Judge: Teresa A. Beaudet, Case: 21STCV27246, Date: 2022-10-04 Tentative Ruling

Case Number: 21STCV27246    Hearing Date: October 4, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On July 23, 2021, Plaintiff Grand View Real Property, LLC (“Grand View”) filed a Complaint in this action for “Temporary Restraining Order, Preliminary and Permanent Injunctions and Damages” against Defendants Benjamin Joon Tae Kim (“Kim”) and Jullie Myung (“Myung”), Trustees of the Myung Family Trust, dated November 9, 2019 (jointly, “Defendants”).

On September 21, 2021, Kim and Myung, Trustees of the Myung Kim Family Trust, dated November 9, 2019 (the “Kim Trust”)[1] (collectively, the “Cross-Complainants”) filed a Cross-Complaint against Grand View and Wells Fargo Bank, N.A. The Cross-Complaint alleges causes of action for (1) private nuisance, (2) quiet title, (3) trespass, (4) declaratory relief, and (5) negligence.

Allegations of the Complaint

In the Complaint, Grand View alleges that Defendants own real property located at 8416 Grand View Drive, Los Angeles, California 90046. (Compl., ¶ 2.) Grand View owns an easement burdening Defendants’ Property which was established on July 5, 1966 by an instrument entitled “Covenant and Agreement for Community Driveway.” (Compl., ¶ 3.)

            Grand View alleges that beginning in or about June, 2020 Defendants acquired their property, and since that time have unreasonably interfered with and obstructed Grand View’s easement by verbally and physically threatening, vexing, and annoying Grand View and its tenants, occupants and vendors. (Compl., ¶ 7.) Grand View also alleges that Defendants routinely park their vehicles on Grand View’s easement. (Crompl., ¶ 8.)  

             Allegations of the Cross-Complaint

            In the Cross-Complaint, Cross-Complainants allege that Kim was acting co-trustee of the Kim Trust, which is the owner of the real property located at 8416 Grand View Drive, Los Angeles, California 90046 (the “Kim Property”). (Cross-Compl., ¶ 1.) Grand View is the owner of adjacent real property located at 8424 Grand View Drive, Los Angeles, California 90046. (Cross-Compl., ¶ 3.)

            Cross-Complainants allege that the “community driveway” at issue in this case is a strip of land located almost entirely within the boundaries of the Kim Property, and that per the easement attached to Grand View’s complaint, Grand View merely enjoys a “common driveway easement for ingress and egress purposes.” (Cross-Compl., ¶ 8.) Since the Kim Trust’s acquisition of the Kim Property in 2020, Grand View has repeatedly caused the shared driveway to become congested with vehicles, trash cans, and other items which have obstructed the Kim Trust’s access to the Kim Property. (Cross-Compl., ¶ 13.) The Kim Trust proposed a system whereby Grand View, its tenants, and guests would give the Kim Trust at least twenty-four hours’ notice of their intended use of the driveway for any purpose other than simple ingress or egress, but Grand View refused. (Cross-Compl., ¶ 17.)

            On August 15, 2022, following a hearing on Grand View’s ex parte application for a temporary restraining order and order to show cause re: preliminary injunction, the Court issued an order providing, inter alia, that:

“pending the hearing and determination of the Order to Show Cause, Defendants, and each of them, and all other persons acting in concert with them or on their behalf, are temporarily restrained and enjoined from engaging in or performing, directly or indirectly, any or all, of the following acts:

(1) interfering with Plaintiff’s joint use of the community/ common driveway serving the

properties of Plaintiff and Defendants, respectively (the “Community Driveway”) including, without limitation, use of the Community Driveway by Plaintiff, its tenants, invitees, vendors and licensees for parking without impeding access to or from Defendants’ property or interfering with Defendants’ use of the Community Driveway; (2) posting no-parking/notice of intent to tow signage on or around the Community Driveway; (3) threatening to have Plaintiff’s vehicles parked on the Community Driveway cited or towed; (4) having Plaintiff’s vehicles parked on the Community Driveway cited or towed; and (5) harassing and threatening Plaintiff, its tenants and their guests with regard to its use of the Community Driveway for parking or other use that does not impede Defendants’ access to or from Defendants’ property or interfere with Defendants’ use of the Community Driveway.”

