Preview
VY' I il
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DANIEL V. KOHLS (State Bar No. 167987) p j^ t TY^l^'''^
JULIA M. REEVES (State Bar No. 241198) t , V4 [ J [ J S F D
HANSEN, KOHLS. JONES, SOMMER & JACOB. LLP ,^
1520 EURIEKA ROAD, SUITE 100 ' 2 NOV 20 PH (2: 2U
ROSEVILLE, CALIFORNIA 95661
TELEPHONE: (916) 781-2550 ^'^CRAHcNro COURTS
4 FACSIMILE: (916) 781-5339 L)tf T. ,7 5 3
5 Attomeys for Defendants PANAKOSTA PARTNERS, LP;
HLMS, LLC; DIVERSIFIED FOUNDATION. LP
6
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 HAMMER LANE R.V. & MINI-STORAGE, CaseNo. 34-2008-00023098
LP, a California limited partnership, by and
12 through its General Partner. PIAMMER LANE rpP-R-ePeSE-Dj ORDER GRANTING
MANAGEMENT, LLC, a California limited DEFENDANTS' MOTION TO
13 liability company; et al.. DISSOLVE PREUMINARY
INJUNCTION
14 Plaintiffs,
15 vs.
Date: October 4, 2012
16 HLMS LLC, a California limited liability Time: 2:00 p.m.
company; et al., Dept: 53
17 .ludge: Honorable David Brown
Defendants. Complaint Filed: September 25, 2008
18 Trial Date: November 13, 2012
/
19
20 Defendants Panakosta Partners, LP, HLMS, LLC, and Diversified Foundation, LP's Motion
21 to Dissolve Preliminary Injunction came on regularly for hearing on October 4, 2012, in
22 Department 53 ofthe above entitled Court, the Honorable David Brov/n presiding. On the court
23 day prior to the hearing, the Court issued its Tentative Ruling as follovvs:
24 Defendants Panakosta Partners LP, HLMS, LLC, and Diversified
Foundation, LP's Motion to Dissolve Preliminary Injunction is
25 granted.
26 The defendants' request for judicial notice is granted.
27 An unopposed application for preliminary injunction was granted on
December 16, 2008, to preserve the status quo in this limited
28 partnership dispute. The injunction prohibited the defendants from
174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminar)' Injunction
engaging in acts purporting to be those ofthe general partner and
ordered return of all files to plaintiff, and related relief.
2
In this case, the plainliff filed a complaint alleging causes of action
3 for judicial dissolution (which was dismissed on April 26, 2010),
declaratory relief, and permanent injunctive relief The only
4 remaining claim is one for deciaraiory relief.
5 The parties all agree that the plaintiff has dismissed the cause of
action for injunctive relief. (The Court was unable to locate this
6 dismissal in the register of actions.)
7 Pursuant to CCP 533, a court may modify or dissolve a preliminary
injunction upon a showing that there has been a material change in
8 the facts upon which the injunction or temporary restraining order
was granted, that the law upon vvhich the injunction or temporary
9 restraining order was granted has changed, or that the ends of justice
would be served by the modification or dissolution ofthe injunction
10 or temporary restraining order. CCP 533.
11 Defendants contend there is no longer a need for the preliminary
injunction because ofthe following reasons:
12
13 1. The injunction is no longer necessary because the claim for
injunctive relief was dismissed.
14
2. The ends of justice require dissolution ofthe injunction
15 because the injunction has only a penal effect at this lime since
circumslances have changed, and defendants have no reason or
16 intent to violate the injunction.
17 The Court is granting the motion on the ground that a provisional
remedy is no longer appropriale if there is no longer any claim for
18 injunclive relief upon which lhal provisional remedy was based.
Plaintiff admiUed in its opposition to defendant Scofield's motion
19 for summary judgment that the claim For injunclive relief was now
"moot." (See points and authorities in opposition to motion for •
20 summary judgment, page 7, lines 10-12.)
21 Preliminary injunctive relief is only available if a plainliff has the
likelihood of prevailing on the merits of that claim al trial. Robbins v
22 Superior Courl (1985) 35 Cal.3d 63, 70. In the present matter, there
can be no trial on the merits of whether the plainliff is entitled to
23 permanent injunctive relief, since that claim was dismissed.
