Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 04/19/2021 at 04:35:26 (UTC).

ROBERT SCHIELE, ET AL. VS EDMOND MIRZAKHANIAN

Case Summary

On 07/20/2020 ROBERT SCHIELE filed a Property - Other Real Property lawsuit against EDMOND MIRZAKHANIAN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM D. STEWART. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0448

  • Filing Date:

    07/20/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

WILLIAM D. STEWART

 

Party Details

Plaintiffs

SCHIELE ROBERT

BRINSON SCHIELE DIANA

Defendant

MIRZAKHANIAN EDMOND

Attorney/Law Firm Details

Plaintiff Attorney

RUSSELL DENNIS MARTIN

Defendant Attorneys

AVANESIAN MICHAEL

ZYGELMAN CORINE

 

Court Documents

Order - {PROPOSED} ORDER RE: PRELIMINARY INJUNCTION

4/9/2021: Order - {PROPOSED} ORDER RE: PRELIMINARY INJUNCTION

Declaration - DECLARATION OF KEVIN YOON LAI IN SUPPORT OF PLAINTIFFS ROBERT SCHIELE AND DIANE BRINSON SCHIELES RESPONSE TO DEFENDANTS REMEDIATION PLAN

3/19/2021: Declaration - DECLARATION OF KEVIN YOON LAI IN SUPPORT OF PLAINTIFFS ROBERT SCHIELE AND DIANE BRINSON SCHIELES RESPONSE TO DEFENDANTS REMEDIATION PLAN

Notice - NOTICE OF ENTRY OF ORDER RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

12/21/2020: Notice - NOTICE OF ENTRY OF ORDER RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Notice of Posting of Jury Fees

12/8/2020: Notice of Posting of Jury Fees

Reply - PLAINTIFF ROBERT SCHIELE AND DIANE BRINSON SCHIELES REPLY BRIEF FOLLOWING EVIDENTIARY HEARING FOR PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

11/16/2020: Reply - PLAINTIFF ROBERT SCHIELE AND DIANE BRINSON SCHIELES REPLY BRIEF FOLLOWING EVIDENTIARY HEARING FOR PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

10/13/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Request for Judicial Notice

9/15/2020: Request for Judicial Notice

Objection - OBJECTION TO AND MOTION TO STRIKE PLAINTIFFS' LATE-FILED REPLY PAPERS IN THEIR ENTIRETY; OR, IN THE ALTERNATIVE TO STRIKE NEW EVIDENCE SUBMITTED IN REPLY

8/13/2020: Objection - OBJECTION TO AND MOTION TO STRIKE PLAINTIFFS' LATE-FILED REPLY PAPERS IN THEIR ENTIRETY; OR, IN THE ALTERNATIVE TO STRIKE NEW EVIDENCE SUBMITTED IN REPLY

Declaration - REPLY DECLARATION OF JASON SONG ISO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

8/10/2020: Declaration - REPLY DECLARATION OF JASON SONG ISO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

Proof of Service by Mail

8/10/2020: Proof of Service by Mail

Objection - EVIDENTIARY OBJECTION TO THE DECLARATION OF JIANSHENG SONG

8/4/2020: Objection - EVIDENTIARY OBJECTION TO THE DECLARATION OF JIANSHENG SONG

Declaration - DECLARATION OF ANGELA M. STIDHAM IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

8/5/2020: Declaration - DECLARATION OF ANGELA M. STIDHAM IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Declaration - DECLARATION OF EDMOND MIRZAKHANIAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

8/5/2020: Declaration - DECLARATION OF EDMOND MIRZAKHANIAN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Proof of Service (not Summons and Complaint)

8/5/2020: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORD...)

7/24/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORD...)

Notice of Case Assignment - Unlimited Civil Case

7/20/2020: Notice of Case Assignment - Unlimited Civil Case

Declaration in Support of Ex Parte Application

7/22/2020: Declaration in Support of Ex Parte Application

Declaration in Support of Ex Parte Application

7/22/2020: Declaration in Support of Ex Parte Application

69 More Documents Available

 

Docket Entries

  • 05/11/2021
  • Hearing05/11/2021 at 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Case Management Conference

    Read MoreRead Less
  • 04/09/2021
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 04/09/2021
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Compliance Hearing (re Submission of Remediation Plan and Timeline) - Held

    Read MoreRead Less
  • 04/09/2021
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Order to Show Cause Re: (Why Remediation Plan should not be adopted and Preliminary Injunction issued, and Sanctions against Plaintiff for failure to appear) - Held

    Read MoreRead Less
  • 04/09/2021
  • DocketMinute Order ( (Case Management Conference; Compliance Hearing re Submission ...)); Filed by Clerk

    Read MoreRead Less
  • 04/09/2021
  • DocketOrder Re: Preliminary Injunction; Filed by ROBERT SCHIELE (Plaintiff)

    Read MoreRead Less
  • 03/23/2021
  • DocketObjection (TO PLAINTIFFS ROBERT SCHEIELE AND DIANA BRINSON SCHELE'S RESPONSE TO DEFENDANT'S REMEDIATION PLAN AND DECLARATION OF KEVIN YOON LAI); Filed by EDMOND MIRZAKHANIAN (Defendant)

