Judge: Theresa M. Traber, Case: BC572198, Date: 2024-10-09 Tentative Ruling

Case Number: BC572198    Hearing Date: October 9, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 9, 2024                     TRIAL DATE: NOT SET

CASE:                         Ryan Stanton v. Frances Fontane Marques, et al.

CASE NO.:                 BC572198

(1)   MOTION FOR PRELIMINARY INJUNCTION

(2)   MOTION FOR LEAVE TO FILE LIS PENDENS

MOVING PARTY:               (1)(2) Plaintiff Ryan Stanton

RESPONDING PARTY(S): (1)(2) Defendant Frances Marques

CASE HISTORY:

• 02/11/15: Complaint filed.
• 03/05/15: First Amended Complaint filed.
• 08/21/15: Order to Expunge Notices of Pendency of Action filed.
• 04/21/17: Second Amended Complaint filed.
• 01/15/20: Judgment on Special Verdict for Plaintiff and against Defendants.
• 08/15/24: Remittitur following Appeal entered reversing and remanding for new trial.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Defendants allegedly siphoned monies from Plaintiff’s professional practice and business while managing and administering the business.

Plaintiff moves for a preliminary injunction and for leave to record a notice of pendency of action.

TENTATIVE RULING:

Plaintiff’s Motion for Preliminary Injunction is DENIED.

Plaintiff’s Motion for Leave to File Lis Pendens is DENIED.

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DISCUSSION:

Requests for Judicial Notice

            Plaintiff requests that the Court take judicial notice of a significant portion of the docket in this case, including (1) the Second Amended Complaint; (2) a December 18, 2019 Temporary Restraining Order; (3) the January 3 2020 and (4) January 6, 2020 Special Verdict Forms; (5) the January 7, 2020 Minute Order: (6) the January 16, 2020 Notice of Entry of Judgment; (7) the January 28, 2020 Temporary Restraining Order; (8-9) the Notices of Appeal and Cross-Appeal; (10) the June 18, 2015 Motion to Expunge Lis Pendens; (11) the Court’s July 7, 2020 Minute Order; (12) the November 2, 2020 Motion to Tax Costs; (13-14) the Notices of Reassignment; (15) the February 22, 2021 Minute Order: (16) the August 15, 2024 Remittitur; (17) Defendant’s Peremptory Challenge dated August 20, 2024; (18) the Court’s August 26, 2024 Minute Order; (19) Plaintiff’s Opposition to the Peremptory Challenge; (20) the Court’s September 5, 2024 Minute Order; and (21) the September 5, 2024 Temporary Restraining Order. Plaintiff’s Requests are GRANTED pursuant to Evidence Code section 452(d) (court records).

            Defendant also requests that the Court take judicial notice of (1) a January 30, 2018 order on an application for prejudgment writ of attachment; (2) an August 21, 2015 order expunging a lis pendens; and (3) a July 2, 2020 order denying a lis pendens and restraining order. Defendant’s Requests are GRANTED pursuant to Evidence Code section 452(d) (court records).

Motion for Preliminary Injunction

Plaintiff moves for a preliminary injunction precluding Defendant Marques “and any alter egos” from encumbering, selling, or otherwise disposing of certain real properties in her possession which are located at 6620 West 5th Street, Los Angeles, CA 90048 and 2922 Montana Avenue, Unit A, Santa Monica, CA 90403.

Legal Standard

            “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc. § 1008(b).)

A party may request a preliminary injunction “by serving a noticed motion,” as Plaintiffs have in this case, when the party against whom the preliminary injunction is sought has appeared in the action. (Cal. Rule of Court 3.1150(a).) 

“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.) 

Analysis

            Plaintiff seeks a preliminary injunction precluding Defendant Marques “and any alter egos” from encumbering, selling, or otherwise disposing of certain real properties in her possession which are located at 6620 West 5th Street, Los Angeles, CA 90048 and 2922 Montana Avenue, Unit A, Santa Monica, CA 90403. These properties are alleged to have been purchased using monies which were wrongfully obtained from Plaintiff. (SAC p.6:12-15.)

            Plaintiff, through his counsel, asserts that the extensive history of this case demonstrates that Plaintiff is likely to succeed on the merits of his claim and that allowing Defendant to encumber these properties would greatly endanger Plaintiff’s ability to recover for the damages claimed because they represent Defendant’s only substantial assets. In support of these contentions, Plaintiff relies principally on (1) comments by Judge Hammock after the presentation of evidence to the jury and after the jury verdict; (2) the Court’s prior issuance of Temporary Restraining Orders; and (3) the Court of Appeal’s review of the record of the previous trial. While these materials suggest the existence of evidence tending to prove the merits of Plaintiff’s claims, they do not carry Plaintiff’s burden to demonstrate a likelihood of success on the merits because they are not themselves evidence. Comments by a judge are not evidence of the merits of the case. Temporary Restraining Orders are not evidence of the merits of the case. The Court of Appeal’s recitation of the evidence presented in a trial which it subsequently vacated is certainly not evidence of the merits of the case. Further, the assertions of Plaintiff’s counsel that there is “zero doubt” that Defendant will encumber or otherwise dispose of the properties at the earliest opportunity is not evidence of the risk of injury to Plaintiff if the injunction does not issue, and Plaintiff offers no other competent evidence of this contention. (Declaration of Allain v. Bonavida ISO Mot. ¶ 5.)

            In sum, Plaintiff has failed to present to the Court the evidence necessary to demonstrate that a preliminary injunction is proper.

Conclusion

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

Motion for Leave to File Lis Pendens

            Plaintiff moves for leave of Court to record a Notice of Pendency of Action (lis pendens) against the properties located at 6620 West 5th Street, Los Angeles, CA 90048 and 2922 Montana Avenue, Unit A, Santa Monica, CA 90403.

A lis pendens is a recorded document that gives constructive notice that an action affecting title or right to possession of real property has been filed, and may be filed by any party that asserts a real property claim to that real property. (Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 647.) A person with an interest in the affected real property can petition the court to expunge the lis pendens. (Code Civ. Proc. § 405.30.) The court must order the lis pendens expunged if it finds that (a) there is no real property claim, (b) the claimant did not establish by a preponderance of the evidence the probable validity of the real property claim, or (c) adequate relief can be secured by giving an undertaking. (Code Civ. Proc. §§ 405.31- 405.33.) A real property claim is a cause of action that, if successful, would affect title to or the right of possession of specific real property or the use of an easement identified in a pleading.  (Code Civ. Proc. § 405.4.) Once a notice of lis pendens is expunged, a new notice may only be recorded with leave of court. (Code Civ. Proc. § 405.36.)

Plaintiff previously recorded lis pendens against the two properties that are the subject of this motion, but both were expunged on August 21, 2015. (Defendant’s RJN Exh. 2.) Plaintiff therefore requires leave of Court to record a new lis pendens against either property. (Code Civ. Proc. § 405.36.) Neither party references any legal authority establishing a standard for granting such relief, and the Court has not independently uncovered any relevant authority on that point. However, the absence of legal authority is secondary to the complete absence of any evidence in Plaintiff’s papers demonstrating that a new lis pendens should be permitted. Plaintiff’s motion rests on the same contentions and filings as his request for preliminary injunction—i.e., on bald assertions by his counsel, comments by Judge Hammock, the Court’s Temporary Restraining Orders, and the Court of Appeal’s recitation of the now-vacated trial. These materials are not evidence.

Accordingly, Plaintiff’s Motion for Leave to Record Lis Pendens is DENIED.

CONCLUSION:

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

Plaintiff’s Motion for Leave to File Lis Pendens is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  October 9, 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.