Case Number: 20STCV34541    Hearing Date: October 08, 2020    Dept: 85

Shiva Moshtael, et al. v. Yuval Ziv, et al., 20STCV34541

Tentative decision on application for preliminary injunction: granted

Plaintiffs Shiva Moshtael (“Shiva”) and Randy Moshtael (“Randy”) (collectively, “the Moshtaels”) apply for a preliminary injunction enjoining Defendants Yuval Ziv (“Ziv”) and Lokal, LLC (“Lokal”) from using the property located at 2219 San Ysidro Drive, Beverly Hills, California 90210 (“Property”) other than as a residence for Ziv and from renting the Property to third parties as a venue for parties or social gatherings.

The court has read and considered the moving papers,[1] ex parte opposition (no opposition to the OSC was filed), and reply, and renders the following tentative decision.

  1. Statement of the Case
  2. Complaint

Plaintiffs Moshtael commenced this proceeding on September 9, 2020, alleging causes of action for: (1) public nuisance; (2) private nuisance; (3) fraud; and (4) breach of contract.  The Complaint alleges in pertinent part as follows.

            Plaintiffs are the owners of the Property, a single-family residence.  In May 2020, Ziv approached a real estate agent of Compass Realty in Beverly Hills, Sheree Thiel (“Thiel”), to lease a residence in the Beverly Hills area.  Another agent working in the same office, Afa Shafa (“Shafa”), had been engaged by Plaintiffs to find a suitable lessee for the Property, which had recently been vacated by a long-term lessee.  Thiel showed the Property to Ziv, who offered to enter into a one-year lease (“Lease”) of the Property.

The Lease, which was prepared by Ziv and Thiel, was on a California Association of Realtors form and was prepared and signed by use of the Docu-Sign process, which enables parties to achieve the effect of multi-party in-person signing of legal documents by remote electronic means.  Plaintiffs executed the lease as lessors, Ziv executed the lease for Lokal as lessee, and he also signed a guarantee of Lokal ‘s obligations under the lease.

            The Lease provides that the Property is for the sole use as a personal residence by Ziv only.  Ziv did not intend to use the Property as his personal residence.  Hs intention was to advertise and use the Property as a short-term rental venue for persons who wanted to have parties and social events.  Thiel knew of this intent but did not disclose it to Plaintiffs or Shafa.

            Since taking possession of the Property, Ziv has used the premises to rent for party venues, renting the Property to persons whom Ziv knew or should have known are likely to create a nuisance.  As a result, weekly nuisance gatherings have endangered and disturbed the neighborhood residents and the general public by causing vandalism, public indecency, vomiting and urinating in public, fighting, noise, menacing neighbors, brandishing firearms, shooting, terrorizing the neighbors by gunshots, threats and fighting, and increasing the risk of spreading Covid 19 in these large gatherings where nobody is wearing masks,

            Plinatiffs learned of these activities on July 16, 2020 and gave written notice and demand for Ziv to cease these activities or the Lease would be terminated.  Ziv defied the notice and told Plaintiffs he intended to continue his activities unabated.  In subsequent weeks, Ziv marketed and sold the use of the Property as venue for rowdy and violent gatherings, despite numerous attempts by the police to intervene and the issuance of citations to various of the attendees.

            On August 26, 2020, at one of the parties arranged and promoted at Ziv, an attendee was shot and killed and another was wounded.  Notwithstanding this incident, Ziv persisted in his promotion and hosting of these nuisance activities on the Property, heedless of the risk of injury, death, and nuisance to the residents, the attendees and the public.

  1. Course of Proceedings

On September 15, 2020, the court granted Plaintiffs’ ex parte application for temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) based on public/private nuisance only.  The court directed Plaintiffs to personally serve Defendants with the Summons, Complaint, moving papers, and the order by September 17, 2020 and to file the proof of service by September 21, 2020.  The court stated Ziv need not be served personally unless his counsel accepted service.

According to a proof of service on file, Lokal was personally served with the Summons, Complaint, moving papers, and the order on September 16, 2020.