    Read MoreRead Less
  • 03/22/2021
  • DocketNotice of Ruling; Filed by EDMOND MIRZAKHANIAN (Defendant)

    Read MoreRead Less
  • 03/19/2021
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 03/19/2021
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Compliance Hearing (re Submission of Remediation Plan and Timeline) - Held - Continued

    Read MoreRead Less
86 More Docket Entries
  • 07/22/2020
  • DocketEx Parte Application (for Temporary Restraining Order and Order to Show Cause); Filed by ROBERT SCHIELE (Plaintiff); DIANA BRINSON SCHIELE (Plaintiff)

    Read MoreRead Less
  • 07/22/2020
  • DocketDeclaration in Support of Ex Parte Application; Filed by ROBERT SCHIELE (Plaintiff); DIANA BRINSON SCHIELE (Plaintiff)

    Read MoreRead Less
  • 07/22/2020
  • DocketDeclaration in Support of Ex Parte Application; Filed by ROBERT SCHIELE (Plaintiff); DIANA BRINSON SCHIELE (Plaintiff)

    Read MoreRead Less
  • 07/22/2020
  • DocketDeclaration in Support of Ex Parte Application; Filed by ROBERT SCHIELE (Plaintiff); DIANA BRINSON SCHIELE (Plaintiff)

    Read MoreRead Less
  • 07/21/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 07/21/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

    Read MoreRead Less
  • 07/20/2020
  • DocketCivil Case Cover Sheet; Filed by ROBERT SCHIELE (Plaintiff); DIANA BRINSON SCHIELE (Plaintiff)

    Read MoreRead Less
  • 07/20/2020
  • DocketSummons (on Complaint); Filed by ROBERT SCHIELE (Plaintiff); DIANA BRINSON SCHIELE (Plaintiff)

    Read MoreRead Less
  • 07/20/2020
  • DocketComplaint; Filed by ROBERT SCHIELE (Plaintiff); DIANA BRINSON SCHIELE (Plaintiff)

    Read MoreRead Less
  • 07/20/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less

Tentative Rulings

Case Number: 20BBCV00448    Hearing Date: August 19, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use LACourtConnect, the court’s remote appearance technology (audio or video)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances:

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

  3. State your name at the beginning of all statements.

  4. Do not speak directly to other counsel without permission of court.

  5. Do not interrupt or attempt to speak over another speaker.

  6. Do not announce your presence until called by your name or case name.

  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

Schiele v Mirzakhanian

Motion for Preliminary Injunction

Calendar:

21

Case No.:

20BBCV00448

Hearing Date:

August 19, 2020

10:30 AM

Action Filed:

July 20, 2020

Trial Date:

Not Set

MP:

Plaintiffs Robert Schiele; Diana Brinson Schiele

RP:

Defendant Edmond Mirzakhanian

ALLEGATIONS:

Robert Schiele and Diana Brinson Schiele ("Plaintiffs") own property ("Schiele Property") adjacent to and adjoining the property of Edmond Mirzakhanian ("Defendant") ("Mirzakhanian Property"). Plaintiffs allege that Defendant's construction project have damaged Plaintiff's adjoining wall separating the properties ("Adjoining Wall") and altered the grade on Mirzakhanian Property in a manner that further damages Adjoining Wall and intrudes upon Plaintiff's privacy rights.

Plaintiffs filed a Complaint on July 20, 2020, alleging four (4) causes of action sounding in: (1) Negligence; (2) Trespass; (3) Nuisance and (4) Intrusion into Private Affairs.

PRESENTATION:

Plaintiffs filed the instant motion on July 22, 2020, Defendants filed an opposition on August 4, 2020, and Plaintiffs filed a reply on August 10, 2020. The original hearing date for the motion was on August 14, 2020.

On August 14, 2020, the Court continued the instant matter to August 19, 2020, and waived notice.

RELIEF REQUESTED:

Plaintiffs request an order that Defendant be (1) enjoined from continued trespass, nuisance, and negligence causing harm to the Property; (2) required to remove all dirt and soil near and against the existing wall and return the properties and gradation back to condition they were in prior to Defendant's construction; (3) ordered to construct a retaining wall with all required and appropriate grading and construction permits on Defendant's side of the property at Defendant's sole expense.

DISCUSSION:

Standard of Review

A decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court. (Cohen v. Board of Supervisors (1985) 40 Cal. 3d 277, 286.) Code of Civ. Proc. § 526 provides in part:

(a) An injunction may be granted 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.

An injunction may not be granted except upon a sufficient factual showing, by someone having knowledge, made under oath or by declaration under penalty of perjury. (Fleishman v. Superior Court (2002) 102 Cal. App. 4th 350, 356.)

A party requesting an injunction must show two things: (1) the likelihood of its prevailing on the merits of the dispute; and (2) the harm it will suffer without an injunction outweighs the injury the opposing party will suffer if the injunction is issued. (Shoemaker v. County of Los Angeles (1995) 37 Cal. App. 4th 618, 625.) The moving party must prevail on both factors to obtain an injunction. (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal. App. 4th 1137, 1145.)

