Judge Upinder S. Kalra, Case 21STCV26504 2022-12-16 Tentative Ruling

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CASE NAME: Janice R. Boyd v. VIP Princess Court HOA, an unincorporated association, et al.

1. An order granting a preliminary injunction, ordering Defendant to repair the water leaks, or alternatively, discontinue use of water line

On July 19, 2021, Plaintiff Janice R. Boyd (“Plaintiff”) filed a complaint against VIP Princess Court HOA and First Light Property Management (“Defendants.”) The complaint alleged two causes of action: (1) Nuisance and (2) Negligence. The complaint alleges that Plaintiff and Defendant’s Property adjoin each other, separated by a large wall. Plaintiff noticed water leaking from the wall, which the City of Redondo Beach Police, Fire and Building and Safety Division all determined was from Defendant’s property. Defendant has failed to fix the problem.

On September 20, 2021, Defendants VIP Princess Court HOA and First Light Property Management filed an Answer.

The current Motion for Preliminary Injunction was filed October 17, 2022. Defendant’s Opposition was filed on December 1, 2022. Plaintiff’s Reply was filed on December 9, 2022.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (See¿Scaringe¿v.¿J.C.C. Enterprises, Inc.¿(1988) 205 Cal.App.3d 1536.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v.¿VRT¿Corp.¿(1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g.,¿ReadyLink¿Healthcare v. Cotton¿(2005) 126 Cal.App.4th 1006, 1016;¿Ancora-Citronelle Corp. v. Green¿(1974) 41 Cal.App.3d 146, 150.) Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. (See Code Civ. Proc. § 527(a).) For this reason, a pleading alone rarely suffices. (Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).) The burden of proof is on the plaintiff as moving party. (O’Connell v. Superior Court¿(2006) 141 Cal.App.4th 1452, 1481.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526(4);¿Thayer Plymouth Center, Inc. v. Chrysler Motors¿(1967) 255 Cal.App.2d 300, 307.)¿¿¿

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a);¿Husain v. McDonald’s Corp.¿(2012) 205 Cal.App.4th 860, 866-67.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.)¿Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.¿ (Doe v. Wilson¿(1997) 57 Cal.App.4th 296, 304.) The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Thornton v. Carlson¿(1992) 4 Cal.App.4th 1249, 1255.)¿

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See Code Civ. Proc. § 529(a); Cal. Rules of Court, rule 3.1150(f);¿City of South San Francisco v. Cypress Lawn Cemetery Assn.¿(1992) 11 Cal.App.4th 916, 920.)¿

Plaintiff moves for a preliminary injunction, asking the Court to order Defendants to fix the water leaks, or alternatively, order Defendants not turn on the sprinkler water line until the leaks are repaired.

Plaintiff argues that because courts have previously determined that a water leak is a nuisance per se, citing to Allen v. Stowell (1905) 145 Cal. 666, 668 and Aspen Grove Condominium Assn. v. CNL Income Northstar LLC (2014) 231 Cal.App.4th 53, 63, and a court can issue a preliminary injunction based on a nuisance per se. Moreover, under CCP § 526, there are certain cases where an injunction can be granted. Here, Plaintiff argues that all five under subsection (a) apply.[1] Defendant has admitted the leak is causing damage to Plaintiff’s property, Plaintiff will suffer waste and injury unless Defendant is ordered to stop the leaks, Plaintiff has a high likelihood of succeeding on the merits, damages cannot provide relief as the injury is to her property rights in her home. Defendant argues that the requested injunction is a mandatory permanent injunction. Requesting Defendant to either repair the leak or turn off the water “requires an affirmative act.” (Opp. 5: 4-5.) Additionally, Defendant argues that the water leak is not a nuisance per se, as it does not “create a substantial interference with Plaintiff’s use or enjoyment of her property.” (Opp. 7: 4-6.)

Additionally, Plaintiff argues that the two-factor test used for preliminary injunctions also indicates that Plaintiff will prevail. Here, Plaintiff argues that it is likely to prevail on the merits because there is no dispute that the water leaks originated from Defendant’s property. (Motion 7: 22-24.) Second, Plaintiff’s harm will continue without such an injunction as the leaks continue on a regular basis. (Id. at 8: 15-18.) Lastly, Plaintiff contends that regardless of the type of injunction – mandatory or prohibitory – the Court can issue the requested injunction.

Defendant argues that Plaintiff has failed to establish that she is likely to succeed because whether the leak was caused by Defendant is speculative as the complaint indicates there was other construction close to the Plaintiff’s property. However, in any event, Defendant states that the “line has been turned off and the handle has been removed, meaning that there is no risk of additional water damaging her property while this litigation is pending.” (Opp. 8: 4-6.)

“A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) Here, the Court finds that it is likely that the plaintiff will prevail on the merits. The evidence demonstrates that there have been multiple leaks that required the line to be turned off. (Dec. Hudek, ¶ 8 and Dec. Door 9.) While there may not be a leak now, as the Declaration of Andrew Dorr states, in paragraph 9, it is evident that despite turning off the water, a leak still continues. Thus, either the water is turned back on, which is causing the leak, or even without the water turned on, there is a leak. Therefore, it is likely that Plaintiff can establish that the leak comes from and is still coming from Defendant’s property. As to the second prong, it is likely that Plaintiff will continue to suffer harm. The evidence presented in the Boyd Declaration, including the pictures, indicate that the leaks continue because the water keeps turning back on. (Boyd Dec. p. 7, Ex. A1-17.)

However, as Defendant correctly argues, Plaintiff requested remedy of fixing the leak is a request for a mandatory injunction. The Court of Appeal in Davenport stated, “the 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…The substance of the injunction, not the form, determines whether it is mandatory or prohibitory.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446–447.) Here, Plaintiff is asking the court to order that Defendant repair the leak. Thus, Plaintiff is seeking Defendant do an affirmative act, rather than refraining from doing an action. Mandatory preliminary injunctions are disfavored and are to be granted in only extreme cases, particularly when a prohibitory injunction would suffice. (People v. Paramount (1957) 147 Cal.App.2d 399.) Here, Defendant has taken the step to remove the handle that controls the water, and there has been no leak since the last time it was shut off, (Dec. Budek, ¶ 9, Ex. A.; Dec. Dorr, ¶ 8-9) Accordingly the alternative relief requested, an order prohibiting Defendant from reattaching the handle of the leaking pipe or turning on that line would suffice. Accordingly, the Court will grant a preliminary injunction prohibiting that conduct but decline to order an injunction mandating repair of the water leak.

Motion for Preliminary Injunction is GRANTED, in part. Defendant is ordered to not place the handle to the irrigation line back on or turning on that line.

[1] 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