This case was last updated from Los Angeles County Superior Courts on 01/24/2022 at 11:03:10 (UTC).

MARGA BAKKER, ET AL. VS DAVID SHRAGA, ET AL.

Case Summary

On 07/01/2021 MARGA BAKKER filed a Property - Other Real Property lawsuit against DAVID SHRAGA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CURTIS A. KIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4481

  • Filing Date:

    07/01/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CURTIS A. KIN

 

Party Details

Plaintiffs and Cross Defendants

BAKKER MARGA

HAMM CLARK

Defendants and Cross Plaintiffs

SHRAGA DAVID

WOMACK JENNIFER

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

BADKAR DINESH R.

Defendant and Cross Plaintiff Attorneys

TUCHMAN AVIV L.

WIDENER VANESSA

WIDENER VANESSA HINDLEY

VAQAR ALI ZAMIN

 

Court Documents

Notice - NOTICE OF ENTRY OF STIPULATION AND PROTECTIVE ORDER

1/20/2022: Notice - NOTICE OF ENTRY OF STIPULATION AND PROTECTIVE ORDER

Notice - NOTICE OF POSTING UNDERTAKING

11/18/2021: Notice - NOTICE OF POSTING UNDERTAKING

Notice of Ruling - NOTICE OF RULING - NOTICE OF ORDER GRANTING PRELIMINARY INJUNCTION

11/18/2021: Notice of Ruling - NOTICE OF RULING - NOTICE OF ORDER GRANTING PRELIMINARY INJUNCTION

Substitution of Attorney

12/22/2021: Substitution of Attorney

Substitution of Attorney

12/22/2021: Substitution of Attorney

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROTECTIVE ORDER - CONFIDENTIAL DESIGNATION ONLY

12/21/2021: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROTECTIVE ORDER - CONFIDENTIAL DESIGNATION ONLY

Notice - NOTICE APPENDIX OF EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

10/5/2021: Notice - NOTICE APPENDIX OF EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Objection - OBJECTION EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGA BAKKER FILED IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

10/5/2021: Objection - OBJECTION EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGA BAKKER FILED IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Opposition - OPPOSITION OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES

10/5/2021: Opposition - OPPOSITION OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES

Supplemental Declaration - SUPPLEMENTAL DECLARATION OF MARGA BAKKER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

10/12/2021: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF MARGA BAKKER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Supplemental Declaration - SUPPLEMENTAL DECLARATION OF DINESH BADKAR IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

10/12/2021: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF DINESH BADKAR IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Reply - REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

10/12/2021: Reply - REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

10/15/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Objection - OBJECTION EVIDENTIARY OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF MARGA BAKKER FILED IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

10/15/2021: Objection - OBJECTION EVIDENTIARY OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF MARGA BAKKER FILED IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Objection - OBJECTION EVIDENTIARY OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF DINESH BADKAR FILED IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

10/15/2021: Objection - OBJECTION EVIDENTIARY OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF DINESH BADKAR FILED IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PRELIMINARY INJUNCTION)

10/20/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PRELIMINARY INJUNCTION)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE CESAR RODRIGUEZ, CSR 13269

10/20/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE CESAR RODRIGUEZ, CSR 13269

Notice of Ruling

10/22/2021: Notice of Ruling

39 More Documents Available

 

Docket Entries

  • 01/23/2023
  • Hearing01/23/2023 at 09:00 AM in Department 72 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 01/13/2023
  • Hearing01/13/2023 at 09:30 AM in Department 72 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/20/2022
  • DocketNotice (of Entry of Stipulation and Protective Order); Filed by DAVID SHRAGA (Defendant); JENNIFER WOMACK (Defendant)

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  • 12/22/2021
  • DocketSubstitution of Attorney; Filed by JENNIFER WOMACK (Cross-Complainant)

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  • 12/22/2021
  • DocketSubstitution of Attorney; Filed by DAVID SHRAGA (Cross-Complainant)

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  • 12/21/2021
  • DocketStipulation and Order (Stipulation and Protective Order - Confidential Designation Only); Filed by DAVID SHRAGA (Defendant); JENNIFER WOMACK (Defendant)

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  • 11/29/2021
  • Docketat 09:30 AM in Department 72, Curtis A. Kin, Presiding; Case Management Conference - Held

