Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BC360479, David Yaffe, Judge.
Manatt, Phelps & Phillips, Robert H. Platt, Benjamin G. Shatz, and Travis A. Corder for Defendant and Appellant.
Bartko, Zankel, Tarrant & Miller and Glenn P. Zwang; Bird Marella Boxer Wolpert Nessim Drooks & Lincenberg and Joel E. Boxer for Plaintiff and Respondent. Super. Ct. No. BC360479
CHAVEZ, J.
Casden Park La Brea Retail LLC (Casden) appeals from an order of the trial court issuing a preliminary injunction in favor of Ross Dress for Less, Inc. (Ross). The preliminary injunction orders that, during the pendency of litigation between the parties, Casden is enjoined from altering two parking lots which are subject to a lease held by Ross. We affirm the order of the trial court.
CONTENTIONS
Casden contends that the language of the injunction confers on Ross far greater rights than Ross has under the lease. Casden argues that the injunction is too broad in that it: (1) prevents alteration of the parking areas by constructing improvements or structures on the lots; and (2) prevents alteration of the parking areas by “making any other change that causes the Tenant to incur any additional cost or expense.” Casden contends that this language of the injunction must be modified or the injunction vacated.
BACKGROUND
1. The Store
Ross has operated a department store on the corner of Third and Ogden Streets in Los Angeles, California, since 1984. The store was once part of a shopping center with other buildings and retailers. In 1999, Casden purchased the shopping center, subject to Ross’s lease. Casden redeveloped the entire center into apartment houses, with the exception of Ross’s store. The area now consists of Ross’s store and the parking areas, walkways, and delivery area between the store and the public sidewalk.
Ross has three separate and consecutive options to renew its lease for five-year terms starting February 1, 2006. However, Casden has the right to terminate the lease at the end of the first option term on January 31, 2011, for the purpose of redeveloping the property for another use. Casden has provided Ross with notice of termination. Therefore, assuming Casden is able to redevelop the property for a non-retail use, Ross’s lease will expire on January 31, 2011.
2. The Lease
The lease designates all areas within the exterior boundaries of the business center, including parking lots, as “community areas.” The community areas are subject to “the exclusive control and management of [Casden].” The lease grants Casden the general right to make alterations or changes to the community areas and to pass on to Ross “all costs of policing, security protection and traffic direction.” The lease further grants Casden the right to hire a company to operate and maintain the lots and to pass that cost on to Ross. Casden argues that this exclusive control and management of the parking areas translates to Casden bearing sole liability for any injuries that occur on the lots. However, the parties agree that Ross reimburses Casden for at least a portion of the cost of liability insurance.
Despite these provisions of the lease according Casden control of the community areas, other provisions limit Casden’s rights to alter the area surrounding Ross’s store. Ross explains that, because it is in the off-price retail business, free and convenient parking is extremely important to maintaining competitiveness in the market. According to the Declaration of Gary Brannan, Regional Vice President of Real Estate for Ross, “[Ross’s] sales at the Center depend on maintaining an adequate supply of parking for its customers and the convenience and accessibility of that parking. . . . Even the perception that the parking is inadequate and that the customer might not find a place to park can drive the customer away from our store and into a competitor’s store.” Thus, Ross asserts, it negotiated for a large measure of control over alterations in the area surrounding its store. All of the area between the store and the public sidewalks, including parking areas, walkways, and delivery area, is defined in the lease as the “Frozen Area.”
As to the “Frozen Area,” the lease provides:
“‘Landlord shall neither construct buildings on nor alter the existing layout of those two (2) portions of the common area of the Business Center known as hatched areas which are each designated “Frozen Area” on Exhibit A-1 hereto without the prior written consent of the Tenant, which consent shall not be unreasonably withheld, provided that Landlord shall be entitled to restripe the parking area and drives within said portions of the Business Center, and shall further be entitled to change the configuration of the said parking areas and drives, provided such change in configuration of said parking area and drives does not adversely affect Tenant.’”
In addition, Casden may not charge any fee for parking without Ross’s written consent.
3. Misuse of the Parking Lots
Casden explains that the area surrounding Ross’s store has recently experienced an upsurge in growth and traffic. Directly across the street to the north is The Grove, a popular shopping, dining, and entertainment center. Also to the north is a popular Farmers Market. West of the store is a Kmart store, and behind the Kmart store is Hancock Park Elementary School. Many of the surrounding streets contain no parking zones, and consequently parking poses a significant problem in the area.
