Andrew Muray, et al. v. Karen Lantz, et al

Case Number

24CV03000

Case Type

Hearing Date / Time

Wed, 07/10/2024 - 10:00

Nature of Proceedings

Order to Show Cause Regarding a Preliminary Injunction

Tentative Ruling

For Plaintiffs Andrew Muray and Kerri Marshall: Richard I. Wideman

For Defendants Karen Lantz and Andrew Farkas: James B. Devine

                  

RULING

For the reasons set forth below, a preliminary injunction will issue pending final determination of this action or further order of the Court.

1. Plaintiffs shall prepare a formal order stating: “Defendants Karen Lantz and Andrew Farkas, as well as their agents, representatives, contractors, and employees, are preliminarily enjoined and restrained from entering onto or constructing any improvements on property that Plaintiffs claim was formerly occupied by 922 Roble Lane, Santa Barbara, prior to Defendants’ removal of certain improvements thereon, including a wall, portions of a balcony, and footings. This order shall not take effect until Plaintiffs file a written undertaking in the amount of $10,000.00 to indemnify Defendants for any damages Defendants may sustain if the Court finally determines that Plaintiffs are not entitled to the injunction.”
2. Plaintiffs shall file a written undertaking in the amount of $10,000.00 no later than July 12, 2024. The temporary restraining order issued on June 7, 2024, shall remain in effect during the time allowed for presentation for signature of the order of injunction and undertaking.

Background

This action commenced on May 29, 2024, by the filing of the complaint by Plaintiffs Andrew Muray and Kerri Marshall against Defendants Karen Lantz and Andrew Farkas. The complaint is for injunction and damages for forcible entry and trespass, self-help, and quiet title based on adverse possession.

As alleged in the complaint:

Plaintiffs are the owners of real property known as 922 Roble Lane in Santa Barbara. Defendants are the owners of real property known as 916 Roble Lane in Santa Barbara, adjacent to Plaintiffs’ property.

On May 20, 2024, while Plaintiffs were away from their property, Defendants used bulldozers and other heavy construction equipment to remove a portion of Plaintiffs’ property, claiming that that portion of Plaintiffs’ property trespassed on Defendants’ property. Defendants removed a portion of the balcony, fencing, and foundation footings that had been present for approximately 40 years.

Sometime between 1979 and 1982, the prior owners of Plaintiffs’ property had made permitted additions to the property including the potions removed by Defendants. Defendants plan to construct improvements on the property including the area formerly occupied by the portions of Plaintiffs’ property that was removed by Defendants.

On June 7, 2024, Plaintiffs were granted a temporary restraining order prohibiting Defendants from entering onto or constructing any improvements on property that Plaintiffs claim was formerly occupied by 922 Roble Lane prior to Defendants’ removal of the wall, portions of the balcony, and footings. At that time, the current order to show cause re: preliminary injunction was scheduled.

Analysis

As an initial matter, all of Defendants’ evidentiary objections are overruled. The Court notes that, other than the photographs, maps, and plans (which are sufficiently authenticated), none of the statements objected to have any bearing on the Court’s ruling. Also, Defendants themselves have submitted photographs, maps, and plans showing substantially similar conditions of the disputed property. Likewise, Plaintiffs’ objections to Defendants’ statements and evidence are overruled.

“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. No preliminary injunction shall be granted without notice to the opposing party.” (Code Civ. Proc., § 527, subd. (a).)

The purpose of the preliminary injunction is to preserve the status quo until a final determination of the merits of the action. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) The burden is on the Plaintiff to show that it is entitled to the relief sought. (Id. at p. 838.)

A preliminary injunction requires “a complaint which states a sufficient cause of action for injunctive relief of the character embraced in the preliminary injunction.” (Handyspot Co. of Northern Cal. v. Buegeleisen (1954) 128 Cal.App.2d 191, 194.) A cause of action is based on the invasion of a primary right. (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co. (1993) 5 Cal.4th 854, 860–861.)

