Opinion
B228415
12-05-2011
MARCO RIVERA, Plaintiff and Respondent, v. CHUN JA KU, Defendant and Appellant.
Moon & Dorsett, Dana M. Dorsett, John Y. Kim and Jeffrey E. Dorsett, for Defendant and Appellant. No appearance on behalf of Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC056518)
APPEAL from an order of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Reversed.
Moon & Dorsett, Dana M. Dorsett, John Y. Kim and Jeffrey E. Dorsett, for Defendant and Appellant.
No appearance on behalf of Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Chun Ja Ku, appeals from an order granting a preliminary injunction request. The preliminary injunction required defendant to refrain from certain conduct against the business invitees of plaintiff, Marco Rivera, who operates a recycling center in Huntington Park. The trial court did not require plaintiff to post an undertaking. We reverse the order granting the preliminary injunction request.
II. PROCEDURAL HISTORY
A. The Complaint
On September 27, 2010, plaintiff filed a second amended complaint against defendant. Plaintiff alleged the parties entered into a three-year lease agreement on March 31, 2008. Plaintiff further alleged he lost customers because: defendant barred access to his patrons on a number of occasions; defendant failed to maintain common areas; and defendant harassed his customers. Plaintiff described the harassment as: yelling at customers not to park in common areas; making racial slurs to ordinary customers to leave the premises; and photographing them. The second amended complaint sought damages for: constructive eviction; contract breach; nuisance; negligence; negligent and intentional interference with prospective economic advantage; and injunctive relief pursuant to Code of Civil Procedure sections 526 and 527.‘
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
B. The Temporary Restraining Order
1. Moving papers
Also on September 27, 2010, plaintiff sought a temporary restraining order against defendant from harassing his customers. In support of his request, plaintiff cited, among other authorities, sections 527, subdivision (a) and Civil Code section 3368. Plaintiff declared that defendant owns a liquor store on the premises where he operates a recycling center. Under the lease terms, plaintiff is entitled to use the parking lot which he shares with defendant. In order to access and leave the recycling center, customers have to walk across the parking lot. The customers also have to walk by defendant's liquor store. Plaintiff declared that, on September 17, 2010, defendant took photographs of two of his customers. Defendant yelled at the customers as they were sorting items for recycling. Both customers complained about defendant's conduct stating they were afraid and hesitant to return to the recycling center. Plaintiff also cited three separate incidents in September 2010 involving his customers which caused them to complain about defendant's conduct.
Jose Rosales filed a declaration. Mr. Rosales had been plaintiff's customer for about eight months. On September 14, 2010, when he arrived at the parking lot, defendant, (who he described as a 60-year-old Asian woman) began yelling at him. The woman screamed, '"Hey, Mexican, you and your family get out of here!'" Mr. Rosales's wife and two children were present. As they exited their car, the woman screamed, "'Get [out] of here, wetback, I don't want you and your family here anymore!'" As a result of this incident, Mr. Rosales was offended and humiliated. Mr. Rosales decided to no longer recycle at plaintiff's business.
Domingo Jimenez had been a daily customer of plaintiff's for about a year. On September 15, 2010, Mr. Jimenez went to plaintiff's recycling center. The liquor store owner yelled at him, "'[L]eave right now!'" She then took a photograph of him without his consent. Mr. Jimenez felt humiliated and intimidated by the incident. Mr. Jimenez no longer wanted to patronize plaintiff's business. Mr. Jimenez had decided to patronize another recycling center because of the incident.
2. Opposition
Defendant opposed the application for injunctive relief on the grounds of: insufficient notice; the absence of exceptional circumstances warranting extraordinary relief; and insufficient allegations in the second amended complaint. Defendant filed no declaration concerning the merits of plaintiff's temporary restraining order request. According to defendant's points and authorities, plaintiff's business had caused loitering in the parking lot. The recycling business interfered with the operation of her liquor store business.
3. The ruling
On September 27, 2010, the trial court issued a temporary restraining order against defendant directing her to refrain from: hurling racial slurs at plaintiff's customers; taking unauthorized photographs of plaintiff's customers; and ordering plaintiff's customers to leave the premises.
C. The Preliminary Injunction
The matter was set for hearing on an order to show cause why a preliminary injunction should not issue for October 13, 2010. In response to the order to show cause, defendant's points and authorities asserted: plaintiff's declarations were deficient because they did not contain contact or identifying information other than the declarants' names; the declarations were false; and the trial court could not issue the injunction because plaintiff had failed to produce clear and convincing evidence that warranted relief under section 527.6. Defendant declared that the liquor store and recycling center were not located on the same premises. Rather, plaintiff's business was located in the rear portion of the parking lot and the liquor store was in the front. According to defendant, plaintiff did not have the right to operate the recycling center where the liquor store was located. For about three years, a sign had been posted on the side of the building. It informed customers that they should not unload recyclable goods in the parking lot. Rather, they should take the recycling goods to a designated area in the recycling center. Defendant denied taking photograph's of plaintiff's customers or yelling at them. Rather, defendant approached plaintiff's customers when they began sorting and organizing the recycling items in an unauthorized area. This was after plaintiff failed to take action to resolve the issue. Some of the customers apologized to defendant stating they were unaware of where they were supposed to sort the items. Plaintiff admitted taking photographs from inside her store of customers sorting the goods in the parking lot.
