Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from preliminary injunction entered in Los Angeles Superior Court, No. BC427946, David P. Yaffe, Judge.
Hanger, Steinberg, Shapiro & Ash, Jody Steinberg and Gigi Gutierrez for Defendants and Appellants Efren Mojica and Maria Mojica.
Jeffer Mangels Butler & Mitchell, Benjamin M. Reznick and Cary J. Laffer for Plaintiffs and Respondents Frank Mercado and Gabriel Ruiz.
CHANEY, J.
On January 13, 2009, an action brought by plaintiffs Frank Mercado and Gabriel Ruiz (collectively Mercado) against defendants Efren Mojica and Maria Mojica (collectively Mojica) was pending in the Los Angeles Superior Court. Mojica apparently had recently acquired title, through a tax sale, to adjoining parcels in a residential neighborhood, Lots 47 through 57 of Tract 8255. Three of those lots (Lots 47, 53 and 54) adjoin the eastern boundary of Mercado’s property on a different street.
Mercado’s action alleges that since 1964, Mercado (or his property) has had an easement to maintain a building on Lot 53; that for about 15 years Mercado maintained a retaining wall on or near the eastern boundary immediately adjacent to his home, in order to hold back the hillside between the properties and to ensure access to plaintiff’s home; and that for more than 10 years Mercado had used parts of Lots 47, 52 and 53, by clearing brush, by placing and using a storage shed, gazebo and fountain, and by using the area to park cars, without obtaining permission from the then-owners.
Lot 52 is not alleged to adjoin Mercado’s property.
The action alleges that a dispute arose between the parties when Mojica claimed that Mercado’s home and improvements encroached on Mojica’s properties. Beginning in mid-November 2009, Mojica began marking what he claimed were the boundaries of his properties, erecting a barrier that restricts Mercado’s access to his home, parking area, and improvements, removing vegetation, and starting to demolish a fence and retaining wall between the properties.
Mercado’s action alleges causes of action for nuisance, trespass, quiet title, adverse possession, prescriptive easement, and declaratory relief, alleging (among other things) that Mercado is entitled to fee title to Lots 53 and 54 by adverse possession; that he is entitled to a prescriptive easement for the use of portions of Lots 47, 52 and 53 to park cars and for his shed, gazebo, and fountain; that the barrier placed by Mojica blocks access to his prescriptive easement; and that Mojica’s acts constitute trespass.
Beginning in mid-December 2009, Mercado sought a temporary restraining order and preliminary injunction, alleging that (among other things) Mojica had begun destroying a retaining wall and fence between the properties, that he had placed a barrier impeding Mercado’s access to his home from his easement on Lot 53, that he had placed a table and occupied a chair immediately outside Mercado’s window, and that Mojica’s acts constitute “self-help remedies” that “dramatically changed the status quo on the respective properties.”
On January 13, 2010, the Los Angeles Superior Court, David P. Yaffe, Judge, issued preliminary injunction, prohibiting Mojica from using self-help pending the trial. Specifically, the preliminary injunction enjoins Mojica from:
a. Altering, damaging or demolishing any wall or structure or landscaping within 50 feet of Mercado’s home that was in existence on December 1, 2009;
b. Erecting any barrier or fence along the claimed boundary with Mercado’s property;
c. Communicating with Mercado except through attorneys;
d. Using what Mojica claims to be his property within 50 feet of Mercado’s home, that he did not use before December 1, 2009.
The preliminary injunction recites that Mercado posted a $50,000 bond.
Mojica appealed from the preliminary injunction on March 8, 2010. Mojica’s appeal contends (1) that the injunction was improperly entered because Mercado did not prove an essential prerequisite to entry of a preliminary injunction—his ability to prevail on the merits at trial; (2) that the evidence shows that Mojica, not Mercado, will suffer greater harm as a result of the preliminary injunction; and (3) that by restricting Mojica’s use of the property, the preliminary injunction constitutes an unconstitutional taking of his property without a public benefit and without compensation.
Discussion
The order granting a preliminary injunction is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6); American Builder's Assn. v. Au-Yang (1990) 226 Cal.App.3d 170, 173, fn. 1.) The standard of review is set forth by our Supreme Court in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109. The court reviews an order granting a preliminary injunction under an abuse of discretion standard, considering whether the trial court abused its discretion in its evaluation of “two interrelated factors”: the likelihood that the plaintiff will prevail on the merits at trial, and the harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction is issued. (Ibid.) Although the evidence with respect to the right for a preliminary injunction may be conflicting, whether to grant the injunction rests within the trial court’s sound discretion. That discretion may not be disturbed on appeal except for an abuse of discretion. (Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242, 247.) It is the burden of the party challenging the injunction to demonstrate the abuse of discretion. (Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 889.)