On September 6, 2022, the Court issued an order pursuant to the parties’ stipulation that “the Order to Show Cause re Preliminary Injunction currently scheduled for hearing on October 4, 2022…and Defendants’ Motion for Preliminary Injunction currently scheduled for hearing on September 20, 2022…shall be both heard on October 4, 2022…The Temporary Restraining Order issued on August 15, 2022, shall remain in full force and effect through the Court’s ruling on the Order to Show Cause re Preliminary Injunction.”

            The Kim Trust now moves for an order temporarily enjoining Grand View “and its agents, tenants, and invitees, from (1) obstructing the Kim Trust’s free passage and free use of the of the [sic] real property located at 8416 Grand View Drive, Los Angeles, CA 90046 (hereinafter the “Kim Property”), and (2) causing vehicles, trash cans, gates, and other things and persons to occupy and/or obstruct the shared driveway for storage, long-term parking, and other purposes not consistent with the express terms of the recorded roadway easement.” Grand View opposes.

            Evidentiary Objections

The Court rules on Grand View’s evidentiary objections to the Declaration of Ben Kim as follows:

Objection No. 1: overruled

Objection No. 2: overruled

Objection No. 3: overruled

Objection No. 4: overruled

Objection No. 5: sustained

Objection No. 6: sustained

Objection No. 7: overruled

Objection No. 8: sustained as to the second sentence, overruled as to the first sentence

Objection No. 9: sustained as to “and providing a nuisance to use [sic]” overruled as to the remainder 

Objection No. 10: overruled

The Court rules on Grand View’s evidentiary objections to the Declaration of Justin Graham as follows:

Objection No. 1: sustained

Objection No. 2: overruled

Objection No. 3: sustained

Objection No. 4: sustained

Objection No. 5: sustained

Objection No. 6: overruled

Discussion

“In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.” (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1177 [internal quotations omitted].) “[A]n order granting or denying a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. Its purpose is to preserve the status quo until the merits of the action can be determined.” (White v. Davis (2003) 30 Cal.4th 528, 554 [emphasis omitted].) “The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other….” (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251-1252.) “The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.” (White v. Davis, supra, at p. 554 [emphasis omitted].) The burden is on the party seeking injunctive relief to show all elements necessary to support issuance of a preliminary injunction. (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

A.    Likelihood of Success on the Merits

A preliminary injunction must not issue unless it is “reasonably probable that the moving party will prevail on the merits.” (San Francisco Newspaper Printing Co. v. Superior Court (Miller) (1985) 170 Cal.App.3d 438, 442.) The “likelihood of success on the merits and the balance-of-harms analysis are ordinarily ‘interrelated’ factors in the decision whether to issue a preliminary injunction.” (White v. Davis, supra, 30 Cal.4th at p. 561.) “The presence or absence of each factor is usually a matter of degree, and if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in his favor.” (Ibid.) However, this does not mean that a trial court may grant a preliminary injunction on the basis of the likelihood-of-success factor alone when the balance of hardships dramatically favors denial of a preliminary injunction. (Ibid.) 

As to the likelihood of success on the merits, the Kim Trust argues that “Plaintiff’s misconception of the roadway easement, as detailed hereinabove, portends a likely judgment in favor of the Kim Trust.” (Mot. at p. 12:25-28.)