Nevertheless, a failure to show that the balance of the harms favors granting relief is not necessarily fatal to the request for a preliminary injunction. If the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has the discretion to issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in its favor. (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal. App. 4th 336, 339.)

However, a court may not issue an injunction if it finds the moving party has no chance of succeeding on the merits, because then an injunction only postpones an inevitable loss on the merits. (14859 Moorpark Homeowners Assn. v. VRT Corp. (1998) 63 Cal. App. 4th 1396, 1408.) But when the court does not know who is likely to prevail, the court may take into account the competing harms from issuing the injunction or denying one. (Dodge, Warren Peters Ins. Services, Inc. v. Riley (2003) 105 Cal. App. 4th 1414, 1420.)

Evidentiary Objections

Defendant makes evidentiary objections to: (1) Plaintiffs' TRO Exhibits; (2) the Declaration of Kevin Yoon Lai; and (3) the Declaration of Jiansheng Song.

Plaintiffs' TRO Exhibit 1 – Defendant cites California Rules of Court, Rule 3.1306 and various cases to support the argument that the Court should strike and not consider the permits submitted as Exhibit 1 because they were not submitted in a request for judicial notice. Plaintiffs submitted Exhibit 1 as a copy of a building permit issued by the Los Angeles Department of Building and Safety for grading on May 4, 2016.

California Rules of Court, Rule 3.1306 refers only to oral testimony and Defendant's other cited cases rule on the procedures and requirements concerning judicial notice without advancing the Defendant's contention–that Plaintiffs may only submit Exhibit 1 through a request for judicial notice. The Court finds that Plaintiffs' Exhibit 1 was authenticated through a declaration submitted by their attorney, Ms. Jordanna G. Thigpen, who had personal knowledge of how she obtained the exhibits, how they had been identified, who had identified them, and their status as true and correct copies of the “originals.” (Decl. Thigpen, ¶ 4) (See The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 34–35; Evid. Code, § 1400 et seq.) This is an acceptable means of authentication, and the Court thus overrules the evidentiary objection to Exhibit 1 of Plaintiffs' TRO.

The balance of the objections are not in proper form and are subject to a motion to strike; nevertheless, the court reviews and rules on the same.

Declaration of Kevin Yoon Lai – Defendant argues the Declaration of Kevin Yoon Lai ("Mr. Lai") is an improper lay opinion pursuant to Evidence Code §§ 800 & 803, and that Mr. Lai has not been designated as an expert pursuant to CCP § 2034.310. Defendant further argues the declaration recites inadmissible legal conclusions, and objects on the basis of lack of foundation, hearsay statements, conclusory and speculative statements, and relevance grounds. Defendant further specifically makes 6 specific objections to certain portions of the declaration but provides no grounds for those specific objections. The Court will thus overrule the 6 specific objections.

"If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony." (Evid. Code § 800.) " "The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper." (Evid. Code § 803.)

On review of the Declaration of Kevin Yoon Lai, the Court finds that Mr. Lai asserts he is a Registered Civil Engineer and Professor Land Surveyor. (Decl. Lai, ¶ 1.) The Court finds that such qualification is a proper basis for the opinions given in the declaration, and that Mr. Lai's opinions formed during his review of pertinent building codes, local ordinances, and his April 30, 2020 field survey are proper. (Decl. Lai, ¶¶ 6-8; Exh. A.) The Court thus overrules the objections based on improper lay opinion. The Court further finds that the declaration asserts no improper legal conclusions, supports its opinions with proper foundation, and asserts no hearsay, conclusory, speculative, or irrelevant statements. The Court thus overrules the remaining general objections based on inadmissible legal conclusions, lack of foundation, hearsay statements, conclusory and speculative statements, and relevance grounds.

Declaration of Jiangsheng Song – Defendant argues identical arguments regarding the Declaration of Jiangsheng Song ("Mr. Song") as the previously-analyzed Declaration of Kevin Yoon Lai. Defendant also makes 13 specific objections to certain portions of the declaration but provides no grounds for those specific objections, and the Court will again overrule those 13 specific objections.

On review of the Declaration of Jiangsheng Song, the Court finds that Mr. Song asserts he is licensed as a Registered Civil Engineer specializing in soil engineering, and that such qualification is a proper basis for the opinions given in the declaration. (Decl. Song, ¶ 1.) The Court thus overrules the objection based on improper lay opinion. The Court further finds that Mr. Song's opinions formed during his review of pertinent building codes and local ordinances and his July 21, 2020 field inspection are proper. (Decl. Song, ¶¶ 5-8.) The Court further finds that the declaration asserts no improper legal conclusions, supports its opinions with proper foundation, and asserts no hearsay, conclusory, speculative, or irrelevant statements. The Court thus overrules the remaining general objections based on inadmissible legal conclusions, lack of foundation, hearsay statements, conclusory and speculative statements, and relevance grounds.

Accordingly, the Court overrules Defendant's evidentiary objections in their entirety as to Plaintiffs' TRO Exhibit 1, the Declaration of Jiangsheng Song, and the Declaration of Kevin Yoon Lai.

