Dr. Cris Shepard et al vs Cycad Group LLC

Case Number

24CV06033

Case Type

Hearing Date / Time

Mon, 01/12/2026 - 10:00

Nature of Proceedings

Motion: Preliminary Injunction

Tentative Ruling

Dr. Cris Shepard, et al. v. Cycad Group, LLC                

Case No. 24CV06033

           

Hearing Date: January 12, 2026                                                        

HEARING:              Plaintiff’s Motion for Order Granting Preliminary Injunction For Removal of Drainage Barrier

ATTORNEYS:        For Plaintiffs Dr. Cris Shepard and Leila Cook: Travis L. Logue, Jason W. Wansor, R. Scott Mullen, Rogers, Sheffield & Campbell, LLP

                                    For Defendant Cycad Group, LLC: Heather M. McKeon, Eric J. Palmer, Tharpe & Howell, LLP

TENTATIVE RULING:

The motion of plaintiffs for an order granting a preliminary injunction for removal of drainage barrier is denied.

Background:

The first amended complaint (FAC) filed on January 28, 2025, by plaintiffs Dr. Cris Shepard (Shepard) and Leila Cook (collectively, Plaintiffs) against defendant Cycad Group, LLC, (Cycad) is the operative pleading in this action. As alleged in the FAC:

Shepard operates the “Montecito Dental Group” out of real property located at 1260 Coast Village Circle in Santa Barbara, California (the Shepard Property), which Plaintiffs have owned since 2018. (FAC, ¶ 7.) Cycad owns real property located at 1270 Coast Village Circle in Santa Barbara, California (the Cycad Property). (FAC, ¶ 8.) The Shepard Property and Cycad Property (collectively, the Properties) are adjacent to each other and share a side boundary. (FAC, ¶ 9.)

Historically, the Properties were part of a single parcel of land (the Original Parcel) which was subdivided. (FAC, ¶¶ 10-11.) The historical course or path of water runoff across the Original Parcel traveled downhill across the Shepard Property and onto the Cycad Property, and remained unchanged after the Original Parcel was subdivided. (FAC, ¶¶ 10-12.)

In 2020, Plaintiffs reconstructed the parking lot located on the north or rear side of the Shepard Property. (FAC, ¶¶ 13-14.) To determine and plan for the drainage of surface water runoff, Plaintiffs obtained a topographic survey (the Survey) of the Shepard Property and surrounding area prior to beginning that construction. (FAC, ¶ 15.) According to the Survey and consistent with the historical drainage pattern for the Original Parcel, surface water runoff traveling onto the Shepard Property would drain toward the southeast corner of the parking lot through an opening or walkway between curbs, and onto the Cycad Property driveway. (FAC, ¶¶ 16 & 18.) The surface water runoff would then travel in a southerly direction to the City of Santa Barbara’s public works stormwater gutter. (FAC, ¶ 17.)

Plaintiffs also obtained grading and drainage plans prepared by civil engineers Ashley & Vance, which included replacing the existing asphalt surface with permeable pavers and continuing the historical drainage pattern from the Shepard Property’s parking lot. (FAC, ¶¶ 20-21.) Plaintiffs drainage and stormwater management plans were submitted to and approved by the City of Santa Barbara, and the parking lot renovation was completed in 2020. (FAC, ¶¶ 22-23.)

In 2021, Cycad undertook renovations to the Cycad Property which included the construction of two concrete curbs within the opening that allowed water to exit or drain from the Shepard Property, which Plaintiffs refer to as the “Drainage Barrier”. (FAC, ¶¶ 24-25.) The Drainage Barrier acts as a dam obstructing surface water from traveling to and through the Cycad Property to the stormwater drainage system. (FAC, ¶ 31.) Cycad did not submit renovation plans to the City of Santa Barbara, and installed the Drainage Barrier on a weekend, without permits, and without a professional study, plan, or analysis of its implications. (FAC, ¶¶ 26-27.)

Plaintiffs communicated to Cycad their concerns that the Drainage Barrier altered the historical drainage pattern of surface water and would cause flooding on the Shepard Property. (FAC, ¶¶ 29-30.) Cycad has refused to remove or modify the Drainage Barrier. (FAC, ¶ 32.)

As a result of a significant amount of rainfall on March 30, 2024, and the construction of the Drainage Barrier, water that accumulated on the Shepard Property had no drainage path. (FAC, ¶¶ 34-35.) Instead, water pooled and entered the commercial building located on the Shepard Property, causing damage to walls, floors, furniture, exteriors, interiors, landscaping, and other physical structures. (FAC, ¶¶ 36-37.) Plaintiffs have incurred significant costs to assess the damage and initiate repairs which will require the closing of Montecito Dental Group. (FAC, ¶¶ 38-39.)

