Judge: Theresa M. Traber, Case: 20STCV41680, Date: 2023-07-21 Tentative Ruling

Case Number: 20STCV41680    Hearing Date: April 12, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 12, 2024              TRIAL DATE: NOT SET

CASE:                         Edward D. Fagan v. Zhejiang Sunmarr International Transportation Co. Ltd., et al.

CASE NO.:                 20STCV41680           

(1)   MOTION FOR PRELIMINARY INJUNCTION

(2)   MOTION FOR ORDER DIRECTING PRESERVATION OF EVIDENCE AND ISSUANCE OF SUBPOENAS

MOVING PARTY:               Plaintiff Edward D. Fagan

RESPONDING PARTY(S): No response on eCourt as of April 9, 2024

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for fraud that was filed on October 30, 2020. Plaintiff alleges that he was the victim of a fraud scheme based in Nigeria.

            Plaintiff moves for a preliminary injunction to prevent Defendants from disposing of their assets, for an order directing Defendants to preserve evidence, and for issuance of subpoenas.

TENTATIVE RULING:

            Plaintiff’s Motion for Preliminary Injunction is DENIED.

            Plaintiff’s Motion for Order Directing Preservation of Evidence and Issuance of Subpoenas is DENIED.

DISCUSSION:

Motion for Preliminary Injunction

            Plaintiff moves for a preliminary injunction to prevent Defendants from disposing of their assets.

Legal Standard

“An injunction is a writ or order requiring a person to refrain from a particular act.” (Code Civ. Proc. § 525.) “A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.” (Code Civ. Proc.§ 527(a).) An injunction may be granted in the following cases:    

(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.  

(2)¿When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. 

(3)¿¿When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. 
 

(4) When pecuniary compensation would not afford adequate relief.  

(5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.  

            . . . . 

(Code Civ. Proc. § 526(a)(1)-(5).) 

In deciding whether to issue a preliminary injunction, two factors must be considered prior to issuing a preliminary injunction: (1) the balance of the harm to the applicant should the injunction not issue, compared to the harm to the enjoined party should the injunction issue; and (2) whether the applicant is ultimately likely to prevail on the merits. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441442.)  A trial court has broad discretionary powers to grant or deny a request for a preliminary injunction if it does not act capriciously.  The court should exercise its judgment in favor of the party most likely to be injured. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205.)  In addition, the two factors are interrelated: the greater the Plaintiff’s showing as to one of the factors, the less that must be shown as to the other factor. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) 

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Analysis

“Irreparable harm” arises when monetary damages would not be sufficient to remedy the injury. (Wind v. Herbert (1960) 186 Cal.App.2d 276, 285; Code Civ. Proc. § 526(a)(4).) Injuries rising from wrongs of “continuing character” may also constitute “irreparable harm.” (People ex rel. Gow v. Mitchell Bros.’ Santa Ana Theater (1981) 118 Cal.App.3d 863, 871.) An injunction preventing disposal of property is proper if disposal would render the final judgment ineffectual. (Code Civ. Proc. § 526(a)(3); Wilkins v. Oken (1958) 157 Cal.App.2d 603, 606-607.)

Here, Plaintiff offers no basis to conclude that there is any risk of irreparable harm to Plaintiff such that injunctive relief is warranted. Plaintiff’s motion entirely lacks evidentiary support and presents no argument that would carry his burden on this motion. Plaintiff is therefore not entitled to a preliminary injunction.

Motion for Order Directing Preservation of Evidence and Subpoenas

            Plaintiff moves for an order directing the preservation or production of evidence pursuant to Code of Civil Procedure section 2035.030 and for an order directing the issuance of subpoenas pursuant to section 2020.410.

            Code of Civil Procedure section 2035.030 entitles an individual who seeks to perpetuate testimony or preserve evidence in anticipation of a future lawsuit to petition the Court for an order authorizing discovery and the preservation of that evidence. (Code Civ. Proc. § 2035.030.) This provision, by its language, does not apply to an already-pending proceeding.

As to Section 2020.410, that code provision describes the form of a subpoena for production of business records to non-parties. (Code Civ. Proc. § 2020.410.) Plaintiff’s moving papers do not describe the non-party individuals or entities from whom the records are sought or the categories of records which are sought, as required by this section. (Id.) Put simply, the Court has no means of determining from the papers what exactly Plaintiff is seeking by this request.

Plaintiff has therefore failed to demonstrate that he is entitled to either order.  

CONCLUSION:

            Accordingly, Plaintiff’s Motion for Preliminary Injunction is DENIED.

            Plaintiff’s Motion for Order Directing Preservation of Evidence and Issuance of Subpoenas is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  April 12, 2024                                    ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.