Merits

Probability of Success on the Merits – Plaintiffs argue they will likely prevail in proving Defendants trespassed on their property, committed private nuisance, committed negligence, and intruded into Plaintiffs' private affairs. Defendant contends that Plaintiffs' actions preclude relief, as (1) the Adjoining Wall is unpermitted itself and (2) Plaintiffs unreasonably delayed in bringing the instant action. Defendants further argue that Plaintiffs are barred from recovery due to the doctrines of unclean hands and laches, respectively, as a result.

Doctrines of Unclean Hands and Laches – The Court finds Defendant's contentions as presented are conclusory and unsupported by substantive argument, cited evidence, or legal citation. In any moving paper purporting to provide evidence, such evidence must be submitted by way of declaration, submitted under penalty of perjury, and documents must be authenticated. (See, e.g., Code Civ. Proc. § 2015.5; Evid. Code § 1400 et seq.) Absent competent evidence, the Court cannot consider the putative evidence or documents presented, as the putative evidence lacks adequate foundation to serve as competent evidence in support of, or in opposition to, a motion. Absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority. (See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29) (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”) (internal quotations omitted); Cal. Rules of Professional Conduct, Rule 3.1.) Additionally, the citation to general propositions of law, general statutes and rules, or the assertion that a legal principle applies, without analysis or authority, provides no basis for the court to analyze or adopt the request of the party, and requires no substantive analysis by the court. (See Lafferty v. Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-72.)

Accordingly, Defendant's conclusory contentions concerning the doctrines of unclean hands and laches require no substantive analysis by the Court.

Trespass – Trespass is the physical intrusion upon property of another without the permission of the person lawfully entitled to possession. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal. App. 4th 1113, 1131-32; Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal. App. 4th 492, 511-512.) A trespasser, then, is a person who is on the land of another without consent and against his or her will (Martin Marietta Corp., supra, 40 Cal. App. 4th at 1125; Fibreboard Corp., supra, 16 Cal. App. 4th at 512), and a cause of action for trespass protects a person’s possessory interest in land from unlawful interference (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal. App. 4th 153, 171). An action for trespass will also support an award of nominal damages where actual damages are not shown. (Staples v. Hoefke (1987) 189 Cal. App. 3d 1397, 1406.) Accordingly, a trespass claim requires proof of the following elements: (1) the plaintiff was in possession of or had a right of possession of property; (2) the defendant entered upon the property or interfered with plaintiff’s right of possession of the property or to exclude others from the property; (3) defendant’s entry upon the property or interference with plaintiff’s right of possession of the property caused damage to plaintiff; (4) the entry was without consent of the party in possession of the property, or other person authorized to give such consent or otherwise without legal authority. (5 Witkin Cal. Procedure (4th ed. 1997) Pleading § 590; CACI 2000.)

Plaintiffs argue Defendants trespassed on Schiele Property by negligently increasing the grade on Mirzakhanian Property, thus increasing weight load and stress to Adjoining Wall and allowing persons on Mirzakhanian Property to more easily see over the wall into Schiele Property.

The Court finds that Plaintiffs show sufficient evidence supporting (1) their ownership of the property (Decl. Schiele, ¶ 4); (2) Defendant's trespass of the property (Decl. Schiele, ¶ 7); (3) the trespass caused damage to Plaintiffs (Decl. Schiele, ¶ 7); and (4) such entry was without consent. Defendant argues there was no such damage to Plaintiffs' wall, but cites only the Declaration of Jan Bear in support. (Decl. Bear, 15.) But Mr. Bear only asserts that he did not find any contact damage or repair work indicating contact damage; Mr. Bear only visited the site after the alleged trespass to ascertain this conclusion, which does not directly contradict Plaintiffs' showing in any case.

Plaintiffs have thus sufficiently shown a likelihood of success on the merits with regard to the trespass claim as to the alteration of grade on defendant’s property resulting in the accumulation of earthen material against what is obviously not a retaining wall with reinforcement, but only am adjoining wall.

Private Nuisance – The three elements of private nuisance claims is that the alleged nuisance activities cause (1) an interference with the plaintiff’s use and enjoyment of their property, (2) that the invasion must be substantial such that actual damages occur, and (3) that the interference must be unreasonable. (See, e.g., Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 802-03) (As to the unreasonable prong, the interference “must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’”). The standard is objective and is fundamentally a question of fact. (Id.)

 

Plaintiffs argue Defendant interfered and continue to interfere with Plaintiffs' enjoyment and use of Schiele Property by encroaching on the property and intruding on their privacy rights in a "substantial and unreasonable" manner that "would be offensive or inconvenient to the normal person" pursuant to the ruling in Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.

In Koll-Irvine, the Court ruled that the plaintiff's fear of a fire hazard was not enough to maintain a private nuisance action, reasoning that "[s]o long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance. . . . An interference need not directly damage the land or prevent its use to constitute a nuisance . . . ." (Koll-Irvine, supra, 24 Cal.App.4th at p. 1041-42.)

