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This case was last updated from Los Angeles County Superior Courts on 12/07/2020 at 13:24:44 (UTC).

JESUS OCAMPO VS PAULOS REAL ESTATE INVESTMENTS LLC

Case Summary

On 10/19/2020 JESUS OCAMPO filed a Property - Other Real Property lawsuit against PAULOS REAL ESTATE INVESTMENTS LLC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8833

  • Filing Date:

    10/19/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

OCAMPO JESUS

Defendant

PAULOS REAL ESTATE INVESTMENTS LLC

Attorney/Law Firm Details

Plaintiff Attorney

SARKISSIAN AREG A.

Defendant Attorney

MARKER RICHARD A.

 

Court Documents

Answer - Answer

11/20/2020: Answer - Answer

Minute Order - Minute Order (Hearing on Ex Parte Application Plaintiff Jesus Ocampo's Ex P...)

11/4/2020: Minute Order - Minute Order (Hearing on Ex Parte Application Plaintiff Jesus Ocampo's Ex P...)

Notice (name extension) - Notice of reclassification of limited jurisdiction to unlimited matter

11/4/2020: Notice (name extension) - Notice of reclassification of limited jurisdiction to unlimited matter

Ex Parte Application (name extension) - Ex Parte Application Plaintiff Jesus Ocampo's Ex Parte Application for a Temporary Restraining Order and Order to Show Cause; Declaration of Jesus Ocampo in Sup

11/4/2020: Ex Parte Application (name extension) - Ex Parte Application Plaintiff Jesus Ocampo's Ex Parte Application for a Temporary Restraining Order and Order to Show Cause; Declaration of Jesus Ocampo in Sup

Civil Case Cover Sheet - Civil Case Cover Sheet

10/19/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

10/19/2020: Complaint - Complaint

Summons - Summons on Complaint

10/19/2020: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

10/19/2020: First Amended Standing Order - First Amended Standing Order

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

10/19/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

 

Docket Entries

  • 10/23/2023
  • Hearing10/23/2023 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 04/18/2022
  • Hearing04/18/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 11/20/2020
  • DocketAnswer; Filed by: Paulos Real Estate Investments LLC (Defendant); As to: Jesus Ocampo (Plaintiff)

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  • 11/04/2020
  • DocketEx Parte Application Plaintiff Jesus Ocampo's Ex Parte Application for a Temporary Restraining Order and Order to Show Cause; Declaration of Jesus Ocampo in Support; Declaration of Kevin Yoon Lai in Support; Declaration of Areg A. Sarkissian in Support; [Proposed Order]; Filed by: Jesus Ocampo (Plaintiff); As to: Paulos Real Estate Investments LLC (Defendant)

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  • 11/04/2020
  • DocketNotice of reclassification of limited jurisdiction to unlimited matter; Filed by: Jesus Ocampo (Plaintiff); As to: Paulos Real Estate Investments LLC (Defendant)

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  • 11/04/2020
  • DocketMinute Order (Hearing on Ex Parte Application Plaintiff Jesus Ocampo's Ex P...)

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  • 11/04/2020
  • DocketHearing on Ex Parte Application Plaintiff Jesus Ocampo's Ex Parte Application for a Temporary Restraining Order and Order to Show Cause; Declaration of Jesus Ocampo in Support; Declaration of Kevin Yoon Lai in Support; Declaration of Areg A. Sarkissian in Support; [Proposed Order] scheduled for 11/04/2020 at 01:30 PM in Spring Street Courthouse at Department 26 updated: Result Date to 11/04/2020; Result Type to Held

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  • 10/30/2020
  • DocketHearing on Ex Parte Application Plaintiff Jesus Ocampo's Ex Parte Application for a Temporary Restraining Order and Order to Show Cause; Declaration of Jesus Ocampo in Support; Declaration of Kevin Yoon Lai in Support; Declaration of Areg A. Sarkissian in Support; [Proposed Order] scheduled for 11/04/2020 at 01:30 PM in Spring Street Courthouse at Department 26

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  • 10/30/2020
  • DocketHearing on Ex Parte Application Ex Parte Application and Motion scheduled for 11/02/2020 at 01:30 PM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 10/30/2020

