Kathy Mora, et al. v. Yasutomi Fujiwara, et al.

Case Number

25CV06469

Case Type

Hearing Date / Time

Wed, 12/10/2025 - 10:00

Nature of Proceedings

Order to Show Cause re Preliminary Injunction

Tentative Ruling

For Plaintiffs Kathy Mora and Assad Mora: R. Chris Kroes, McCarthy & Kroes

For Defendants Yasutomi Fujiwara and Nicole Fujiwara:  Jerry J. Howard, Thyne Taylor Fox Howard, LLP

RULING

For all reasons discussed herein, the application of plaintiffs for a preliminary injunction is denied.

Background

On October 15, 2025, plaintiffs Kathy Mora (K Mora) and Assad Mora (collectively, Plaintiffs) filed a complaint against defendants Yasutomi Fujiwara (Y Fujiwara) and Nicole Fujiwara (collectively, Defendants), alleging three causes of action: (1) private nuisance; (2) spite fence in violation of Civil Code section 841.4; and (3) statutory violations of the Santa Barbara Municipal Code and Civil Code section 896.

The complaint arises from the construction by Defendants of a retaining wall topped by a wood fence along a property line shared with Plaintiffs, which Plaintiffs allege exceeds maximum height requirements, was not permitted or engineered, and constitutes a spite fence and a nuisance. (Compl., ¶¶ 1, 5, 7, 11-17 & 24-25.) Plaintiffs further allege that Defendants continue to perform work on the wall or fence notwithstanding that the City of Santa Barbara posted a “red tag stop work order”, and that Defendants refuse to remove or lower the height of the wall or fence or to obtain necessary permits and engineering. (Compl., ¶¶ 14-16 & 18-21.)

On November 5, 2025, Plaintiffs filed an application for a temporary restraining order (TRO), restraining Defendants from continuing to maintain, construct, alter, backfill, or grade the wall or fence, or increasing its height, and for an order to show cause as to why a preliminary injunction should not issue enjoining Defendants from maintaining, constructing, or erecting any fence, wall, or hedge along the shared property line which exceeds legal limits or lacks required permits, and requiring the reduction of the wall and fence at issue to a maximum height of six feet following lawful permitting and structural engineering, among other things. (Notice at pp. 2-3, ¶¶ 1-4.)

In support of the application, K Mora states that they are the owner of residential property located at 925 West Victoria in Santa Barbara, California. (K Mora Decl. at p. 1, ll. 23-24.) K Mora also states that Defendants own adjoining property located at 929 West Victoria. (K Mora Decl. at p. 1, ll. 25-26.)

K Mora asserts that, commencing in August or September of 2025, Defendants constructed or caused to be constructed a fence in excess of 10 feet in height along the property boundary between the parties’ respective parcels, which was installed without prior notice to K Mora or any apparent building or zoning permit posted at the site. (K Mora Decl., ¶ 1.) The K Mora declaration includes photographs of that fence. (K Mora Decl., Exh. A.)

K Mora has verified with the City of Santa Barbara Planning Division that no building or zoning permit has been issued for a fence exceeding six feet in height at that location. (K Mora Decl., ¶ 2.) K Mora argues that, pursuant to the Santa Barbara Municipal Code, fences in side and rear yards may not exceed six feet in height unless a variance or modification is approved. (Ibid.) According to K Mora, no such modification has been granted. (Ibid.)

The fence substantially interferes with K Mora’s property by blocking sunlight to K Mora’s yard and garden, obstructing K Mora’s previously open view, and creating a sense of confinement and diminished enjoyment of K Mora’s home. (K Mora Decl., ¶ 3.) K Mora also asserts that the fence also poses a potential structural and safety hazard due to its excessive height and unpermitted construction. (Ibid.)

Though K Mora contacted Santa Barbara Code Enforcement and submitted a formal complaint regarding the unpermitted fence, K Mora is unaware of what enforcement process has taken place. (K Mora Decl., ¶  4.) K Mora has asked Defendants to remove the fence or lower it to a height of six feet, which Defendants have refused. (Ibid.)