The FAC alleges six causes of action: (1) negligence; (2) trespass; (3) private nuisance; (4) quiet title – prescriptive easement; (5) negligent interference with prospective economic relations; and (6) declaratory relief. The FAC is verified by Shepard as to the matters alleged in the fourth cause of action for quiet title. (See FAC at pdf p. 18, ll. 3-5.)

On March 5, 2025, Cycad filed a verified answer responding to the allegations of the FAC.

On October 21, Plaintiffs filed a motion for an order issuing a preliminary injunction prohibiting Cycad from obstructing water runoff from the Shepard Property, and ordering Cycad to remove the Drainage Barrier.

The motion is supported by allegations appearing in the FAC and the answer of Cycad. (See, e.g., Memorandum at p. 5, l. 22-26 & fn. 1; p. 6, ll. 1-5.) These undisputed allegations, which are described above, include that Plaintiffs own the Shepard Property; that Cycad owns the Cycad Property; that the Properties are adjacent and share a side boundary; that Plaintiffs renovated the commercial building located on the Shepard Property in 2020; and that one component of Plaintiffs’ renovations to the Shepard Property included reconstruction of the parking lot described above. (Ibid.; see also FAC & Cycad Answer, ¶¶ 8-9 & 13-14.)

In addition, Shepard states in a declaration submitted in support of the motion, that, prior to any construction on either of the Properties, water runoff would travel through an opening or walkway between the curbs located along the boundary of the Properties in the event of rain. (Shepard Dec., ¶ 3.) Shepard further states that Cycad installed the Drainage Barrier in 2021, which, as further described above, consists of a concrete curb across that opening or walkway. (Shepard Dec., ¶ 5.) According to Shepard, this has caused water to accumulate on, and damage, the Shepard Property on multiple occasions. (Ibid.) Though Shepard has asked Cycad to remove the Drainage Barrier, Cycad has not agreed to do so. (Shepard Dec., ¶ 6.)

Shepard also asserts that the rainfall which occurred on March 30, 2024, caused water to accumulate in the southeast corner of the Shepard Property parking lot because the Drainage Barrier blocked that water from draining through the opening or walkway described above. (Shepard Dec., ¶ 7.) Shepard observed that rainfall and attempted to pump the water out of the area, but was unable to do so. (Ibid.) The accumulated water entered the commercial building on the Shepard Property, causing the damages described in the FAC and above. (Ibid.)

Shepard further asserts that, after the Shepard Property was damaged during the March 2024, rain event described above, Shepard’s insurer commissioned a “Limited Engineering Review Water Intrusion Evaluation” (the Engineering Report) to “ ‘evaluate the cause and origin of water intrusion into’ ” the Shepard Property’s commercial building. (Shepard Dec., ¶¶ 4, 8 & Exh. 1 [SPC Report] at p. 1.) The Engineering Report was prepared by SPC Engineering, and is dated April 23, 2024. (Shepard Dec., ¶ 4 & Exh 1 at pdf p. 6.)

Shepard has taken action to abate the water damage resulting from the blocked drainage path by running sump pumps and hoses during rain events, by commissioning drainage experts and contractors to evaluate whether a different drainage plan can be installed, by obtaining estimates and proposals to address the drainage problem, and by requesting assistance from Cycad to restore the original drainage path. (Shepard Dec., ¶ 9.) Shepard states that each drainage expert retained by Shepard has communicated that no proposal is guaranteed to be completely successful, “meaning that, in the absence of removal of the Drainage Barrier, the Shepard Property will continue to be at risk.” (Ibid.)

The motion is also supported by a declaration of Plaintiffs’ counsel, R. Scott Mullen, to which are attached: Cycad’s responses and supplemental responses to Plaintiffs’ discovery requests; a photograph taken in 2018 during rainfall that caused the “Montecito mudslide” purporting to depict the existence of the opening or walkway between the Properties and the flow of water through that opening; and Shepard’s responses to Cycad’s first set of special interrogatories. (Mullen Dec., ¶¶ 2-8 & Exhs. 1-7.)

Cycad’s opposition to the motion is supported by a declaration of its President and Managing Director, K. Leonard Judson (Judson), who states that Cycad purchased the Cycad Property in 2009. (Judson Dec., ¶¶ 3 & 5.) At the time of that purchase, Cycad researched the title for Cycad Property and obtained land surveys to assess whether there were any existing easements between the Properties, such as one allowing for pedestrian traffic. (Judson Dec., ¶ 5.) According to Judson, the research and the surveys obtained by Cycad showed there were no easements, whether recorded or unrecorded, between the Properties. (Ibid.)