In support of their first cause of action for private nuisance and the third cause of action for trespass, Cross-Complainants allege that “Grand View has intentionally, recklessly, and negligently obstructed the Kim Trust’s free passage and free use of the Kim Property, so as to interfere with the Kim Trust’s comfortable enjoyment thereof, by causing vehicles, trash cans, gates, and other things and persons to occupy and obstruct the shared driveway for storage, longterm parking, and other purposes not consistent with the express terms of the recorded

roadway easement.” (Cross-Compl., ¶¶ 22, 29.)[2]

In support of the fifth cause of action for negligence, Cross-Complainants allege that Grand View owes the Kim Trust a duty of care with respect to Grand View’s use and maintenance of the subject roadway easement; and that Grand View has breached this duty of care by using and occupying, and causing others to use and occupy, the roadway easement in a manner inconsistent with the purpose and express terms of the easement. (Cross-Compl., ¶¶ 34, 35.)[3]

In support of the second cause of action for quiet title and the fourth cause of action for declaratory relief, Cross-Complainants allege that “a legal dispute has arisen over the parties’ rights respecting the subject roadway easement,” such that a judicial determination of the issues in this case and of the respective duties of the parties is necessary and appropriate. (Cross-Compl., ¶¶ 25-26, 31-32.)[4]

The Kim Trust provides evidence that Kim and his wife acquired the real property located at 8416 Grand View Drive, Los Angeles, California 90046 the (“Kim Property”) as their primary residence. (Kim Decl., ¶ 2.)[5] Kim learned during the escrow period that the driveway to the Kim Property was encumbered by a roadway easement, and that the owner of the adjacent property at “8424 Grand View” reserved the right to use the driveway to travel to and from its two-car garage. (Kim Decl., ¶ 4.)

The Kim Trust’s counsel attaches as “Exhibit 6” to his declaration a copy of the subject easement.[6] (Graham Decl., ¶ 11, Ex. 6.)  Exhibit 6 is titled “Covenant and Agreement for Community Driveway” (herein the “Easement”). (See also Entezam Decl., ¶ 2, Ex. A, ¶ 4,       Ex. E.) It provides in part that:

“For the purpose of complying with the requirements of Los Angeles City Council Ordinance No. 111.049, effective May 2, 1959, amending Subdivision 4 of Subsection A of Section 12.21 of the Los Angeles Municipal Code, the undersigned hereby covenant and agree with the City of Los Angeles that the above legally described Parcels A and B of real property shall have established on and between them a common or community driveway described as follows: (See Attached Legal Description)…”

The Easement also provides:

“That in the event the undersigned owner shall sell or convey either Parcel A or Parcel B it is further covenanted and agree [sic] said owners shall also grant to the grantee of the portion conveyed, for so long as this covenant shall remain in effect, the right to the joint  use of that portion of the common or community driveway located upon the parcel which is retained in ownership and, said owners shall reserve in said grantors, their successors, heirs and assigns  for so long as this covenant shall remain in effect, the right to the use  of that portion of the common driveway or community driveway which is located upon the parcel so conveyed.”

The Easement attaches a page with a legal description, and the bottom of the page states, “Title – Legal Description of a Common Driveway Easement for Ingress and Egress Purposes.” (Graham Decl., ¶ 11, Ex. 6, p. 4; Entezam Decl., ¶ 2, Ex. A, ¶ 4, Ex. E.)

The Kim Trust asserts that per the terms of the Easement, Grand View may only use the common driveway as an access road, and not as a parking lot. Kim indicates that Shahrooz Entezam (“Entezam”) of Grand View refused to remove his vehicle from the only level spot on the driveway for months. (Kim Decl., ¶ 5.) Kim also indicates that on one occasion there were five guest vehicles parked on the driveway, of which four were simultaneously cited by Los Angeles City Parking Enforcement. (Kim Decl., ¶ 9.)