Plaintiffs sufficient show (1) Defendant's interference with their property through the piling of dirt and soil up to Adjoining Wall to the point where the wall cracked (Decl. Schiele, ¶¶ 8, 9), and that (2) actual damages occurred from such interference (Decl. Schiele ¶¶ 8, 9). Plaintiffs fail to cite to specific evidence supporting the third element of private nuisance, "that the interference must be unreasonable". (Wilson v. Southern California Edison Co., supra, Cal.App.5th at p. 802-803.) The "unreasonable" element of private nuisance is an objective standard and so Plaintiffs may only show a likelihood of success on this element by showing supporting evidence for this standard. (Wilson, supra, 21 Cal.App.5th at p. 802-03; Koll-Irvine, supra, 24 Cal.App.4th at p. 1041.) Although Plaintiffs' motion makes conclusory allegations that Defendant's conduct "clearly injured, offended, and interfered with Plaintiffs' comfortable enjoyment, free passage, and use of the Harmed Property by encroaching on the property", cites generally to "accompanying declarations", and provides a citation to Koll-Irvine, supra, 24 Cal.App.4th at p. 1041 (which ruled that a plaintiff's solely-future fear of injury did not support their private nuisance claim), it fails to cite specifically to facts supporting these allegations. (Ex Parte, 14:26-15:1.)

Nevertheless, the Court reviews Plaintiffs' attached declarations, and finds that Plaintiffs show evidence supporting an allegation that Defendants damaged Adjoining Wall, caused dirt to pile against the wall, and caused severe cracks to form. (Decl. Schiele, ¶¶ 7-9.) Further, Plaintiffs' civil engineers, Kevin Loon Lai and Jiansheng Song, opine that the wall is at risk of collapse due to the soil and dirt weight against it from Defendants' property side (Decl. Lai, ¶¶ 8) and that the force exerted by soil against the wall is inappropriate for this type of wall (Decl. Song, ¶ 10), respectively. In opposition, Defendants cite their own civil engineer to opine that the Adjoining Wall is structurally stable, that the soil adjacent to the wall has been in place for many years and four feet of fill has not been placed adjacent to the wall as Plaintiffs contend, and that his inspection did not reveal contact damage on the wall as alleged by Plaintiffs, and who in turn cites Plaintiff's photos to conclude the crack in the Adjoining Wall does not indicate the wall is overstressed. (Decl. Bear, ¶¶ 15, 16, 19, 23.) Although Plaintiffs' two experts both opine, with varying degrees of severity, that the force against the Adjoining Wall is inappropriate and places the wall at risk, Defendants' expert opines the wall is structurally stable. The Court finds that Mr. Bear has not adequately explained the bases for his opinion that the Adjoining Wall is a retaining wall, nor the opinion that the present quantity of dirt and soil does not present a structural risk to the Adjoining Wall. Further, Mr. Bear's opinion that the soil adjacent to the wall has been in place for years is similarly based on insufficient bases, as Mr. Bear does not represent how he came to this conclusion after reviewing one field visit, permit records for the properties, and documents filed in the instant case. Plaintiffs have thus sufficiently showed their likelihood of success on the merits with regard to the third element of private nuisance, unreasonable interference.

Thus, Plaintiffs sufficiently show the likelihood of success on the merits regarding the private nuisance claim.

Negligence – A complaint for damages for negligent injury to person or property must allege: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. (Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.) No strict requirements exist for the form of such allegations. (Id.)

Plaintiffs argue Defendant was negligent in failing to check whether Adjoining Wall was a retaining wall, in increasing the grade on Mirzakhanian Property by four feet, causing a series of cracks to Adjoining Wall, failing to construct an actual retaining wall or Adjoining Wall, and reducing the effective height of the wall and subsequently intruding on Plaintiffs' privacy rights.

On review of the moving papers, the Court finds that Plaintiffs fail to show any evidence supporting the first element of negligence. Plaintiffs make only conclusory allegations and cite only general law concerning negligence claims and fail to show what Defendant's duty of care is. Thus, Plaintiffs fail to show their likelihood of success on the merits regarding the negligence claim.

Intrusion – Regarding the tort of intrusion, "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person . . . the action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person." (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231) (citing Miller v. National Broadcasting Co. (1986) 187 Cal.app.3d 1463, 1482.)

 

Plaintiffs argue they had a reasonable expectation of privacy in their property, and Defendant intruded on such right by grading their property in a manner to allow vision over Adjoining Wall into Plaintiffs' property, including the backyard, pool, and surrounding areas.

On review of the moving papers, the Court finds that Plaintiffs again fail to show any evidence supporting its conclusory contention that Defendant's conduct is highly offensive to a reasonable person. Thus, Plaintiffs fail to show their likelihood of success on the merits regarding the intrusion claim.

The Court finds that Plaintiffs sufficiently show a likelihood of success on the merits regarding the private nuisance and trespass claims, and continues to the balance of harms analysis.

Balance of Harms – Defendant argues he has spent $1.7 million out of $1.9 million budgeted for the project, and that he expects to complete the project in the next two months. (Decl. Mirzakhanian, ¶ 3.) Defendant contends the costs and inconvenience of a preliminary injunction would be substantial, but does not specify such costs. Plaintiffs argue it is physically impossible for them to perform the requested act of moving dirt away from Defendant's side of the wall, and that inconvenience and cost are minimal for Defendant to construct a new retaining wall and move the dirt. Plaintiffs contend, as analyzed above, that the quantity of dirt lying against the Adjoining Wall stresses such wall.