Cycad moved its offices to the Cycad Property in 2012. (Judson Dec., ¶ 5.) At that time, the curb along the property line with the Shepard Property was continuous with the exception of a less than 2-foot gap or opening located near an HVAC shed on the Shepard Property. (Judson Dec., ¶ 6.) Judson observed two broken pieces of the concrete curb at the south end of the parking area of the Cycad Property that borders the Shepard Property. (Ibid.) Judson does not know how the curb was broken or how long it had existed in that state. (Ibid.)

Cycad placed the broken pieces of curb described above back in the opening to approximate their original alignment and, due to their shape, the broken pieces covered nearly the entire opening. (Judson Dec., ¶ 7.) Because they had been broken, the pieces of curb did not form a complete barrier across the opening in the curb bordering the Shepard Property and instead, allowed for a small passageway from the Shepard Property to Cycad’s driveway. (Judson Dec., ¶ 8.)

On May 16, 2012, Judson wrote a letter to the then owner of the Shepard Property, Chris Compogiannis, a copy of which is attached to Cycad’s Appendix of Exhibits (the Appendix). (Judson Dec., ¶ 7; Appendix, Exh. 3.) The purpose of that letter was to advise Compogiannis that there were no easements for ingress, egress, or drainage over the Cycad Property in favor of the Shepard Property, which Judson asserts Compogiannis did not dispute. (Judson Dec., ¶ 7.) Judson further asserts that, during heavy rainstorms, a minimal amount of water would occasionally pass through the pieces of concrete curb placed in the opening by Cycad as described above, which would then flow down the driveway of the Cycad Property and merge with other runoff, mud, and debris flowing from the north end of that property. (Judson Dec., ¶ 8.)

Judson states that a photograph from January 9, 2018, and attached to the Appendix, depicts rainstorm runoff onto Cycad’s driveway. (Judson Decl., ¶ 8; Appendix, Exh. 5.) At that time, the pieces of concrete curb had been moved, and were not blocking the opening. (Judson Decl., ¶ 8.) Based upon Judson’s personal observations of the Cycad Property during heavy rainstorms, Judson estimates that 95 to 99 percent of the mud and stormwater runoff depicted in that photograph originated from the north end of the Cycad Property and not from the Shepard Property. (Ibid.)

Prior to 2021, Judson observed individuals walking through the curb opening between the Properties. (Judson Dec., ¶ 9.) Judson asserts that pedestrian traffic through this area became a concern because one individual was almost hit by a vehicle in Cycad’s parking lot. (Ibid.)

Judson states that in January of 2021, without Cycad’s permission, Plaintiffs’ contractors removed Cycad’s broken curbing and installed pavers onto the Cycad Property, creating a pathway between the Properties. (Judson Dec., ¶ 9.) After Cycad instructed Plaintiffs’ contractors to remove the pavers, Cycad repaired the curb and extended the adjoining planter area in order to curtail pedestrian traffic. (Ibid.)

Judson also asserts that when Plaintiffs first occupied the Shepard Property, the parking lot at the rear of that property sloped downward from north to south, and its eastern edge was level with an adjacent planter bed which allowed surface water to flow off the asphalt and into the planter bed. (Judson Dec., ¶ 10.) Judson states that photographs attached to the Appendix and taken by either Judson or Robert Balch, depict the property line between the Properties prior to any construction Plaintiffs performed to their parking lot in 2020. (Judson Dec., ¶ 11; Appendix, Exh. 9.) According to Judson, the property line as it existed in 2018 was identified by a planter, and did not include, prior to 2020, cement or concrete curbing on the Shepard Property’s eastern property line which allowed surface water to flow and drain into the landscaped planter dividing the Properties. (Ibid.)

In June 2019, Cycad received notice from the City of Santa Barbara that Plaintiffs intended to renovate the parking lot at the Shepard Property pending approval by the City’s Architectural Review Board or “ABR”. (Judson Dec., ¶ 12.) Judson personally reviewed video clips from ABR hearings held on July 15, 2019, in regard to Plaintiffs’ application for approval of the renovations to the Shepard Property, which Cycad has lodged with the court. (Ibid.; Cycad Notice of Lodging Video Files at p. 2, Exh. 14.) Judson contends that those video clips show that in July 2019, Plaintiffs’ architect represented to the ABR that the proposed construction to the Shepard Property parking lot would not increase or direct the flow of surface water onto the Cycad Property. (Ibid.) Judson further asserts that Plaintiffs have never contacted Cycad to request a drainage easement. (Ibid.)

