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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Montecito Care & More, Inc., et al. v. Dorota Lositzki

Case No: 19CV03247
Hearing Date: Mon Jan 27, 2020 9:30

Nature of Proceedings: Ex Parte Hearing Temporary Restraining Orders & Preliminary Injunction

 

 

 

Montecito Care & More, Inc., et al., v. Lositzki (Judge Sterne)

Case No. 19CV03247

           

Hearing Date: January 27, 2020                                                        

 

HEARING:              Ex Parte Application for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction

 

ATTORNEYS:       

For Plaintiffs Montecito Care & More, Inc., Radoslaw Laszuk, and Malgorzata Laszuk: Matthew M. Clarke, Jason P. Koch, Kelley Clarke, PC

 For Defendant Dorota Lositzki: Beatriz Pimentel Flores

 

TENTATIVE RULING:

 

The application of plaintiffs Montecito Care & More, Inc., Radoslaw Laszuk, and Malgorzata Laszuk for issuance of a temporary restraining order and for issuance of an order to show cause re issuance of a preliminary injunction is denied without prejudice to the filing of a noticed motion for preliminary injunction.

 

 

Background:

 

On June 21, 2019, plaintiff Montecito Care & More, Inc. (MCM) filed its original complaint in this action against defendant Dorota Lositzki asserting four causes of action: (1) trespass; (2) breach of contract; (3) ejectment; and (4) breach of fiduciary duty.

 

On July 8, 2019, MCM filed a “Notice of Errata” stating that the original complaint did not include its exhibit A, a lease, dated January 1, 2016, between MCM and Lositzki (the Lease) for real property located at 717 Santecito Drive, Santa Barbara (the Premises), which is attached to the Notice of Errata. The Notice of Errata also identified a “typographical error.”

 

On July 26, 2019, MCM requested, and the court entered, default against Lositzki.

 

On August 21, 2019, Lositzki filed her motion to set aside the default. At the initial hearing of the motion on September 16, the court noted that the Notice of Errata appeared to effect a substantive change in the nature of the allegations against Lositzki, rendering the default void ab initio. The court continued the hearing on the motion to permit the parties to respond. On October 7, the court granted the motion to set aside the default and granted MCM’s request for leave to file a second amended complaint.

 

On November 27, 2019, MCM filed its verified second amended complaint (SAC). The SAC adds as new parties plaintiff Radoslaw Laszuk and Malgorzata Laszuk. The SAC now asserts eleven causes of action, including requests for damages, and for temporary, preliminary, and permanent injunctive relief: (1) breach of contract; (2) breach of contract—third party beneficiaries; (3) trespass; (4) ejectment; (5) fraud; (6) intentional interference with contractual relations; (7) intentional interference with prospective economic relations; (8) negligent interference with prospective economic relations; (9) slander; (10) trade libel; and, (11) breach of fiduciary duty.

 

On December 2, 2019, plaintiffs filed the instant ex parte application for temporary restraining order and order to show cause regarding preliminary injunction. The proposed order lodged with the application provides the following prohibition against Lositzki: “Pending hearing on the above Order to Show Cause, you, your agents, servants, assigns and all those acting in concert with you, are ordered to vacate the Premises and are hereby restrained and enjoined from making further entrance onto the Premises except as according to the Lease.” (Proposed Order, lodged December 2, 2019, p. 2.) The notice of the application also requests relief to enjoin Lositzki “from any further disruption of Plaintiff’s commercial activities.” (Notice, p. 1.)

 

On December 3, 2019, the court held a hearing on the ex parte application. The court stated that the court needs more information, that the briefing is to be “by code,” that the matter is continued to January 27, 2020, and that the application is neither granted nor denied. (Minute Order, filed Dec. 3, 2019.)

 

On January 3, 2020, Lositzki filed her motion to compel arbitration and to stay this matter.

 

On January 17, 2020, Lositzki filed a supplemental brief re ex parte application. The supplemental brief requests that the matter be arbitrated as set forth in her motion to compel arbitration.

 

No other papers have been filed with respect to the application subsequent to the December 3, 2019, hearing.

 

Analysis:

 

“The trial court considers two interrelated factors when deciding whether to issue preliminary injunctions: the interim harm the applicant is likely to sustain if the injunction is denied as compared to the harm to the defendant if it issues, and the likelihood the applicant will prevail on the merits at trial. [Citations.] However, before the trial court can exercise its discretion the applicant must make a prima facie showing of entitlement to injunctive relief. The applicant must demonstrate a real threat of immediate and irreparable injury [citations] due to the inadequacy of legal remedies.” (Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138.)

 

In the context of the temporary restraining order (TRO), the factors are the same as for a preliminary injunction, but the time frame is different. “A TRO, like a preliminary injunction, is by design to preserve the status quo pending the evidentiary hearing to determine whether to issue a permanent injunction.” (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 334.) Thus, the time frame for determination of TRO issues is to protect the status quo until a hearing on a preliminary injunction. “[T]he burden [is] on plaintiffs, as the parties seeking injunctive relief, to show all elements necessary to support issuance of a preliminary injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

 

