Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Arriba Way Citizens United vs Gregory Myron Patronyk et al
Case No: 18CV05826
Hearing Date: Fri Jan 31, 2020 9:30

Nature of Proceedings: OSC Preliminary Injunction

Tentative Ruling: The court denies plaintiff Arriba Way Citizens United’s application for a preliminary injunction, discharges the order to show cause for issuance of a preliminary injunction, and dissolves the temporary restraining order entered by the court on January 15, 2020. The court denies defendant Gregory M. Patronyk’s request for attorney fees and costs.

Background: This is a neighborhood dispute arising out of applications for construction of an accessory dwelling unit (ADU) on each of two properties owned by defendants. Plaintiff Arriba Way Citizens United (AWCU) seeks a preliminary injunction to prevent construction of the ADUs pending disposition of the merits of this action. Defendant Gregory M. Patronyk is the trustee of the Gregg Patronyk Revocable Trust dated 3/19/2009 (GP Trust), which is the record title owner of real property at 2924 Arriba Way in Santa Barbara. Patronyk is also the trustee of the Orest Patronyk Revocable Family Trust dated September 4, 1992 (OP Trust), which was settled by Patronyk’s father and his mother, defendant Elie Marie Patronyk. The GP Trust owns a 50 percent undivided interest in real property at 2919 Arriba Way in Santa Barbara and the OP Trust owns the remaining 50 percent. AWCU is an informal homeowners group formed by certain homeowners living on Arriba Way.

On January 22, 2019, the court denied AWCU’s application for a preliminary injunction. On July 25, the court granted defendants motion to stay this proceeding pending the outcome of People v. Gregory Myron Patronyk, Case No. 19CR00510.

On January 14, 2020, AWCU filed an ex parte application for an order to show cause why a preliminary injunction should not be issued (OSC) and for a temporary restraining order (TRO). On January 15, the court issued the OSC and TRO, restraining defendants and persons acting on their behalf from taking any steps to obtain or process permits, or to construct or prepare to construct the proposed garages and ADUs at 2919 Arriba Way (construction permit nos. BLD2017-02663 and BLD2019-05138) and 2924 Arriba Way (construction permit nos. BLD2017-01498 and BLD2019-05139).

Application: AWCU purports to incorporate all the facts and legal authority contained in the prior application for a preliminary injunction that the court heard a year ago. AWCU supplements the facts with the case summary of the criminal case and a declaration of one of its members, Alan Gallegos. Gallegos attaches his compilation of information from Case Activity Summaries the City of Santa Barbara Building Department provided to him on December 20, 2019, and his review of information within the “Accela Citizens Access portal” on December 27, 2019.

Defendant Gregory Patronyk opposes the motion. (Patronyk’s opposition does not comply with CRC 3.1110(f)(4), which provides that “electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”) Patronyk asks the court to order AWCU to pay his attorney fees and costs in the amount of $1,500.

Analysis: The court may grant a preliminary injunction when it appears by the complaint that the plaintiff is entitled to the relief demanded or the commission or continuance of some act during the litigation would produce great or irreparable injury to a party to the action. CCP § 526(a). “In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’” factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. … 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 v. State of California, 4 Cal.4th 668, 677-78 (1992).

The plaintiff bears the burden of presenting facts establishing the requisite likelihood of success on the merits “‘by someone having knowledge thereof, made under oath or by declaration under penalty of perjury.’” Fleishman v. Superior Court, 102 Cal.App.4th 350, 356 (2002) [citation omitted].

To the extent AWCU relies on the facts and authority previously submitted, the court has already determined that AWCU has not shown that the relative harms support issuance of the preliminary injunction or that plaintiff has a reasonable probability of success on the merits. The new information is that arraignment on the complaint in the criminal case has been repeatedly continued and is currently set for February 10, and that Patronyk has responded to City’s BLD Plan Check Reviews regarding the ADU permit applications. Patronyk’s lawyer says that Patronyk must respond to City’s actions in order to keep his permit application from being rejected.

AWCU argues that Patronyk’s bases for the stay were that criminal cases resolve more quickly than civil cases and the stop work orders would not be lifted and permits would not be approved until the criminal case is finalized. There is no evidence that any permits have been approved or stop work orders lifted. The new evidence does not advance either the likelihood of success on the merits or the balance of harms in favor of AWCU.

AWCU argues that Patronyk should not be permitted to take advantage of the stay to process and gain approval of his permits while the AWCU is left with no effective remedy. This may be a reason to lift the stay, but this is not a motion to lift the stay. Also, there is no evidence that Patronyk is on the verge of obtaining approval of the permits.

With its reply, AWCU submits an interim urgency ordinance passed by the City of Santa Barbara on December 17, 2019 (Ord. No. 5927). (The ordinance does not apply to applications pending at the time it was adopted.) In it, the City finds: “ADU and JADU development in the Foothill and Extreme Foothill Zones as defined in the City’s Wildland Fire Plan will result in an immediate threat to public peace, health, safety and welfare because of the resulting on street parking and increased residential densities in an emergency-prone geographical region of the City.”

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” Jay v. Mahaffey, 218 Cal.App.4th 1522, 1537 (2013) (anti-SLAPP motion). Declarations submitted with a reply should not address the substantive issues in the first instance but should only fill gaps in the evidence created by the opposition. Id. at 1538.

This “new evidence” was available four weeks before AWCU filed the present application on January 14. It is submitted to fill gaps in the application, not gaps created by the opposition. Also, while the court may take judicial notice of official acts of state agencies, “the truth of matters asserted in such documents is not subject to judicial notice.” Arce v. Kaiser Foundation Health Plan, Inc., 181 Cal.App.4th 471, 482 (2010) [citations omitted]. And the general finding does not relate specifically to Arriba Way. The court previously found the evidence regarding fire risk insufficient to sustain AWCU’s burden to demonstrate a likelihood of success on the merits.

The court denies plaintiff Arriba Way Citizens United’s application for a preliminary injunction, discharges the order to show cause for issuance of a preliminary injunction, and dissolves the temporary restraining order entered by the court on January 15, 2020.

Request for Attorney Fees: Patronyk seeks attorney fees under CCP § 128.5 on the ground that the application is frivolous and intended to harass Patronyk. Patronyk has not complied with CCP § 128.5(f)(1)(B). Therefore, the court denies the request for attorney fees.