Between August and December of 2020, either Judson, Robert Balch, or Cycad’s tenant took photographs depicting the construction Plaintiffs arranged to be performed to the parking lot at the Shepard Property. (Judson Dec., ¶ 13; Appendix, Exhs. 2 and 4.) Judson asserts that Plaintiffs installed pavers on the parking lot’s surface which extended eastward into previously permeable surface. (Judson Dec., ¶ 13.) Judson also asserts that the renovations to the Shepard Property parking lot included the construction of a concrete curb on the eastern edge of the parking lot, along the property line. (Ibid.) To Judson’s recollection, the construction work on the Shepard Property parking lot was completed on or before March 1, 2021. (Ibid.)

Prior to the parking lot renovations at the Shepard Property, Judson observed no flooding or substantial amount of water flowing to the southeast corner of the Shepard Property parking lot. (Judson Dec., ¶ 13.) During and after completion of those renovations, Judson did observe flooding and water flowing to the southeast corner of the parking lot. (Ibid.) Either Judson or Robert Balch took photographs on January 28, 2021, purporting to depict the curb opening during a rain event, and a video depicting this curb opening has also been lodged with the court. (Ibid.; Appendix, Exhs. 20 and 21; Cycad Notice of Lodging Video Files at p. 2, Exh. 21.)

Judson also asserts that the new concrete curb built by Plaintiffs near and parallel to the eastern boundary of the Shepard Property, which forms the eastern border of the new parking lot, begins 2 or 3 feet from the outside wall of the rear of Plaintiffs’ building and runs north until it connects to the eastern end of a retaining wall. (Judson Dec., ¶ 14.) Judson contends that, during rainstorms, that new curb catches surface water flowing through the parking lot and funnels that water toward the southeast corner of the parking lot and Plaintiffs’ building. (Ibid.) According to Judson, Plaintiffs also experienced drainage issues on January 28, 2021, before Plaintiffs completed construction of the new parking lot. (Ibid.)

Judson states that in late December of 2020, after Plaintiffs removed the broken curbing between the Properties, Plaintiff built a pathway of pavers to connect the southeast corner of their parking lot with Cycad’s driveway, without Cycad’s permission. (Judson Dec., ¶ 14; Appendix, Exh. 22 [photograph of paver pathway installed by Plaintiffs].) Though Plaintiffs later removed that pathway, they did not replace the curbing, so Cycad did so, and completed that work by January 30, 2021. (Judson Dec., ¶ 14; Appendix, Exh. 23 [photographs taken by either Judson or Robert Balch between January 28 and 30, 2021, depicting Cycad’s repair of the concrete curb].)

Judson contends that on January 10, 2022, Plaintiffs made an anonymous complaint to the City of Santa Barbara Community Development Department (CDD) regarding Cycad’s repair of the concrete curb in the area where the Plaintiffs had constructed the pathway of pavers to Cycad’s driveway described above. (Judson Dec., ¶ 16; Cycad Appendix, Exh. 26 [letter dated January 10, 2022, from the CDD].) The CDD did not issue a citation or require Cycad to remove the new curb. (Judson Dec., ¶ 17; Cycad Appendix, Exh. 27 [Feb. 23, 2022, e-mail to Judson from CDD Building Inspector stating “the matter involving [the Cycad Property] has been closed....”].)

Judson contends, based on Judson’s personal observations while working onsite at the Cycad Property since 2012, that Cycad’s repair of the broken concrete curb has not caused water to pool in the parking lot of the Shepard Property, that any water damage to the Shepard Property building was caused by Plaintiffs’ renovations. (Judson Dec., ¶ 19.)

The opposition of Cycad is also supported by a declaration of Dennis L. Richards (Richards) who was retained by Cycad to provide an expert opinion as to the facts set forth within that declaration. (Richards Dec., ¶ 2.) Richards states that they are a board-certified water resources engineer specializing in stormwater, hydraulic, and sedimentation engineering, currently employed with Water Resources Consulting Services, Inc. (Richards Dec., ¶ 3.) A copy of Richards’ curriculum vitae is included with the Appendix. (Ibid.)

Richards visited the Cycad Property that on December 17, 2025, and spent approximately 3 hours examining the adjacent property line. (Richards Dec., ¶ 4.) During that visit, Richard reviewed: (i) photographs of the construction which occurred in Plaintiffs’ parking lot in the latter part of 2020; (ii) a grading and drainage plan prepared by Ashley & Vance Engineering dated June 24, 2020; (iii) the land survey prepared for the Shepard Property dated February 24, 2019; (iv) videos of stormwater runoff on both properties recorded on January 28, 2021; and (v) video recordings of Plaintiffs’ architect appearing before the ABR on July 15, 2019. (Ibid.)