The trial court’s decision reflects its evaluation of the circumstances shown by the record at the time of its ruling, without adjudication of the dispute’s ultimate merits. (Gallo v. Acuna, supra, 14 Cal.4th at p. 1109; Planned Parenthood Shasta-Diablo, Inc. v. Williams (1994) 7 Cal.4th 860, 879, fn. 10.) The substantial evidence rule applies (City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41, 54); we therefore interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order. (Volpicelli v. Jared Sydney Torrance Memorial Hosp., supra, 109 Cal.App.3d at p. 247.)
An injunction may be granted “[w]hen it appears by... 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” (Code Civ. Proc., § 526, subd. (a)(2); or ““[w]hen it appears, during the litigation, that a party to the action is doing, or threatens or is about to do... 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.” (Id. at subd. (a)(3).) The preliminary injunction in this case comes within these statutory provisions.
1. The trial court did not abuse its discretion with respect to Mercado’s possibility of prevailing on the merits of the underlying dispute.
Mojica appeals from the entry of the preliminary injunction on the ground that Mercado did not prove, and the trial court did not find, that he can prevail on the merits at trial. To support that point, Mojica cites authority that proof of payment of taxes on the disputed property is a prerequisite to a successful adverse possession case. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.)
It is true that to establish the elements required for adverse possession, the claimant must prove (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1305; Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604.) It is also true that no evidence in the record shows Mercado’s ability to show his payment of taxes assessed against his claimed interests in Mojica’s parcels for the past five years.
But adverse possession is not the only claim involved in the underlying dispute. The lawsuit seeks also to establish Mercado’s right to a prescriptive easement over some portions of Mojica’s property. An easement gives a right, less than ownership, to a specific use or activity on the property of another. (Darr v. Lone Star Industries (1979) 94 Cal.App.3d 895, 901.) And a prescriptive easement may be established by proof of the claimant’s use of the property for a period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. For that claim, proof is not required that the claimant paid taxes on the property. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at pp. 1305-1306.)
Mojica therefore is wrong in his contention that entry of the preliminary injunction abused the trial court’s discretion because Mercado has presented no evidence of payment of taxes. Mercado could prevail on claims in the underlying dispute other than adverse possession—such as prescriptive easement, as well as nuisance, trespass, and quiet title—without any such showing. (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1306.) That alone dispels Mojica’s appeal based on the lack of evidence that Mercado paid taxes on the disputed property.
Mojica’s argument is also unsupported by the tacit assumption on which it necessarily rests: Mercado was required to produce evidence sufficient to support a finding in his favor on every element of every cause of action at issue in the case. We disagree. While neither party has addressed that proposition, it plainly does not reflect the law. The correct rule is that in evaluating the likelihood of the plaintiff’s ultimate success on the merits, it must weigh both “how likely it is that the moving party will prevail on the merits” and “the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “The greater the... showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678.) Thus Mercado’s ability to show he has paid taxes on the disputed parcels may be important at trial, but the absence of evidence on that point does not, as Mojica assumes, preclude the preliminary injunction entered here.
2. The trial court’s determination that greater harm would result from its failure to enjoin Mojica’s conduct than from the injunction did not abuse its discretion.
Mojica contends that the trial court abused its discretion by finding that a failure to enjoin Mojica’s conduct would result in greater harm than the harm to Mojica resulting from the injunction. To support that contention, Mojica invokes the doctrine of relative hardships. He argues that the trial court was faced with evidence that Mojica had been served with an Order to Comply issued by the City of Los Angeles, which compelled him to determine whether the wall he was accused of destroying was in fact a retaining wall for which a permit was required, and that if he failed to do so he would be subject to substantial fines. In light of that evidence, he contends, the trial court was unjustified in entering the preliminary injunction.
The general purpose of a preliminary injunction is to preserve the status quo until a final determination of the merits of the action. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) Where a decision on the merits requires a determination of issues of fact, granting a preliminary injunction “does not determine the ultimate rights of the parties [citations], but determines only, in balancing their convenience, the defendant should be restrained from exercising claimed rights pendente lite [citations]; and the appellate court will not... interfere with the order absent a showing of abuse of discretion [citations].” (Environmental Coalition of Orange County, Inc. v. AVCO Community Developers, Inc. (1974) 40 Cal.App.3d 513, 521.)