  1. Applicable Law

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.  CCP §525.  An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act.  See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[2]  It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right.  Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.  See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623.  The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy.  Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion.  The complaint normally must plead injunctive relief.  CCP §526(a)(1)-(2).[3]  Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief.  See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150.  Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts.  See CCP §527(a).  For this reason, a pleading alone rarely suffices.  Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).  The burden of proof is on the plaintiff as moving party.  O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law.  CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.  The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.  Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable 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.  CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636.  Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.  Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304.  The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.  Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction.  See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

  1. Statement of Facts

            Plaintiffs have owned the Property for several years.  Moshtael Decl., ¶2.  Until November 2019, the Property was leased to a long-term tenant who vacated at the end of the term.  Id.  In May 2020, Plaintiffs listed the Property for rent with real estate agent Shafa of Compass Realty.  Moshtael Decl., ¶3.  Shafa was contacted by Thiel, another real estate agent at Compass for Ziv.  Moshtael Decl., ¶4.

            Thiel represented to Plaintiffs that Ziv was interested in renting the Property as his residence.  Mostael Decl., ¶5.  The Compass agents presented Plaintiffs with a proposed one-year lease and Plaintiffs understood from their agent that the Property would be occupied by Ziv as his personal residence.  Id.

            On May 30, 2020, the parties entered into a lease agreement for the Property (the “Lease”).  Mostael Decl., ¶6, Ex. 1.  The Lease provides for the sole use of the Property as a residence for Ziv.  Id.  Ziv took possession of the Property on July 2, 2020.  Mostael Decl., ¶7.  The named lessee is Lokal, which is a New Mexico company with a mailing address listed as 6360 Van Nuys Blvd., #225, Van Nuys, California 91401.  Weiss Decl., ¶3, Exs. 3, 4.  Lokal is not registered to do intrastate business in California under Corporations Code section 17708.2.  Id.

As early as July 4, 2020, Ziv, instead of using the Property as his personal residence, rented out the property to unknown third parties for one to two days for parties and similar social gatherings.  Moshtael Decl., ¶8; Shayan Decl., ¶¶ 4-7; Goldsmith Decl., ¶3.  On July 4, 2020, for example, there was a large party thrown with more than a hundred guests.  Moshtael Decl., ¶9.  The party-goers were not wearing masks, cars were parked illegally, trash was littered throughout the street and on the Property, and the police were called.  Moshtael Decl., ¶10.  Shiva received calls from the West Los Angeles Police Department (“LAPD”) to abate the nuisance of the party and shut it down.  Moshtael Decl., ¶11.  Ziv was not at the Property for the July 4, 2020 party.  Id.

Since July 4, 2020, Shiva has received dozens of calls from neighbors and LAPD complaining about the parties that have been thrown at the Property.  Moshtael Decl., ¶12; Shayan Decl., ¶¶ 4-7.

On July 10, 2020, another party was thrown at the Property.  Moshtael Decl., ¶13.  Ziv was again not on the Property, which was littered with trash.  Id.  Shiva again received calls from neighbors and the Department complaining about the party.  Id.

Shiva called Ziv on July 10, 2020 and informed him he was in violation of the Lease and that he and Thiel misrepresented his intentions of occupying the Property during lease negotiations.  Moshtael Decl., ¶16.  On July 16, 2020, Shiva gave written notice to Ziv that he was in breach of the Lease and was not allowed to use the Property as a party venue.  Moshtael Decl., ¶17, Ex. 2.

Ziv told Shiva that he was within his rights to continue to rent the house for parties and he intended to do so.  Moshtael Decl., ¶¶ 17-18.  Ziv also told Shiva he has several properties all over the country that he rents from property owners and turns them into event rentals such as large party venues.  Moshtael Decl., ¶19.  Ziv had not previously disclosed this information.  Id.

Plaintiffs never gave permission or agreed to let Ziv use the Property for his commercial use as a party venue.  Moshtael Decl., ¶20.  The police have been called to the Property many times and have issued citations to some people there, but as of Labor Day weekend, the same conduct continues.  Moshtael Decl., ¶21.