Based upon Richards’ observations of the Cycad Property, its property line with the Shepard Property, and the materials described above, Richards made the following findings: the reconstructed parking lot surface at the Shepard Property, which includes interlocking pavers installed across a former asphalt lot which extended into previously permeable surface area, was improperly designed and constructed; the grading and drainage plan dated June 24, 2020, shows that the paved parking area was intentionally graded to discharge stormwater toward the driveway of the Cycad Property; the paved pathway through an opening in Cycad’s driveway curb created and formalized an unauthorized outlet; water accumulated on the Shepard Property after 2020 because of substantial alterations to the parking lot and adjacent areas which created new slope gradients and surface configurations that directed runoff toward Plaintiffs’ building; and the combination of the factors described above and in the Richards declaration collectively altered pre-existing drainage patterns. (Richards Dec., ¶¶ 5-7.)

It is Richards’ opinion that the modifications described above were of sufficient magnitude to cause the type of stormwater accumulation Plaintiffs allege occurred in March 2024. (Richards Dec., ¶ 7.) It is also Richards’ opinion that Plaintiffs’ reconstructed drainage configuration failed to meet the standard of care. (Ibid.)

Richards further states, based on their observation of site conditions and drainage patterns, that Cycad’s repair of the concrete curb did not alter Plaintiffs’ internal drainage configuration or create the conditions that led to the alleged March 2024 damage, and merely eliminated an unauthorized outlet that should not have existed. (Richards Dec., ¶ 9.)

Analysis:

“An injunction is a writ or order requiring a person to refrain from a particular act.” (Code Civ. Proc., § 525.) “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.” (Code Civ. Proc., § 527, subd. (a).)

“A trial court may grant a preliminary injunction upon a showing that (1) the party seeking the injunction is likely to prevail on the merits at trial, and (2) the ‘interim harm’ to that party if an injunction is denied is greater than ‘the [interim] harm the [opposing party] is likely to suffer if the ... injunction is issued.’ [Citations.] These two showings operate on a sliding scale: ‘[T]he more likely it is that [the party seeking the injunction] will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue.’ [Citation.]” (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183 (Integrated).) A preliminary injunction should not be granted “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.)

As a threshold matter, and as noted above, the motion requests the issuance of “a preliminary injunction prohibiting obstruction of water runoff from the Shepard Property....” (Notice at p. 2, ll. 4-5.) On its face, this request is not expressly limited to the removal of the Drainage Barrier at issue, and appears to request an injunction generally prohibiting or restraining Cycad from taking any action that would obstruct any water runoff from the Shepard Property.

To the extent an injunction is “unreasonably vague” and “does not provide adequate notice of its scope, it cannot be enforced.” (Midway Venture LLC v. County of San Diego (2021) 60 Cal.App.5th 58, 65; see also Evans v. Evans (2008) 162 Cal.App.4th 1157, 1169 [order “broadly” prohibiting the publishing of “any” defamatory comments” was “unconstitutionally vague and overbroad....”].) Further, “[a] preliminary injunction is proper only if there is a substantial basis to suppose that the defendant, if not restrained, will actually engage in the conduct sought to be enjoined. Such an injunction ‘cannot issue in a vacuum based on the proponents’ fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.’ [Citations.]” (Epstein v. Superior Court (2011) 193 Cal.App.4th 1405, 1410 (Epstein), original italics.)

Plaintiffs’ request for an injunction generally prohibiting Cycad from obstructing water runoff from the Shepard Property wholly fails to delineate or describe what conduct by Cycad might violate that injunction. For this reason, Plaintiffs’ request is impermissibly vague and overbroad.

Moreover, apart from describing the construction of the Drainage Barrier, wholly absent from the motion is any evidence or information showing why Cycad actually intends in the future to engage in conduct that would obstruct water runoff from the Shepard Property. Absent information or evidence sufficient to show a realistic prospect that Cycad intends to engage in such conduct in the future, Plaintiffs have, for all reasons discussed above, failed to meet their burden to show the elements necessary to support the issuance of a preliminary injunction generally prohibiting the obstruction of water runoff from the Shepard Property. (Epstein, supra, 193 Cal.App.4th at p. 1410.) For these and all further reasons discussed above, the court will deny the motion as to that request.

As to Plaintiffs’ request for the issuance of a preliminary injunction ordering the removal of the Drainage Barrier, “[a]lthough preliminary injunctions are generally designed to ‘ “preserve the status quo pending a determination on the merits of the action” ’ [citation], they are not so limited. A court also has the power to issue a preliminary injunction that ‘ “ ‘mandates an affirmative act that changes the status quo’ ” ’ [citation], but should do so only in those ‘extreme cases where the right thereto is clearly established.’ [Citation.]” (Integrated, supra, 6 Cal.App.5th at pp. 1183-1184.)