The “status quo” is “‘the last actual peaceable, uncontested status which preceded the pending controversy.’” (Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995; 14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1408.) In this case, the trial court identified the status quo that required protection as the circumstances that existed before Mojica began disturbing the retaining wall and barricading the parcels in December 2009. As it made clear at the hearing, it did not determine the merits of the underlying case. It decided only that Mojica would not be permitted to use self-help before the issues were determined at trial—by preventing Mercado from using portions of the property he had used, and Mojica had not, before December 2009.
As the court explained more than once, “I’m not going to permit you to do anything to intimidate the plaintiff or to use the self-help, until you win the case. You’re not going to give yourself the relief that you request at the beginning of the case. You’re going to get it only after you win the case.”
Mojica does not contend that the trial court abused its discretion in concluding that the status quo ante should be protected pending trial on the merits, and does not challenge the sufficiency of the evidentiary foundation that supports that conclusion. The trial court did not abuse its discretion.
It is true that Mojica produced some evidence that he contended the court should accept as proof of his entitlement to the disputed property; but the court was under no obligation to accept that proof, or to undertake that determination. And Mojica produced evidence that the City of Los Angeles had ordered him to “[o]btain all required permits and approvals to remove or construct” a six-to-nine-foot-high retaining wall that apparently was on a disputed portion of the property. However, Mojica failed to reply to the court’s request for evidence of what he actually needed to do, or intended to do, about the wall. The court offered to permit Mojica to replace the destroyed wall with one that would comply with City requirements (rather than to simply destroy it with a sledgehammer); but Mojica declined to express any such intention. Missing from Mojica’s presentation, therefore, is any identification of specific harm that will result to Mojica from his inability to use the disputed property until the lawsuit’s underlying merits are resolved.
Mercado’s counsel represented to the court that the wall was built, apparently without permit, sometime before Mercado purchased the property.
Also missing from Mojica’s presentation is any basis for his contention that the trial court abused its discretion by determining that the least harm would result from its injunction to preserve the status quo as it existed before Mojica’s self-help tactics began. In determining whether a preliminary injunction is appropriate, “the trial court must determine which party is the more likely to be injured by the exercise of its discretion [citation] and it must then be exercised in favor of that party [citation].’” (Continental Baking Co. v. Katz, supra, 68 Cal.2d at pp. 527-528.) The preliminary injunction in this case implies the trial court’s determination that the parties’ interests are best balanced by protecting their interests as they were in December 2009. Mojica has failed to demonstrate that the decision reflects any abuse of discretion.
3. The preliminary injunction in this case does not constitute an unconstitutional taking of Mojica’s property.
Mojica charges that the injunction is overbroad, by placing limits on his rights that are not narrowly tailored to prevent intimidating or harassing conduct. And because the preliminary injunction deprives him of unrestricted use of his land, he contends, it constitutes an unconstitutional taking.
We reject out of hand Mojica’s contention that the injunction is overbroad, for he has identified no such overbreadth. He identifies nothing at all that the injunction prohibits him from doing that he contends it should not. Without that, we have nothing to review.
The trial court was similarly frustrated in its efforts to determine exactly what Mojica contended was overly restrictive about the injunctive language. The court repeatedly clarified that the injunction does not limit Mojica from any access to and uses of the property that he had before December 2009.
Moreover, Mojica misperceives the injunction’s purpose with respect to intimidating and harassing conduct. It is true that Mercado sought broad injunctive language directed at alleged threats and harassment, and the trial court expressed some concern about Mojica’s apparent intention to intimidate Mercado, for example by destroying a wall and fence next to Mercado’s home, erecting a barrier across Mercado’s patio, and setting up and using a table and chair near Mercado’s window. But the trial court carefully excluded from the injunctive language any reference to threats or harassment, as unjustified in the preliminary injunction proceeding brought by Mercado. In rejecting Mercado’s suggested language, the court noted that harassment orders are “a separate procedure, ” with specific requirements. (See Code Civ. Proc., § 527.6.) “There are anti-harassment orders that this court issues, it’s a different department from this. It’s a whole different procedure.... So, I don’t want to get into harassment orders here.” Instead, the court required that Mojica stay a distance from the disputed portions of the property to the extent he had not used those areas before December 2009, and required that communications between the parties should be made through their attorneys. Mojica has not shown that any lasting or irreparable harm will result from these pendente lite restrictions.
Nor does the preliminary injunction constitute a taking of private property without public use or benefit, and without compensation, in violation of the Fifth Amendment to the United States constitution. For this expansive proposition, Mojica offers no substantial analysis, resting his argument on a case that has little or nothing to do with the subject of his contention. (City of Needles v. Griswold (1992) 6 Cal.App.4th 1881, 1888.)