             The Kim Trust notes that “[a]n easement is a restricted right to specific, limited, definable use or activity upon another's property, which right must be less than the right of ownership.” (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702 [emphasis omitted].) In addition, “[t]he conveyance of an easement limited to roadway use grants a right of ingress and egress and a right of unobstructed passage to the holder of the easement. A roadway easement does not include the right to use the easement for any other purpose.” (Id. at p. 703.) “The owner of the dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement.” (Id. at p. 702.)

Grand View counters that the Easement is not limited to ingress and egress but is explicit in its description of the conveyance as an “easement for ingress, egress and community driveway purpose.” (Opp’n at p. 4:17-19, emphasis in original.) The Court notes that it is unable to locate this language in the subject Easement.

Grand View also notes that Mr. Entezam purchased the 8424 Grand View property in November 2012 though his Limited Liability Company Grand View Real Property LLC. (Entezam Decl., ¶ 2, Ex. A; ¶ 2, Ex. A.) Mr. Entezam attaches as Exhibit A to his declaration in support of Grand View’s prior ex parte application a copy of the grant deed conveying the property to him. (Ibid.) Exhibit “A” to the grant deed lists “Parcel 2” as “[a]n easement for community driveway purposes over that portion of Parcel B…” followed by a legal description. (Ibid.)

The Court notes that “Exhibit 1” to the Kim Trust’s counsel’s declaration is a “copy of the grant deed placing the Kim Trust on title to the Kim Property.” (Graham Decl., ¶ 6, Ex. 1.)[7] This grant deed provides that Chris Loar and Myca Loar grant to Cross-Complainants “the real property in the City of Los Angeles, County of Los Angeles, State of California, described as: Legal Description Attached Hereto as Exhibit ‘A’ and Made a Part Hereof…” (Graham Decl.,    ¶ 6, Ex. 1.) Exhibit “A” to the grant deed lists a Parcel 1 and a Parcel 2, and Parcel 2 includes “[a]n easement of ingress, egress, and community driveway purposes in, over, and under that portion of Parcel ‘A’…” followed up a legal description. (Ibid.) It appears this is the language Grand View is referencing.

Grand View argues that accordingly, “Defendants took title to and had notice that their property was subject to Plaintiff’s right to joint use of the Community Driveway for parking in addition to ingress/egress…” (Opp’n at p. 7:15-17, emphasis omitted.) But as the Kim Trust notes, the Kim Trust’s grant deed is a separate document from the subject Easement. Grand View does not cite to any legal authority demonstrating that the language of the Kim Trust’s grant deed expands the scope of the subject Easement or alters the terms of the Easement.  

Grand View also cites to Streets and Highways Code section 5870, subdivision (b), which provides that “[a]s used in this chapter,” “‘[d]riveway’ means a paved portion of a public street providing an unobstructed passage from the roadway to an offstreet area used for driving, servicing, parking, or otherwise accommodating motor vehicles.” (Emphasis added.) But as the Kim Trust notes, Streets and Highways Code section 5870 is contained in the Chapter “Construction of Sidewalks and Curbs.” In addition, Grand View does not demonstrate how the subject “community driveway” constitutes a “public street” under Streets and Highways Code section 5870.

In addition, the Kim Trust asserts that the City of Los Angeles Municipal Code conceives of a “community driveway” as an “access driveway” between a parking space and a public right of way. As set forth above, the subject Easement provides in part that “[f]or the purpose of complying with the requirements of Los Angeles City Council Ordinance No. 111.049, effective May 2, 1959, amending Subdivision 4 of Subsection A of Section 12.21 of the Los Angeles Municipal Code, the undersigned hereby covenant and agree with the City of Los Angeles that the above legally described Parcels A and B of real property shall have established on and between them a common or community driveway described as follows…” (Entezam Decl., ¶ 2, Ex. A, ¶ 4, Ex. E.) The Kim Trust notes that City of Los Angeles Municipal Code section 12.21A4(h) provides, “[a]n access driveway shall be provided and maintained between each automobile parking space or area and a street, or alley, or a private street or easement approved in accordance with the provisions of Article 8 of this chapter. Such access driveway shall be located entirely on the lot which it serves. However, an access driveway need not be located entirely on the same lot as the dwelling and parking space it serves if the driveway, lot and dwelling existed on September 6, 1961, and additions and alterations may be made to such dwelling, and accessory buildings may be added on such lot, if no additional dwelling units or guest rooms are created.”

