2018-00236517-CU-BC

Christopher Lull vs. Michael Urbancic

Nature of Proceeding: Motion for Preliminary Injunction

Filed By: Thomas, Michael W.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Plaintiff Christopher Lull’s (“Plaintiff”) motion for preliminary injunction is DENIED.

This action concerns commercial real property located at 8633 Antelope North Road, Antelope, California 95843. Plaintiff alleges he is the owner of the property. Plaintiff

alleges the property was sold to him by defendant Michael Urbancic pursuant to a Settlement Agreement the parties reached in a separate litigation matter (Case No. 34-2010-0087710). Plaintiff alleges that under the Settlement Agreement, Mr. Urbancic was to vacate the property within 90 days of the closing, but did not vacate the property and remove all of his personal property within 90 days, resulting in Sacramento County issuing violation notices against the property. Plaintiff alleges he was required to bond around the violation notice and the County ultimately called on his bond and he is now liable to the bonding company in the amount of $20,000. Plaintiff alleges on or about June 12, 2018, Mr. Urbancic caused a Notice of Default and Election to Sell Under Deed of Trust to be issued and served upon him.

Plaintiff filed his complaint against defendants Mr. Urbancic and Placer Foreclosure, Inc. on July 6, 2018, alleging the following four causes of action: (1) breach of contract as against Mr. Urbancic; (2) equitable indemnity as against Mr. Urbancic; (3) declaratory judgment as against both defendants; and (4) declaratory judgment as against both defendants.

In the first cause of action Plaintiff alleges Mr. Urbancic breached the Settlement Agreement reached in the separate lawsuit. In the second cause of action Plaintiff alleges Mr. Urbancic failed to perform obligations under the Settlement Agreement resulting in a Notice of Violation and Enforcement by the County resulting in losses to which he is entitled to be indemnified. In the third cause of action Plaintiff seeks declaratory relief regarding a controversy between Plaintiff and Mr. Urbancic on whether Mr. Urbancic breached the Settlement Agreement and is liable for costs incurred by Plaintiff and whether Plaintiff is in default on the Deed of Trust. The fourth cause of action seeks an accounting of amounts paid or credited under the Note and Deed of Trust.

On August 30, 2019, Plaintiff sought and obtained a Temporary Restraining Order (“TRO”) and an Order to Show Cause re: Preliminary Injunction (“OSC”) prohibiting Mr. Urbancic from proceeding with the foreclosure sale of the property.

Discussion

“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[s]. [Citation.]” (White v. Davis (2003) 30 Cal. 4th 528, 554.) “The purpose of such an order ‘is to preserve the status quo . . .. It ‘does not constitute a final adjudication of the controversy.’ [Citation.]” (Costa Mesa City Employees Assn v. City of Costa Mesa (2012) 209 Cal. App. 4th 298, 305.) The discretion of the trial judge to grant a provisional injunction is of course as broad as the discretion to deny it.

“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. (White v. Davis (2003) 30 Cal. 4th 528, 554 [emphasis added]; see generally Code Civ. Proc. § 426, subd. (a)(2) [a preliminary injunction “may be granted . . . [w]hen it appears . . . that the commission or continuance of some act during the litigation would produce . . . great or irreparable injury . . . to a party to the action].)

“‘[T]he extraordinary remedy of injunction’ cannot be invoked without showing the likelihood of irreparable harm. [Citation.]” (Intel Corp. v. Hamidi (2003) 30 Cal. 4th

1342, 1352.) The threat of “irreparable harm” must be imminent. “An injunction cannot issue in a vacuum based on the proponents’ fears about something that may happen in the future.[..i]t must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal. App. 4th 1069, 1084.)

“If the threshold requirement of irreparable injury is established, then [the court] must examine two interrelated factors to determine whether . . . a preliminary injunction should be [issued]: ‘(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 non-issuance of the injunction.’ [Citation.]” (Costa Mesa City Employees Assn., supra, 209 Cal. App. 4th at 306.) The greater the showing on one factor, the lesser the showing must be on the other. (Butt v. State of California (1992) 4 Cal. 4th 668, 678.) However, a preliminary injunction may not be granted, regardless of the balance of interim harm, unless it is reasonably probable that the moving party will prevail on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal. App. 3d 438, 442.)

The party seeking injunctive relief bears the burden of showing all elements necessary to support issuance of a preliminary injunction. (O’Connell v. Super. Ct. (2006) 141 Cal. App. 4th 1452, 1481.)

“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.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73.)

If the plaintiff fails to satisfy either or both of the two prerequisites (interim harm and likelihood of success on the merits), a trial judge’s denial of the request for a preliminary judgment will be upheld. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 287; see King v. Meese (1987) 43 Cal.3d 1217, 1228, 1235 [balance of harms favored defendants and plaintiffs were not likely to succeed on merits]; Sundance Saloon v. San Diego (1989) 213 Cal. App.3d 807, 811, 812; Scates v. Rydingsword (1991) 229 Cal. App.3d 1085, 1094.)