In City of Needles v. Griswold, supra, 6 Cal.App.4th 1881, the city had terminated a license agreement under which Griswold had operated a golf course on city-owned property. The city took over the operation of the golf course, using more than 60 golf carts and other personal property owned by Griswold, and obtaining a preliminary injunction preventing them from recovering or using the personal property that the city was using to operate the golf course. In evaluating Griswold’s appeal from the injunction, the Court of Appeal identifies the issue in that case in a way that clearly distinguishes it from the claim Mojica makes here: “Griswold challenges only that portion of the preliminary injunction which permits the City to assume possession of their personal property.” (Id. at p. 1887.)
The facts of that case bear little resemblance to ours, and its issues are of little relevance to the principles at play here. Griswold’s appeal involved only personal property, for he claimed no interest in the city’s real property. But here, the challenged injunction involves only real property; no personal property is involved. In City of Needles v. Griswold, the challenged taking was done by and for the benefit of a public agency, to enable it to operate the golf course. But here, the injunction that is challenged as a taking does not take any property for the use or benefit of any public agency; instead it simply prohibits Mojica from using portions of the disputed parcels that he had never used before, in order to prevent self-help conduct that would threaten the court’s ability to render justice at an eventual trial on the merits.
Mojica’s argument is not advanced by his citation to Cox Cable San Diego, Inc. v. Bookspan (1987) 195 Cal.App.3d 22. That case—an appeal from a denial of a mandatory injunction—simply confirms that an injunction that constitutes “a permanent physical occupation” of property may amount to a taking of private property. (Id. at p. 27.)
The property here is privately owned; no public entity is vying for its ownership or possession, and no public interest is involved, except the interest of the courts in the fair administration of justice. Mojica was unable to persuade the trial court that his interests would suffer permanent injury from the restrictions on his use of the disputed portions of the property pending trial. On appeal, he has not shown any error in that determination. Nor does Mojica suggest that the trial court lacked discretion to determine that its injunction was appropriate, or that the record is insufficient to support a determination that it was necessary to protect the parties’ rights to a fair adjudication of their interests at the eventual trial. Mojica’s showing thus fails to meet his burden of showing an abuse of discretion—that is, that the trial court’s determination to grant the preliminary injunction “‘“exceeded the bounds of reason or contravened the uncontradicted evidence.”’” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.)
The Fifth Amendment to the United States Constitution guarantees that private property shall not “be taken for public use, without just compensation.” By invoking that provision, Mojica contends that the preliminary injunction in this case constitutes such a taking. The general test for determining whether the application of a law that restricts the use of a privately owned property constitutes a taking is whether, on balance, the restriction “substantially advance[s] legitimate governmental goals.” (Agins v. City of Tiburon (1980) 447 U.S. 255, 261 [involving application of zoning restrictions to private property].)
While Mojica does not address whether the record provides evidence sufficient to support the trial court’s implied finding on this issue, it plainly does. The governmental issue at stake is nothing less than the court’s ability to render justice. As courts have held in similar contexts, where the parties have the right to a judicial determination of their disputed issues, that right “would be meaningless if the court lacked the power to preserve the status quo pending its ultimate decision in the matter.” (Associated Cal. Loggers, Inc. v. Kinder (1978) 79 Cal.App.3d 34, 45.) And preservation of the status quo pending a judicial determination of competing property rights will virtually always deprive one party or the other (or perhaps both) of an unrestricted use of the claimed right to use the property without restriction.
Yet the alternative to maintenance of the status quo is often chaos, or at least destruction of the court’s ability to perform its central task: rendering justice. The court need not—and often cannot—permit both parties to exercise what they claim to be their rights to use the disputed property, until their rights are adjudicated on the merits. In the meantime, there is a substantial governmental interest at stake in the court’s preservation of the peace, and of its ability to do justice.
As the court told Mojica, he could continue to use the property as he had before the dispute arose; “that’s the status quo that this court is going to maintain until a final judgment in this case changes it. Nobody is going to go in and use what they claim to be their property, which... claim was not made before December 1st and the use was not made before December 1st. That’s going to provoke violence, it’s going to provoke breaches of the peace, it’s going to require the police to be called, and the court will not tolerate that kind of conduct during this litigation.”
The preliminary injunction in this case substantially advances that legitimate governmental goal. That fact dispels Mojica’s contention that the court’s temporary prohibition against his use and enjoyment of some disputed portions of his claimed property, during the period before his rights can be adjudicated, constitutes an unconstitutional taking. (Agins v. City of Tiburon, supra, 447 U.S. at p. 261.)
Disposition
The order entering the preliminary injunction from which the appeal is taken is affirmed. Respondents to recover their costs on appeal.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.