24 In deciding whether to enter a preliminary injunction, the Courl must
evaluate two interrelated faclors: (1) the likelihood lhat the applicani
25 will prevail on the merits at trial, and (2) the interim harm that the
applicani will likely suffer if preliminary relief is not granied, as
26 compared to the likely harm thai the opposing parly will suffer if the
preliminary injunction issues. (See, e.g., Langfordv. Superior Court
•27 (Gates) (1987) 43 Cal.3d 21, 28.) Thus, inherent in the provisional
remedy procedure is the requirement that the dispute which is
28 actually the subjeci of the injunclive relief is reflected in a complainl
174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction
seeking injunctive relief
2 Plaintiffs argument in opposition to the motion that preliminary
injunctive relief is still viable absent a exisling claim for permanent
3 injunctive relief is nol persuasive.
4 Because the claim for injunctive relief is now moot, given the
dismissal oflhis claim, the preliminary injuriction is dissolved. CCP
5 533. The Court is nol granting the motion on the alternative ground
that defendants "promise nol to violate the injunction."
6
7 Plaintiff requested oral argument and the matter vvas heard by the Court on Oclober 4,
8 2012. Appearing for oral argument were Port J. Parker for plaintiff and David V. Kohls for
9 defendanis. After hearing oral argument, the Court look the matter under submission. On October
10 31, 2012, the Courl issued its ruling as follows:
11 The matter vvas argued and submitted. The matter was laken under
submission.
12
laving laken the matter under submission on 10/04/2012, the Court
13 now rules as follows:
14 SUBMITTED MATTER RULING
15 Having laken the matter under submission, the Court vacates the
Tentative Ruling and now rules as follows:
16
Defendants Panakosta Partners LP, HLMS, LLC, and Diversified
17 Foundation, LP's Motion to Dissolve Preliminary Injunction is
granied.
18 The defendants' requesl for judicial notice is granted.
19 An unopposed application for preliminary injunction was granted on
20 December 16, 2008, to preserve the status quo in this limited
partnership dispute. The injunction prohibited the defendanis from
21 engaging in acts purporting to be those ofthe general partner and
ordered relurn of all files lo plaintiff, and relaled relief
22
In Ihis case, the plaintiff filed a complaint alleging causes of action
23 for judicial dissolution (which vvas dismissed on April 26, 2010),
declaratory relief, and permanent injunclive relief As conceded by
24 Defendants in the moving papers, [I'Jheonly remaining causes of
action are the Second Cause of Action for Declaratory Relief and
25 the Third Cause of Action for Preliminary injunction.'"
26 The parlies all agree lhat the plaintiff has dismissed the cause of
aciion for permanent injunctive relief (The Court was unable lo
27 locate this dismissal in the regisier of aciions.)
28 Pursuant lo CCP 533, a courl may modify or dissolve a preliminary
174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction
1 injunction upon a showing that there has been a maierial change in
the facts upon which the injunction or lemporaiy restraining order
2 vvas granted, that the lavv upon vvhich the injunction or temporary
restraining order was granied has changed, or lhat the ends of justice
3 would be served by the modification or dissolution of the injunction
or temporary restraining order. Couris possess both inherent and
4 statutory authoriiy to revoke an ongoing injunclive decree due to
materially changed circumstances, or where vacating the injunction
5 would serve the ends of justice; See, e.g. Code Civ. Proc. §533; Palo
Allo-Menlo Park Yellow Cab Co. v. Santa Clara County Transit
6 Dist. (1976) 65 Cal.App.3d 121, 130; see also Sonlag Chain Stores
Co., Ltd. V. Superior Court (1941) 18 Cal.2d 92, 94. That is because
7 changed circumslances may cause an injunction lo no longer be
necessary or desirable: "The facl lhal a preventive injunction
8 purports to be 'permanent' or 'preliminary' in form is not significant.
Unforeseeable circumstances necessitating modification or
9 dissolution oflhe injunction may occur in either case. When the
decree is continuing in nalure, direcled al future events, il must be
10 subjeci lo adaptation as events may shape the need." Union
Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 606. It appears
11 clear lhal the injunclive remedy should nol be exercised absent a
showing that the prohibited acts are likely lo be repealed in the
12 future. Ci.sneros v. U.D. Registry Inc. (1995) 39 Cal.App.4lh 548,
574. Where there is no reasonable possibility the enjoined activity
13 will or can recur, the injunction should be dissolved. Engle v. City of
Oroville (1965) 238 Cal.App.2d 266, 270 ["Equity acts in the
14 preseni tense and not in the past tense. (Mallon v. City of Long
Beach, 164 Cal.App.2d 178, 188 [330 P.2d 423J.) An injuncfion vvill
15 not be granted vvhere, at the time of the hearing, condilions have so
changed lhat no unlawful acl is Ihreatened. The injunclive power is
16 not wielded as a punishment for pasl acts. It vvill be exercised only
when there is evidence the acts enjoined will probably recur."].