The parties here do not dispute that an injunction requiring Cycad to remove the Drainage Barrier, if granted, would mandate an affirmative act which would change the status quo. (See Pl. Reply Memorandum at p. 10, ll. 9-10 [stating “Plaintiffs do not dispute that the injunctive relief sought is mandatory....”].) For these reasons, Plaintiffs must clearly establish their right to a preliminary injunction requiring Cycad to remove the Drainage Barrier.

Notwithstanding the title of each of the causes of action, or theories of liability, alleged by Plaintiffs in the FAC and described above, the parties here each contend and appear to agree that, as to the issue of whether Plaintiffs are likely to prevail on the merits of their claims at trial, the relevant law governing Cycad’s potential liability in this action is described in Keys v. Romley (1966) 64 Cal.2d 396 (Keys), and subsequent or related decisions as further discussed herein. (Pl. Memorandum at p. 12 [citing the “reasonable use” rule set forth in Keys]; Opp. at p. 13 [same].)

In Keys, the court “ ‘expressly laid down” the following “rules...: 1. If the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; 2. If the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and 3. If both the upper and lower owner are reasonable, the lower owner wins also.” (Burrows v. State (1968) 260 Cal.App.2d 29, 33 (Burrows), fn. omitted; Gdowski v. Louie (2000) 84 Cal.App.4th 1395, 1404 (Gdowski).) As noted by the court in Burrows: “It is not clear from Keys whether the Supreme Court left room for the fourth possible permutation, namely a situation where both are unreasonable.” (Burrows, supra, 260 Cal.App.2d at p. 33, fn. 3, italics added.) “A subsequent decision ... answered that inquiry as follows: ‘The person [lower owner] who may minimize damage and fails to do so cannot recover for the excess damage occurring.... [¶] While a lower landowner’s failure to take affirmative action to protect his property does not necessarily mean he is denied relief against the upper landowner, his lack of action may be relevant in computing the damages to which he is entitled.’ [Citation.]” (Gdowski, supra, 84 Cal.App.4th at p. 1404, original italics; see also Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 730 (Sheffet).)

Relying on the reasoning and analysis set forth in Keys and described above, Plaintiffs contend that the construction of the Drainage Barrier by Cycad was unreasonable because the Drainage Barrier closed off an existing opening in the curb through which water historically drained from the Shepard Property; because Cycad acknowledged the existence of that opening and that a de minimis amount of water exited the Shepard Property through that opening; because Plaintiff raised drainage concerns to Cycad; because Cycad has admitted that it has not suffered any damage to its property from the drainage of water from the Shepard Property; and because Cycad has refused to remove the Drainage Barrier and restore the original water runoff route. (Pl. Memorandum at pp. 11-12.)

Cycad contends that Plaintiffs have acted unreasonably because Plaintiff’s construction of the new parking lot substantially altered the Shepard Property and changed the natural system of drainage that formerly existed; because Plaintiffs failed to seek a complete or permanent solution of the drainage problem; because there exist no easements over the Cycad Property in favor of the Shepard Property; because Plaintiffs never sought permission from Cycad to allow rainwater to drain through the curb opening onto the Cycad Property; and because Plaintiffs represented to the ABR that they did not need to use that opening to avoid flooding on the Shepard Property. (Opp. at pp. 13-15.)

Based on the points advanced by the parties in their respective moving and opposing papers which, as further discussed above, rely on “a modified rule of civil law in determining the rights and liabilities of adjoining landowners with respect to the flow of surface waters...” (Sheffet, supra, 3 Cal.App.3d at p. 727), Plaintiffs must meet their burden to show that they are likely to prevail on their claim that Cycad acted “arbitrarily and unreasonably in [its] relations with” Plaintiffs; that Cycad failed to take “reasonable care in using [its] property to avoid injury to [the Shepard Property] through the flow of surface waters...”; that Plaintiffs, the party “threatened with injury to [the Shepard Property] by the flow of surface waters”, acted in a reasonable or necessary manner including by taking “reasonable precautions to avoid or reduce any actual or potential injury...”; and that, based on the factors stated in Keys, any injury to the Shepard Property “must be borne” by Cycad. (Keys, supra, 64 Cal.2d at p. 409.)