The Court finds that the balance of harms favors Plaintiffs, as the cost and inconvenience of removing dirt from the Adjoining Wall is far outweighed by the risk of continuing damage to said wall.

Accordingly, the Court will grant the motion in part, and order Defendant to remove a quantity of dirt from the Adjoining Wall sufficient to return the grading to the level it was prior to Defendant's construction project, thereby removing the threat of continuing harm to plaintiffs’ wall.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs Robert Schiele and Diana Brinson Schiele's Motion for Preliminary Injunction came on regularly for hearing on August 19, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR PRELIMINARY INJUNCTION IS GRANTED. PLAINTIFF IS ORDERED TO SUBMIT A PROPOSED PROHIBITORY INJUNCTIVE ORDER IN ACCORDANCE WITH THE ABOVE ANALYSIS AND DECISION. DEFENDANTS WILL HAVE TEN DAYS TO FILE OBJECTIONS TO THE FORM OF THE ORDER.

DATE: _______________ _______________________________

JUDGE

Case Number: 20BBCV00448    Hearing Date: August 14, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use LACourtConnect, the court’s remote appearance technology (audio or video)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Schiele v Mirzakhanian

Motion for Preliminary Injunction

Calendar:

21

Case No.:

20BBCV00448

Hearing Date:

August 14, 2020

Action Filed:

July 20, 2020

Trial Date:

Not Set

MP:

Plaintiffs Robert Schiele; Diana Brinson Schiele

RP:

Defendant Edmond Mirzakhanian

ALLEGATIONS:

Robert Schiele and Diana Brinson Schiele ("Plaintiffs") own property ("Schiele Property") adjacent to and adjoining the property of Edmond Mirzakhanian ("Defendant") ("Mirzakhanian Property"). Plaintiffs allege that Defendant's construction project have damaged Plaintiff's adjoining wall separating the properties ("Adjoining Wall") and altered the grade on Mirzakhanian Property in a manner that further damages Adjoining Wall and intrudes upon Plaintiff's privacy rights.

Plaintiffs filed a Complaint on July 20, 2020, alleging four (4) causes of action sounding in: (1) Negligence; (2) Trespass; (3) Nuisance and (4) Intrusion into Private Affairs.

PRESENTATION:

Plaintiffs filed the instant motion on July 22, 2020, Defendants filed an opposition on August 4, 2020, and Plaintiffs filed a reply on August 10, 2020.

RELIEF REQUESTED:

Plaintiffs request an order that Defendant be (1) enjoined from continued trespass, nuisance, and negligence causing harm to the Property; (2) required to remove all dirt and soil near and against the existing wall and return the properties and gradation back to condition they were in prior to Defendant's construction; (3) ordered to construct a retaining wall with all required and appropriate grading and construction permits on Defendant's side of the property at Defendant's sole expense.

DISCUSSION:

Standard of Review

A decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court. (Cohen v. Board of Supervisors (1985) 40 Cal. 3d 277, 286.) Code of Civ. Proc. § 526 provides in part:

(a) An injunction may be granted 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.

An injunction may not be granted except upon a sufficient factual showing, by someone having knowledge, made under oath or by declaration under penalty of perjury. (Fleishman v. Superior Court (2002) 102 Cal. App. 4th 350, 356.)

A party requesting an injunction must show two things: (1) the likelihood of its prevailing on the merits of the dispute; and (2) the harm it will suffer without an injunction outweighs the injury the opposing party will suffer if the injunction is issued. (Shoemaker v. County of Los Angeles (1995) 37 Cal. App. 4th 618, 625.) The moving party must prevail on both factors to obtain an injunction. (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal. App. 4th 1137, 1145.)

Nevertheless, a failure to show that the balance of the harms favors granting relief is not necessarily fatal to the request for a preliminary injunction. If the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has the discretion to issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in its favor. (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal. App. 4th 336, 339.)

However, a court may not issue an injunction if it finds the moving party has no chance of succeeding on the merits, because then an injunction only postpones an inevitable loss on the merits. (14859 Moorpark Homeowners Assn. v. VRT Corp. (1998) 63 Cal. App. 4th 1396, 1408.) But when the court does not know who is likely to prevail, the court may take into account the competing harms from issuing the injunction or denying one. (Dodge, Warren Peters Ins. Services, Inc. v. Riley (2003) 105 Cal. App. 4th 1414, 1420.)

Evidentiary Objections

Defendant makes evidentiary objections to: (1) Plaintiffs' TRO Exhibits; (2) the Declaration of Kevin Yoon Lai; and (3) the Declaration of Jiansheng Song.

Plaintiffs' TRO Exhibit 1 – Defendant cites California Rules of Court, Rule 3.1306 and various cases to support the argument that the Court should strike and not consider the permits submitted as Exhibit 1 because they were not submitted in a request for judicial notice. Plaintiffs submitted Exhibit 1 as a copy of a building permit issued by the Los Angeles Department of Building and Safety for grading on May 4, 2016.

