Case Number: EC063014    Hearing Date: November 07, 2014    Dept: NCG

TENTATIVE RULING
#15
EC 063014
SABOA ENTERTAINMENT, LP v. RICHARDSON

Order to Show Cause Re Preliminary Injunction
Plaintiff’s Motion to Compel Binding Arbitration and Stay Litigation
Defendants’ Motion to Compel Arbitration and Stay Action

TENTATIVE:
OSC Re Preliminary Injunction
The court has now reviewed the papers opposing the application.

Application for preliminary injunction is GRANTED in part. Plaintiff has presented facts which establish a probability of prevailing on a claim of trespass to real property, giving rise to harm which cannot be compensated in monetary damages, including the inability to complete projects and to pursue business opportunities of an ongoing business.

The court further finds that the harm to plaintiff if the injunction is not granted (being prevented from engaging in ongoing business) is greater than the harm to defendants if it is not (loss of sole ability to control or manage the premises).

Defendants are enjoined from preventing plaintiff and its agents from entering the Magnolia Blvd. Property pending the outcome of this litigation.

The court will hear oral argument concerning whether it is also necessary to extend any other terms of the TRO, or whether the issues are moot, in effect, whether the personal property has been returned to plaintiff Saboa, and whether plaintiff has been provided with access to all passwords, codes and keys necessary to access the premises, vaults and computers.

To the extent defendants in the opposition propose a preliminary injunction enjoining specified conduct by plaintiff or third parties, defendants have not filed a noticed motion seeking such relief and establishing entitlement to it. While these matters can be taken up to some suitable extent at the hearing if and as necessary, counsel are advised that the Court may very will decline the invitation to essentially micromanage day to day protocols and procedures at the location, particularly inasmuch as the parties have been to mediation, a more workable and appropriate setting for the exhaustive probing of this and that regarding daily activities at the company.

Plaintiff is ORDERED to post a bond in the sum of ___________________.
If no bond is posted on or before 4:00 p.m. on November 17, 2014, the injunction will dissolve automatically.

Plaintiff’s Motion to Compel Arbitration
Plaintiff’s motion has been WITHDRAWN pursuant to Notice filed October 24, 2014.

Defendants’ Motion to Compel Arbitration
The court is in receipt of Plaintiff’s Notice of Non-Opposition to Defendants’ Motion to Compel Binding Arbitration and Stay Action.
UNOPPOSED motion to compel arbitration is GRANTED.

The court finds that an agreement to arbitrate the controversy exists, that there is no showing that there has been any waiver of the right to compel arbitration, and no showing that the agreement has been revoked or that grounds exist for revocation of the agreement.

The court further orders under CCP § 1281.4 that this action be stayed until an arbitration has been had according to this order.

ANALYSIS:
Prior Proceedings
On September 19, 2014, plaintiff brought an ex parte application for a TRO and OSC re preliminary injunction, which was heard and continued to September 23, 2014. On September 23, 2014, after receiving supplemental briefing, the court granted the ex parte application and the TRO and set an OSC re preliminary injunction.

On October 17, 2014, the court heard the OSC re preliminary injunction which had been worked up without opposition. It was discovered at the hearing that timely opposition had been filed, and the matter was continued to this date.

Preliminary Injunction
The opposition argues that to the extent the TRO required the return of personal property, that property has now been returned. The Court will seek to confirm at the hearing that the personal property has been returned, as well as that access to keycards, computers, and passwords has been fully restored, so that extending these portions of the TRO is unnecessary. Otherwise, a preliminary injunction ordering the turnover of those items will be issued.

The argument is also that the trespass claim is moot because plaintiff has been given access to the premises, vaults and computers again, and so any alleged trespass has ended. The opposition seems to concede that an order maintaining the status quo would be appropriate, including such a provision in a Proposed Modified Preliminary Injunction.

The modified preliminary injunction also seeks to have the court enjoin plaintiff from preventing defendants from entering the building, and from committing waste, making unusual expenditures, and permitting Phil Driscoll’s son, Jamie Driscoll, from entering the business. Defendants, however, have not filed a noticed motion to obtain this injunctive relief, have not alleged any cross-complaint against plaintiff or any third parties, and have failed to establish any probability of prevailing on a claim against these parties based on any alleged or anticipated misconduct. Once again, while perhaps this request is an important element in maintaining some kind of equilibrium here, such an inquiry frequently takes a while to unwind, at a hearing. The Court expects to inquire of counsel at the hearing whether this matter was placed on the agenda for mediation.

Plaintiff’s Motion to Compel Binding Arbitration
On October 24, 2014, plaintiff filed a Notice of Withdrawal of this motion, which has been taken off calendar.

Defendants’ Motion to Compel Arbitration
On October 24, 2014, plaintiff filed a Notice of Non-Opposition to Defendants’ Motion to Compel Binding Arbitration and Stay Action, indicating they do not oppose defendants’ motion.

The action here is pending against individual defendants, the Richardsons, who argue that they are entitled to invoke arbitration here as well, as agents of defendant Diadan. Plaintiff does not object, and it appears it is agreed that the entire matter be submitted to arbitration. The matter may be stayed in its entirety.