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  • 11/29/2021
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 11/18/2021
  • DocketNotice (of Posting Undertaking); Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 11/18/2021
  • DocketNotice of Ruling (- NOTICE OF ORDER GRANTING PRELIMINARY INJUNCTION); Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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37 More Docket Entries
  • 08/10/2021
  • DocketDeclaration in Support of Ex Parte Application; Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 08/10/2021
  • DocketDeclaration in Support of Ex Parte Application; Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 08/03/2021
  • DocketNotice (of Case Management Conference); Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 07/29/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/14/2021
  • DocketProof of Personal Service; Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 07/14/2021
  • DocketProof of Personal Service; Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 07/01/2021
  • DocketSummons (on Complaint); Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 07/01/2021
  • DocketComplaint; Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 07/01/2021
  • DocketCivil Case Cover Sheet; Filed by MARGA BAKKER (Plaintiff); CLARK HAMM (Plaintiff)

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  • 07/01/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

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Case Number: 21STCV24481 Hearing Date: October 20, 2021 Dept: 72

MOTION FOR PRELIMINARY INJUNCTION

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Date: 10/20/21\r\n(1:30 p.m.)

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Case: Marga Bakker et al. v. David\r\nShraga et al. (21STCV24481)

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TENTATIVE\r\nRULING:

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Plaintiffs Marga Bakker and Clark Hamm’s Motion for\r\nPreliminary Injunction is GRANTED.

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Defendants David Shraga and Jennifer Womack’s evidentiary\r\nobjections to the declaration of Marga Bakker, the supplemental declaration of\r\nMarga Bakker, and the supplemental declaration of Dinesh Badkar are OVERRULED.\r\nAlthough the supplemental declarations contain new evidence, defendants may\r\nrespond to the supplemental declarations during oral argument. (Wall Street\r\nNetwork, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1183 [“a\r\ntrial court may properly consider new evidence submitted with a reply brief ‘so\r\nlong as the party opposing the motion for summary judgment has notice and an\r\nopportunity to respond to the new material’”].)

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Defendants’ request for judicial notice of the Verified\r\nComplaint, Answer to Verified Complaint, Verified Cross-Complaint, and Answer\r\nto Verified Cross-Complaint are GRANTED, but only for the existence of the documents,\r\nnot the truth of the matters asserted therein. (See Evid. Code, § 452(d);\r\nSosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

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Plaintiffs seek the issuance of a preliminary injunction\r\nenjoining defendants from interfering with plaintiffs’ quiet enjoyment of the\r\nEasement Area, i.e., the strip of land approximately 3 feet wide and 68 feet\r\nlong located on defendants’ property, which separates plaintiffs’ driveway from\r\ndefendants’ house.

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“[T]he question whether a preliminary injunction should be\r\ngranted involves two interrelated factors: (1) the likelihood that the\r\nplaintiff will prevail on the merits, and (2) the relative balance of harms\r\nthat is likely to result from the granting or denial of interim injunctive\r\nrelief.” (White v. Davis (2003) 30 Cal. 4th 528, 554.)

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With respect to plaintiffs prevailing on the merits, “[t]o\r\nestablish the elements of a prescriptive easement, the claimant must prove use\r\nof the property, for the statutory period of five years, which use has been (1)\r\nopen and notorious; (2) continuous and uninterrupted; (3) hostile to the true\r\nowner; and (4) under claim of right.” (Mehdizadeh\r\nv. Mincer (1996) 46 Cal.App.4th 1296, 1305; see also CACI 4901\r\n[Prescriptive Easement].) On this\r\nrecord, plaintiffs demonstrate they have continuously used the purported\r\nEasement Area at issue for more than five years without interruption. The Gate\r\nStructure on defendants’ property has been installed since at least 1985.\r\n(Bakker Decl. ¶ 5.) Since 1987, plaintiffs have continuously used the Easement\r\nArea to place their waste bins, store their barbecue grill, and maintain a\r\ngarden. (Bakker Decl. ¶ 6.) As of 2010 or 2011, plaintiffs also paved and built\r\nenclosures in the Easement Area. (Bakker Decl. ¶ 6.) Plaintiffs, as well\r\nas plaintiffs’ guests, have also used the Easement Area to park their vehicles,\r\nopen the doors of their vehicles, and enter and exit their vehicles, such as\r\nwhen unloading groceries next to the kitchen door. (Bakker Decl. ¶¶ 6, 7, 8.)

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Plaintiffs’ use of the Easement Area has been open and\r\nnotorious. The Gate Structure is visible to the former and current owners of\r\ndefendants’ property. (Bakker Decl. ¶¶ 4, 8 & Ex. 8.)

