Case Number: EC061445    Hearing Date: July 25, 2014    Dept: NCB

7. EC061445
FATHOLLAH MOHAMMADI v DPFE, CORPORATION
Motion for Preliminary Injunction barring the Defendant’s tree root from growing during the pendency of this case.

This case arises from the Plaintiff’s claim that a root from a tree on the Defendant’s property has encroached on the Plaintiff’s property and caused damage to the Plaintiff west retaining wall.
Trial is set for September 22, 2014.

This hearing concerns the Plaintiff’s request for a preliminary injunction that would require the Defendant to “cease all further encroachment of the roots of a palm tree” on the Defendant’s property. In essence, the Plaintiff is either seeking a Court order that directs the tree to stop growing its roots during the pendency of this case, which is beyond the power of the Court, or whether she is seeking an Order requiring Plaintiff to kill the tree roots or take down the tree, which is part of the ultimate relief in the case and improper.
CCP section 527(a) requires a motion for a preliminary injunction to establish with facts in affidavits or in a verified complaint that there are grounds to issue a preliminary injunction. Declarations may be used under CCP section 2015.5 because they are equivalent to an affidavit.
Under CCP section 526(a), a preliminary injunction may be issued in the following cases:

1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.
2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.
3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.
4) When pecuniary compensation would not afford adequate relief.
5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.
6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.
7) Where the obligation arises from a trust.

The Plaintiff has the burden of establishing grounds exist for the injunction with evidence offered under oath. Ancora-Citronelle Corp. v. Green (1974) 41 Cal. App. 3d 146, 148. The granting or denial of a preliminary injunction rests in the sound discretion of the Court and is based upon a consideration of all the particular circumstances of each individual case. Froomer v. Drollinger (1960) 183 Cal. App. 2d 787, 788-789. If granted, the preliminary injunction does nothing more than to preserve the status quo until the merits of plaintiffs’ claim can be adjudicated. Id.

Here, the Plaintiff has provided evidence that a tree root from a tree on the Defendant’s property is encroaching on his property. The Plaintiff provides facts in the declaration of David Spiegel, who states that he is a licensed building contractor. Mr. Spiegel states that he visually inspected the Plaintiff’s property and determined that the roots of a large palm located on the Defendant’s property had encroached onto the Plaintiff’s property. Accordingly, the Plaintiff seeks a preliminary injunction the would require damaging the tree, assuming he is not truly seeking an injunction that would require an order that the tree’s roots cease growing, and does not maintain the status quo but rather provides the ultimate relief.
It is not clear how the Plaintiff imagines that her requested injunction will be enforced. Further, under California law, one cannot be in contempt for a violation of an order, unless there is a valid and enforceable order at the time the acts alleged to be in contempt of court are committed. McLaughlin v. Superior Court (1954) 128 Cal.App.2d 62, 65. Any ambiguity in a decree or order must be resolved in favor of an alleged contemnor. Butler v. Superior Court (1960) 178 Cal.App.2d 763, 765.
Plaintiff appears to seek an order that the tree roots be stopped from growing. A directive “in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” In re Berry (1968) 68 Cal. 2d 137, 156. A valid judgment of contempt cannot be based upon such a directive. Id. “The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one.” Id.
Here, a preliminary injunction that directed the Defendant to cease the growth of the roots from the palm tree is too vague to be understood because it is not clear how it can be enforced.
The Defendant’s opposition notes that the Plaintiff offers no explanation as to how tree roots can be prevented from growing. The Defendant argues that the Plaintiff’s motion is actually an attempt to remove the tree and its roots because this would be the only manner by which the Defendant could ensure that the roots stop growing. Since this would result in the Plaintiff achieving the purpose of his litigation, it would not maintain the status quo and cannot be a valid preliminary injunction.

The trial date is September 22, 2014. Since this is less than two months away, it is unlikely that the amount of root growth in the next two months will be substantial. In essence, the tree will maintain the status quo because its root growth during the next two months will be de minimis, e.g., a few millimeters. Under the maxim of jurisprudence de minimis non curat lex, i.e., the law disregards trifles, which is enacted at Civil Code section 3533, the Court declines to issue a preliminary injunction that bars the tree from growing its roots for the next two months.

Accordingly, the Court denies the Plaintiff’s motion because it does not seek a valid preliminary injunction.