Discussion

Plaintiff has wholly failed to meet his burden to support issuance of a preliminary injunction. First, Plaintiff sets forth no argument or evidence as to how he would suffer irreparable harm if the preliminary injunction is not granted. Indeed, the complaint alleges contract-based claims and expressly seeks compensatory damages, but Plaintiff makes no effort to explain why money damages would be insufficient in this case. Injunctions of any kind (even prohibitory) will rarely be granted where a suit for damages provides a clear remedy. (Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307; Pacific Decision Sciences Corp v. Superior Court

(2004) 121 Cal.App.4th 1100, 1110.) “An injunction will not issue where ‘only money is involved'” because “there is no threat of irreparable harm, because monetary losses are compensable in damages.” (Rutter Group, Civil Procedure Before Trial, 9:524; Doyka v. Superior Court (1991) 233 Cal.App.3d 1134, 1136.) To obtain a preliminary injunction Plaintiff must demonstrate that monetary damages would not be an adequate remedy for the alleged wrongdoing. (Code Civ. Proc. § 526(a)(4) [injunction may be granted (4) When pecuniary compensation would not afford adequate relief.];

Estes v. Rowland (1993) 14 Cal.App.4th 508, 535 [“There is no right to equitable relief or an equitable remedy when there is an adequate remedy at law.” (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 3, p. 681 italics in original); Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410 [there must be an injury that “cannot be compensated by an ordinary damage award”].) Plaintiff has failed to demonstrate monetary damages would not be an adequate remedy at law.

Even assuming the sale of the property would constitute irreparable harm, Plaintiff also fails to present any argument or evidence regarding the likelihood that he will ultimately prevail on the merits. A party seeking injunctive relief is not entitled to such relief if he or she does not have a reasonable probability of prevailing on the merits at trial. (Teachers Ins. & Annuity Assn. v Furlotti (1999) 70 Cal.App.4th 1487, 1498.) “[T] he party seeking the injunction must present sufficient evidentiary facts to establish a likelihood that it will prevail.” (Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Board (1994) 23 Cal.App.4th 1459, 1478.) The only “evidence” Plaintiff has presented is his declaration, which states the following:

(1) He is the plaintiff.

(2) On October 11, 2013 he entered into a settlement agreement with Mr. Urbancic. Plaintiff attached a copy of a Settlement Agreement dated December 11, 2013 as Exhibit A.

(3) “On or about December 11, 2013, decedent (M. Urbancic) sold [him] the property located at 8633 Antelope North Road, Antelope, California, secured by a Deed of Trust.” Plaintiff attached as Exhibit B an incomplete, unsigned, unrecorded Short Form Deed of Trust and Assignment of Rents;

(4) “On or about February 20, 2014, [sic] agreed to subordinate his note and Deed of Trust to a Straight Note (Interest Only).” Plaintiff attached a copy of the Straight Note dated February 20, 2014 as Exhibit C.

(5) “On or about June 12, 2018, decedent Michael Urbancic caused a Notice of Default and Election to Sell Under Deed of Trust to be issued upon me.” Plaintiff attached a copy of the Notice of Default and Election to Sell as Exhibit D.

(6) “On or about August 5, 2019, [he] received a Notice of Trustee’s Sale Under Deed of Trust.” Plaintiff attached a copy of the notice as Exhibit E.

The foregoing is the totality of Plaintiff’s evidence in support of this motion for preliminary injunction and is insufficient. While Plaintiff concludes in his memorandum that Mr. Urbancic breached the Settlement Agreement, no evidence is presented in support. Plaintiff also fails to set forth any argument or evidence regarding the balancing of the harms to each party.

Indeed, CCP § 527 states in party: “(a) 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. Further, in Finnie v. Town of Tiburon (1988) 99 Cal.App.3d 1, the Court stated: “Section 527, subdivision (a) provides in part that: ‘An 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.’ Thus, while the injunction may rest upon either a verified complaint or affidavits, the law is settled that the allegations of either must be factual; conclusory averments in either are insufficient to support issuance of an injunction. E.H. Renzel Co. V. Warehousemen’s Union (1940) 16 Cal.2d 369, 106 P.2d 1, establishes that when the complaint is considered as part of the petitioner’s evidence it ‘”takes the place of an affidavit and must be treated as such; and the facts stated must stand the test to which oral testimony would be subjected. Averments which are but conclusions of law are not competent testimony, though they might stand as matter of pleading. Unless the statement, in the nature of a conclusion, is supported by the facts or circumstances on which it rests, it is insufficient to sustain an application for injunction.'” (Finnie, supra, at 14-15) (emphases added).)

Essentially, Plaintiff has presented the Court with a few documents he deems relevant to the action, perhaps expecting the Court to do his job of analyzing the documents and finding the relevant portions. Plaintiff then concludes without evidence that Mr. Urbancic breached the Settlement Agreement. Based on the foregoing and nothing more, Plaintiff then asks the Court to issue a preliminary injunction prohibiting the foreclosure.

The declarations of Plaintiff and his counsel submitted in reply do not change the foregoing. It is elementary that points raised for the first time in a reply brief are not considered by the court. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

On the record before it, the Court finds Plaintiff has failed to meet his burden to present sufficient evidence that he would suffer irreparable harm, he is likely to succeed on the merits, and that the balancing of the harms tips in his favor.

Accordingly, the motion for preliminary injunction and the motion is DENIED.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Plaintiff is ordered to notify Defendants immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Defendants appear without following the procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.