fence was not removed within seven (7) days of the order, the court authorized Plaintiff to remove the barrier at the expense of Defendant. The court denied Defendant’s request for an increased bond amount.

On April 5, 2024, Choi answered the complaint, and filed a verified cross-complaint against Kim for Trespass, Nuisance, Quiet Title, Declaratory Relief, and Injunctive Relief.

On April 17, 2024, Plaintiff dismissed New Wave Lending Group, Inc.

RULING: Granted.

Plaintiff Chan Kim moves for a preliminary injunction against Defendant Jane Choi enjoining any blocking of the common shared driveway. Defendant Jang Choi in opposition maintains an improper basis for the injunction in that Plaintiff seeks to allow tenants occupying the property to improperly use the driveway as a parking lot in demarcated spots along the driveway. Plaintiff in reply maintains a likelihood of prevailing on the merits, and the balance of equities favor Plaintiff.

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.)

Plaintiff represents that Choi removed the previously placed fence in compliance with the March 6, 2024, order of the court. Choi agrees to no barriers in the driveway, as long as Plaintiff adheres to the same requirement. Choi additionally and separately requests an order barring the parking of cars on the driveway.

The temporary restraining order and requested injunction itself only considers enjoining Defendant from any form of blocking the common driveway. The court appreciates the counter request from Defendant to also enjoin alleged use of the common driveway as an effective functioning parking lot for Plaintiff’s tenants, but any such request for injunctive relief is not presented in the motion, and the court declines to consider the opposition as a counter-motion for relief. The court only considers the motion as preserving the status quo, which may include continued patterns and practices of cars using the driveway pending further adjudication. With that being said and having observed pictures via exhibits of the narrow driveway at issue, the Court does not contemplate that such usage would include serving as a parking lot.

Probability of Success on the Merits

The operative complaint alleges Quiet Title to an Implied Easement, Quiet Title to a Prescriptive or Equitable Easement, and Nuisance. The motion itself lacks any specific address or evidentiary support for a prescriptive easement. “The elements necessary to establish a prescriptive easement are, with the exception of the requirement that taxes be paid,^[] identical with those required to prove acquisition of title by adverse possession: open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner, and under a claim of right.” (Taormino v. Denny (1970) 1 Cal.3d 679, 686.) Kim admits to ignorance of any property line prior to the time Choi started placing the fence in the area, and it still remains unclear as to any property line boundaries. [Declaration of Chan Sook Kim.] The court therefore declines to make any finding on the merits in favor of Plaintiff on this claim.

An equitable easement constitutes an alternative basis of discretionary court relief to a legally based prescriptive easement. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 769, 771; Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008 [“In appropriate cases in which the requirements for traditional easements are not present, California courts have exercised their equity powers to fashion protective interests in land belonging to another, sometimes referring to such an interest as an ‘equitable easement’”].) “For a trial court to exercise its discretion … and grant an equitable easement, ‘three factors must be present. First, the defendant must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties' conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury ... regardless of the injury to defendant.’ Third, the hardship to the defendant ‘must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant....’” (Nellie Gail Ranch Owners Association v. McMullin (2016) 4 Cal.App.5th 982, 1003–1004.)

Plaintiff also provides a conclusive citation without specific reference to the specific portion of the case or particular issue addressed, and without actual proper citation. (Romero v. Shih (2022) 78 Cal.App.5th 326.) Notwithstanding the court cites and considers the case.

The California Supreme Court granted review of the case. “Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court's certification of the opinion for full or partial publication under rule 8.1105(b) or rule 8.1110, but any such Court of Appeal opinion, whether officially published in hard copy or electronically, must be accompanied by a prominent notation advising that review by the Supreme Court has been granted. [¶] (2) The Supreme Court may order that an opinion certified for publication is not to be published or that an opinion not certified is to be published. The Supreme Court may also order depublication of part of an opinion at any time after granting review.” (Cal. Rules of Court, rule 8.1105(e)(1)(B), (e)(2).) “Pending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.” (Cal. Rules of Court, 8.1115(e)(1).)

The case was not decertified and therefore remains subject to citation. The court finds the circumstances support a finding for consideration of an equitable easement. (See Romero v. Shih, supra, 78 Cal.App.5th at p. 355.) Nothing in the evidence indicates a willful act, especially given the prior pattern and practice, and ignorance of the property boundary. The court finds no basis of public harm, as addressed below finds the irreparable harm factor favors Plaintiff. The court also finds the balance of equities favors Plaintiff, as also discussed in this order.

Irreparable Harm

The disputed easement supports a finding of interim harm requiring injunction, due to impacts on the ingress and egress of vehicles to the property. Said damages are not readily determined as a function of monetary damages without further factual consideration not readily determined in the subject motion. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1177, 1184.)

Balance of Equities

“‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.’ (Citations.) The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. (Citations.) Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it; * * *’” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) “[A] principal objective of a preliminary injunction ‘is to minimize the harm which an erroneous interim decision may cause,’ and thus a court faced with the question whether to grant a preliminary injunction cannot ignore the possibility that its initial assessment of the merits, prior to a full adjudication, may turn out to be in error.” (White v. Davis (2003) 30 Cal.4th 528, 561.)

The balance of equities also favors Plaintiff given the history of use of the disputed area only to change upon the acquisition of the property by Defendant Choi in January 2024. Nothing in the opposition establishes any particular harm to Choi as a result of the continuing use, including even allegedly parked vehicles, pending adjudication.

The motion for preliminary injunction is therefore granted. The court orders no further action blocking ingress or egress of the driveway.

The court in no way otherwise orders any form of mandatory relief, such as removal of the fence given its removal. The court also declines to consider any injunction barring the parking of cars under any purported violation of the Los Angeles Municipal Code not before the court in the instant motion. Again, the issue is not before the court, and the court finds prior use allows for the continuing conduct pending adjudication, due to the lack of any showing of significant harm to Defendant. The parties may attempt to negotiate potential solutions in the interim.

The court also requests Plaintiff to update the court on the necessity of the June 13, 2024, set motion for modification of the injunction given the removal of the fence. An answer to the cross-complaint remains outstanding.

Case Management Conference set for June 11, 2024.

Plaintiff to give notice.