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  • 10/30/2020
  • DocketHearing on Ex Parte Application Ex Parte Application and Motion scheduled for 11/02/2020 at 01:30 PM in Spring Street Courthouse at Department 26

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  • 10/19/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/23/2023 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 10/19/2020
  • DocketNon-Jury Trial scheduled for 04/18/2022 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 10/19/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 10/19/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/19/2020
  • DocketSummons on Complaint; Issued and Filed by: Jesus Ocampo (Plaintiff); As to: Paulos Real Estate Investments LLC (Defendant)

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  • 10/19/2020
  • DocketCivil Case Cover Sheet; Filed by: Jesus Ocampo (Plaintiff); As to: Paulos Real Estate Investments LLC (Defendant)

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  • 10/19/2020
  • DocketComplaint; Filed by: Jesus Ocampo (Plaintiff); As to: Paulos Real Estate Investments LLC (Defendant)

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  • 10/19/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

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Tentative Rulings

Case Number: 20STLC08833    Hearing Date: January 14, 2021    Dept: 85

Jesus Ocampo v. Paulos Real Estate Investments, LLC et al., 20STLC08833

Tentative decision on application for preliminary injunction: denied

Plaintiff Jesus Ocampo (“Ocampo”) applies for a preliminary injunction enjoining Defendant Paulos Real Estate Investments, LLC (“PREI”) from: (1) conducting any further construction or work on the properties located at 118-122 N. Kenmore Ave., Los Angeles, CA 90004 ("Lots 48-50") and 100 N. Kenmore Ave., Los Angeles, CA 90004 ("Lot 47"), including removing cement and erecting a chain link fence and (2) damaging or otherwise using Lot 47.

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Ocampo commenced this proceeding on October 19, 2020, alleging causes of action for: (1) trespass, (2) private nuisance, (3) quiet title, (4) conversion, (5) ejectment, (6) easement by necessity, (7) equitable easement, and (8) vandalism. The verified Complaint alleges in pertinent part as follows.

Ocampo is the legal owner of the residential properties located at Lot 47 and Paulos is the owner of Lot 48. On December 21, 2012, Fred Paulos (“Paulos”) improperly conveyed Lots 49 and 50 to PREI, which was thereafter corrected in the Correcting Grant Deed dated September 16, 2013. The Correcting Grant Deed was used to modify the grantee and assessor's parcel number of the 2012 instrument.

The Correcting Grant Deed does not identify Lot 48 of Track No 4679. However, PREI took physical possession of Lot 48 in conjunction with Lots 49 and 50 after the December 2012 or September 2013 conveyance of Lots 49 and 50. For present purposes, PREI is the rightful title holder of Lots 48, 49, and 50, Parcel No. 5818-019-009. PREI’s lots 48, 49, and 50 occupy a collective 18,576 square feet and Lot 48 neighbors Ocampo’s Lot 47.

A prescriptive easement and/or an equitable easement has been established along the north side of Lot 48 for the benefit of Lot 47. The north side of Lot 48 functions as a concrete walkway to allow residents of both lots ingress and egress from the rear of Lot 47. The use of the easement by Ocampo of Lot 48 has been open and notorious, continuous and interrupted, and adverse to Lot 48.

Earlier this year, PREI began the construction of a wall that encroaches onto Lot 47. Without the consent or authority of Ocampo, PREI entered onto Ocampo’s property and removed cement on the property to continue the construction of a wall that would encroach on Lot 47.

PREI's conduct has resulted in the exclusion of Ocampo and residents of Lot 47 from that property. Ocampo advised PREI that it was trespassing on Ocampo’s property without any right or authority. Ocampo and residents of Lot 47 further demanded that PREI leave Ocampo’s property immediately and refrain from any further entry on the property. PREI continue to occupy and enter Ocampo’s property without his consent and continued harmful construction activities damaging the property.

2. Course of Proceedings

On November 4, 2020, Department 26 denied Ocampo’s ex parte application for temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) because Department 26 is a limited jurisdiction court, lacked the jurisdiction to grant the relief sought in the Complaint. Department 26 ordered the action reclassified as civil unlimited jurisdiction case.

On December 24, 2020, the court denied Ocampo’s ex parte application for TRO as moot based on PREI’s representations that no further work will be carried out on the Property and that all tools and machinery, if any are still there, would be removed from the Property pending a ruling on the OSC. The court directed Ocampo to serve all moving papers, including the OSC, by December 28, 2020 and file a proof of service by January 4, 2021.