Grand View argues that it is not violating the Los Angeles Municipal Code requirements regarding community driveways because “[t]he Driveway Covenant is not limited to ingress/egress and the properties subject to the 1966 Driveway Covenant have ‘grandfathered’ rights given that the City approved the Covenant in 1966 and do not have to comply with the current zoning code requirements for the City’s approval of a Driveway Covenant that current applicants have to comply with.” (Opp’n at p. 9:14-19.) In support of this assertion, Grand View cites to City of Los Angeles Municipal Code section 12.23, which provides that “[a] building or structure with a nonconforming use and a nonconforming building or structure may be maintained, repaired or structurally altered and a nonconforming use may be maintained provided the building or use conformed to the requirements of the zone and any other land use regulations at the time it was built or established, except as otherwise provided in this section.” But a community driveway is at issue here, not a “building or structure.” The Court does not see, and Grand View does not articulate, how City of Los Angeles Municipal Code section 12.23 is applicable here. 

In addition, Grand View does not cite to any language in the Easement demonstrating that it grants Grand View a right to “park” on the community driveway.  Nor does Grand View cite to any legal authority demonstrating that an easement for a “community driveway” includes a right to park on the driveway. The Kim Trust notes that in Keeler v. Haky (1958) 160 Cal.App.2d 471, 475, the Court of Appeal held that “[w]here an easement is founded on a grant, only those interests expressed therein and necessary for its reasonable and proper enjoyment pass from the owner of the fee. The interest expressed in the instant deed is only the right to pass and repass for all purposes connected with the use of the grantees’ land. If permanent parking were permitted for defendants’ tenants the effect would be to make the use exclusive to them. This cannot be implied from the clear language of the deed.” (Internal citations omitted.) This holding in the Keeler case is not addressed by Grand View in its opposition.

Moreover, as set forth above, page 4 of the Easement provides, “Title – Legal Description of a Common Driveway Easement for Ingress and Egress Purposes.”  (Entezam Decl., ¶ 2, Ex. A, ¶ 4, Ex. E.) Grand View does not address this point in the opposition.

Grand View also notes that “[a]n injunction should not be granted as punishment for past acts where it is unlikely that they will recur.” (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422.) Grand View asserts that Cross-Complainants have not provided admissible evidence that Grand View is currently obstructing Defendants’ access to their property or use of the community driveway or likely to do so in the future. But the Kim Trust provides evidence that Entezam refused to remove his vehicle from driveway for months, and that on one occasion four cars were parked on the driveway which inhibited Cross Complainants’ access. (Kim Decl., ¶¶ 5, 9.) The Kim Trust also indicates that Kim attempted to establish a formal parking agreement with Entezam and his tenants, but this attempt was unsuccessful. (Kim Decl., ¶ 10) Moreover, Entezam himself indicates that his understanding is that the community driveway could be used for parking. (Entezam Decl., ¶ 3.)

Based on the foregoing, the Court finds that the Kim Trust has established a likelihood of success on the merits as to their Cross-Complaint.

B.    Interim Harm to the Parties

“To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.” (White v. Davis, supra, at p. 554.) “In evaluating interim harm, the trial court compares the injury to the plaintiff in the absence of an injunction to the injury the defendant is likely to suffer if an injunction is issued.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633.)

As far as the balance of harms, the Kim Trust argues that “irreparable damage must be presumed where the servient estate holder is enjoined or otherwise precluded from interdicting unauthorized long-term parking along a private roadway easement which leads to and from that servient estate holder’s primary residence.” (Mot. at p. 12:13-18.)