17
Defendanis contend there is no longer a need for the preliminary
18 injunction because of the following reasons:
19 1. The injunction is no longer necessary because the claim for
permanent injunctive relief was dismissed.
20
2. The ends ofjusfice require dissolution oflhe injunction
21 because the injunction has only a penal effect al this fime since
circumslances have changed, and defendants have no reason or
22 intent lo violate the injunction.
23 The Court is granting the motion on the grounds that a provisional
remedy is no longer appropriale if there is no longer any claim for
24 injunctive relief upon which that provisional remedy was based, and
lhal changed circumslances merit the relief sought. The injunclive
25 relief soughl vvilh respecl lo lhe preliminary and permanent
injunctions is identical. Given plaintiffs' recognifion that permanent
26 injunclive relief is no longer necessary, il follovvs that the
extraordinary remedy of preliminary injunctive relief is also entirely
27 unnecessary. Plaintiff admitted in ils opposition lo defendani
Scofield's motion for summary judgment lhat the claim for
28 injunctive relief was now "moot." (See points and authorifies in
174087 [Proposed] Order Granting Defendants' Motion lo Dissolve Preliminary Injunction
1 opposition to mofion for summary judgment, page 7, lines 10-12.)
Furiher, it is noled in the correspondence accompanying the Request
2 for Dismissal, plaintiffs' counsel slated: "Based upon your clients'
renewed and recent assertions lhat they have no intention lo ftirther
3 inierfere vvith General Partner Hammer Lane Management LLC's
exercise of ils rights and obligations under the Agreemeni of Limited
4 Partnership of Hammer Lane R.V. & Mini-Storage LP
("Agreement') and in order to avoid the expense of a lengthy trial in
5 lighl of those represeniations, my clients have agreed to dismiss their
request for permanent injunction at this time." It is noted in
6 Defendants argument in support of its motion to dissolve: "As such,
plaintiffs affirmatively recognize that defendants "renewed and
7 recent assertions" of their intent to nol interfere with Management's
righls is a change in circumstance rendering the injunction no longer
8 necessary,..."
9 Further, the landscape of the case has changed since 2008. Given the
change in circumstances, the dissolution serves the ends ofjusfice.
10 Since 2008, the Courl of Appeal issued its decision in the case of
Panakosta, Partners, LP v. Hammer Lane Management, LLC, (2011)
11 199 Cal. App. 4th 612, in which a chronology of events details the
events since 2008, and the filing of the complainl. In June 2009,
12 Panakosta filed a cross-complaint, asserting lhat Hammer Lane
Management [Management] had breached the partnership agreemeni
13 and ils fiduciary duliesj and engaged in conversion and fraud. The
cross-complainl also stated a cause of aciion for "deiermination of
14 partner's buyout price" under lerms ofthe partnership agreement. In
support, Panakosta alleged lhat "[b]y refusing lo submil lo lhe
15 provisions of the buy-out section contained in Section 9 of the
Partnership Agreemeni, [Managemenl] acted in breach ofthe
16 Partnership Agreemeni, violated [its] fiduciary duly, and duty of
loyalty. [Panakosta] respectfully requesl[s] that this Courl stay the
17 dissolution of the Partnership and order the Cross-Defendanls to
participate in the buy-out provisions of Seciion 9 ofthe Partnership
18 Agreemeni." Thereafter, on April 14, 2010, Panakostaftled a
"special proceeding lo elect to purchase partnership interests" under
19 a new case number in order lo buy out Management's partnership
inleresls under seciion 15908.02 of the Corporalion Code.
20 Concurrently with the petition, Panakosta filed a molion for
appointment of appraisers to value the partnership and for a slay of
21 the related dissolution proceeding. On April 27, 2010, Management
ft led an opposition to the pefition for buyout. In the opposition,
22 Management pointed out that no cause of action for judicial
dissolution remained pending. The Court of Appeal concluded that
23 the trial court lacked jurisdiciion to grant a buyout under seciion
15908.02 when no cause of aciion for judicial dissolution was
24 pending. Accordingly, it was determined, the trial courl in this case
properly denied Panakosta's pelilion for buyout of Management's
25 interest afler the cause of action for judicial dissolution was
dismissed. The Court perceives this is a far differenl case than the
26 one filed in 2008.
