2018-00232520-CU-CO

Darius Achmatow vs. Danube Taeb, Individually and as Trustee

Nature of Proceeding: Motion for Preliminary Injunction

Filed By: Homewood, Mallory L.

The order to show cause is DISCHARGED, the temporary restraining order entered on 5/10/18 is DISSOLVED, and the motion for preliminary injunction is DENIED.

The court notes an entry in the docket indicating that Defendant Danube Taeb, individually and as trustee of the Danube Taeb Living Trust, (Taeb) attempted to file a response to the OSC on 5/24/18. The clerk evidently rejected the response because Taeb did not tender the first-appearance fee. Taeb did not pay the fee, and thus the court did not receive its response, until 5/30/17. The response is STRICKEN as untimely and is not before the court.

This is an action for specific performance, breach of contract and declaratory relief. The plaintiffs are Orbit Fuels, Inc. (Orbit) and its president and sole shareholder, Darius Achmatow (Achmatow) (collectively “Plaintiffs”). Orbit is the purchaser of the real property (land, gas station and convenience store) and liquor license. Taeb is the seller. According to Plaintiffs, Taeb has refused to close escrow on the ground that Achmatow refuses to sign a personal guarantee. Plaintiffs assert that the fully executed purchase and sale agreement does not require any such guarantee. Plaintiffs also assert that Taeb has twice attempted to withdraw the application to transfer the liquor license to Orbit. Plaintiffs now move for a preliminary injunction

barring Taeb from “taking any actions to terminate or cancel” the purchase agreement, “taking any actions to prevent the transfer of the” liquor license, and “taking any actions that will negatively impact the land or business which is the subject of the purchase transaction.” In addition, Plaintiffs move for a mandatory injunction compelling Taeb to revoke any application to withdraw transfer of the liquor license.

A preliminary injunction is unwarranted. The lis pendens Plaintiffs recorded adequately protects their interest in the property pending resolution of their specific performance cause of action. (See Grey v. Webb (1979) 97 Cal.App.3d 232, 237 [“[I]n the usual case in which a buyer sues for specific performance, the buyer’s rights can be adequately protected while the suit is in progress by filing a lis pendens”].) The only arguably unusual facet of this dispute is the liquor license. But Plaintiffs acknowledge that any refusal on Taeb’s part to transfer the license will only result in a diminution of profits, and such a diminution is compensable in damages. (See CCP § 564(a)(4) [preliminary injunction is available where damages will not provide adequate relief].)

The only portion of the proposed preliminary injunction that gives the court pause is the request for an order barring Taeb from “taking any actions that will negatively impact the land or business which is the subject of the purchase transaction.” If Taeb were to commit waste upon the property or sabotage its value, then a preliminary injunction barring such conduct might be in order. (See id. § 564(a)(2).) At this point, however, Plaintiffs seek a vague prohibition against actions resulting in “negative impact.” The court doubts that such a vague prohibition is enforceable, and it will not enter such an injunction. (See Evans v. Evans (2008) 162 Cal.App.4th 1157, 1169 [injunction broadly prohibiting “defamatory comments” failed to establish which acts would result in contempt of court]; see also Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084 [“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.”].)

The motion for a preliminary injunction is denied.

Plaintiffs’ counsel shall serve Taeb with a copy of this ruling forthwith.