Parking in the lots surrounding the store is contractually restricted to Ross, its customers and agents, as well as Casden and its agents. Several signs on the lots read “Private Property; No Unauthorized Parking; Ross Store Customers May Park for 2 (Two) Hours Only.” In addition, Casden provides occasional security patrols. The lots are otherwise unsecured.
Casden hired a private company to monitor the parking lots from September 2004 through February 2006. The company reported significant misuse of the lots, including people parking there and going to The Grove, The Farmers Market, Kmart, and the local elementary school; homeless people using the lots; taxicabs using the lots to wait for fares; children using the lots for playing and skateboarding; street vendors using the lots to sell goods and food; charter buses using the lots as staging areas for tourists; car owners using the lots for automotive maintenance; student drivers using the lots as training areas; criminals using the lots to attempt to break into parked cars; and people sleeping or having sex in their cars. Casden also hired a private investigator to survey the lots from 10:00 a.m. to 4:30 p.m. on a single day, Saturday, August 12, 2006. In six and a half hours, there were 39 incidents of people parking in the lots and then leaving on foot for other places of business in the area.
4. Casden’s Attempt to Alter the Parking Lots
On August 29, 2006, Casden notified Ross of their plan to alter the parking lots. The plan included placing a short wrought iron fence around the exterior of the lots, planting a landscape hedge of shrubs around the lots, implementing an electronic parking validation system with barrier arms and a ticket booth, placing a second fence around a trash area along the Ogden Drive side of the property, and resurfacing the lots. The proposal did not seek Ross’s consent, but merely informed Ross of the plan and Casden’s intention to charge Ross for the alterations as community area charges. On September 12, 2006, Ross notified Casden that its consent was required and requested further information including the anticipated cost.
According to the declaration of Gregg McGillis, Group Vice President of Real Estate for Ross, this was not the first time that Casden had sought to alter the parking lots. The McGillis declaration states that in 1999, after Casden purchased the business center, it attempted to unilaterally alter the frozen area. The court issued a temporary restraining order and preliminary injunction preventing Casden from doing so. Casden later secured Ross’s consent to make alterations to the frozen area, which became part of an amendment to the lease dated April 13, 2000.
On October 4, 2006, Casden responded with cost figures that totaled approximately $1 million. Ross objected, indicating that it would not consent to the plan because it would adversely affect Ross by reducing the number of ingress and egress points to the lots and impeding traffic circulation by stopping traffic at ticket booths. Despite Ross’s objection, on October 17, 2006, Casden notified Ross of its intention to proceed with the plan.
PROCEDURAL HISTORY
On October 18, 2006, Ross filed a complaint for injunctive and declaratory relief, along with an ex parte application for a temporary restraining order and order to show cause for preliminary injunction. Ross received a temporary restraining order enjoining Casden from altering or attempting to alter the layout or configurations of the parking lots. Casden then filed a peremptory challenge under Code of Civil Procedure section 170.6 to Judge Dzintra Janavs, who had issued the temporary restraining order. The case was reassigned for hearing on the preliminary injunction to Judge David Yaffe.
Casden offered two additional proposals to Ross in an effort to accommodate Ross’s concerns. The new proposals included a fully automated parking validation system or the stationing of security guards on the lots who could issue and collect parking validations. After Ross rejected these proposals, Casden filed an opposition to Ross’s preliminary injunction motion.
On December 4, 2006, the trial court heard and granted Ross’s motion for a preliminary injunction. At the hearing, Casden expressed concern that the court might impose an overbroad injunction based on Ross’s proposed order. The trial court made it clear that it was only considering the initial proposal that Casden was threatening to enact, and did not want to offer any advisory opinions about plans not proposed. After making inter lineations, the court entered the proposed order drafted by Ross. Casden subsequently sought to dissolve or modify the injunction on the grounds that it conferred on Ross rights greater than those bargained for by the parties under the lease. The trial court denied Casden relief, concluding that (1) “the parking lot may not be altered to accommodate a validation system by landlord at the expense of tenant without tenant’s consent”; and (2) “[a]s far as perimeter fence around the parking area is concerned, [Ross] is entitled to object to any alteration of the parking area, including a fence around it, that will adversely affect [Ross’s] business. [Casden] has not proposed a fence that [Ross] is required to consent to.”
Casden timely appealed the court’s preliminary injunction order and order denying its motion to dissolve or modify the preliminary injunction.
DISCUSSION
I. Standard of Review
A. General Rules for Appellate Review of Preliminary Injunction Orders
In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.) “‘The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.’ [Citation.]” (Ibid., quoting Abrams v. St. John’s Hospital & Health Center (1994) 25 Cal.App.4th 628, 636.)
