Thomas A. Gilles, et al., etc., v. Michael Bryant Johnson, et al., etc.

Case Number

23CV01019

Case Type

Hearing Date / Time

Wed, 09/06/2023 - 10:00

Nature of Proceedings

Motion of Plaintiffs for Preliminary Injunction

Tentative Ruling

For Plaintiffs Thomas A. Gilles and Joan N. Gilles, as trustees of the Gilles Family Trust dated March 8, 2006: Randall fox, Wiley G. Uretz, Reetz, Fox & Bartlett LLP  

For Defendants Michael Bryant Johnson and Christina Marie Johnson, as trustees of the Michael and Christina Johnson Family Trust dated December 20, 2016: Robert A. Curtis, Aaron L. Arndt, Foley Bezek Behle & Curtis, LLP

RULING

For the reasons set forth herein, the motion of Plaintiffs Thomas A. Gilles and Joan N. Gilles, as trustees of the Gilles Family Trust dated March 8, 2006, for issuance of a preliminary injunction is denied.

Background

(1)        Allegations of Plaintiffs’ Complaint

As alleged in the complaint:

Plaintiffs Thomas A. Gilles and Joan N. Gilles, as trustees of the Gilles Family Trust dated March 8, 2006, (Plaintiffs) own real property located at 1540 North Ontare Road in Santa Barbara (Plaintiffs’ Property). (Complaint, ¶ 1.) Defendants Michael Bryant Johnson and Christina Marie Johnson, as trustees of the Michael and Christina Johnson Family Trust dated December 20, 2016, (Defendants) own property located at 1320 Ontare Road in Santa Barbara (Defendants’ Property). (Complaint, ¶ 2.) Plaintiffs own a non-exclusive easement appurtenant to Plaintiffs’ Property and burdening Defendants’ Property (the Easement). (Complaint, ¶ 3.) The Easement comprises a non-exclusive right of way for ingress, egress, utilities, and for landscaping, through and across Defendants’ Property, over a strip of land 30 feet wide. (Ibid.) Plaintiffs have no usable access from Plaintiffs’ Property to the public street except the Easement. (Ibid.) On October 1, 2018, and continuing thereafter, Defendants unreasonably obstructed the Easement by erecting and locking a gate across the Easement and thereby preventing Plaintiffs from using the Easement. (Complaint, ¶ 33.)

(Note: Although the Court refers to the Easement by that label for ease of reference, the validity and scope of the rights to the Easement are disputed and the Court does not intend its choice of label to suggest how it may rule on the merits of the dispute.)

(2)        Procedural History of this Case

On March 14, 2023, Plaintiffs filed their verified complaint in this action asserting seven causes of action: (1) easement by implication; (2) equitable easement interest; (3) easement by necessity; (4) easement by prescription; (5) easement by estoppel; (6) declaratory relief; and (7) for injunctive relief and damages.

On June 16, 2023, Defendants filed their answer, admitting and denying allegations thereof and asserting eight affirmative defenses.

On July 26, 2023, the Court set trial for May 29, 2024.

On August 7, 2023, Plaintiffs filed their motion for a preliminary injunction. Plaintiffs seek to enjoin Defendants from preventing Plaintiffs’ access by the Easement. The motion is opposed by Defendants.

Analysis

A preliminary injunction is available “[w]hen 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.” (Code Civ. Proc., § 526, subd. (a)(2).)

“The trial Courts consider two interrelated questions in deciding whether to issue a preliminary injunction: 1) are the Plaintiffs likely to suffer greater injury from a denial of the injunction than the Defendants are likely to suffer from its grant; and 2) is there a reasonable probability that the Plaintiffs will prevail on the merits. [Citations.] ‘[By] balancing the respective equities of the parties, [the Court] concludes that, pending a trial on the merits, the Defendant should or that he should not be restrained from exercising the right claimed by him.’ [Citations.]” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)

In reply, Plaintiffs have filed a supplemental declaration of Thomas A. Gilles, new declarations of Brian Borgh and Jody Neal, and a reply request for judicial notice. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. … ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case …’ and if permitted, the other party should be given the opportunity to respond. [Citations.]” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) To the extent that this reply evidence raises new factual issues, the Court disregards this evidence.