According to defendant, Mr. Rosales actually threatened and harassed her. When she went out to get some supplies from her car, she pointed at the sign and told him not to use the parking lot. He then followed her to her car and raised his arm in a threatening manner. He yelled: "'Fucking China, [who] are you to tell me what to do. Fucking bitch! Fucking recycling center told me it's okay!'"
The preliminary injunction hearing was held on October 13, 2010. Defendant's counsel, Dana M. Dorsett, argued section 527.6 controlled the injunction relief request and required a full-blown hearing. At which point, plaintiff's counsel, Aldo A. Flores, reminded the trial court that relief had, in fact, been requested under section 527, subdivision (a). The trial court took the matter under submission and issued a preliminary injunction ordering defendant to refrain from: directing racial slurs at plaintiff's business invitees; taking unauthorized photographs of the invitees while in their presence; and ordering the invitees to leave the premises. The order does not require an undertaking. Defendant filed a timely appeal.
III. DISCUSSION
A. Standard of Review
Our Supreme Court has stated: "[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain in the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. [Citations.]" (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70; accord White v. Davis (2003) 30 Cal.4th 528, 554; Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 443.) A decision to grant or deny a request for a preliminary injunction rests within the sound discretion of the trial court. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, citing IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 69-70.) An order granting a preliminary injunction is reversed if the party challenging the order is able to demonstrate an abuse of discretion in resolving either one of the two factors. (City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 427; Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1300.)
B. The Section 527.6 Argument
Defendant does not contend the trial court exceeded the bounds of reason or contravened uncontradicted evidence in resolving the two applicable points under section 527, subdivision (a). (White v. Davis, supra, 30 Cal.4th at p. 554; Jay Bharat Developers, Inc. v. Minidis, supra, 167 Cal.App.4th at p. 443.) Rather, defendant claims the trial court denied her a full-blown hearing as required by section 527.6 before issuing' a harassment injunction. This contention has no merit. Plaintiff did not obtain the preliminary injunction under section 527.6. Rather, at the October 13, 2010 hearing, defendant's counsel, Ms. Dorsett, argued section 527.6 controlled the injunction relief request. At which point, plaintiff's counsel, Mr. Flores, reminded the trial court that relief had, in fact, been requested under section 527, subdivision (a). The second amended complaint and plaintiff's papers refer to section 527. Thus, the claim the trial court failed to comply with section 527.6 has no merit.
Section 527.6, subdivision (d) provides in part: "Within 15 days, or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued, a hearing shall be held on the petition for the injunction. The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. . . ."
Section 527, subdivision (a) provides: "A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party."
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C. The Undertaking Requirement
Defendant also asserts the preliminary injunction must be reversed for failure to require an undertaking as required by section 529, subdivision (a) which states: "On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant's undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved."
Section 529, subdivision (a) imposes a mandatory duty on the trial court to require a bond. (Neumann v. Moretti (1905) 146 Cal. 31, 32-34 [it is reversible error to issue an injunction without ordering that a bond be posted]; ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10 [the duty to require an undertaking is mandatory not discretionary because the obligation is not contingent upon the parties' request.) Defendant claims that an injunction issued without an undertaking bond as required by section 529, subdivision (a) is void and must be dissolved on the motion of the party enjoined. (See Northpoint Homeowners Assn. v. Superior Court (1979) 95 Cal.App.3d 241, 245-246 [a preliminary injunction without a bond is a nullity]; Oskner v. Superior Court (1964) 229 Cal.App.2d 672, 687 [same]; Miller v. Santa Margarita Land etc. Co. (1963) 217 Cal.App.2d 764, 766 [an injunction is "of no effect" when it does not require the mandatory undertaking]; see also Condor Enterprises, Ltd. v. Valley View State Bank (1994) 25 Cal.App.4th 734, 741 [the failure to comply with the statutory scheme requiring a bond is a jurisdictional defect which preclude holding noncompliant party subject to injunction in contempt].) The error may be asserted even if it was not properly raised in the trial court. (ABBA Rubber Co. v. Seaquist, supra, 235 Cal.App.3d at p. 10; see also Mangini v. J.G. Durand International (1994) 31 Cal.App.4th 214, 216-217 [despite mandatory language, bond requirements may be waived under certain exceptions, otherwise section 529 is strictly construed and injunction is void without an undertaking].) As ABBA Rubber Co. v. Seaquist, supra, 235 Cal.App.3d at page 10 explained, "[an] undertaking is an indispensable prerequisite to the issuance of a preliminary injunction, regardless of whether the party to be restrained has reminded the court to require the applicant to post one, the restrained party does not waive its right to that statutorily-mandated protection by failing to affirmatively request it." Thus the order granting the preliminary injunction must be reversed. Upon remittitur issuance, the trial court retains the authority to reissue the preliminary injunction and require the posting of a bond.
IV. DISPOSITION
The preliminary injunction order is reversed. Defendant, Chun Ja Ku, is to recover her costs incurred on appeal from plaintiff, Marco Rivera.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
MOSK, J.