Case Number: SC122978    Hearing Date: September 04, 2014    Dept: P

TENTATIVE RULING – DEPT. P

SEPT. 4, 2014 CALENDAR No: 7

SC122978 — FRANKEL v. D G DEVEL. CO., et al.

ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

Evidentiary matters

Have Defendants submitted to the Court an executed copy of the Diller declaration in support of the opposition? If not, the Court is inclined to strike the declaration due to lack of execution by Diller. One’s signing of a declaration under penalty of perjury on behalf of another (even without any intent to deceive the Court by so doing), is improper and violates section 2015.5, which requires an unsworn written declaration to be “subscribed” by the person making it. To “subscribe” means to sign with one’s own hand, not by the hand of another. In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222-1223. The purpose of this requirement is to help ensure that declarations contain truthful representations and that they are made in good faith. Id. at 1223.

All other evidence is admitted.

Merits

This is an action between rival factions to a partnership. Plaintiffs own a combined 50% interest in the “Second Partner” of the subject partnership, nominal defendant DG Development (“DG”). All of the other ownership interests in DG (which partnership owns a property formerly used as a residential care facility) wish to enter into a long-term lease with potential tenant (and defendant herein) Keely Partners, LLP. Plaintiffs seek to enjoin all defendants from entering into that lease (or a LOI as to that lease). The Court previously granted a TRO in that regard; Plaintiffs now seek a preliminary injunction. The Court will deny the application, and dissolve the TRO.

A preliminary injunction is an order providing temporary relief pending full adjudication of the merits of a claim. White v. Davis (2003) 30 Cal.4th 528, 554. The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the underlying claims. Continental Baking Co. v. Katz(1968) 68 Cal.2d 512, 528.

The party moving for a preliminary injunction is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending adjudication on the merits. White, supra, at 554. The Court must consider two factors: the likelihood the plaintiff will prevail on the merits and the relative balance of harms that is likely to result from the granting or denial of interim relief. Id. The greater the showing on one prong, the less need be shown on the other to support an injunction. Butt v. State of California (1992) 4 Cal.4th 668, 678. To put it another way: In order to obtain a preliminary injunction, a party must show: (1) a reasonable probability of success on the merits; (2) an inadequate remedy at law/irreparable injury; and (3) a balancing of the equities tilting in his/her favor. See generally, Weil & Brown (2014), paras. 9:519-533.3; CCP 526; CRC 3.1150.

It is long-standing law that the granting of an injunction pendente lite, viz., a preliminary injunction, is an “extraordinary” remedy, “to be exercised always with great caution,” and only where it fairly appears to be necessary to prevent irreparable injury or to preserve the estates of the parties. Schwartz v. Arata (1920) 45 Cal.App. 596, 601. The Court has significant discretion to grant or deny a preliminary injunction. E.g., 6 Witkin, California Procedure (5th Ed. 2008), Provisional Remedies, sec. 354.

As an initial matter, the Court, in its discretion to do so and based on its experience as an attorney and jurist, resolves all conflicts in the evidence on the motion at bar, viz., all conflicts between Plaintiffs’ declaration in support of the motion, on the one hand, and the declarations submitted in opposition to the application, on the other) in favor of Defendants.

The Court agrees with the various points raised in the opposition brief to the effect that Plaintiffs have not shown a probability of prevailing on the merits. In this respect, the Court not only disagrees (at least, for now) with Plaintiffs’ narrow reading of the scope of their co-partners’ rights under the partnership agreement; it concludes that the evidence presented with the motion simply fails to bear out Plaintiffs’ assertion that the partnership has not “done business” for seven years. In this regard, DG’s acting as the lessor of the premises is the status quo; real estate leasing is a new purpose “agreed to by the First Partner and the Second Partner” as expressly permitted by Article II of the partnership agreement.

Request for preliminary injunction is denied with prejudice. TRO issued on August 20, 2014 is dissolved.

NOTICE
________ shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.