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Plaintiffs’ evidence also demonstrates that their use of the\r\nEasement Area has been hostile to the true owner and under claim of right. In\r\nNovember 2015, the then-owners of defendants’ property wanted to build a fence\r\non the property line and objected to plaintiffs’ use and maintenance of the\r\nEasement and Gate Structure. (Bakker Decl. ¶ 11) Plaintiffs objected to the\r\nprior owners’ intention to build the fence and refused to cooperate with the\r\nprior owners’ efforts to alter plaintiffs’ use of the purported Easement Area.\r\n(Bakker Decl. ¶ 11.) Further, on June 24, 2016, more than five years ago,\r\nplaintiffs sent a letter to the then-owners and their real estate agents\r\nindicating plaintiffs’ claim to use the Easement Area. (Supp. Bakker Decl. ¶ 3\r\n& Ex. B [“I just want to be sure that our family and the new owners start\r\noff on the right foot and are fully aware that we have been using the property\r\nbetween the driveway and the house for over 20 years. I am certain that you\r\nhave disclosed this in the disclosures that are given to the new buyer. If you\r\nhave not done so please let them know”].) On this record, plaintiffs demonstrate\r\nthey have used the Easement Area notwithstanding the objection by prior owners.\r\n

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By contrast, there is no meaningful evidence before this\r\nCourt to support defendants’ suggestion (see Opp. at 11) that any of the\r\nowners of the Easement Area permissively allowed plaintiffs’ continuous, open,\r\nand notorious use of it as a “neighborly accommodation.” This is not a case in which plaintiffs\r\noccasionally used the Easement Area with defendants’ permission or silent\r\nacquiescence. Rather, plaintiffs’\r\nundisputed use of the Easement Area has been continuous and obvious since 1987.\r\n(Bakker Decl. ¶ 6.) (Cf. Clarke v. Clarke (1901) 133 Cal. 667, 670\r\n[finding that a party who occasionally travelled over a purported easement by\r\nvehicle or car on land owned by another party could not claim that such usage\r\nwas under a claim of right when the party did not express the claim “in such\r\nmanner that the owner may know of the claim,” even if the “owner knew of the\r\ntravel and occasional use of the property”].) Indeed, plaintiffs’ use of the\r\nEasement Area to maintain a garden, place their waste bins, and allow\r\nthemselves and their guests to get in and out of their cars was sufficiently\r\nvisible and continuous to give the owners of the servient tenement (i.e., the\r\nproperty currently owned by defendants) notice that plaintiffs claimed the\r\nright to use the Easement Area. (See Applegate v. Ota (1983) 146\r\nCal.App.3d 702 [finding in matter where disputed roadway was frequently used by\r\nfamily, guests, relatives, and business invitees that use was adverse, not\r\npermissive and notice to owner of servient tenement can be “inferred or implied\r\nsince visible, open and notorious use implies that the owner had either actual\r\nor constructive notice”].)

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Further, as described by plaintiff Bakker, plaintiffs’ use\r\nof the Easement Area has not been prohibitively exclusive so as to defeat their\r\nclaim for prescriptive easement. (See\r\nMehdizadeh, 46 Cal.App.4th at 1296; Silacci v. Abramson (1996) 45\r\nCal.App.4th 558.) Plaintiffs have\r\noffered defendants a key to the Gate Structure, but defendants have declined.\r\n(Bakker Decl. ¶ 14.) Plaintiffs also provided defendants with the\r\ncombination to the lockbox containing the key to the Gate Structure. (Bakker\r\nDecl. ¶ 14.) Plaintiffs also\r\nsubmit evidence that defendants and their agents are able to access the\r\nEasement Area, including photos of defendants actually accessing the Easement\r\nArea. (Supp. Bakker Decl. ¶¶ 6, 7\r\n& Ex. C.) Given the aforementioned\r\nundisputed evidence of defendants’ ability to access the Easement Area, the\r\nCourt does not find that plaintiffs’ use is exclusive, even if the Court were\r\nto resolve in defendants’ favor the parties’ dispute over access by defendants’\r\ngardeners (compare Supp. Bakker Decl. ¶ 7 with Shraga Decl.\r\n¶ 48) or credit defendants’ claim they may have to wait for plaintiffs to\r\nprovide access when the gate is locked (see Shraga Decl. ¶ 47). Further, although plaintiffs describe the\r\neasement as “exclusive” in the Complaint (Compl. ¶ 16), the Court does not\r\ninterpret such description as plaintiffs’ admission that their use of the\r\nEasement Area is exclusive. Rather, such\r\ndescription is more logically interpreted as exclusion of the public, not of\r\ndefendants, particularly in light of plaintiffs’ allegation that they have not\r\nprohibited defendants and do not seek to exclude defendants from accessing the\r\nEasement Area. (See Compl. ¶ 13.)