Grand View counters that the Kim Trust delayed in seeking injunctive relief, and contends that “[t]here is no factor other than that [Grand View’s] Ex Parte Application was granted that would explain Defendants’ delay in seeking injunctive relief.” (Opp’n at p. 9:6-8.) Grand View notes that the Cross-Complaint was filed on September 21, 2021. They cite to

O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481, where the Court of Appeal noted that “the urgency with which the trial court was forced to decide plaintiffs’ motion may have been, to some extent, of plaintiffs’ own making—a fact that the trial court, as a court of equity, should have taken into account in determining what weight to give plaintiffs’ claim of imminent irreparable injury. (Lusk v. Krejci (1960) 187 Cal. App. 2d 553, 556 [9 Cal. Rptr. 703] [“Long delays in assertion of rights can be the basis of denial of mandatory injunctive relief.”]…Dolske v. Gormley (1962) 58 Cal.2d 513, 520–521 [25 Cal. Rptr. 270, 375 P.2d 174] [delay in seeking injunction against encroachments is factor to be considered in determining whether relief is warranted];…” However, the O'Connell Court also compares the above cases cited to in the opinion to another case: “but cf. Youngblood v. Wilcox (1989) 207 Cal. App. 3d 1368, 1376 [255 Cal. Rptr. 527] [trial court did not abuse discretion in finding preliminary injunction not barred by laches, where plaintiff delayed bringing suit for eight months after expulsion from country club in hope of resolving dispute informally].)” Here, the Kim Trust provides evidence that Cross-Complainants attempted to resolve the dispute informally by paying for mediation and attempting to establish a formal parking agreement with Entezam and his tenants, but that such attempts have not resolved the dispute. (Kim Decl., ¶¶ 7, 10.)

            Grand View also asserts that it faces immediate and irreparable harm if Defendants are not enjoined from interfering with the right of Grand View and its tenants and guests to use the community driveway for parking. As set forth above, Grand View provides the Declaration of Shahrooz Entezam, who is the managing member of Grand View. (Entezam Decl., ¶ 1.) Mr. Entezam indicates that “[b]ecause parking on Grand View Drive and the surrounding streets is strictly prohibited, I relied on both the recorded Driveway Covenant and the history of parking on the Community Driveway before completing my purchase of 8424 Grand View.” (Entezam Decl., ¶ 2, Ex. A, ¶ 5.) Mr. Entezam indicates that “[b]ased on the signage Defendants posted and have kept posted on the Community Driveway, I believe there is a real and immediate threat by Defendants to tow cars parked on the Community Driveway.” (Entezam Decl., ¶ 2, Ex. A,     ¶ 12.) However, Mr. Entezam also indicates that he has a garage. (Entezam Decl., ¶ 2, Ex. A,      ¶ 6.)

As set forth above, “[t]he trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other….” (Church of Christ in Hollywood v. Superior Court, supra, 99 Cal.App.4th 1244, 1251-1252.)

Based on a consideration of the foregoing, the Court finds that the Kim Trust has demonstrated entitlement to injunctive relief. However, the Court finds that the proposed injunction is overbroad. The Court thus tailors the proposed language of the injunction as set forth below. 

Conclusion

Based on the foregoing, the Kim Trust’s motion for preliminary injunction is granted. The Court orders that Grand View and its agents, tenants, and invitees are enjoined from (1) obstructing the Kim Trust’s free passage to and free use of the of the real property located at 8416 Grand View Drive, Los Angeles, California 90046; and (2) causing vehicles, trash cans, gates, and other things to occupy and/or obstruct the shared driveway for purposes of storage and long-term parking.

With regard to the Order to Show Cause Re: Preliminary Injunction, the parties did not separately brief the OSC.  In light of the ruling above, the OSC is moot.

The Kim Trust is ordered to provide notice of this ruling. 

DATED:  October 4, 2022                            

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court