PREI filed an Answer to the Complaint on November 20, 2020.

No proof of service is on file for the Summons, Complaint, or the OSC. According to a proof of service on file, PREI was served with the moving papers on December 23, 2020 via email.

B. Applicable Law

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

C. Statement of Facts

1. Plaintiff’s Evidence

Along the southern portion of Lot 47 there exists a five-foot strip of land, which includes a concrete pathway, allowing ingress/egress from the rear of Lot 47. Ocampo Decl., ¶6. The south side of Lot 47 is cemented and functions as a concrete walkway to allow residents of both lots to ingress and egress from the rear of Lot 48. Ocampo Decl., ¶7, Ex. A.

Before and after the purchase of Lot 47, Ocampo understood that this five-foot strip of property was part of Lot 47. Ocampo Decl., ¶8. Over the past several months, PREI has been occupying Ocampo’s property with individuals, equipment, and tools, putting up posts in an effort to erect a chain link fence which would cut the walkway/driveway. Ocampo Decl., ¶9. PREI has done so without the consent or authority of Ocampo. Ocampo Decl., ¶10. Ocampo has no knowledge of PREI obtaining permission from any governmental agency to enter Ocampo’s property to do work. Ocampo Decl., ¶11.

PREI’s intrusions included entering the five-foot strip of land to build a chain link fence separating the properties, digging multiple holes for the fence's support posts immediately along the southern border of Ocampo’s property, and erecting an unnecessary fence. Ocampo Decl., ¶17.

Ocampo retained a civil engineering and land surveying consulting firm to investigate the boundary dispute. Ocampo Decl., ¶13, Ex. B; Lai Decl., ¶¶ 1-6. The firm opines that PREI, by preparing and building a new chain link fence/barrier along the boundary line of Lot 47 and Lot 48, which has been used by Ocampo for many years as a point of access to ingress/egress, PREI will effectively block Ocampo’s ability to have practical use of the driveway for ingress/egress to and from Lot 47, which amounts to encroachment on a prescriptive easement. Lai Decl., ¶10.

As a result of PREI’s conduct, Ocampo and residents of Lot 47 have been deprived of the use of his property. Ocampo Decl., ¶14. By erecting a chain link fence/barrier, PREI has created a nuisance to the detriment of Ocampo. Ocampo Decl., ¶15. PREI has violated Los Angeles County Zoning Ordinances 22.110.040 and 22.110.080, which require side yards, also known as setbacks, of "not less than five feet." Ocampo Decl., ¶16.

2. Defendant’s Evidence

Both Lot 47 and Lot 48 maintain an approximately ten-foot driveway, which borders the lot line between the properties. Paulos Decl., ¶4. Prior to the beginning of 2020, PREI always maintained a cordial neighborly relationship with Ocampo. Paulos Decl., ¶5.

Prior to the beginning of 2020, tenants of each respective building would use each respective building's respective driveway to access the parking areas for their building (located in the rear of the buildings). Paulos Decl., ¶6. There have been occasions when a tenant of one building drove over the property line on the neighboring driveway, but that always occurred with the mutual consent of PREI and Ocampo. Id. Prior to the beginning of 2020, PREI consented to a Lot 47 tenant occasionally crossing over the lot line and driving on the Lot 48 driveway. Id.

This situation changed in the beginning of 2020, when several PREI tenants brought to the attention of its manager that Lot 47 tenants or others were using the Lot 47 driveway for parking and not ingress and egress. Paulos Decl., ¶7. The manager received calls from PREI tenants who complained that Lot 47 tenants were impeding their ability to freely use the Lot 48 driveway. The complaints centered around Lot 48 tenants being delayed or otherwise blocked by Lot 47 tenants. Id.

This situation resulted from the fact that Lot 47 tenants were not able to drive on the Lot 47 driveway because of parked Lot 47 vehicles and therefore the Lot 47 tenants began to use exclusively the Lot 48 driveway for ingress and egress to the rear of the Lot 47 building. Paulos Decl., ¶8. This additional wear and tear quickly eroded the Lot 48 driveway to the point that PREI had to completely remove and replace the Lot 48 driveway at a cost of approximately $30,000 in June 2020. Paulos Decl., ¶9.