California Rules of Court, Rule 3.1306 refers only to oral testimony and Defendant's other cited cases rule on the procedures and requirements concerning judicial notice without advancing the Defendant's contention–that Plaintiffs may only submit Exhibit 1 through a request for judicial notice. The Court finds that Plaintiffs' Exhibit 1 was authenticated through a declaration submitted by their attorney, Ms. Jordanna G. Thigpen, who had personal knowledge of how she obtained the exhibits, how they had been identified, who had identified them, and their status as true and correct copies of the “originals.” (Decl. Thigpen, ¶ 4) (See The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 34–35; Evid. Code, § 1400 et seq.) This is an acceptable means of authentication, and the Court thus overrules the evidentiary objection to Exhibit 1 of Plaintiffs' TRO.

Declaration of Kevin Yoon Lai – Defendant argues the Declaration of Kevin Yoon Lai ("Mr. Lai") is an improper lay opinion pursuant to Evidence Code §§ 800 & 803, and that Mr. Lai has not been designated as an expert pursuant to CCP § 2034.310. Defendant further argues the declaration recites inadmissible legal conclusions, and objects on the basis of lack of foundation, hearsay statements, conclusory and speculative statements, and relevance grounds. Defendant further specifically makes 6 specific objections to certain portions of the declaration but provides no grounds for those specific objections. The Court will thus disregard the 6 specific objections.

"If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony." (Evid. Code § 800.) " "The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper." (Evid. Code § 803.)

On review of the Declaration of Kevin Yoon Lai, the Court finds that Mr. Lai opines on matters requiring expertise but makes no statement that he is an engineer, surveyor, or other suitable expert. Mr. Lai represents he is the Chief Operating Officer of CaliLand Engineer, Inc., a civil engineering and land surveying consulting firm, but makes no representation as to his own qualifications. (Decl. Lai, ¶ 2.) The Court finds that Mr. Lai's entire declaration opines on such matters requiring expertise, and thus strikes the entire Declaration pursuant to Evidence Code § 803.

Declaration of Jiangsheng Song – Defendant argues identical arguments regarding the Declaration of Jiangsheng Song ("Mr. Song") as the previously-analyzed Declaration of Kevin Yoon Lai. Defendant also makes 13 specific objections to certain portions of the declaration but provides no grounds for those specific objections, and the Court will again disregard those 13 specific objections.

The Court finds that Mr. Song asserts that he is licensed as a Registered Civil Engineer specializing in soil engineering, and that such qualification is a proper basis for the opinions given in the declaration. The Court thus overrules the objection based on improper lay opinion. On review of the Declaration of Jiangsheng Song, the Court further finds that Mr. Song's opinions formed during his review of pertinent building codes and local ordinances and his July 21, 2020 field inspection are proper (Decl. Song, ¶¶ 5-8) and thus overrules Defendant's objections made on the basis of inadmissible legal conclusions, lack of foundation, hearsay statements, conclusory and speculative statements, and relevance grounds.

Accordingly, the Court overrules Defendant's evidentiary objections in their entirety as to Plaintiffs' TRO Exhibit 1 and the Declaration of Jiangsheng Song, and strikes the Declaration of Kevin Yoon Lai.

Merits

Probability of Success on the Merits – Plaintiffs argue they will likely prevail in proving Defendants trespassed on their property, committed private nuisance, committed negligence, and intruded into Plaintiffs' private affairs. Defendant contends that Plaintiffs' actions preclude relief, as (1) the Adjoining Wall is unpermitted itself and (2) Plaintiffs unreasonably delayed in bringing the instant action. Defendants argue that Plaintiffs are barred from recovery due to the doctrines of unclean hands and laches, respectively, as a result. The Court finds Defendant's contentions as presented are conclusory and unsupported by substantive argument, evidence, or legal citation.

In any moving paper purporting to provide evidence, such evidence must be submitted by way of declaration, submitted under penalty of perjury, and documents must be authenticated. (See, e.g., Code Civ. Proc. § 2015.5; Evid. Code § 1400 et seq.) Absent competent evidence, the Court cannot consider the putative evidence or documents presented, as the putative evidence lacks adequate foundation to serve as competent evidence in support of, or in opposition to, a motion. Absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority. (See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29) (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”) (internal quotations omitted); Cal. Rules of Professional Conduct, Rule 3.1.) Additionally, the citation to general propositions of law, general statutes and rules, or the assertion that a legal principle applies, without analysis or authority, provides no basis for the court to analyze or adopt the request of the party, and requires no substantive analysis by the court. (See Lafferty v. Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-72.)

Accordingly, Defendant's conclusory contentions require no substantive analysis by the Court.

Trespass – Trespass is the physical intrusion upon property of another without the permission of the person lawfully entitled to possession. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal. App. 4th 1113, 1131-32; Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal. App. 4th 492, 511-512.) A trespasser, then, is a person who is on the land of another without consent and against his or her will (Martin Marietta Corp., supra, 40 Cal. App. 4th at 1125; Fibreboard Corp., supra, 16 Cal. App. 4th at 512), and a cause of action for trespass protects a person’s possessory interest in land from unlawful interference (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal. App. 4th 153, 171). An action for trespass will also support an award of nominal damages where actual damages are not shown. (Staples v. Hoefke (1987) 189 Cal. App. 3d 1397, 1406.) Accordingly, a trespass claim requires proof of the following elements: (1) the plaintiff was in possession of or had a right of possession of property; (2) the defendant entered upon the property or interfered with plaintiff’s right of possession of the property or to exclude others from the property; (3) defendant’s entry upon the property or interference with plaintiff’s right of possession of the property caused damage to plaintiff; (4) the entry was without consent of the party in possession of the property, or other person authorized to give such consent or otherwise without legal authority. (5 Witkin Cal. Procedure (4th ed. 1997) Pleading § 590; CACI 2000.)

