Case Number: KC066814    Hearing Date: July 21, 2014    Dept: J

Re: Gary Lindskog, et al. v. Susan Shibuya, et al. (KC066814)

ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

Moving Parties: Plaintiffs Gary Lindskog and Elaine Lindskog

Respondents: No timely opposition filed other than the declaration opposing the ex parte request.

POS: Moving OK

Plaintiffs’ Complaint alleges that Defendants unlawfully trespassed on their property and maintains number of chickens attracting infestation of rodents, flies and bugs. The Complaint, filed on 4/11/14, asserts causes of action for:

1. Trespass to Land
2. Private Nuisance
3. Public Nuisance
4. Intentional Infliction of Emotional Distress

The Case Management Conference is set for 8/26/14.

Plaintiffs Gary Lindskog and Elaine Lindskog (“Plaintiffs”) received a temporary restraining order and an Order to Show Cause Re: Preliminary Injunction directing Defendants Susan Shibuya and David Shibuya (“Defendants”) to remove the apiary [bee hive] from their property. Plaintiff Elaine Lindskog declares that she is severely allergic to bees and the apiary violates La Verne Municipal Code § 6.16.030, which requires apiaries to be located not less than five hundred feet from any dwelling other than the dwelling of the owner of such hives.

In deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: the likelihood the moving party ultimately will prevail on the merits, and the relative interim harm to the parties from the issuance or non-issuance of the injunction. A trial 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. (Hunt v. Superior Court (1999) 21 Cal. 4th 984, 999-1000.) Proof of facts is ordinarily made by affidavits or declarations. (CCP § 2009.)

LIKELIHOOD OF SUCCESS ON THE MERITS:

La Verne Municipal Code § 6.16.030 requires apiaries to be located not less than five hundred feet from any dwelling other than the dwelling of the owner of such hives. (Application, Exh. B.)

Plaintiffs submit evidence that Defendants have an apiary in their backyard, approximately 25 feet from their home. (Elaine Lindskog Decl. ¶ 3.)

Plaintiffs have demonstrated a likelihood of success of their claims.

INADEQUATE LEGAL REMEDY OR IRREPARABLE HARM:

Plaintiff Elaine Lindskog is allergic to bee sting venom. (Id. ¶ 2.)

Plaintiffs have also demonstrated the inadequacy of their legal remedy and irreparable harm.

DEFENDANTS OPPOSITION TO THE TRO:

Defendants, in their opposition to the application for a temporary restraining order, represent that the bees flew into their backyard uninvited, that Defendants are in the process of having the bees removed; and that the bee hive should be removed by June 29, 2014. (Opposition to TRO, Shibuya Decl.)

Assuming that this is done, it appears that preliminary injunction will not be necessary and is moot. Otherwise, the application for preliminary injunction is granted.