The determination of whether to grant a preliminary injunction generally rests in the sound discretion of the trial court. (14859 Moorpark Homeowner’s Assn. v. VRT Corp, supra, 63 Cal.App.4th at p. 1402.) Discretion is abused when a court exceeds the bounds of reason or contravenes uncontradicted evidence. (Id. at p. 1403.)
B. Casden’s Arguments Regarding De Novo Review
Casden asks us to deviate from the general standard of review for preliminary injunctions and interpret the lease between the parties under a de novo review standard. Casden argues that such a standard of review is appropriate where no issues of fact are presented. In support of this argument, Casden cites Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1680, in which the validity of the preliminary injunction rested on the constitutionality of a regulation preventing family visits for specified state prison inmates. Other cases cited by Casden similarly concerned the constitutionality of laws or statutory interpretation. (See Strategix, Ltd. v. Infocrossing West, Inc. (2006) 142 Cal.App.4th 1068, 1072 [“[t]he issue here is whether the court correctly applied a statutory exception authorizing noncompetition covenants. We will therefore review the court’s order independently”]; San Diego Unified Port Dist. v. U.S. Citizens Patrol (1998) 63 Cal.App.4th 964, 969 [independent review standard applies when review of preliminary injunction involves only the legal question whether the trial court correctly interpreted statutory language]; 14859 Moorpark Homeowner’s Assn. v. VRT Corp., supra, 63 Cal.App.4th at p. 1404 [key issue was a “question of law, namely, whether under Civil Code sections 1358 and 1359, the association could lawfully convey good title to the complex by grant deed to HP Moorpark without first securing a judicial partition of the complex”].)
Casden asserts that here, there are no factual disputes, because “[t]he preliminary injunction rests solely on the trial court’s interpretation of the language of the lease” between the parties. Citing ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1267 and Del Taco, Inc. v. University Real Estate Partnership V (2003) 111 Cal.App.4th 16, 22, Casden states that the trial court’s interpretation of a lease is subject to de novo review.
We do not disagree that, where a preliminary injunction rests solely on the constitutional validity of an underlying law or on the correct interpretation of statutory language, the de novo standard is appropriate. Nor do we disagree with the proposition that the interpretation of a lease, not involving an assessment of extrinsic evidence, is subject to de novo review. However, Casden has failed to convince us that the preliminary injunction at issue was decided solely on the basis of the language of the lease or that de novo review of the injunction order is appropriate here.
First, the trial court has not made a final determination as to the meaning of the lease. “‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in a controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.’ [Citations]. The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. [Citations]. Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it; . . . ’ [Citations.]” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) The trial court has done nothing more than make a preliminary determination – based on the limited resources available to the parties on short notice – that Ross is likely to prevail at trial and that the balance of harm weighed in favor of a preliminary injunction.
As Casden points out, no evidence has been brought before the trial court as to the meaning of the instrument. Indeed, the trial court has not even considered the question of whether the disputed language is ambiguous and thus whether such extrinsic evidence is admissible to interpret the lease. The parties must be permitted to properly present their cases regarding the interpretation of the lease prior to appellate review.
Further, it is apparent that the trial court considered factual evidence in determining these two factors. In making its preliminary determination of the likelihood that Ross will prevail at trial, the court certainly reviewed the language of the lease. However, that language calls for significant factual decisions. Apart from forbidding Casden from constructing buildings and altering the layout of the frozen area, the lease allows Casden to change the configuration of the parking areas “provided such change in configuration of said parking area and drives does not adversely affect Tenant.” The question of whether the proposals submitted to Ross by Casden would be harmful or helpful to Ross was the subject of numerous declarations submitted by both sides. For example, the declaration of Gary Brannan, Regional Vice President of Real Estate for Ross, explained how Casden’s proposed new layout would harm Ross’s business. In addition, the declaration of Richard Choate, an architect, contained Choate’s expert opinion concerning the proposed parking lot redesign. Among other things, Choate concluded that Casden’s proposal would cause traffic congestion and increase dangers to pedestrians. In opposition, Casden argued that Ross would benefit from the implementation of its proposal, in that it would reduce the number of trespassers parking on the lots, thus increasing the number of parking spaces for Ross’s customers and reducing the opportunity for crime and accidents to occur on the lots.
We reject Casden’s position that the preliminary injunction rests solely on the trial court’s interpretation of the lease and that we should apply a de novo review standard to the trial court’s decision at this stage of the proceedings. We therefore follow the well established rule that “‘the ruling on an application for a preliminary injunction rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a showing that it has been abused. [Citations.]’ [Citation.]” (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999.)