K Mora contends that, unless the court issues an immediate temporary restraining order, K Mora will continue to suffer loss of light, air, and aesthetic value, and K Mora’s property will remain adversely affected. (K Mora Decl., ¶ 5.)

The application is also supported by a declaration of Plaintiffs’ attorney, R. Chris Kroes (Kroes), who states that they have communicated with Defendants’ counsel about the fence at issue and requested that Defendants obtain required permits and lower the fence to a height of six feet, which Defendants refused to do. (Kroes Decl., ¶ 3.) Kroes further states that on September 30 and November 3, 2025, Defendants’ counsel advised Kroes that “’permitting takes time’”, and that Defendants were working with the City of Santa Barbara to obtain proper permits and respond to the “Red-Tag Notice”. (Kroes Decl., ¶¶ 3-4 & Exhs. 1-2 [correspondence between counsel for the parties].)

On November 6, 2025, following a hearing at which counsel for the parties were present, the court denied the application as to the TRO, and set a hearing on the order to show cause re preliminary injunction for December 10, 2025. Further, the court deemed the application to be Plaintiffs’ moving papers, ordered that any opposition to the application be filed on or before November 26, and ordered that any reply be filed on or before December 3.

On November 26, Defendants filed their opposition to the application. In support of that opposition, Y Fujiwara states that in August 2025, Y Fujiwara built a wall and fence on Y Fujiwara’s property line in connection with improvements and beautification of that property, and not with the intent to harass or annoy their neighbors. (Y Fujiwara Decl., ¶ 2.) On September 22, after constructing the wall and fence, Y Fujiwara received a “Stop Work Notice” from the City of Santa Barbara Building and Safety Division (Building and Safety). (Y Fujiwara Decl., ¶ 3 & Exh. 1 [Notice].) Upon receiving the Stop Work Notice, Y Fujiwara stopped all work on the wall and fence. (Y Fujiwara Decl., ¶ 3.)

Y Fujiwara further states that on October 7, 2025, Building and Safety sent correspondence advising that Y Fujiwara will have a reasonable time to abate any violations regarding the wall and fence, and specifically instructing Y Fujiwara to, no later than November 7, apply for a building permit to legalize or to demolish the wall and fence. (Y Fujiwara Decl., ¶ 4.) Y Fujiwara asserts they applied for that permit on October 13, and that on October 16, Building and Safety confirmed that it had received that application (the Permit Application) which is in the queue for processing. (Y Fujiwara Decl., ¶ 5 & Exh. 2.)

Y Fujiwara further states that Adam Simmons (Simmons), who Y Fujiwara asserts is a “Certified Engineering Geologist”, performed a site inspection of the wall, and . that Simmons noted in a report dated November 22, 2025, (the Report) that the wall appeared to be 7.5 and was properly constructed with subdrainage. (Y Fujiwara Decl., ¶ 6 & Exh. 3 [Report].) Y Fujiwara asserts that Simmons further stated that the “’new wall has dramatically reduced the potential for erosion along the northern property line.” (Y Fujiwara Decl., ¶ 6 & Exh. 3.)

Y Fujiwara declares that, once Building and Safety completes the permit process, Y Fujiwara will follow any instructions issued by Building and Safety regarding the wall and fence, including reducing the height of, or removing, the wall and fence. (Y Fujiwara Decl., ¶ 7.) Y Fujiwara also states that, to avoid incurring additional fees and penalties, they do not want to take any actions against the Stop Work Notice, including by removing the wall and fence. (Ibid.)

Analysis

“As its name suggests, a preliminary injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits of its claim. [Citation.] To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.

“Past California decisions further establish that, as a general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) 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.)

The parties refer to the structure at issue in this proceeding, interchangeably, as either a wall or a fence, and the undisputed evidence and information indicates or suggests that the structure at issue includes a retaining wall and a wood fence. (See, e.g., K Mora Decl., Exh. A [photographs]; Y Fujiwara Decl., Exh. 3.) For ease of reference, the court will refer to the structure at issue in this proceeding as the “Wall”.

“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.)