Plaintiffs argue Defendants trespassed on Schiele Property by negligently increasing the grade on Mirzakhanian Property, thus increasing weight load and stress to Adjoining Wall and allowing persons on Mirzakhanian Property to more easily see over the wall into Schiele Property.

The Court notes that Plaintiffs fail to cite to any evidence they submitted in support of the instant motion for any argument they make in the motion. The Court further notes that the Declaration of Kevin Yoon Lai subject to Defendant's objection, as analyzed earlier. Nevertheless, on review of the moving papers, the Court finds that Plaintiffs fail to show the second element of trespass, that Defendant entered Schiele Property, interfered with Plaintiffs' right of possession of the property or excluded others from the property. The Declaration of Robert Schiele alleges that Defendant only went as far as damaging Adjoining Wall, but the instant motion does not argue, nor does the evidence support, that Defendant entered or interfered with Plaintiffs' possession of Schiele Property. Plaintiffs fail to show their likelihood of success on the merits regarding the trespass claim.

Private Nuisance – The three elements of private nuisance claims is that the alleged nuisance activities cause (1) an interference with the plaintiff’s use and enjoyment of their property, (2) that the invasion must be substantial such that actual damages occur, and (3) that the interference must be unreasonable. (See, e.g., Wilson v. Southern California Edison Co. (2018) 21 Cal. App. 5th 786, 802-03) (As to the unreasonable prong, the interference “must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’”). The standard is objective and is fundamentally a question of fact. (Id.)

 

Plaintiffs argue Defendant interfered and continue to interfere with Plaintiffs' enjoyment and use of Schiele Property by encroaching on the property and intruding on their privacy rights in a "substantial and unreasonable" manner that "would be offensive or inconvenient to the normal person" pursuant to the ruling in Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.

On review of the moving papers, the Court finds that Plaintiffs fail to present evidence showing objective facts to support the third element of private nuisance, "that the interference must be unreasonable". (Wilson v. Southern California Edison Co., supra, Cal.App.5th at p. 802-803.) Although Plaintiffs' motion makes conclusory allegations that Defendant's conduct is unreasonable and provides a cursory citation to Koll-Irvine Center Property Owners Assn. v. County of Orange, supra, 24 Cal.app.4th at p. 1041, it presents no objective facts supporting these allegations. Thus, Plaintiffs fail to show their likelihood of success on the merits regarding the private nuisance claim.

Negligence – A complaint for damages for negligent injury to person or property must allege: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. (Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.) No strict requirements exist for the form of such allegations. Id.

Plaintiffs argue Defendant was negligent in failing to check whether Adjoining Wall was a retaining wall, in increasing the grade on Mirzakhanian Property by four feet, causing a series of cracks to Adjoining Wall, failing to construct an actual retaining wall for Adjoining Wall, and reducing the effective height of the wall and subsequently intruding on Plaintiffs' privacy rights.

On review of the moving papers, the Court finds that Plaintiffs fail to show any evidence supporting the first element of negligence. Plaintiffs make only conclusory allegations and cite only general law concerning negligence claims and fail to show what Defendant's duty of care is. Thus, Plaintiffs fail to show their likelihood of success on the merits regarding the negligence claim.

Intrusion – Regarding the tort of intrusion, "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person . . . the action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person." (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231) (citing Miller v. National Broadcasting Co. (1986) 187 Cal.app.3d 1463, 1482.)

 

Plaintiffs argue they had a reasonable expectation of privacy in their property, and Defendant intruded on such right by grading their property in a manner to allow vision over Adjoining Wall into Plaintiffs' property, including the backyard, pool, and surrounding areas.

On review of the moving papers, the Court finds that Plaintiffs again fail to show any evidence supporting its conclusory contention that Defendant's conduct is highly offensive to a reasonable person. Thus, Plaintiffs fail to show their likelihood of success on the merits regarding the intrusion claim.

The Court finds that Plaintiffs fail to show a likelihood of success on the merits regarding any of their claims in the instant suit. The Court need not further analyze the balance of harms to each party; as stated above, ". . . a court may not issue an injunction if it finds the moving party has no chance of succeeding on the merits, because then an injunction only postpones an inevitable loss on the merits. (14859 Moorpark Homeowners Assn. v. VRT Corp., supra, 63 Cal. App. 4th at p. 1408.) Accordingly, the Court will deny the instant motion.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs Robert Schiele and Diana Brinson Schiele's Motion for Preliminary Injunction came on regularly for hearing on August 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR PRELIMINARY INJUNCTION IS DENIED.

DATE: _______________ _______________________________

JUDGE

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer AVANESIAN MICHAEL

Latest cases represented by Lawyer ZYGELMAN CORINE