27 In granting or denying an injunction pendente lite (preliminary
injunction), the trial court determines whether the status quo ofthe
28 parlies should be maintained pending the litigation or the appeal of
174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction
the judgmeni. In making this determination, the trial court considers
whelher the plainliff has a likelihood of succeeding on the merits and
2 whether the plainliff will suffer grealer interim harm from a denial of
the injunction pendente lite than the defendani is likely to suffer
3 from its grant. The granting or denial ofa requesl for a pendente lile
injunction does not determine the merits of the controversy and is
4 reviewed by an appellate court for an abuse of discretion. (Baypoint
Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168
5 Cal.App.3d 818, 823-824) An order granting, denying, dissolving or
refusing to dissolve a preliminary injunction is reviewed under an
6 abuse of discretion standard. {Salazar v. Eastin (1995) 9 Cal.4th
836, 849-850.) In contrast, a permanent injunction is different from a
7 pendente lite injunction. A permanent injunction is an equitable
remedy for certain lorls or wi-ongftil acts ofa defendani where a
8 damage remedy is inadequate. A permanent injunction is a
determination on the merits that a plainfiff has prevailed on a cause
9 of aciion for tort or other wrongful act against a defendant and that
equitable relief is appropriale. A permanent injunction is not issued
10 lo mainlain the status quo but is a final judgment on the merits. (6
Wilkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 250,
251, pp. 216-218.) Art Movers, Inc. v. NI We.sl, Inc. (1992) 3 Cal.
App. 4lh 640, 646. The Court of Appeal in Art Movers concluded
12 lhal Code of Civil Procedure secfion 904.1, stibdivision (f) is nol
applicable lo interlocutory orders dismissing a cause of action for
13 permanent injunclive relief That issue is not preseni in the instant
motion.
14
The preliminary injuncfion is dissolved. Defendanis shall prepare a
15 formal order pursuant lo C.R.C. 3.1312.
16 IT IS SO OR.DERED.
NOV 2 0 2012
18 DATED:
HONORABLE DAVID BROWN
19 SACRAMENTO COUNTY SUPERIOR COURT
20
21 Approved as to form.
22 FREIDBERG & PARKER, LLP
2
By:
24 Attorneys for Plainliff
25
26
27
28
-6-
174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction
Hammer Lane R. V. & Mini-Storage, L.P. v. HLMS, LLC, et al.
Sacramenlo Superior Court Case No. 34-2008-00023098
2
PROOF OF SERVICE
3
I am a citizen of the Uniled Stales and employed in the county aforesaid; I am over the age
4 of eighteen years and nol a party to the within action; my business address is 1520 Eureka Road,
Suife 100, Roseville, California 95661.
5
On the date indicaled below, I served the within copy of:
6
[PROPOSED] ORDER GRANTING DEFENDANTS' MOTION TO
7 DISSOLVE PRELIMINARV INJUNCTION
8 on the interested parties in said aciion via U. S. Mail as follovvs:
9 Port J. Parker Attorneys for Plaintiff
Freidberg & Parker
10 601 University Avenue, Suite 274
Sacramenlo, CA 95825
11 Tel: (916) 929-9060
Fax:(916) 929-9068
12
Carl P. Blaine Allorneys for Defendani Lance Leffler
13 Jacob L. Ouzts
Wagner, Kirkman, Blaine
14 Klomparcns & Youman
10640 Mather Blvd.. Suite 200
15 Mather, CA 95855
Tel: (916) 920-5286
16 Fax:(916)920-8608
17 Kurt Peterson Attorneys for Defendant Sharon Scofield
Sean Ponisl Family Trust
18 Peterson, Mariin & Reynolds, LLP
49 Stevenson Street, 1 Oth Floor
19 San Francisco, CA 94105
Tel: (415) 399-2900
20 Fax: (415) 399-2930
21 > ( / ) BV MAIL - by placing a true copy thereof enclosed in an envelope addressed as set
forlh above. I am readily familiar vvith this office's practice whereby the mail is sealed,
22 given the appropriale postage and placed in a designated mail collection area. Each day's
mail is collected and deposited in a Uniled Slales mailbox after the close of each day's
23 business.