The Engineering Report submitted by Plaintiffs, which includes references to reports and plans prepared by Ashley & Vance Engineering, the Survey, photos of the Shepard Property and its parking lot, various weather station data, and an inspection ostensibly conducted on July 5, 2018, among other references purportedly reviewed by SPC Engineering, notes that properties to the north of the Shepard Property are higher in elevation, and that surface water runoff from these properties is directed toward the rear or north parking lot of the Shepard Property which, as described above, was renovated or reconstructed by Plaintiffs. (Shepard Dec., Exh. 1 at pdf p. 7 [“Exterior” bullet point one] & pdf p. 14 [photo 3 notes].)

The Engineering Report states that the Survey prepared prior to Plaintiffs’ reconstruction of the parking lot shows that the surface of that lot drains toward the southeast corner, and that the drainage then proceeded through an “opening/walkway between curbs”, and onto the Cycad Property’s driveway. (Shepard Dec., Exh 1 at pdf p. 2 [“Background”] & pdf p. 19 [photo 14 purporting to depict the “drainage opening between curbs” allowing drainage to flow onto the Cycad Property driveway].) According to the Engineering Report, the “drainage opening and parking lot drainage pattern” which allowed surface water runoff to flow from the Shepard Property parking lot to Cycad’s driveway “pre-dated the parking lot reconstruction....” (Id. at pdf p. 8 [“Exterior” bullet point 8].)

The Engineering Report also indicates or suggests that the parking lot as reconstructed in 2020 drains toward the southeast corner where water accumulates during rainstorms, and that the drainage opening or pattern allowing surface water runoff to flow from the parking lot to the Cycad Property driveway “was included in the City-approved reconstruction plans...” and “appears to be consistent with the City-approved grading and drainage plans” provided by Shepard. (Shepard Dec., Exh. 1 at pdf pp. 7-8 [“Exterior” bullet points 2, 5 & 8].) In regard to the water intrusion that occurred on March 31, 2024, as alleged in the FAC, the Engineering Report states that water runoff entered Shepard’s building below the rear exterior door of the dental office located on the Shepard Property. (Id. at pdf p. 8 [“Exterior” bullet point 6].)

The Engineering Report further states: “Currently, the drainage opening at the southeast corner of the parking lot is blocked by two concrete curbs that were constructed by [Cycad] in 2021.... The curbs were constructed across the previous drainage opening/walkway, and currently obstruct the flow of surface water runoff from [Shepard’s] parking lot, causing water to pond on the [Shepard] [P]roperty. Of the two added curbs, one curb appears to be on each property.” (Shepard Dec., Exh. 1 at pdf p. 8 [“Exterior” bullet point 7] & pdf p. 18 [photos 11 & 12].)

Information appearing in the Engineering Report indicates or suggests that the opening through which surface water runoff flowing to the Shepard Property purportedly drained to the Cycad Property extended across what the court understands to be the property line between the Properties, and that the curb constructed by Cycad at that location, which constitutes the Drainage Barrier at issue in this litigation, is located on the Cycad Property and not the Shepard Property. (See, e.g., Shepard Dec., Exh. 1 at pdf pp. 12 [“Site Aerial Photo”], 18 [photo 12 depicting curb added by Cycad] & 20 [photo 15 depicting “approximate” property line]; Cycad Appendix, Exh. 11 [topographic survey].) For example, Plaintiffs do not contend that Cycad constructed the Drainage Barrier on the Shepard Property. Furthermore, apart from the conclusory and speculative statement appearing in the Engineering Report and described above, Plaintiffs offer no reasoned argument showing that the Drainage Barrier was constructed, in whole or in part, on any portion of the Shepard Property.

Though it can be inferred from information appearing in the Engineering Report and described above that, prior to the reconstruction of the parking lot at the Shepard Property, there existed an opening in the curb between the Properties through which surface water runoff flowing onto the Shepard Property would drain onto the driveway of the Cycad Property, evidence and information submitted by Cycad indicates or suggest that, at some point prior to Judson’s discovery of the broken curb in 2012, that curb was continuous and did not include the opening. (See, e.g., Cycad Appendix, Exh. 1  & Exh. 2 at pdf p. 19.) Neither Plaintiffs nor Cycad offer any information showing when, for what purpose, or by whom the curb at the opening was broken, including whether that portion of the curb was broken to allow surface water from the Shepard Property to drain to the Cycad Property, or for some other purpose. The court also considers that the Drainage Barrier, or some portion of that structure, appears to have been constructed on the Cycad Property, and that plaintiffs present no evidence, information, or reasoned argument sufficient to show the creation of an easement for the drainage of stormwater through that opening, whether by prescription or otherwise. (See Batta v. Hunt (2024) 106 Cal.App.5th 295, 304-305 [general discussion].)