II. Likelihood Moving Party Will Prevail on Merits and Relative Harm
Casden has not framed this appeal as a challenge to the trial court’s decisions regarding whether the moving party is likely to prevail at trial or the balance of harm to the parties. Because Casden does not challenge these two discretionary findings, we will not address them. For the purposes of this appeal, we assume that the trial court did not abuse its discretion in determining that (1) Ross will likely prevail on the merits of its case at trial; and (2) the interim harm that Ross is likely to sustain if the injunction were denied is greater than the harm that Casden is likely to suffer from the granting of the preliminary injunction.
III. Injunction Language
Casden asks that we address the breadth of the preliminary injunction. In its reply brief, Casden frames the questions for appellate review as follows:
“(1) whether the Lease allows Casden to charge Ross for the cost of policing and securing the parking lots [using both physical means (i.e. structural) and non-physical means (i.e., human parking patrols or validation personnel) to secure the lots] and, if so, whether the injunction is overbroad because it forbids Casden from charging Ross for either method of securing the lots; and
“(2) whether the Lease allows Casden to make any physical changes to or about the parking lots without first obtaining Ross’[s] consent and, if so, whether the injunction is overbroad in that it forbids Casden from doing so.”
Casden has cited authority which directs that we may properly review the preliminary injunction for overbreadth. (See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1265-1266 [upholding injunction under Code of Civil Procedure, sections 526 and 527.6, but ordering trial court to delete certain language because injunction was broader than necessary to assure that organization would not again make credible threat of violence]; Readylink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1025-1026 [reviewing certain language in a preliminary injunction preventing former employee from disclosing trade secrets under Uniform Trade Secrets Act that appellant objected to as vague, ambiguous, and overbroad].)
Casden cites City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 415 (Redlands), for the proposition that entry of an overbroad injunction is manifest error. Next, Casden quotes from Smith v. Mendonsa (1952) 108 Cal.App.2d 540, 544 (Smith), for the proposition that “[i]t is not the business of courts, either of law or of equity, to remake contracts fairly entered into by persons who are capable of contracting.” In addition, Casden cites Long v. Newman (1909) 10 Cal.App. 430, 440 (Long) as authority for the proposition that it is an abuse of discretion for an injunction to contradict the clear terms of the parties’ contract.
Redlands involved an order under Public Resources Code section 21168.9 entered after a finding of an agency’s noncompliance with the California Environmental Quality Act. Therefore, apart from the quoted language indicating that, in general, an injunction should be limited in scope to the subject of the litigation, the case is irrelevant.
We note that Smith involved an appeal from a final order which “perpetually” enjoined certain acts of the appellants. (Smith, supra, 108 Cal.App.2d at p. 542.) Thus, the appellate court’s language discouraging the interference with contractual relationships came after the litigation had proceeded to final judgment and the trial court presumably had a full opportunity to interpret the contract in question. We reiterate that this is not the context of the current matter, where the trial court has made a preliminary discretionary judgment.
Long is also distinguishable from the facts before us. The case involved the respondents’ efforts to foreclose on property which the appellant had used to secure a loan from the respondents. Appellant initially was awarded a temporary injunction against respondents’ efforts to foreclose on the property. When the court later dissolved the injunction, the appellant claimed that she was entitled to a continuance of the injunction until the amount due on the loan was determined by the court. Upon its determination that the contract between the parties was clear and unambiguous and there was no valid reason excusing the appellant’s failure to comply therewith, the Court of Appeal affirmed the order dissolving the injunction. (Long, supra, 10 Cal.App. at p. 440.) Thus, the litigation had proceeded beyond the court’s initial decision to grant the injunction and was in fact an appeal from the trial court’s later decision to dissolve the initial injunction.
Casden argues that the injunction is overbroad in two ways: first, the injunction prevents Casden from “[a]ltering . . . the parking areas . . . by . . . making any other change that causes [Ross] to incur any additional cost or expense.” Casden argues that this language prevents Casden from policing and securing the lots and charging Ross for these costs, as expressly allowed by the lease. Second, the injunction prevents Casden from constructing “improvements or structures” on the parking lots, when the lease only prohibits Casden from constructing “buildings” on the lots without prior written consent of Ross. We discuss each of these claims separately below, and conclude that no action is warranted to clarify the injunction.
1. Prohibition on Any “Altering of the Parking Areas . . . by . . . Making Any Other Change that Causes [Ross] to Incur Any Additional Cost or Expense”
Casden claims that this language arguably, on its face, prevents Casden from erecting a perimeter fence around the lots; deploying parking lot security officers; posting parking attendants in the lots who could pass out tickets to incoming drivers to be validated; or essentially implementing any form of parking validation system. Casden objects that these actions could be construed as violating the injunction even though they do not involve any change to the lot’s physical configuration.