(1)        Greater Injury

The first of the two interrelated questions is the question of the greater injury from the erroneous grant or denial of the injunction. Plaintiffs argue that if the injunction were denied, they would be cut off from the effective use of the Plaintiffs’ Property. On the other hand, Plaintiffs argue, if the injunction were issued, Defendants would suffer injury only in the use of the disputed Easement during the pendency of the litigation, which Plaintiffs characterize as having been used as access for decades prior to 2018. (Motion, at p. 15.) In comparing these two injuries, Plaintiffs argue that theirs is the greater injury.

Defendants argue that if the injunction were granted, they would suffer injury by the loss of privacy and the other disturbances created by traffic across their property. (Opposition, at p. 18.) On the other hand, Defendants argue, if the injunction were denied the injury to the Plaintiffs is limited to waiting until disposition of this action rather than engaging in contemplated development of Plaintiffs’ Property. Defendants argue that they would suffer the greater injury because of the present irreparable harm to the use of their own property as compared with the potential future use of the Plaintiffs’ Property.

As part of this argument, Plaintiffs assert that depriving them of access to the Plaintiffs’ Property by the Easement would make it infeasible for them to engage in fire suppression or fire abatement on Plaintiffs’ Property. (Motion, at p. 18.) In support of this argument, Plaintiffs provide the declaration of Chris Olmstead, a Captain in the Santa Barbara County Fire Department’s Planning and Engineering Division. (Olmstead decl., ¶ 2.) Olmstead declares that alternative access via a different easement would not meet Santa Barbara County Fire road standards. (Olmstead decl., ¶ 3.) In opposition to this argument, Defendants assert that fire abatement is not a concern because there is currently no one living on Plaintiffs’ Property and that abatement is only required upon notice from the Santa Barbara County Fire Protection District. (Opposition, at p. 18, fn. 6.)

Based upon the evidence presented by the parties, and with the potential exception of fire abatement and related safety issues as discussed below, Defendants will suffer the greater injury by the erroneous grant of the injunction. The evidence shows that access to the Plaintiffs’ Property has been impeded in the manner sought to be prohibited by the injunction for multiple years prior to the making of this motion. If Plaintiffs succeed on the merits, then Plaintiffs will have suffered delay of the same nature and quality as has existed in the past. If Defendants succeed on the merits, Defendants will have suffered the improper use of their real property and be subjected to the invasion of interests, including privacy and quiet enjoyment, during the pendency of the litigation.

(2)        Likelihood of Success on the Merits

“The trial Court's determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the Plaintiff's showing on one, the less must be shown on the other to support an injunction. [Citation.] Of course, ‘[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.’ [Citation.] A trial Court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the Plaintiff would ultimately prevail on the merits of the claim.” (Butt v. State of California (1992) 4 Cal.4th 668, 678.)

The parties have provided disputed evidence as to the merits of Plaintiffs’ claim. For purposes of this motion, it is sufficient for the Court to determine that Plaintiffs have shown that there is some possibility of Plaintiffs’ prevailing on the merits. Plaintiffs have presented evidence of historical use of the Easement. (E.g., Moreno decl., ¶ 8.) There is evidence that the Easement has not been lost to adverse possession because of insufficient time. (E.g., Jordano decl., ¶¶ 2-4 [access available less than five years prior to filing of complaint]; Code Civ. Proc., §§ 319, 322, 325 [five years required for adverse possession].) However, the nature and quality of the evidence presented by both parties leave the question of likelihood of success on the merits as largely indeterminate. The Court determines only that the evidence is sufficient to support the issuance of an injunction under the sliding-scale standard, but, as discussed below, under that standard, the nature and quality of the evidence is not sufficient to outweigh the balance of harms.