For all reasons discussed above, in regard to the issue of whether Plaintiffs are likely to prevail on the merits of their claim as presented in the motion, the present record can reasonably support either the granting or the denial of a permanent injunction requiring Cycad to remove the Drainage Barrier.

The court must also consider “the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.... ‘The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause. [Citation.]’ [Citation.]” (White v. Davis (2003) 30 Cal.4th 528, 554, original italics.) “In evaluating interim harm, the trial court compares the injury to the plaintiff in the absence of an injunction to the injury the defendant is likely to suffer if an injunction is issued.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633.)

Though the present record includes no evidence or information to show what, if any, damage to Cycad would result from any drainage of surface water runoff from the Shepard Property to the Cycad Property if the court were to erroneously issue the preliminary injunction requested in the motion, Plaintiffs do not, and cannot reasonably, dispute that Cycad would incur expenses to remove or destroy the Drainage Barrier, which ostensibly would also include the removal of irrigation piping and landscaping installed by Cycad. (See Opp. at p. 15, ll. 5-13.)

In addition, Cycad effectively contends that the photograph depicting runoff from the Shepard Property onto Cycad’s driveway on January 9, 2018, and a photograph and video of the curb opening during a rain event on January 28, 2021, show that any drainage that previously traveled through the opening in the curb where the Drainage Barrier was constructed is minimal. In reply, Plaintiffs submit video footage showing the accumulation of water in the southeast corner of the Shepard Property during the recent “New Years” holiday, including into the first week of January 2026. (Shepard Reply Decl., ¶ 9; Compendium Exhs. 10-13.)

The court has reviewed the photos and videos submitted by the parties and described above. The stormwater runoff through the broken curbing depicted in these photos and videos does not exceeds the height of the Drainage Barrer or curb, or the bottom of what the court understands to be the HVAC shed on the Shepard Property.

The present record also shows that there exist measures available to Plaintiffs to mitigate the risk of harm pending trial. For example, Shepard states that they have utilized sump pumps, hoses, and wet-dry shop vacs to drain water from the Shepard Property, and placed sandbags. Judson states that Cycad has permitted Plaintiffs to use these mitigation measures to direct rainwater into Cycad’s driveway. The evidence submitted by Plaintiffs also shows that the use of sump pumps appears to mitigate the level of accumulation or ponding of stormwater at the southeast corner of the Shepard Property, and to prevent that water from entering the rear door of Plaintiffs’ building.

In addition, considering the multiple occasions of water accumulation purportedly caused by the construction of the Drainage Barrier and the concerns in this regard expressed by Plaintiffs to Cycad, the delay between the filing of this action and the making of the present motion is also a factor the court considers in weighing the relative harms to the parties. Plaintiffs also offer no information or evidence, such as historical or other data, showing the frequency with which a four inch rain event is likely to occur pending trial.

The court further notes that if Plaintiffs “may be fully compensated by the payment of damages in the event [they] prevail[], then preliminary injunctive relief should be denied.” (Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471.) Though the payment of damages is “not typically an adequate remedy when the [matter at issue] involves unique real property...” (Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, 1380), the damages described in the Shepard declaration and above involve Plaintiffs’ commercial property. (See, e.g., Shepard Dec., ¶ 7 [describing damage to the commercial building including “walls, floors, furniture, exteriors, interiors, landscaping, and other physical structures....”].) Moreover, to the extent Plaintiffs efforts to mitigate any harm purportedly arising from the construction of the Drainage Barrier by Cycad are reasonable, Plaintiffs do not explain why they cannot include the expense of any such measures in computing their damages. (See Sheffet, supra, 3 Cal.App.3d at p. 730 and fn. 8 [general discussion].)

Considering and crediting the parties’ respective showings as to the relative harms that the parties may or will suffer and further discussed above, and assuming that Cycad continues to allow Plaintiffs to direct surface water runoff during rain events onto Cycad’s driveway, it appears to the court that, on balance, a greater harm would result to Cycad if the injunction were erroneously granted than would result to Plaintiffs if the injunction were denied. For these and all further reasons discussed above, the court will deny the motion.

Plaintiffs’ request for judicial notice:

As the FAC and Cycad’s verified answer to the FAC are proper subjects of judicial notice, the court will grant Plaintiffs’ request for judicial notice of these court records. (Evid. Code, § 452, subd. (d)(1).)

The parties’ objections:

Plaintiffs assert objections to the Richards declaration described above. To determine the motion, the court considers only that evidence which is admissible and relevant to the issues presented.

The same reasoning and analysis apply as to Cycad’s objections to Plaintiffs’ reply, which the court will exercise its discretion to consider, and which does not change the analysis set forth herein.