Though K Mora asserts, in a conclusory manner, that Defendants continue to perform work on the Wall including after the Stop Work Notice was issued, Y Fujiwara disputes that contention by stating that all work on the Wall ceased after Defendants received the Stop Work Notice. Considering that Plaintiffs offer no evidence or information to show what, if any, work on the Wall was continued or performed by Defendants after the issuance of the Stop Work Notice, there is insufficient information or evidence to enable the court to determine whether there exists any reason to believe Defendants have continued to, or will actually, perform any work to maintain, construct, alter, backfill, or increase the height of the Wall. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1238 [the court disregards “argumentative, speculative and impermissible opinions” made in declarations, as well as those statements made “without foundation...”].)
 

In addition, though a plaintiff “may seek injunctive relief against the threatened infringement of their rights...” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292), the present undisputed record, including the matters described above, indicates or suggests that there is no substantial basis to believe that Defendants intend to, or will actually resume, any work on the Wall until the Permit Application is processed, including any work for which a permit is required. For these and all further reasons discussed above, to the extent the application includes a request that the court issue an injunction restraining Defendants from maintaining, constructing, altering, backfilling, grading, or increasing the height of the Wall, or from constructing any other structure without a permit, the application as to that request will be denied.

As to Plaintiffs’ request for an injunction requiring Defendants to remove the Wall, or to lower the height of the Wall to six feet, “injunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed. [Citation.] It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future. Indeed, a change in circumstances at the time of the hearing, rendering injunctive relief moot or unnecessary, justifies denial of the request. [Citations.] Moreover, not only can injunctive relief be denied where the defendant has voluntarily discontinued the wrongful conduct [citation], there exists no equitable reason for ordering it where the defendant has in good faith discontinued the proscribed conduct [citation.] ‘Thus, to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated.’ [Citation.]” (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332-333.)

The information and evidence offered by the parties and described herein shows or suggests, without dispute, that the Wall was constructed by Defendants without a permit, resulting in the issuance of the Stop Work Notice. The undisputed record also shows that Defendants have submitted the Permit Application. It can also be inferred from the available information that the Permit Application seeks to either “legalize”, abate any violations with regard to, or to obtain a permit to demolish, the Wall. (Y Fujiwara Decl., ¶¶ 4-5.) Plaintiffs do not appear to dispute the purpose for the Permit Application as stated in the Y Fujiwara declaration, and offer no information showing whether the Permit Application has been approved or denied. For reasons further discussed above, there is also no evidence or information to suggest that Defendants continue to perform any work on the Wall.

Under the totality of the circumstances present here, and considering that Defendants have undisputedly discontinued the purportedly wrongful or unpermitted conduct in regard to the Wall, the issuance of an injunction requiring Defendants to remove or lower the Wall would effectively serve to punish Defendants for constructing or erecting the Wall without a permit. Under these circumstances, there exists no equitable reason to order the injunction sought in the application.

Even if the court were to determine that there exists an equitable basis to issue the injunction requested by Plaintiffs, “[i]n 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 (Shoemaker).) The court acknowledges that, without an injunction requiring Defendants to remove or lower the height of the Wall, that structure will remain in its present state pending the processing of the Permit Application by Building and Safety. Even if the court credits information appearing in the K Mora declaration in regard to the light and view impacts on K Mora’s property, Plaintiffs do not effectively dispute that the Stop Work Notice was issued, or that Defendants have ceased any further work on the Wall. Moreover, the general and conclusory statements offered in the K Mora declaration do not explain or describe the nature of the “potential” structural or safety hazards presented by the height or unpermitted construction of the Wall.

As further discussed above, as it appears that Defendants have engaged in a process to obtain a permit for the Wall, or to demolish the Wall, the present record is sufficient to show or suggest that there exists a remedial scheme or administrative remedy that is available to Plaintiffs “short of invoking the injunctive power of the court.” (Shoemaker, supra, 37 Cal.App.4th at p. 634.) In addition, the application fails to show why an adequate legal remedy does not exist or is not available to Plaintiffs. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 838; Code Civ. Proc., § 526.)