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Lastly, the Court rejects defendants’ broad sweeping legal\r\nproposition that “[c]ourts do not allow prescriptive easements for landscaping\r\nand recreational purposes.” (Opp. at\r\n12.) To begin with, the Court need not\r\ngrapple with the validity of defendants’ legal assertion, because it is clear\r\nthat the law permits prescriptive easements for the uses by plaintiffs\r\nhere. (See, e.g., Husain v.\r\nCalifornia Pacific Bank (2021) 61 Cal.App.5th 717, 724 [affirming finding\r\nof prescriptive easement for garbage area and gardening].) In any event, the cases upon which defendants\r\nrely do not support the rule advanced by defendants. Bustillos v. Murphy (2002) 96 Cal.App.4th\r\n1277 is unavailing because that case relies on Civil Code § 1009, which concerns\r\neasements for public use on private land, whereas plaintiffs here seek an\r\neasement for private use on private land. (See Civ. Code § 1009(b)\r\n[public recreational use on private land will not confer permanent right to use\r\nthe private land for recreational purposes].) Harrison v. Welch (2004)\r\n116 Cal.App.4th 1084, 1094 is likewise unavailing because the easement for a\r\nwoodshed and landscaping was disallowed in that case because the woodshed and\r\nlandscaping were found to constitute exclusive use, not because landscaping is\r\nper se impermissible.

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Accordingly, for the foregoing reasons, plaintiffs\r\nsufficiently demonstrate open, notorious, continuous, and hostile usage of the\r\nEasement Area under a claim of right for at least a five-year period.\r\nPlaintiffs thus demonstrate that they will likely prevail on the merits.

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With respect to the relative balance of harms, defendants\r\ncontend that plaintiffs have not demonstrated any imminent harm which would\r\nresult without the proposed preliminary injunction. (White v. Davis\r\n(2003) 30 Cal.4th 528, 554 [“To obtain a preliminary injunction, a plaintiff\r\nordinarily is required to present evidence of the irreparable injury or interim\r\nharm that it will suffer if an injunction is not issued pending an adjudication\r\nof the merits”].) While plaintiffs do\r\nnot make a particularly strong showing of harm that is imminent (see\r\nBakker Decl. ¶ 16 [purported discussion by defendants and their\r\ncontractors in April 2021 about taking down Gate Structure and erecting fence\r\non property line]), the Court does find that, in the absence of an injunction\r\nto prevent defendants from acting, the potential harm to plaintiffs and their\r\nuse of the Easement Area would be substantial. \r\nGiven that the requested injunction would permit the Easement Area to be\r\nused by both parties as it has been used since defendants first acquired title\r\nto it in 2018 and that the general purpose of a preliminary injunction is to\r\npreserve the status quo, the Court concludes that the relative balance of harms\r\nfavors issuance of the requested preliminary injunction. (See Brown v. Pacifica Foundation, Inc.\r\n(2019) 34 Cal.App.5th 915, 925 [“[T]he general purposes of this interim measure\r\nis to preserve the status quo pending a determination on the merits of the\r\naction . . .”].)

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Accordingly, the motion is GRANTED. In so doing, the Court notes that a\r\npreliminary injunction does not determine the ultimate rights of the parties,\r\nand the factual determinations made in connection with issuing the preliminary\r\ninjunction do not bind the trier of fact at trial.

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At the hearing, the parties should be prepared to discuss what\r\nundertaking shall be required by plaintiffs to account for any damage\r\ndefendants “may sustain by reason of the injunction, if the court finally\r\ndecides that the applicant was not entitled to the injunction.” (CCP § 529.) In this regard, the Court finds little\r\nsupport for the assertion that a bond of not less than $200,000 is required to\r\nprotect defendants’ family and property (see Shraga Decl. ¶ 49) and\r\ninquires whether a nominal bond would more accurately reflect any damage that\r\nmay result from merely extending the multi-year status quo between the parties\r\nduring the pendency of this litigation.

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