As noted above, the actual proposed order seeks only to dispossess Lositzki from the Premises. Plaintiffs argue that MCM’s possession of the Premises is by virtue of the Lease. The Lease is between MCM, as tenant, and Lositzki, as landlord, for possession of the Premises for a ten year term commencing January 1, 2016. (Lease, §§ 1, 3.) The SAC further alleges that MCM provides assisted living facilities and personal care for seniors in the RCFE (Residential Care for Elders) industry, operating at the Premises, which is a 3,186 square-foot home with seven bedrooms and five and one-half bathrooms. (SAC, ¶ 9.) The layout supports six private rooms for residents and a studio (the Studio) that can be used by MCM to board a caregiver. (Ibid.) Lositzki was the CEO of MCM until April 30, 2019, and a caregiver for MCM until June 1, 2019. (SAC, ¶ 11.) MCM was originally solely owned by Lositzki and her husband, but in December 2015 Lositzki and her husband sold a 50 percent interest in MCM to plaintiffs Radoslaw Laszuk and Malgorzata Laszuk (collectively, the Laszuks). (SAC, ¶¶ 15.) At the time of the purchase, Lositzki asked the Laszuks if she could stay in the Studio for a short period of time. (SAC, ¶ 20.) Notwithstanding the more general terms of the Lease, Lositzki turned over the Premises but retained exclusive control over the Studio ever since the Laszuks agreed to let Lositzki stay for two months at the beginning of the business relationship. (SAC, ¶ 22.) Lositzki has been asked to abandon the Studio multiple times during the past 44 months, but has refused each time. (SAC, ¶ 24.) The SAC alleges other issues relating to Lositzki’s conduct which is generally addressed in the notice for the TRO as “further disruption of Plaintiff’s commercial activities,” but this conduct is not further described in the notice or in the proposed order.

 

The application for the TRO is flawed in multiple ways which preclude issuance of the temporary order sought by plaintiffs. First, and most basically, plaintiffs have not shown any urgency or necessity for issuance of a TRO prior to when a hearing might be held on a preliminary injunction. “Although the general purpose of this interim measure is to preserve the status quo pending a determination on the merits of the action, the court ‘also has the power to issue a preliminary injunction that “ ‘ “mandates an affirmative act that changes the status quo” ’ ” [citation], but should do so only in those “ ‘ “extreme cases where the right thereto is clearly established.” ’ ” [Citation.]” (Brown v. Pacifica Foundation, Inc. (2019) 34 Cal.App.5th 915, 925.) Plaintiffs have alleged that Lositzki has occupied the Premises contrary to the terms of the Lease for 44 months. The status quo is Lositzki’s continued possession of the Premises; the requested order is a mandatory injunction to change the status quo pending disposition of the merits. Plaintiffs have not shown that this is an extreme case warranting such relief until the court can address the issues in an appropriate context.

 

Second, plaintiffs have not shown that their legal remedy of an action in unlawful detainer is inadequate. It has long been held that pre-judgment possession is not permitted by a preliminary injunction in an action for ejectment: “[A]n injunction, in an ejectment suit, to restrain the defendant ‘from entering upon’ the land sued for, or ‘from in any manner trespassing thereon,’ is a contradiction in terms, and therefore meaningless; for, in the technical sense of the words, one cannot enter or trespass on land of which he is already in possession.” (Williams v. Long (1900) 129 Cal. 229, 231.) Thus, “ ‘[n]o court can, by a preliminary ex parte order or process, turn even a wrongdoer out of possession.’ ” (Flood v. E.L. Goldstein Co. (1910) 158 Cal. 247, 250.) Final judgment in ejectment “awards possession to the prevailing party because he had title at the commencement of the action and because the losing party had no title, or had no such title as would authorize him to withhold possession.” (Zaccaria v. Bank of America Nat. Trust and Sav. Ass’n (1958) 164 Cal.App.2d 715, 719.)

 

The statutory remedy of unlawful detainer is designed and available to provide a speedy procedure to obtain possession of real property. (See Glendale Fed. Bank v. Hadden (1999) 73 Cal.App.4th 1150, 1153.) The nature of Lositzki’s possession of the Premises is an issue that must be resolved consistent with her due process rights. (See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1041.) There is no showing here that the remedy of unlawful detainer is not an adequate remedy.

 

Third, there is no adequate factual showing made as to anything. The ex parte application is based upon the notice, the argument in the memorandum in support, the verified SAC, and the declaration of attorney Jason Koch. The declaration of Jason Koch relates solely to notice of the ex parte application and does not provide evidence of any substantive fact. “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.” (Code Civ. Proc., § 527, subd. (a).) While a verified complaint is generally permitted to be used to support an application for a preliminary injunction or a temporary restraining order, the fact that the complaint is verified is not a sufficient condition to meet the evidentiary burden for preliminary relief. “Where the complaint is the sole basis of the order, and the complaint is treated as an affidavit, its sufficiency must be tested by the same rules applicable to oral testimony. Conclusions that might stand as a matter of pleading are not competent to justify the issuance of an injunction.” (Bank of America National Trust & Savings Ass’n v. Williams (1948) 89 Cal.App.2d 21, 23.) All of the verifications for the SAC are solely on information and belief and therefore none of the facts are verified as true based upon any verifying party’s own knowledge. (See Code Civ. Proc., § 446, subd. (a); Evid. Code, § 702, subd. (a).) The factual showing is inadequate to support issuance of the temporary restraining order sought here.

 

Accordingly, the application for issuance of a temporary restraining order is denied. The court for the same reason declines to issue an order to show cause re issuance of a preliminary injunction on this application. Separate and apart from the issues discussed above regarding a preliminary injunction to dispossess Lositzki pending disposition of the merits of this action, plaintiffs generally assert complaints relating to Lositzki’s conduct at or around the Premises for which a prohibitory injunction relating to such conduct may potentially be appropriate. (The court expresses no opinion on whether such an injunction may in fact be appropriate.) Any further proceeding on a preliminary injunction would require a complete resubmittal by the plaintiffs to address all of the issues raised above. Because Lositzki has appeared in this action so that an order to show cause is not required to obtain personal jurisdiction, the simpler and more procedurally appropriate approach is to deny the request for an order to show cause and to require plaintiffs, if they so intend, to file a noticed motion for issuance of a preliminary injunction. The ex parte application is denied without prejudice to the filing of such a noticed motion.

 

 
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