The available evidence and information also shows or suggests that Defendants “stand to lose much more from the issuance of an injunction than [Plaintiffs] would suffer from its denial.” (Shoemaker, supra, 37 Cal.App.4th at p. 634.) For example, Plaintiffs do not appear to dispute that the issuance of an injunction requiring Defendants to remove or lower the height of the Wall would cause Defendants to violate the Stop Work Notice, and incur fees or penalties in connection with any such violation. Plaintiffs also offer no information or argument to show that the Stop Work Notice does not prohibit Defendants from performing work to remove or lower the height of the Wall, and do not reasonably dispute that, to the extent the court were to require Defendants to remove or lower the height of the Wall, Defendants would incur additional expenses to comply with that order.

Considering the general nature of the purported harm to Plaintiffs described in the K Mora declaration as opposed to the specific harm Defendants would undisputedly sustain should the court wrongly compel Defendants to remove or lower the height of the Wall, and “ ‘the respective equities of the parties...’ ” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528), these equities, on balance, tip in favor of Defendants. Moreover, denying the injunction would “preserv[e] the status quo until a final determination of the merits of the action.” (Ibid.)

For all reasons discussed above, and considering that the Stop Work Notice has been issued and Defendants have ceased performing any work with respect to the Wall, “the factor of interim harm strongly counsels against an injunction.” (Shoemaker, supra, 37 Cal.App.4th at p. 634.)

The 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 (Butt).) For these and all further reasons discussed above, Plaintiffs must also show a likelihood of prevailing on the merits of their claims. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286-288 [the court must determine both factors when granting or denying a preliminary injunction].)

The first cause of action alleges that Defendants’ conduct caused an obstruction to the free use of Plaintiffs’ property, and an interference with the enjoyment of that property, constituting a nuisance. As to the first cause of action for private nuisance, “proof of interference with [Plaintiffs’] use and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.) Even if the court were to assume without deciding that the Wall causes an interference with Plaintiffs’ use and enjoyment of Plaintiffs’ property in the manner described in the K Mora declaration and above, “liability for private nuisance requires proof of two additional elements.” (Ibid.) The first of these elements requires “proof that the invasion of [Plaintiffs’] interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’ [Citations].” (Id. at p. 938, original italics.)

Apart from the conclusory points advanced in the K Mora declaration and discussed above, the application fails to show or explain what, if any, substantial actual damage Plaintiffs have suffered as a result of the construction of the Wall by Defendants. In addition, and subject to exceptions which do not appear to apply here, “[a]s a general rule, a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right.” (Pacifica Homeowners’ Assn. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152.)
 

The second cause of action alleges a violation of Civil Code section 841.4, which provides: “Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.” (Civ. Code, § 841.4.) Though Defendants do not dispute that the Wall exceeds 10 feet in height, information appearing in the Y Fujiwara declaration suggests that the Wall was not erected for a malicious purpose. (Y Fujiwara Decl., ¶ 2.)

The third cause of action alleges a violation of Civil Code section 896, which sets forth building standards for “original construction intended to be sold as an individual dwelling unit...” (Civ. Code, § 896), and of various provisions of the Santa Barbara Municipal Code which Plaintiffs contend require Defendants to obtain a building permit to construct a retaining wall greater than six feet in height, or to perform certain grading work. For all reasons discussed above, the available information and evidence shows or suggests that the Wall was constructed without permits, that Defendants were issued the Stop Work Notice, and that Defendants have submitted the Permit Application.

“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.” (Butt, supra, 4 Cal.4th at p. 678.) Though the evidence and arguments advanced by the parties, when viewed as a whole, are sufficient to show “ ‘some possibility’ [Plaintiffs] will prevail on the merits of [the] action...” (Costa Mesa City Employees’ Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309-310) and can reasonably support either the granting or the denial of an injunction requiring Defendants to remove or lower the height of the Wall, the balance of the harms and relative hardships the parties would suffer favors the denial of such an injunction for all reasons further discussed above. Therefore, and for these reasons, the court will deny the application.  

Plaintiffs’ objections to the Y Fujiwara declaration:

With their reply, Plaintiffs submit objections to material appearing in the Y Fujiwara declaration. The court considers only that evidence which is admissible and relevant to the issues presented in this proceeding.