Doe v. Cnty. of L. A.

JANE DOE, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

B318070

California Court of Appeals, Second District, Second Division

February 23, 2023

NOT TO BE PUBLISHED

APPEAL from the order of the Superior Court of Los Angeles County No. 21STCV44756, Maurice A. Leiter, Judge. Affirmed.

Jane Doe, in pro. per., for Plaintiff and Appellant.

Collins + Collins, Erin R. Dunkerly and David C. Moore for Defendant and Respondent.

HOFFSTADT, J.

Jane Doe (plaintiff) sued the County of Los Angeles (the County) alleging that one of the County's Sheriff's deputies had exceeded the scope of plaintiff's consent when the deputy made a mirror image of the entire cell phone plaintiff had given the deputy as evidence of an alleged crime. Within days of filing her complaint, plaintiff moved for a preliminary injunction. The trial court denied her motion, and she appeals. Because the trial court did not abuse its discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts^[1]

In July 2019, plaintiff went to the Los Angeles Sheriff's Department (the Department) to report a rape.^[2] On July 2, 2019, plaintiff met with Sheriff's Detective Liliana Jara (Detective Jara). During their meeting, plaintiff reported that she met a man on an app called "WeChat," that he plied her with alcohol, and that he raped her. As proof, plaintiff showed Detective Jara various messages on the WeChat app on her cell phone. As Detective Jara scrolled through the WeChat messages, she saw messages indicating that plaintiff's interactions with the man were consensual, that plaintiff had invited future dates with the man, that plaintiff had become upset with the man because he was continuing to be active on the app after their encounter, and that plaintiff had warned him that she "could make him lose his job."

Plaintiff agreed to let Detective Jara take custody of her cell phone to copy it and provided her the password. Plaintiff signed a receipt form indicating that the Department now had her phone.

The scope of plaintiff's consent is in dispute. Plaintiff insists that she consented to having the Department copy only the "incriminating messages" exchanged between herself and the man she was accusing on WeChat. In contrast, and because it is undisputed that such targeted copying is not a feasible investigative option, Detective Jara maintains that plaintiff consented to having the Department make a mirror image of "any and all data" on the cell phone, and that plaintiff executed a written consent form so indicating. Plaintiff initially denied seeing any written consent form, but later acknowledged signing a form but claimed that her signature on the consent form was forged.

A few weeks later, the Department's High Tech Task Force created a mirror-image copy of all of the data on plaintiff's cell phone, saving it to a USB drive.

In October 2019, plaintiff retrieved her cell phone.

There is no evidence that, at any point after Detective Jara reviewed the messages during the July 2, 2019 meeting, Detective Jara or any other Department employee viewed any of the data on or from plaintiff's cell phone, or otherwise transmitted that data to any third party.

II. Procedural Background

On December 8, 2021, plaintiff sued the County^[3] for the "unreasonable seizure of [her] cell phone data." Plaintiff alleged that the County's conduct (1) violated the California Constitution's protection against unreasonable searches and seizures (Cal. Const., art. I, § 13), (2) violated her right of privacy protected by the California Constitution (id., art. I, § 1), and (3) amounts to a conversion entitling her to relief under a theory of claim and delivery.

On December 17, 2021, plaintiff moved for a preliminary injunction compelling the Department (1) to return the USB drive and any other copies of her cell phone data, (2) not to "read, explore, use, copy, transfer, distribute, disclose, or release any of [p]laintiff's electronic data seized from her smartphone by LASD, including, but not limited to, photographs, videos, app data, messages, emails, notes, and search histories etc.," and (3) to execute an affidavit detailing "any use of [p]laintiff's electronic data seized from her smart phone, including but not limited to when, how, who, and the purpose of the use."

After full briefing and a hearing, the trial court denied plaintiff's motion for a preliminary injunction. The court reasoned that plaintiff had failed to show any "irreparable harm from [the Department's possession of her cell phone data] other than a general 'loss of privacy'" because plaintiff presented "no evidence any unlawful use of [her] data has occurred or is likely to occur." Plaintiff filed this timely appeal.

DISCUSSION

Plaintiff argues that the trial court erred in denying her motion for a preliminary injunction.