The grant or denial of an injunction does not amount to an adjudication of the ultimate rights in a controversy, and merely determines that the Court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, exercise of the right claimed by the Defendant should or should not be restrained. (Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361.)

In deciding whether to issue a preliminary injunction, a trial Court must evaluate two interrelated factors: (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.) The trial Court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the Plaintiffs’ showing on one, the less that must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) However, 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. (Ibid.)

“The likelihood of Plaintiffs’ ultimate success on the merits “ ‘does affect the showing necessary to a balancing-of-hardships analysis. That is, the more likely it is that Plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. This is especially true when the requested injunction maintains, rather than alters, the status quo. [Citation.] . . . [I]t is the mix of these factors that guides the trial Court in its exercise of discretion.’ ” [Citations.] The presence or absence of these interrelated factors “ ‘is usually a matter of degree, and if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial Court has discretion to issue the injunction notwithstanding that party's inability to show that the balance of harms tips in his favor. [Citation.]’ ” [Citation.]” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 342.)

Plaintiffs have provided legal argument and evidence in support of their claims that Defendants engaged in self-help, forcible entry, trespass, and adverse possession. Defendants, on the other hand, argue that Plaintiffs are “unlikely to succeed on the merits.” (Opp., p. 13, ll. 8-13.)

The Court has reviewed all of the evidence submitted by the parties, as well as considered the legal arguments made by the parties. The Court finds that there is a strong likelihood that Plaintiffs will ultimately prevail on at least some of their causes of action.

Defendants also argue that Plaintiffs have not provided any evidence of imminent, irreparable harm. The Court disagrees. Photographs, survey maps, and plans have been submitted. The photographs show fairly extensive damage alleged to have been done to 922 Roble Lane by Defendants already. Defendants do not appear to dispute that they caused the removal of the wall and portions of the balcony. The plans appear to indicate that Defendants intend to make improvements to areas that were previously occupied by portions of 922 Roble Lane. If Defendants are not enjoined, and Plaintiffs ultimately prevail in the action, Plaintiffs will have been irreparably harmed by, among other things, being deprived of their use and enjoyment of the property, their personal property would potentially be destroyed or altered, and they would suffer continued trespass. Monetary, or other legal remedies are inadequate.

Plaintiffs argue “Defendants are obviously planning to construct [a] portion of their development on the land that was occupied by the improvements to the Plaintiffs’ residence they removed. That must be stopped to prevent the need for tearing down portions of Defendants’ new residence and restoring Plaintiffs’ residence.” (Ex Parte Application for TRO, p. 8, ll. 5-10.)

Finally, Defendants argue that because the fence has already been removed, there is no need for a preliminary injunction because the act has already taken place. (Opp., p. 11, l. 21.) This would imply that Defendants do not intend to do any more demolition, or construction, on the disputed portions of the property. If this is truly the case, Defendants should have absolutely no objection to a legal prohibition from doing so. Defendants are essentially conceding that they would suffer no harm if the preliminary injunction were issued.

The Court finds that the status quo should be maintained pending the final determination of this action or further order of the Court.

“On granting an injunction, the Court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the Court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the Court determines that the applicant's undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.” (Code Civ. Proc., § 529, subd. (a).)

“Notwithstanding rule 3.1312, whenever an application for a preliminary injunction is granted, a proposed order must be presented to the judge for signature, with an undertaking in the amount ordered, within one Court day after the granting of the application or within the time ordered. Unless otherwise ordered, any restraining order previously granted remains in effect during the time allowed for presentation for signature of the order of injunction and undertaking. If the proposed order and the undertaking required are not presented within the time allowed, the TRO may be vacated without notice. All bonds and undertakings must comply with rule 3.1130.” (Cal. Rules of Court, rule 3.1150 (f).)

By way of their reply brief, Plaintiffs request that the bond be in the amount of $10,000.00. Defendants do not argue that it should be in a larger amount. As such, the undertaking will be in the amount of $10,000.00.

Plaintiffs will be given two Court days, or July 12, 2024, to file a proposed order and undertaking.

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