Judge Thomas D. Long, Case Number: 24STCV01862, Date: 2024-03-21 Tentative Ruling

On January 24, 2024, Plaintiff Ify Wimberly filed this action against Defendant Ricardo Sevilla for (1) quiet title, (2) declaratory relief, (3) trespass, (4) private nuisance, and (5) injunctive relief.

The Court does not rule on Plaintiff’s objections to Defendant’s declaration because Plaintiff did not meet her burden, so the Court did not rely on Defendant’s declaration.

“Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “‘[T]he greater the . . . showing on one, the less must be shown on the other to support an injunction.’” (Ibid., quoting Butt v. State of California (1992) 4 Cal.4th 668, 678.)

When the effect of an injunction mandates a change in the parties’ relationship to one another from the status quo at the time the action was filed, the injunction is considered a mandatory injunction as opposed to a prohibitory one. (Agricultural Labor Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 713.) Preliminary mandatory injunctions rarely are granted and are reserved for extreme cases where the right is clearly established and irreparable injury will occur in the absence of the injunction. (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295 (McMahon).)

The burden of proof is on the moving party to show all elements necessary to support issuance of a preliminary injunction. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) “‘Generally, the ruling on an application for a preliminary injunction rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a showing that it has been abused.’” (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.)

Plaintiff resides on property that is next to Defendant’s property. (Wimberly Decl. ¶ 1.) In November 2005, the parties entered into a written agreement to allow Defendant to construct a fence wall on his property line. (Wimberly Decl. ¶ 2.) The wall was constructed in 2010. (Wimberly Decl. ¶ 2.) In 2014, Plaintiff did not object to Defendant constructing another wall on his property line. (Wimberly Decl. ¶ 4.) Plaintiff did not know that the walls were on her property line until a boundary line survey in July 2023. (Wimberly Decl. ¶¶ 2, 8.)

Plaintiff seeks to restrain Defendant from “using, trespassing and/or encroaching on certain areas on Plaintiff’s real property commonly known as 1537 S. Dunsmuir Avenue, Los Angeles, CA 90019-4033, and more particularly described as: Lot 25 in Block 4 of Tract No. 4889, as per map recorded in Book 53, Page 15 of Maps in the Office of the County Recorder.”

For Defendant to comply with such an order, he would need to remove the two walls on the property lines. That order would alter, rather than preserve, the status quo. This is therefore a mandatory injunction, which requires a showing of irreparable harm. (McMahon, supra, 219 Cal.App.3d at p. 295.)

B. Plaintiff Has Not Shown That She Will Suffer Irreparable Harm Without an Injunction.

Plaintiff argues that because this action involves unique real property, “any such injury or loss constitutes irreparable harm . . . and [she] will suffer irreparable harm from a continuing trespass on her real property.” (Motion at p. 6.) According to Plaintiff, “she cannot be properly compensated in damages for the trespass, which is continuing, and she is being denied the full use of The Property.” (Ibid.)

Although Plaintiff states that the walls “substantially interfere[] with and prevent[] [her] from maximizing the use of [her] real estate,” Plaintiff did not know that the walls were on her property line until in July 2023. (Wimberly Decl. ¶¶ 2, 8, 11.) It was only after Plaintiff started receiving inquiries to sell the property that she had the survey done. (Wimberly Decl. ¶¶ 5, 8.)

The walls were constructed in 2010 and 2014. (Wimberly Decl. ¶¶ 2-4.) There is no evidence that now, over a decade later, Plaintiff will suffer irreparable harm in the absence of a mandatory injunction before a resolution of this action on the merits.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court