(3)        Balance of the Equities

“ ‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the Court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the Defendant should or that he should not be restrained from exercising the right claimed by him.’ [Citations.] The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; accord, Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.)

There two basic undisputed facts that are central to the disposition of this motion. First, the Plaintiffs’ Property is not currently occupied or developed. (Gilles decl., ¶¶ 3-4; Complaint, exhibit D.) Second, the access over the Easement that is the subject of this motion has been impeded by a locked gate since 2018 or 2019. (Johnson decl., ¶¶ 2, 4; Jordano decl., ¶¶ 2-4; Complaint, ¶ 33.) These two facts demonstrate that the status quo is preserved by denial of the injunction. Plaintiffs have been subjected to the impediment to which they object for multiple years prior to the filing of this action and the making of this motion. With the potential exception related to fire abatement, discussed below, Plaintiffs have presented insufficient evidence to show that continuing the status quo until the disposition of the merits creates in the Plaintiffs new or different irreparable harm. Plaintiffs have not shown any specific need for access to the Plaintiffs’ Property beyond the access that they have had during the last several years while their disputed access over the Easement has been impeded. Consequently, the irreparable injury that would be suffered by the Defendants in the event of the erroneous grant of an injunction is significantly greater than the potential harm to the Plaintiffs in the event of the erroneous denial of an injunction when balanced with the likelihood of success on the merits.

A potential exception to this analysis is the need for fire abatement activity on Plaintiffs’ Property. It should be beyond discussion that fire abatement and fire suppression on Plaintiffs’ Property is not merely in the interests of the Plaintiffs, but of great concern to adjoining parcels, including the Defendants’ Property, and to the community at large. Efforts to mitigate fire dangers should be encouraged and not impeded, regardless of whether such mitigation efforts are imminently demanded by government regulators or are merely prophylactic. Accordingly, the Court would generally view favorably a request to permit access via the Easement for the specific purpose of fire abatement or suppression with identified dates, times, and scope of use of the Easement. However, such potentially appropriate but highly limited use of the Easement is not an argument why general use of the Easement by Plaintiffs during the pendency of this action should be permitted by enjoining Defendants’ use of their gate. The limited fire abatement-related use is of a different quality and scope, providing a different balance of interests. The record before the Court is insufficient for the Court to make any such orders at this time; what use may be appropriate, if at all, would depend upon the specific facts of the request. The Court expects that the parties would meet and confer to attempt an informal resolution (without prejudice to any party’s position on the merits of this action) before seeking further orders from the Court.

Also, for the first time in reply, Plaintiffs assert an intent to repair and improve drainage on the Plaintiffs’ Property as an additional reason why use of the Easement is required. (Gilles supp. decl., ¶ 7.) For the same reason as for fire abatement, this late evidence is insufficient for the Court to make any orders based upon specific conditions by which repair of drainage may constitute an exigency for which a different analysis may be appropriate.

Accordingly, after consideration of all of the arguments and evidence presented by the parties, the motion of Plaintiffs for issuance of a preliminary injunction is denied. This denial is without prejudice to the filing of a further motion for injunctive relief to permit access via the Easement for fire abatement or other activities requiring timely and limited use of the Easement.

(4)        Requests for Judicial Notice

In support of the motion, Plaintiffs request that the Court take judicial notice of: (Plaintiffs’ Exhibits, exhibit G) a deed recorded May 24, 1960; (exhibit H) a deed recorded August 4, 1964; (exhibit I) a judgment recorded June 26, 2000; and (exhibit J) a deed recorded March 18, 1976. The Court grants these requests for judicial notice. (See Evid. Code, § 452, subds. (c), (h).) “However, the fact a Court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.]” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

In reply, Plaintiffs make a supplemental request for judicial notice of a Court record in a different case and eight recorded documents. In part based upon the disposition explained above (rendering these requests unnecessary to the present motion) and in part based upon the failure to make these requests in connection with the moving papers (and thus precluding a written response by Defendants), these requests for judicial notice are denied.