24
T declare under penalty of perjuiy under the laws oflhe State of California that the
25 foregoing is true and correcl. Executed on November 19, 2012, al Roseville, California.
26
McBride
27
28
174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction
Preview
VY' I il li i I Fn DANIEL V. KOHLS (State Bar No. 167987) p j^ t TY^l^'''^ JULIA M. REEVES (State Bar No. 241198) t , V4 [ J [ J S F D HANSEN, KOHLS. JONES, SOMMER & JACOB. LLP ,^ 1520 EURIEKA ROAD, SUITE 100 ' 2 NOV 20 PH (2: 2U ROSEVILLE, CALIFORNIA 95661 TELEPHONE: (916) 781-2550 ^'^CRAHcNro COURTS 4 FACSIMILE: (916) 781-5339 L)tf T. ,7 5 3 5 Attomeys for Defendants PANAKOSTA PARTNERS, LP; HLMS, LLC; DIVERSIFIED FOUNDATION. LP 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 HAMMER LANE R.V. & MINI-STORAGE, CaseNo. 34-2008-00023098 LP, a California limited partnership, by and 12 through its General Partner. PIAMMER LANE rpP-R-ePeSE-Dj ORDER GRANTING MANAGEMENT, LLC, a California limited DEFENDANTS' MOTION TO 13 liability company; et al.. DISSOLVE PREUMINARY INJUNCTION 14 Plaintiffs, 15 vs. Date: October 4, 2012 16 HLMS LLC, a California limited liability Time: 2:00 p.m. company; et al., Dept: 53 17 .ludge: Honorable David Brown Defendants. Complaint Filed: September 25, 2008 18 Trial Date: November 13, 2012 / 19 20 Defendants Panakosta Partners, LP, HLMS, LLC, and Diversified Foundation, LP's Motion 21 to Dissolve Preliminary Injunction came on regularly for hearing on October 4, 2012, in 22 Department 53 ofthe above entitled Court, the Honorable David Brov/n presiding. On the court 23 day prior to the hearing, the Court issued its Tentative Ruling as follovvs: 24 Defendants Panakosta Partners LP, HLMS, LLC, and Diversified Foundation, LP's Motion to Dissolve Preliminary Injunction is 25 granted. 26 The defendants' request for judicial notice is granted. 27 An unopposed application for preliminary injunction was granted on December 16, 2008, to preserve the status quo in this limited 28 partnership dispute. The injunction prohibited the defendants from 174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminar)' Injunction engaging in acts purporting to be those ofthe general partner and ordered return of all files to plaintiff, and related relief. 2 In this case, the plainliff filed a complaint alleging causes of action 3 for judicial dissolution (which was dismissed on April 26, 2010), declaratory relief, and permanent injunctive relief The only 4 remaining claim is one for deciaraiory relief. 5 The parties all agree that the plaintiff has dismissed the cause of action for injunctive relief. (The Court was unable to locate this 6 dismissal in the register of actions.) 7 Pursuant to CCP 533, a court may modify or dissolve a preliminary injunction upon a showing that there has been a material change in 8 the facts upon which the injunction or temporary restraining order was granted, that the law upon vvhich the injunction or temporary 9 restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution ofthe injunction 10 or temporary restraining order. CCP 533. 11 Defendants contend there is no longer a need for the preliminary injunction because ofthe following reasons: 12 13 1. The injunction is no longer necessary because the claim for injunctive relief was dismissed. 14 2. The ends of justice require dissolution ofthe injunction 15 because the injunction has only a penal effect at this lime since circumslances have changed, and defendants have no reason or 16 intent to violate the injunction. 17 The Court is granting the motion on the ground that a provisional remedy is no longer appropriale if there is no longer any claim for 18 injunclive relief upon which lhal provisional remedy was based. Plaintiff admiUed in its opposition to defendant Scofield's motion 19 for summary judgment that the claim For injunclive relief was now "moot." (See points and authorities in opposition to motion for • 20 summary judgment, page 7, lines 10-12.) 21 Preliminary injunctive relief is only available if a plainliff has the likelihood of prevailing on the merits of that claim al trial. Robbins v 22 Superior Courl (1985) 35 Cal.3d 63, 70. In the present matter, there can be no trial on the merits of whether the plainliff is entitled to 23 permanent injunctive relief, since that claim was dismissed. 