On August 26, 2020, Shiva received notice that there was a shooting at the house.  Moshtael Decl., ¶22; Goldsmith Decl., ¶¶ 6-9; Shayan Decl., ¶8.  According to news reports, Ziv rented the home to a group of gang members who threw a party for a member who recently got out of jail.  Moshtael Decl., ¶22.  At the party, there was an argument and a shooting.  Moshtael Decl., ¶23.  A person identified as Deshone Lucas, was killed in the shooting.  Id.

Shiva has received complaints from neighbors that, despite the shooting, the parties have not stopped and continue to cause problems.  Moshtael Decl., ¶24.  On August 31, 2020, Ziv again rented the Property for a party.  Moshtael Decl., ¶25; Goldsmith Decl., ¶8.  On September 2nd, 4th, 6th, and 7th there were more parties and the police were called each time.  Moshtael Decl., ¶26.

The Property has twice been posted as violating Covid-19 ordinances and orders.  Moshtael Decl., ¶27, Exs. 3, 4.  The first post was on August 27, 2020 and was quickly torn down.  Id.  The second post was on September 6, 2020, stating that it was a “final notice” and warned of the possible shut-off of utilities to the Property.  Id.

On September 4, 2020, Plaintiffs’ counsel notified Defendants’ counsel that the Lease was terminated for uncured violations.  Weiss Decl., ¶2, Ex. 2.

  1. Analysis

Plaintiffs apply for a preliminary injunction enjoining Defendants from (a) using the Property other than as a residence for Ziv and (b) renting it out for use as a venue for parties or other social gatherings.  Defendants opposed the ex parte application, but have filed no opposition to the OSC.

  1. Probability of Success

Plaintiffs assert that they have shown a probability of success on their claims for both public and private nuisance.

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.  Civil Code §3479.

  1. Public Nuisance

A public nuisance is one which affects the entire community or neighborhood or any considerable number of people, even if the extent of the annoyance or damage inflicted is unequal among individuals.  Civil Code §3480.  A public nuisance may be abated by any public body or officer authorized thereto by law.  Civil Code §3494.  To be enjoinable, the interference with collective social interests must be both substantial and unreasonable.  People ex rel. Gallo v. Acuna, (1997) 14 Cal.4th 1090, 1105.  An interference is substantial if it causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted.  County of Santa Clara v. Atlantic Richfield Co., (2006) 137 Cal.App.4th 292, 305.

Causation is an essential element of a public nuisance claim.  Citizens for Odor Nuisance Abatement v. City of San Diego, (2017) 8 Cal.App.5th 350, 359.  A plaintiff must establish a “connecting element” or a “causative link” between the defendant’s conduct and the threatened harm.  Id.  Public nuisance liability does not hinge on whether the defendant owns or controls the property or whether the defendant was in the position to abate the nuisance.  Id.  Rather, the critical question is whether the defendant created or assisted in the creation of the nuisance.  Id.

The undisputed evidence shows that Defendants have rented out the Property since at least July 2020 for use as a venue for parties and other large social gatherings.  Moshtael Decl., ¶8.  These gatherings have been large and unruly, resulting in calls to LAPD, neighboring areas being littered with trash and debris, and trespasses onto neighboring properties by attendees.  Moshtael Decl., ¶¶ 10-12; Shayan Decl., ¶¶ 4-7; Goldsmith Decl., ¶3.  In one instance on August 26, 2020, an individual was shot and killed, and another shot and injured, at a party at the Property.  Moshtael Decl., ¶22; Goldsmith Decl., ¶¶ 6-9; Shayan Decl., ¶8.  The Property has twice been posted as violating Covid-19 ordinances and orders, with the second notice warning of a loss of utilities if the violation remains unabated.  Moshtael Decl., ¶27, Exs. 3, 4.  Plaintiffs have terminated the Lease, but Defendants have refused to surrender possession of the Property and continue to use it as a venue for parties as recently as September 7, 2020.  Moshtael Decl., ¶26; Weiss Decl., ¶2, Ex. 2.

