Judge Lee W. Tsao, Case Number: 23NWCV01094, Date: 2023-04-26 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV01094, Date: 2023-04-26 Tentative Ruling

Case Number: 23NWCV01094 Hearing Date: April 26, 2023 Dept: C

HARROLD v. ENZO ENTERPRISES

CASE NO.: 23NWCV01094

HEARING: 04/26/23

#13

TENTATIVE ORDER

The OSC Re: Preliminary Injunction is CONTINUED to Wednesday, May 10, 2023 at 1:30 p.m. in Dept. SE-C. The TRO issued on April 12, 2023 is re-issued on this date and will remain in effect until after the OSC Re: Preliminary Injunction is heard.

Opposing Party to give Notice.

This action concerning real property (Case No. 23NWCV01094 (“civil action”) was filed by Plaintiffs ROBERT W. HARROLD and MAUREEN M. HARROLD on April 10, 2023. The operative Complaint alleges, in pertinent part: “This lawsuit arises from the actions of Defendants in conspiring to steal Plaintiffs’ home located at 9527 Ives Street, Bellflower, California 90706 (‘Subject Property’ or ‘Home’)…. “ (Complaint ¶9.) Plaintiffs’ Complaint asserts the following causes of action: (1) Fraud/Deceit; (2) Financial Elder Abuse; (3) Quiet Title; (4) Cancellation of Instruments; (5) Declaratory Relief; (6) Slander of Title; and (7) Unjust Enrichment.

The Court notes that an earlier filed unlawful detainer action entitled Smooth Sailing Consulting GP v. Robert W. Harrold (Case No. 23NWUD00349) (“UD action”) was filed on March 9, 2023. A default judgment by clerk was entered on March 9, 2023. A Motion to Set Aside the Default Judgment was DENIED on March 21, 2023. On April 5, 2023, Robert W. Harrold and Maureen M. Harrold’s Motion for Reconsideration to Set Aside the Default Judgment was also DENIED.

As of April 24, 2023, the civil and UD actions have not yet been deemed related/unrelated.

Plaintiffs now seek a preliminary injunction to restrain Defendants from taking possession of the Subject Property pursuant to Writ of Possession issued in the UD action; from taking any steps to enforce the Judgment/Writ of Possession issued in the UD action; and from selling, attempting to auction, sell, cause to be sold, transfer, or further encumber the Subject Property.

In Opposition, Defendants argue that the application should be denied due to Plaintiffs’ failure to properly serve the TRO documents as required by CCP §527(d)(2), and failure to serve the order granting the TRO pursuant to CCP §527(d)(1) and (f). Defendants contend that they “have no notice as to what the allegations served as the basis for the TRO or for the requested preliminary injunction. Defendants can hardly be expected to ‘show cause’ why a preliminary injunction should not issue based on undisclosed claims in an unserved complaint.” (Opp. 7:4-7.) Defendants additionally argue that Plaintiffs cannot establish a probability of prevailing on the merits.

Plaintiffs do not dispute that Defendants have not been served. Plaintiffs assert that they are unable to serve the two entity-defendants because they are non-existent, and that multiple attempts to personally serve Defendant RUTLEDGE have been made, to no avail.

“In case a temporary restraining order is granted without notice… Upon the filing of an affidavit by the applicant that the opposing party could not be served within the time required by paragraph (2), the court may reissue any temporary restraining order previously issued. The reissued order shall be made returnable as provided by paragraph (1), with the time for hearing measured from the date of reissuance. No fee shall be charged for reissuing the order.” (CCP §527(d)(5).)

In the interests of justice, and to ensure that Defendants have notice of the contents of the TRO and Preliminary Injunction request, the Court re-issues the TRO issued on April 12, 2023, and CONTINUES the OSC Re: Preliminary Injunction for hearing on Wednesday, May 10, 2023 at 1:30 p.m. in Dept. SE-C. A Supplemental Opposition may be filed and served by no later than May 3, 2023. A Supplemental Reply may be filed and served by no later than May 5, 2023.

Without pre-judging the merits of Plaintiffs’ application, this Court notes that it could, potentially, have the power to stay the UD action pending resolution of the civil action. (See e.g. , Asuncion v. Sup. Ct. (1980) 108 Cal.App.3d 141, 146-147.) However, in order to do so, Plaintiffs must establish the likelihood of prevailing on claims in this action that would affect title to, or right to possession of, the Subject Property. Due to procedural deficiencies regarding notice, the Court declines to address the substantive merits of Plaintiffs’ application at this time.