Great news - we won round one!
Here's the Superior Court Judge's tentative ruling made yesterday, August 17, 2011 at 2 pm. It was not contested by the LMA's lawyer, so the hearing on the injunctive matter that was scheduled for today has been cancelled. YAY for our side! ~ martha
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Item 17 2011-00103789-CU-OR

Locke Management Association vs. Martha Esch

Nature of Proceeding:

Filed By:

Motion for Preliminary Injunction

Beede, Stephen J.

Plaintiff Locke Management Association’s Motion for Preliminary Injunction is denied.

Plaintiff is a non-profit corporation whose stated purpose, according to its bylaws, is “to

improve the economic well-being, preserve the cultural and historical integrity, and

manage the Town of Locke.” (Plf. Exh. 1.) The Town of Locke has been included on

the registry of national historic places “because of its unique status as the only town in

the United States built exclusively by the Chinese for the Chinese.” (Opening Memo.

1:3-4.) Plaintiff fulfills its stated purpose in part by enforcing Locke’s covenants,

conditions and restrictions (“CC&Rs”). The CC&Rs include a provision requiring any

owner wishing to sell property in Locke to first give notice to Plaintiff in order to allow

Plaintiff to exercise its right of first refusal to purchase any such property. (CCRs Art.

II, §2.8.) Plaintiff must give notice of any proposed sale to persons identified on the

“Locke Prior Residents, Descendants and Ascendants List” and the “List of Any

Individual that Would Like Notice of Available Properties,” and may assign its first

refusal right to any interested person responding to the Notice to the Lists.

Plaintiff alleges that on March 15, 2011, Defendant Martha Esch purchased property in

Locke despite Plaintiff’s having exercised its right of first refusal to purchase the

property itself. The subject property is designated for residential use only. Plaintiff

also alleges that, upon taking possession of the property, Defendant began making

alterations without Plaintiff’s permission and in violation of the CC&Rs, and using the

property for commercial purposes in violation of the CC&Rs. Plaintiff seeks a

preliminary injunction enjoining Defendant from altering the subject property or using

the subject property for any commercial purposes.

In deciding whether to enter a preliminary injunction, the court must evaluate two

interrelated factors: (1) the likelihood that the applicant will prevail on the merits at trial,

and (2) the interim harm that the applicant will likely suffer if preliminary relief is not

granted, as compared to the likely harm that the opposing party will suffer if the

preliminary injunction issues. (See, e.g., Langford v. Superior Court

(Gates) (1987) 43 Cal.3d 21, 28.) One of these two factors may be accorded greater

weight than the other depending on the applicant's showing. (See Commons Cause v.

Bd. of Supervisors (1989) 49 Cal.3d 432, 447.)

“[T]he party seeking the injunction must present sufficient evidentiary facts to establish

a likelihood that it will prevail.” (Tahoe Keys Property Owners’ Assn. v. State Water

Resources Control Board (1994) 23 Cal.App.4th 1459, 1478.) Here, Plaintiff argues

that Defendant “took possession and commenced to make alterations to the Subject

Property” and that Defendant “is in breach of the Use Restrictions…in that she is

purportedly changing the Subject Property from Residential to Commercial use without

any authority to do so.” (Opening Memo. 7:11-17.) However, Plaintiff presents no

evidence of Defendant’s alleged activities. The only items of evidence Plaintiff

presents in support of its motion are (1) copies of the bylaws of the Locke

Management Association; (2) the Town of Locke CCRs, and (3) a Sacramento County

ordinance describing the Locke Special Planning Area. (Plf. Exhs 1-3.) None of this

evidence pertains to the alleged alterations Plaintiff made to the property.

In opposition, Defendant presents evidence disputing that she has made any improper

alterations to the property. She presents evidence that she repainted a pink wall a

natural brown color that is permitted by the CC&Rs (Esch Decl. ¶3), cut a damaged

post flush with the roadway so it would not be a hazard (Esch Decl. ¶2), cut back

overgrown vegetation and removed rat excrement (Esch Decl. ¶5), and replaced a

hazardous propane tank at the request of the Sheldon Gas Company. (Esch Decl. ¶4;

Benge Decl.) Defendant states that she has made no other changes to the property.

(Esch Decl. ¶6.) Further, Defendant presents evidence that Plaintiff has never issued

any complaint or notice to Defendant that her activities were in violation of the CC&Rs,

as required by Section 8.10 of the CCRs. (Esch Decl. ¶9.)

Based on the evidence presented (and lack thereof), Plaintiff has failed to meet its

burden to show that it is likely to prevail on the merits and that Defendant’s activities

on the property are likely to cause interim harm to Plaintiff. The motion for preliminary

injunction is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule

3.1312 or further notice is required.