Plaintiffs’ evidence shows that Defendants’ use of the Property has been injurious to the enjoyment of life and property for themselves and their neighbors, due to the resulting disorder, vandalism, injury and death, and violation of Covid-19 safety precautions.  The interference is substantial, as the parties and their effects are frequently and consistently interfering with Plaintiffs’ and their neighbors’ enjoyment of their property and threatens their safety.  The interference is unreasonable, as there is little to no social utility to large disruptive gatherings, especially in the midst of the pandemic.  There is also no question that Defendants’ conduct is the cause of the harm, as it is their actions in advertising and renting out the Property that have resulted in the harm.

Defendants argue that Plaintiffs have no standing to maintain an action for public nuisance because they do not reside at the Property and cannot plead an injury especially referable to the use and enjoyment of their land.[4]  Opp. at 2.  Defendants ignore the fact that Plaintiffs are subject to vicarious liability for the acts and injuries occurring on their Property, as well as loss of value to the Property and potential loss of utility service.  App. at 4-5.  These are injuries are especially injurious to Plaintiffs and are sufficient to allow them to maintain a claim for public nuisance.

Plaintiffs have demonstrated a probability of success on their claim for public nuisance.

  1.  Private Nuisance

            Every nuisance not included in the definition of a public nuisance is private.  Civil Code §3481.  For a private nuisance, plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.  The injury, however, need not be different in kind from that suffered by the general public.  Kroll-Irvine Center Property Owners Assn. v. County of Orange, (1994) 24 Cal.App.4th 1036, 1041.  A nuisance which is both private and public may be enjoined at the instance of a private plaintiff.  Mangini v. Aerojet General, (1991) 230 Cal.App.3d 1125, 1138.

            As discussed ante, Plaintiffs have shown that Defendants’ actions have created a nuisance interfering with their enjoyment and use of the Property.  Plaintiffs have shown an injury specifically referable to their use and enjoyment of the Property in the form of liability for acts and injuries occurring on the Property, loss of value of the Property, and potential loss of utility service to the Property.

            Plaintiffs have demonstrated a probability of success on their claim for private nuisance.

 

  1. Balance of Hardships

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that 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.  Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177.  This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.  Id.

If a preliminary injunction is not issued, Plaintiffs and their neighbors will continue to suffer the effects of the nuisance caused by the parties.  Plaintiffs will continue to face potential liability, loss of Property value, and potential loss of utility services.  If a preliminary injunction is issued, Ziv will suffer only monetary harm.  The balance of hardships favors issuance of an injunction.

 

  1. Conclusion

The application for a preliminary injunction is granted.  Plaintiffs have not submitted a proposed preliminary injunction and are ordered to do so within two court days.

Plaintiffs do not discuss the matter of a bond.  The purpose of a bond is to cover the defendant’s damages from an improvidently issued injunction.  CCP §529(a).  In setting the bond, the court must assume that the preliminary injunction was wrongly issued.  Abba Rubber Co. v. Seaquist, (“Abba”) (1991) 235 Cal.App.3d 1, 15.  The attorney’s fees necessary to successfully procure a final decision dissolving the injunction also are damages that should be included in setting the bond.  Id. at 15-16.  While Abba reasoned that the plaintiff’s likelihood of prevailing is irrelevant to setting the bond, a more recent case disagreed, stating that the greater the likelihood of the plaintiff prevailing, the less likely the preliminary injunction will have been wrongly issued, and that is a relevant factor for setting the bond.  Oiye v. Fox, (2012) 211 Cal.App.4th 1036, 1062.  Given the lack of opposition to the OSC, Plaintiffs’ request for a $10,000 bond is excessive.  Plaintiffs shall post a $2500 bond, cash or corporate surety.

[1] Plaintiffs fail to provide tabs for their courtesy copy exhibits and their counsel is admonished to do so for all future filings.

[2] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory.  Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713.  A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.”  Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[3] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint.  CCP §526(a)(3).

[4] Defendants argue that the Lease requires mediation by the parties prior to any civil suit.  Opp. at 2.  For this reason, the OSC is based on the claim for nuisance, not breach of the Lease.