Judge: Virginia Keeny, Case: 24STCV29629, Date: 2025-03-04 Tentative Ruling

Case Number: 24STCV29629    Hearing Date: March 4, 2025    Dept: 45

LEE V. LEE

MOTION FOR PRELIMINARY INJUNCTION

Date of Hearing:         March 4, 2025                         Trial Date:       None Set

Department:               45                                            Case No.:         24STCV29629

Complaint Filed:          November 12, 2024

 

Moving Party:             Plaintiff James Lee   

Responding Party:       Defendant Jonathan Lee

           

BACKGROUND

 

This is a partition and ouster action between two brothers over real property that once belonged to their mother. Their mother still lives in it. The property is located at 900 N. Spaulding Avenue, West Hollywood, California 90046.

 

On November 12, 2024, James Lee (“James”) filed the complaint against his brother, Jonathan Lee (“Jonathan”).

 

On January 3, 2025, James filed a motion for a preliminary injunction. On January 27, 2025, Jonathan filed an opposition. On January 28, 2025, James filed a reply.

 

[TENTATIVE] RULING:

 

Plaintiff’s Motion for Preliminary Injunction is DENIED.

 

LEGAL STANDARD

 

Normally both irreparable harm and the likelihood of prevailing on the merits must be established for a preliminary injunction to issue. (Millennium Rock Mortg., Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804, 812.) “The ultimate questions on a motion for a preliminary injunction are (1) whether the plaintiff is 'likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant,’ and (2) whether there is ‘a reasonable probability that the plaintiffs will prevail on the merits’” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408.) Procedurally, an application for a preliminary injunction must be based upon sufficient evidence.  (Code Civ. Proc., §527, subd. (a); Bank of America v. Williams (1948) 89 Cal.App.2d 21, 29.)

 

 

ANALYSIS

 

Evidentiary Objections

 

The plaintiff’s evidentiary objection number 26 is sustained.

 

The court will not adjudicate the plaintiff’s other evidentiary objections because they are not relevant to the instant motion.

 

James seeks to enjoin Jonathan from the following:

 

·         Making further pretextual 911 calls or welfare checks to bring police or paramedics to Plaintiff’s real property at 900 N. Spaulding Avenue, West Hollywood, California 90046, or any other subterfuge to interact with their elderly mother without a monitor present in violation of a standing probate order;

·         Diverting his mail from the N. Spaulding address as defendant allegedly has been doing for the last two years, causing James to miss important documents, including a supplemental tax bill.

 

First Request

The court denies James’ first injunction request because neither the partition nor ouster causes of action can grant the relief requested.  The scope of available preliminary relief obtainable by preliminary injunction is limited by the scope of the relief likely to be obtained at trial on the merits. (O’Connell v. Super. Ct. (2006) 141 Cal.App.4th 1452, 1463.) Further, the injunction request is predicated on a standing probate order. Injunctive relief, if available at all, must be directed to that court. 

Likelihood of Success on the Merits – Second Request

As a co-owner, James has an absolute right to partition. (Code Civ. Proc., § 872.210.)  However, the presumption is in favor of a partition by kind instead of a partition by sale.  To show an entitlement to a partition by sale, the plaintiff must present some evidence showing (1) a division into subparcels of equal value cannot be made,¿(See, e.g., East Shore Co. v. Richmond Belt Ry. (1916) 172 Cal. 174, 180; Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 366), or (2) a division of the land would substantially diminish the value of each party's interest, such that the portion received by each co-owner would be of substantially less value than the cash received on a sale, (See e.g., Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 366; Formosa Corp. v. Rogers¿(1951) 108 Cal.App.2d 397, 409.) 

 

Here, James meets his burden. He submits his declaration stating that the property is a single-family home, which suffices as lay opinion testimony. (Decl., 3; Evid. Code, § 800.) It supports that a division into subparcels of equal value cannot be made.

 

Moreover, James as an owner of the property has the right “possess and use it to the exclusion of others.”  (Civ. Code § 654.)  Though each owner of a property in common is entitled to possess and use the whole property and possession of one co-owner is regarded as possession, for all, no co-owner is entitled to possession or usage which excludes for any period of time a similar possession or usage by his co-owners.  (Krum v. Malloy¿(1943) 22 Cal.2d 132, 135–136.) 

 

But plaintiff has not presented any evidence that defendant actually diverted his tax bill or is interfering with his mail delivery in anyway.   He appears to be speculating about why a tax bill was delivered late.   Given the paucity of evidence that he will prevail in claim for interference with his mail, the court finds a preliminary injunction inappropriate at this stage.  

CONCLUSION

 

Accordingly, Plaintiff’s Motion is DENIED.