As a result of Ocampo’s actions, PREI’s manager directed the on-site property manager of Lot 48 to inform the Lot 47 tenants that they did not have permission to use the Lot 48 driveway for ingress and egress, and to discontinue that use. Paulos Decl. ¶10. The tenants of Lot 47 advised the on-site manager that they would not discontinue their exclusive use of the Lot 48 driveway to access their garages. Paulos Decl., ¶11.

As such, on June 15, 2020, Paulos caused the installation of pylons to separate the Lot 48 driveway from the Lot 47 driveway. Paulos Decl., ¶12.

D. Analysis

Plaintiff Ocampo applies for preliminary injunction enjoining Defendant PREI from: (1) conducting any further construction on Lot 47, including removing “cement” and erecting a chain link fence[3] and (2) occupying, possessing, damaging, or otherwise using Lot 47.

PREI incorrectly argues that Ocampo is seeking a mandatory injunction based on a misinterpretation of the OSC as requiring that PREI show why it should not remove fencing on the lot borders. Opp. at 6. The OSC would not require PREI to remove any fencing; it would only enjoin PREI from doing any further construction including erecting a chain link fence. This is a prohibitory, not mandatory, injunction.

1. Procedural Issue

PREI notes that Ocampo failed to comply with the court’s directions as to service of process.  The court directed Ocampo to serve PREI with the moving papers and the OSC.  There is no proof of service on file showing service of the OSC and PREI also denies receiving the moving papers. Opp. at 2.  

As PREI timely filed an opposition despite the lack of service and has not alleged any prejudice, the court will not deny the application on this ground. Nonetheless, Ocampo’s counsel is admonished to comply with the court’s instructions regarding service in the future.

2. Merits

a. Probability of Success

Ocampo argues he has demonstrated a likelihood of prevailing on the merits of his claims for trespass, private nuisance, and declaratory relief in the form of an equitable easement.[4] App. at 7-11.

(i) Trespass

Trespass is an unlawful interference with possession of property.  The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.  Ralphs Grocery Store v. Victory Consultants Inc., (2017) 17 Cal.App.5th 245, 261-62.  

Ocampo argues that PREI has trespassed on his property by entering onto Lot 47 without his consent or authorization. App. at 7-8. PREI’s conduct resulted in harm because he entered with persons, tools, and equipment and dug holes for fence support poles along the southern border of Ocampo’s home, also erecting a chain link fence. App. at 8; Ocampo Decl., ¶17.

Ocampo has not shown a probability of success on trespass that would support injunction. First, because the construction is now complete, there is no future prospect of trespass. Any claim of trespass now will support only damages. Second, Ocampo cannot demonstrate trespass for the portion of Lot 48 at issue because he does not have ownership or control of it. Opp. at 8. Ocampo owns the five-foot strip of land that is part of Lot 47, but not the strip of concrete that is part of Lot 48. Ocampo Decl., Ex. A. PREI did not trespass by installing pylons on its own property.

Ocampo has not demonstrated a likelihood of prevailing on his claim for trespass.

(ii) Private Nuisance

Every nuisance not included in the definition of a public nuisance is private.  Civil Code §3481.  For a private nuisance, plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.  The injury, however, need not be different in kind from that suffered by the general public.  Kroll-Irvine Center Property Owners Assn. v. County of Orange, (1994) 24 Cal.App.4th 1036, 1041.  A nuisance which is both private and public may be enjoined at the instance of a private plaintiff.  Mangini v. Aerojet General, (1991) 230 Cal.App.3d 1125, 1138.  

Ocampo argues that he has shown a likelihood of prevailing on his claim for private nuisance because PREI’s conduct has clearly injured, offended, obstructed, and interfered with his enjoyment, free passage, and use of his property by encroaching on Ocampo’s property, engaging in construction over objection, and erecting an unnecessary chain link fence which prevents east/west ingress/egress from the driveway of Lot 47. App. at 8.

As discussed ante for trespass, there is no enjoinable private nuisance because the construction is now complete. Ocampo does not have an exclusive possessory right to the strip of land on PREI’s property and PREI acted within its rights in constructing the fence on the border line. The fact that PREI’s actions may hinder the ability of Lot 47 residents in egress/ingress from Lot 47 is immaterial to the private nuisance claim because using a portion of PREI’s driveway is not an interest in the private use and enjoyment of Ocampo’s own land.