24 In deciding whether to enter a preliminary injunction, the Courl must evaluate two interrelated faclors: (1) the likelihood lhat the applicani 25 will prevail on the merits at trial, and (2) the interim harm that the applicani will likely suffer if preliminary relief is not granied, as 26 compared to the likely harm thai the opposing parly will suffer if the preliminary injunction issues. (See, e.g., Langfordv. Superior Court •27 (Gates) (1987) 43 Cal.3d 21, 28.) Thus, inherent in the provisional remedy procedure is the requirement that the dispute which is 28 actually the subjeci of the injunclive relief is reflected in a complainl 174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction seeking injunctive relief 2 Plaintiffs argument in opposition to the motion that preliminary injunctive relief is still viable absent a exisling claim for permanent 3 injunctive relief is nol persuasive. 4 Because the claim for injunctive relief is now moot, given the dismissal oflhis claim, the preliminary injuriction is dissolved. CCP 5 533. The Court is nol granting the motion on the alternative ground that defendants "promise nol to violate the injunction." 6 7 Plaintiff requested oral argument and the matter vvas heard by the Court on Oclober 4, 8 2012. Appearing for oral argument were Port J. Parker for plaintiff and David V. Kohls for 9 defendanis. After hearing oral argument, the Court look the matter under submission. On October 10 31, 2012, the Courl issued its ruling as follows: 11 The matter vvas argued and submitted. The matter was laken under submission. 12 laving laken the matter under submission on 10/04/2012, the Court 13 now rules as follows: 14 SUBMITTED MATTER RULING 15 Having laken the matter under submission, the Court vacates the Tentative Ruling and now rules as follows: 16 Defendants Panakosta Partners LP, HLMS, LLC, and Diversified 17 Foundation, LP's Motion to Dissolve Preliminary Injunction is granied. 18 The defendants' requesl for judicial notice is granted. 19 An unopposed application for preliminary injunction was granted on 20 December 16, 2008, to preserve the status quo in this limited partnership dispute. The injunction prohibited the defendanis from 21 engaging in acts purporting to be those ofthe general partner and ordered relurn of all files lo plaintiff, and relaled relief 22 In Ihis case, the plaintiff filed a complaint alleging causes of action 23 for judicial dissolution (which vvas dismissed on April 26, 2010), declaratory relief, and permanent injunclive relief As conceded by 24 Defendants in the moving papers, [I'Jheonly remaining causes of action are the Second Cause of Action for Declaratory Relief and 25 the Third Cause of Action for Preliminary injunction.'" 26 The parlies all agree lhat the plaintiff has dismissed the cause of aciion for permanent injunctive relief (The Court was unable lo 27 locate this dismissal in the regisier of aciions.) 28 Pursuant lo CCP 533, a courl may modify or dissolve a preliminary 174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction 1 injunction upon a showing that there has been a maierial change in the facts upon which the injunction or lemporaiy restraining order 2 vvas granted, that the lavv upon vvhich the injunction or temporary restraining order was granied has changed, or lhat the ends of justice 3 would be served by the modification or dissolution of the injunction or temporary restraining order. Couris possess both inherent and 4 statutory authoriiy to revoke an ongoing injunclive decree due to materially changed circumstances, or where vacating the injunction 5 would serve the ends of justice; See, e.g. Code Civ. Proc. §533; Palo Allo-Menlo Park Yellow Cab Co. v. Santa Clara County Transit 6 Dist. (1976) 65 Cal.App.3d 121, 130; see also Sonlag Chain Stores Co., Ltd. V. Superior Court (1941) 18 Cal.2d 92, 94. That is because 7 changed circumslances may cause an injunction lo no longer be necessary or desirable: "The facl lhal a preventive injunction 8 purports to be 'permanent' or 'preliminary' in form is not significant. Unforeseeable circumstances necessitating modification or 9 dissolution oflhe injunction may occur in either case. When the decree is continuing in nalure, direcled al future events, il must be 10 subjeci lo adaptation as events may shape the need." Union Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 606. It appears 11 clear lhal the injunclive remedy should nol be exercised absent a showing that the prohibited acts are likely lo be repealed in the 12 future. Ci.sneros v. U.D. Registry Inc. (1995) 39 Cal.App.4lh 548, 574. Where there is no reasonable possibility the enjoined activity 13 will or can recur, the injunction should be dissolved. Engle v. City of Oroville (1965) 238 Cal.App.2d 266, 270 ["Equity acts in the 14 preseni tense and not in the past tense. (Mallon v. City of Long Beach, 164 Cal.App.2d 178, 188 [330 P.2d 423J.) An injuncfion vvill 15 not be granted vvhere, at the time of the hearing, condilions have so changed lhat no unlawful acl is Ihreatened. The injunclive power is 16 not wielded as a punishment for pasl acts. It vvill be exercised only when there is evidence the acts enjoined will probably recur."]