I. Pertinent Law

A preliminary injunction is an "extraordinary" form of relief because it is issued "prior to a full adjudication of the merits." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; White v. Davis (2003) 30 Cal.4th 528, 554 (White).) In deciding whether to award such relief, a trial court is to examine "two interrelated factors: (1) the likelihood that the [plaintiff, as the party moving for the preliminary injunction,] will prevail on the merits [at trial], and (2) the relative balance of harms that is likely to result from the granting or denial of the interim injunctive relief." (White, at p. 554; IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70 (IT Corp.).) "These two [factors] operate on a sliding scale: '[T]he more likely it is that [the party seeking the injunction] will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue.'" (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183 (Integrated Dynamic), quoting King v. Meese (1987) 43 Cal.3d 1217, 1227 (King); accord, Fairrington v. Dyke Water Co. (1958) 50 Cal.2d 198, 200 [applying this principle].) Because preliminary injunctions are generally designed to "'preserve the status quo pending a determination on the merits of the action'" (Law School Admission Council, Inc. v. State of California (2014) 222 Cal.App.4th 1265, 1280), an injunction-such as the one requested here-that changes the status quo is reserved for those "'"extreme cases where the right thereto is clearly established."'" (City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291, 299.)

A party is not entitled to have the trial court examine the potential merits and "relative balanc[ing] of harms" factors unless and until there is some evidence that the movant's claim has merit and some evidence that the movant would suffer some harm during the interim period while the case is being litigated. This is why a trial court need not look to the relative balance of harms if the movant fails to show "some possibility" that his claims have merit. (Butt v. State of California (1992) 4 Cal.4th 668, 678 (Butt); Jessen v. Keystone Sav. &Loan Assn. (1983) 142 Cal.App.3d 454, 459; County of Los Angeles Dept. of Public Health v. Superior Court (2021) 61 Cal.App.5th 478, 486.) And this is why a trial court need not look at the potential merits of a claim if the movant fails to show that she "will suffer" or is "threatened" with suffering "irreparable injury" "if an injunction does not issue" (Loder v. City of Glendale (1989) 216 Cal.App.3d 777, 786 (Loder); Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352 (Intel Corp.); E.H. Renzel Co. v. Warehousemen's Union I.L.A. 38-44 (1940) 16 Cal.2d 369, 373; City of Tiburon v. Northwestern Pac. R. Co. (1970) 4 Cal.App.3d 160, 179; cf. King, supra, 43 Cal.3d at pp. 1227-1228 [where there is some evidence of harm, trial court must examine merits]); showing a "mere possibility" of irreparable injury is not enough (Costa Mesa City Employees' Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 305 (Costa Mesa); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292). For these purposes, an injury or harm is "irreparable" (1) if the damages arising from that injury or harm are "estimable only by conjecture and not by any accurate standard" (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1184 (Donahue); Wind v. Herbert (1960) 186 Cal.App.2d 276, 285 (Wind) [damages '"extremely difficult to ascertain"']; DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 721-722; Grail Semiconductor, Inc. v. Mitsubishi Electric &Electronics USA, Inc. (2014) 225 Cal.App.4th 787, 801 (Grail Semiconductor); Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138 ["inadequacy of legal remedies" suffices]), or (2) if, absent the preliminary injunction, the movant will face or is threatened with "continued or repeated" injury from the party to be enjoined (Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242, 250 (Volpicelli); Donahue, at p. 1184; Wind, at p. 285; Grail Semiconductor, at p. 801). The movant must come forward with evidence, either in the form of a verified complaint, "facts shown by affidavit," or some other evidentiary proof; unverified allegations of harm are meaningless. (Code Civ. Proc., § 527, subd. (c)(1); Integrated Dynamic, supra, 6 Cal.App.5th at p. 1185.)

We review the denial of a preliminary injunction for an abuse of discretion (Butt, supra, 4 Cal.4th at p 678; King, supra, 43 Cal.3d at p. 1226), reviewing any subsidiary questions of law de novo (People ex rel. Feuer v. FXS Management, Inc. (2016) 2 Cal.App.5th 1154, 1159 (FXS Management); Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408-409 (Huong Que)) and any...