We decline to find that the trial court has abused its discretion in enjoining Casden from making these alterations to the parking area pending the outcome of the litigation. We reiterate that the lease provides that Casden may only change the configuration of the parking lots provided such change “does not adversely affect [Ross].” A perimeter fence, or a parking attendant booth, could reasonably be considered to create changes in configuration that might adversely affect Ross. In addition, Ross presented evidence that the results of Casden’s proposed parking reconfiguration – including the erection of a perimeter fence – would harm its business in that it would limit the number of ingress and egress points, create dead-ends, and adversely affect traffic circulation. The trial court did not abuse its discretion in determining that the balance of possible interim harm thus weighed in favor of enjoining Casden from implementing such changes.
The question of whether the language of the lease, which prevents Casden from changing the configuration of the lots if such changes adversely affect Ross, was intended to include perimeter fencing and/or planting, has not yet been adjudicated. Again, our determination at this point is limited to a ruling that the trial court did not abuse its discretion in making its preliminary ruling that the position advocated by Ross is likely to prevail at trial and that the balance of harm weighed in favor of granting the injunction.
As to Casden’s concern about the deployment of parking lot security officers, we find that the language of the injunction, which refers only to “altering of the parking areas,” does not, on its face, prohibit the hiring of security patrols. In addition, there is ample support in the record that no one involved – neither Casden, Ross, nor the trial court – understood the preliminary injunction to prevent Casden from monitoring the lots with security guards. Casden points out that during briefing, Ross itself argued that implementing parking lot security patrols would not involve alteration of the parking lots and thus should not fall “within the ambit of the proposed preliminary injunction.” In addition, the trial court itself suggested parking patrols as an alternative to Casden. Casden acknowledges that it has been using parking patrols on the lots. In its brief, Ross concedes that the issue of parking patrols is not the subject of the preliminary injunction.
Because the parties agree that parking lot security patrols are not addressed by the preliminary injunction, we find it unnecessary to clarify the order. To the extent that the order prevents Casden from constructing a perimeter fence, changing how cars may enter or leave the lots, or changing the configuration of the lots, we find that the trial court has not abused its discretion in enjoining those actions.
2. Prohibition on “Constructing Improvements or Structures” on the Lots
Casden acknowledges that the lease prevents it from constructing buildings on, or altering the existing layout of, the lots. However, Casden argues that the language of the preliminary injunction, which prevents Casden from constructing any improvements or structures on the lots, prohibits actions that Casden should be allowed to do, such as erecting a perimeter fence or installing automated arms at the existing ingress/egress points of the lots. Casden asks that we strike the words “improvements or structures” and replace them with the word “buildings,” thus making it clear that a fence around the lots is permitted.
In response to Casden’s arguments asking for a similar modification, the trial court stated, “[a]s far as a perimeter fence around the parking area is concerned, [Ross] is entitled to object to any alteration of the parking area, including a fence around it, that will adversely affect [Ross’s] business.” As discussed above, the language of the lease, which indicates that a change in configuration is only permitted provided it does not adversely affect Ross’s business, supports this conclusion. In addition, Ross presented declarations to the trial court indicating that these proposed changes in configuration would, in fact, have an adverse impact on its business. For these reasons, the trial court did not abuse its discretion in enjoining the construction of a perimeter fence, or the installation of automated arms, pending the outcome of the litigation.
Because we have concluded that the preliminary injunction ordered by the court is not overbroad, and has not altered the rights of the parties, we decline to address in detail Casden’s argument that the injunction is mandatory, as opposed to prohibitory, and thus deserves particularly close scrutiny. Casden argued that because the injunction caused Casden to lose rights that it formerly held, and granted Ross newly obtained rights, it should be considered a mandatory injunction. (See, e.g., Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618 [reversing order granting preliminary injunction prohibiting defendants from removing physician from position where physician held no presdisciplinary procedural protections before he could be removed from administrative posts].) Mandatory injunctions are rarely granted and subject to stricter scrutiny on appeal. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493 [trial court abused its discretion in granting preliminary injunction ordering removal of fence where plaintiff had no reasonable probability of success on the merits]; Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 447 [trial court abused its discretion in granting insured a mandatory preliminary injunction prohibiting insurer from denying insured’s request for coverage].) Upon review of the background facts, the lease, and the evidence submitted by the parties, we have determined that the preliminary injunction is not overbroad. Thus, it properly preserves the status quo pending outcome of the litigation and does not deserve the close scrutiny reserved for mandatory injunctions.
DISPOSITION
The order is affirmed. Appellant shall pay the costs of appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.