. 17 Defendanis contend there is no longer a need for the preliminary 18 injunction because of the following reasons: 19 1. The injunction is no longer necessary because the claim for permanent injunctive relief was dismissed. 20 2. The ends ofjusfice require dissolution oflhe injunction 21 because the injunction has only a penal effect al this fime since circumslances have changed, and defendants have no reason or 22 intent lo violate the injunction. 23 The Court is granting the motion on the grounds that a provisional remedy is no longer appropriale if there is no longer any claim for 24 injunctive relief upon which that provisional remedy was based, and lhal changed circumslances merit the relief sought. The injunclive 25 relief soughl vvilh respecl lo lhe preliminary and permanent injunctions is identical. Given plaintiffs' recognifion that permanent 26 injunclive relief is no longer necessary, il follovvs that the extraordinary remedy of preliminary injunctive relief is also entirely 27 unnecessary. Plaintiff admitted in ils opposition lo defendani Scofield's motion for summary judgment lhat the claim for 28 injunctive relief was now "moot." (See points and authorifies in 174087 [Proposed] Order Granting Defendants' Motion lo Dissolve Preliminary Injunction 1 opposition to mofion for summary judgment, page 7, lines 10-12.) Furiher, it is noled in the correspondence accompanying the Request 2 for Dismissal, plaintiffs' counsel slated: "Based upon your clients' renewed and recent assertions lhat they have no intention lo ftirther 3 inierfere vvith General Partner Hammer Lane Management LLC's exercise of ils rights and obligations under the Agreemeni of Limited 4 Partnership of Hammer Lane R.V. & Mini-Storage LP ("Agreement') and in order to avoid the expense of a lengthy trial in 5 lighl of those represeniations, my clients have agreed to dismiss their request for permanent injunction at this time." It is noted in 6 Defendants argument in support of its motion to dissolve: "As such, plaintiffs affirmatively recognize that defendants "renewed and 7 recent assertions" of their intent to nol interfere with Management's righls is a change in circumstance rendering the injunction no longer 8 necessary,..." 9 Further, the landscape of the case has changed since 2008. Given the change in circumstances, the dissolution serves the ends ofjusfice. 10 Since 2008, the Courl of Appeal issued its decision in the case of Panakosta, Partners, LP v. Hammer Lane Management, LLC, (2011) 11 199 Cal. App. 4th 612, in which a chronology of events details the events since 2008, and the filing of the complainl. In June 2009, 12 Panakosta filed a cross-complaint, asserting lhat Hammer Lane Management [Management] had breached the partnership agreemeni 13 and ils fiduciary duliesj and engaged in conversion and fraud. The cross-complainl also stated a cause of aciion for "deiermination of 14 partner's buyout price" under lerms ofthe partnership agreement. In support, Panakosta alleged lhat "[b]y refusing lo submil lo lhe 15 provisions of the buy-out section contained in Section 9 of the Partnership Agreemeni, [Managemenl] acted in breach ofthe 16 Partnership Agreemeni, violated [its] fiduciary duly, and duty of loyalty. [Panakosta] respectfully requesl[s] that this Courl stay the 17 dissolution of the Partnership and order the Cross-Defendanls to participate in the buy-out provisions of Seciion 9 ofthe Partnership 18 Agreemeni." Thereafter, on April 14, 2010, Panakostaftled a "special proceeding lo elect to purchase partnership interests" under 19 a new case number in order lo buy out Management's partnership inleresls under seciion 15908.02 of the Corporalion Code. 20 Concurrently with the petition, Panakosta filed a molion for appointment of appraisers to value the partnership and for a slay of 21 the related dissolution proceeding. On April 27, 2010, Management ft led an opposition to the pefition for buyout. In the opposition, 22 Management pointed out that no cause of action for judicial dissolution remained pending. The Court of Appeal concluded that 23 the trial court lacked jurisdiciion to grant a buyout under seciion 15908.02 when no cause of aciion for judicial dissolution was 24 pending. Accordingly, it was determined, the trial courl in this case properly denied Panakosta's pelilion for buyout of Management's 25 interest afler the cause of action for judicial dissolution was dismissed. The Court perceives this is a far differenl case than the 26 one filed in 2008. 