Ocampo has not demonstrated a likelihood of prevailing on his claim for private nuisance

(iii) Equitable Easement

An equitable easement requires that: (1) the use of the property was innocent; (2) the property owner is not irreparably injured by the use; and (3) the hardship to the claimant from having to cease usage is greatly disproportionate to the hardship caused to the owner by the continued usage.  Shoen v. Zacharias, (2016) 237 Cal.App.4th 16, 19. Ocampo asserts that he meets all the requirements for an equitable easement. App. at 10.

(a) Innocent

Ocampo claims that his usage of the PREI portion of the driveway was innocent. App. at 10. This is not entirely true. It is undisputed that PREI had permitted residents of Lot 47 to use PREI’s portion of the driveway for ingress/egress. Paulos Decl., ¶6. But that occurred when both driveways were clear for access/egress. Lot 47’s tenants did not have PREI’s permission to use their own driveway as a parking lot and then exclusively drive over Lot 48’s driveway. This use was neither permitted nor innocent.

(b) Irreparable Injury

For an equitable easement to apply, the property owner cannot be irreparably injured by the granting of the easement. Ocampo argues that the granting of an equitable easement would result in no harm to PREI, whereas he will suffer irreparable injury if the easement is not granted because he and the residents of Lot 47 will not have access. App. at 10.

Ocampo is wrong for the same reason that the use is not innocent. The evidence shows that, even with the installation of the pylons, there is adequate room for Ocampo and Lot 47 residents to ingress/egress over their own drivewaly. Ocampo Decl., Ex. A. Any inability of Ocampo and Lot 47 residents to access the rear of the property is due to the usage of the Lot 47 driveway for parking. Paulos Decl., ¶7.

This resulted in harm to PREI because residents of Lot 48 were frequently impeded by Lot 47 residents who were using the Lot 48 portion of the driveway as their exclusive ingress/egress. Paulos Decl., ¶¶ 7-8. Due to accelerated wear and tear, in June 2020 PREI had to completely remove and replace it driveway at a cost of approximately $30,000. Paulos Decl., ¶9. While the damage to the driveway is reparable through monetary damages, the impediment of Lot 48 resident access/egress is irreparable. Ocampo cannot demonstrate that PREI will not suffer irreparable harm from granting an easement.

(c) Disproportionate Hardship

The balancing of hardships requires disproportionate hardship in favor of the claimant. As discussed ante, the balancing of hardships favors PREI. Any impediment for access/egress by Ocampo and Lot 47 residents is of their own making by parking in the Lot 47 driveway. PREI’s installation of pylons/fencing does not itself impede access. In contrast, the residents of Lot 48 have frequently been impeded by the usage of their portion of the driveway.

(d) Conclusion

Ocampo cannot establish a probability of succeeding on his claim for an equitable easement. Lot 47’s abuse of PREI’s consent to drive on the Lot 48 driveway is not innocent, PREI may be irreparably harmed by a grant of an easement, and the balancing of hardships favors PREI.

2. Balance of Hardships

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

The balance of hardships favors denial of an injunction. PREI represents that all construction is completed with no further installation or construction required, meaning there will be no recurrence of the conduct. Opp. at 15. An injunction will not issue when, because of a change in circumstances, a repetition of the act complained of appears unlikely. Engle v City of Oroville, (1965) 238 CA.2d 266.

If an injunction is issued, PREI and the Lot 48 residents will suffer harm from continued interference in their ability to access Lot 48 and increased wear and tear on their portion of the driveway. If an injunction is not issued, Ocampo and the Lot 47 residents will only suffer harm of their own making from their usage of the Lot 47 portion of the driveway for parking, rather than ingress/egress.

F. Conclusion

The application for a preliminary injunction is denied.


[1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

[3] While Ocampo refers to a chain link fence, PREI refers to pylons. Neither party provides a photograph of the actual installation.

[4] Ocampo also alleges a probability of success on claims for negligence and violations of Los Angeles County Zoning Ordinances but, as PREI correctly notes, Ocampo failed to plead these causes of action in the Complaint. Opp. at 9-10.

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