2013-00152140-CU-OR

James A Anderson vs. Mark J Gilroy

Nature of Proceeding: Motion for Preliminary Injunction

Filed By: Roy, Matthew L.

Plaintiff Anderson’s application for preliminary injunction is DENIED since he has failed
to show that in the absence of the requested injunctive relief he will imminently suffer
any irreparable harm which cannot be adequately compensated with money damages
and that he has a reasonable probability of prevailing on the merits at trial.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1110(b)(3)-(4).

Moving counsel is admonished because the reply papers fail to comply with CRC Rule
2.111(3).

Plaintiff’s purported objections to evidence contained in his reply brief are overruled
since they were not filed in a separate document and do not comply with CRC Rule 3.1354.

The Court also notes that the Anderson Declaration filed in support of plaintiff’s earlier
application for Temporary Restraining Order (“TRO”) was not signed under penalty of
perjury as required by Code of Civil Procedure §2015.5.

This action arises out a personal relationship between plaintiff and defendant which
soured in February 2012. Plaintiff alleges that defendant has retained possession
and/or control over various assets claimed to belong in whole or part to plaintiff. The
complaint seeks to quiet title in real property, the turnover of personal property,
constructive and resulting trust, accounting and partition, as well as both
compensatory and punitive damages. A demurrer to the complaint has been filed and
is now set for hearing in February 2014.

On 10/17/2013, this Court issued a TRO which in pertinent part prohibited defendant
from transferring or otherwise withdrawing funds from four (4) specific bank accounts
and from transferring, encumbering or otherwise concealing various personal property
identified in Exhibits A and B to plaintiff’s application for TRO.

In opposition to the preliminary injunction, defendant contends that plaintiff
misrepresented many facts in his application for TRO and that plaintiff failed to present
facts which establish any ownership interest in the bank accounts or other property at
issue in this case. Coupled with his demurrer to the complaint, defendant insists that
plaintiff is unable to demonstrate a reasonable probably of prevailing on the merits of
his claims and that a continued freeze on the funds in the Sacramento Credit Union
(“SCU”) account will pose a significant hardship for defendant, whereas plaintiff has
shown no irreparable harm if the freeze is lifted. Defendant also argues that the TRO
must be dissolved because no bond was ordered by the Court or posted by plaintiff, in
violation of Code of Civil Procedure §529(a). (However, this statute applies by its own
terms only to “injunctions,” not TROs.)

“[T]he issuance of an injunction involves ‘…the exercise of a delicate power, requiring
great caution and sound discretion, and rarely, if ever, should [it] be exercised in a
doubtful case. [Citations.]’” (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1021-1022
(citing Fleishman v. Sup. Court (2002) 102 Cal.App.4th 350, 355-356).) Among the
factors to be considered when injunctive relief is sought is whether the moving party
will, absent such relief, suffer great or irreparable harm for which pecuniary
compensation would not afford adequate relief. (See, e.g., Code Civ. Proc. §526(a)(2),
(4); Jessen v. Keystone Sav. & Loan (1983) 142 Cal.App.3d 454, 457.)

According to the parties’ respective papers, the primary issue here is use of the funds
(approximately $50,000) in the SCU checking account, which appears to be in
defendant’s name only. Plaintiff contends that without a freeze on this account,
defendant will use the money and nothing will be left to satisfy any judgment against
defendant. However, the mere loss of funds potentially available to satisfy a
prospective judgment does not justify injunctive relief which is only available where
plaintiff has shown “irreparable injury” within the meaning of Code of Civil Procedure
§526(a). Here, the Court sees no reason why money damages could not adequately
compensate plaintiff if he ultimately proves at trial that the money in the SCU account
was his. Thus, money damages would adequately compensate plaintiff for any losses
resulting from the current use of funds in the SCU checking account and there should
be no difficulty in calculating the amount of those damages. Coupled with plaintiff’s failure to demonstrate with competent evidence that defendant is likely without the
account freeze to be unable to satisfy any prospective adverse judgment (and in fact,
plaintiff now believes defendant is earning over $70,000 per year), the Court must
deny a preliminary injunction extending the freeze on the SCU checking account on
the ground that plaintiff failed to demonstrate he will in the absence of such relief suffer
any irreparable harm which cannot be adequately compensated with monetary
damages.

Moreover, according to the statements provided by plaintiff, the balance in the SCU
checking was nearly $80,000 when the parties’ relationship ended in February 2012
and was roughly $62,500 at the end of July 2013, just prior to the posting of an $8,500
check apparently written by defendant. Based on these statements, the Court is not
persuaded that defendant is predisposed to wasting, transferring or otherwise
depleting the funds in this SCU checking account or that plaintiff is likely to suffer any
imminent harm as a result of defendant’s actions. Because plaintiff is not likely to
suffer any imminent or irreparable harm if the requested injunctive relief is denied,
there is little justification for the Court to exercise its discretion to grant injunctive relief.

Plaintiff has also failed to demonstrate with admissible evidence a reasonable
probability of prevailing on the merits of his claim that most or all of the roughly
$50,000 in the SCU checking account is his, rather than defendant’s. In particular, the
Court notes that plaintiff has failed to provide any documentation or other relevant
information sufficient to establish the money currently in the SCU account is his own.
Although plaintiff has presented some evidence of an agreement between the parties
that money earned by plaintiff would often be placed into a joint checking account and
sometimes moved to defendant’s own “personal savings account to be used as our
joint savings and retirement for the future” (Pl. Decl. (11/4/2013), ¶4), plaintiff nowhere
identifies the specific source of the funds now in the SCU checking account which
appears to be in defendant’s name only. The Court notes that the parties sold the 41st
Street property in January 2012 and that, according to plaintiff, the proceeds were
deposited “into [defendant’s] personal savings account” ($200,000) and the parties’
“joint checking account” (roughly $49,000) (Id., at ¶18) but none of this appears to
account for the roughly $50,000 now in the SCU checking account.

Finally, to the extent plaintiff suggests there was an agreement between the parties
that their money would be effectively pooled in various bank accounts and used for
their various purposes, including payment of their separate and joint debts, it could be
said that plaintiff is here seeking to enjoin defendant’s breach of their agreement.
However, it is well established that an injunction may not issue to prevent a breach of
contract (Code Civ. Proc. §526(b)(5)) and thus, the injunction proposed here is not
permitted.

Plaintiff’s request for an injunction relating to other personal property encompassed by
the TRO must also be denied. Among the personal property at issue is a 1996
motorhome, a Land Rover LR3, two dogs, a bicycle, a generator and miscellaneous
power tools, various pieces of home furniture, plants, etc.

Plaintiff has not presented any admissible evidence which suggests that defendant has
either disposed or plans to imminently dispose of any of these assets but even if he
had, the loss of such assets would certainly be compensable through an award of
money damages. Similarly, plaintiff has failed to demonstrate with competent
evidence his legal ownership of any of the specific assets at issue, including the
vehicles and thus, the Court cannot conclude on the present record that plaintiff has a
reasonable probability of prevailing on his claims of ownership of this personal
property.

For all these reasons, the Court exercises its discretion and denies plaintiff’s request
for a preliminary injunction.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)