27 In granting or denying an injunction pendente lite (preliminary injunction), the trial court determines whether the status quo ofthe 28 parlies should be maintained pending the litigation or the appeal of 174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction the judgmeni. In making this determination, the trial court considers whelher the plainliff has a likelihood of succeeding on the merits and 2 whether the plainliff will suffer grealer interim harm from a denial of the injunction pendente lite than the defendani is likely to suffer 3 from its grant. The granting or denial ofa requesl for a pendente lile injunction does not determine the merits of the controversy and is 4 reviewed by an appellate court for an abuse of discretion. (Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 5 Cal.App.3d 818, 823-824) An order granting, denying, dissolving or refusing to dissolve a preliminary injunction is reviewed under an 6 abuse of discretion standard. {Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.) In contrast, a permanent injunction is different from a 7 pendente lite injunction. A permanent injunction is an equitable remedy for certain lorls or wi-ongftil acts ofa defendani where a 8 damage remedy is inadequate. A permanent injunction is a determination on the merits that a plainfiff has prevailed on a cause 9 of aciion for tort or other wrongful act against a defendant and that equitable relief is appropriale. A permanent injunction is not issued 10 lo mainlain the status quo but is a final judgment on the merits. (6 Wilkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 250, 251, pp. 216-218.) Art Movers, Inc. v. NI We.sl, Inc. (1992) 3 Cal. App. 4lh 640, 646. The Court of Appeal in Art Movers concluded 12 lhal Code of Civil Procedure secfion 904.1, stibdivision (f) is nol applicable lo interlocutory orders dismissing a cause of action for 13 permanent injunclive relief That issue is not preseni in the instant motion. 14 The preliminary injuncfion is dissolved. Defendanis shall prepare a 15 formal order pursuant lo C.R.C. 3.1312. 16 IT IS SO OR.DERED. NOV 2 0 2012 18 DATED: HONORABLE DAVID BROWN 19 SACRAMENTO COUNTY SUPERIOR COURT 20 21 Approved as to form. 22 FREIDBERG & PARKER, LLP 2 By: 24 Attorneys for Plainliff 25 26 27 28 -6- 174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction Hammer Lane R. V. & Mini-Storage, L.P. v. HLMS, LLC, et al. Sacramenlo Superior Court Case No. 34-2008-00023098 2 PROOF OF SERVICE 3 I am a citizen of the Uniled Stales and employed in the county aforesaid; I am over the age 4 of eighteen years and nol a party to the within action; my business address is 1520 Eureka Road, Suife 100, Roseville, California 95661. 5 On the date indicaled below, I served the within copy of: 6 [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION TO 7 DISSOLVE PRELIMINARV INJUNCTION 8 on the interested parties in said aciion via U. S. Mail as follovvs: 9 Port J. Parker Attorneys for Plaintiff Freidberg & Parker 10 601 University Avenue, Suite 274 Sacramenlo, CA 95825 11 Tel: (916) 929-9060 Fax:(916) 929-9068 12 Carl P. Blaine Allorneys for Defendani Lance Leffler 13 Jacob L. Ouzts Wagner, Kirkman, Blaine 14 Klomparcns & Youman 10640 Mather Blvd.. Suite 200 15 Mather, CA 95855 Tel: (916) 920-5286 16 Fax:(916)920-8608 17 Kurt Peterson Attorneys for Defendant Sharon Scofield Sean Ponisl Family Trust 18 Peterson, Mariin & Reynolds, LLP 49 Stevenson Street, 1 Oth Floor 19 San Francisco, CA 94105 Tel: (415) 399-2900 20 Fax: (415) 399-2930 21 > ( / ) BV MAIL - by placing a true copy thereof enclosed in an envelope addressed as set forlh above. I am readily familiar vvith this office's practice whereby the mail is sealed, 22 given the appropriale postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a Uniled Slales mailbox after the close of each day's 23 business. 24 T declare under penalty of perjuiy under the laws oflhe State of California that the 25 foregoing is true and correcl. Executed on November 19, 2012, al Roseville, California. 26 McBride 27 28 174087 [Proposed] Order Granting Defendants' Motion to Dissolve Preliminary Injunction