Menis v. Ndex W., LLC

KENNETH MENIS et al., Plaintiffs and Respondents, v. NDEX WEST, LLC et al., Defendants and Appellants.

F065025

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed: May 30, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. S-1500-CV-27517)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge.

Barrett Daffin Frappier Treder & Weiss, Edward A. Treder and Darlene P. Hernandez; Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little, Robert A. Bailey, and Robin C. Campbell for Defendants and Appellants.

Law Offices of Michael D. Finley, Michael D. Finley for Plaintiffs and Respondents.

National Housing Law Project, Kent Qian and Brittany McCormick; Housing and Economic Rights Advocates, Elizabeth Letcher for California Homeowner Bill of Rights Collaborative and Housing and Economic Rights Advocates as Amici Curiae on behalf of Plaintiffs and Respondents.

Defendants appeal from orders granting preliminary injunctions against them, but failing to require plaintiffs to post a bond as required by statute. We conclude the orders are invalid due to the lack of a bond requirement, and one is also invalid due to the failure of the order to specify what conduct is enjoined. Accordingly, we reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiffs sued defendants, NDEx West, LLC, Wells Fargo Bank, Wachovia Mortgage, a division of Wells Fargo Bank, and four individuals, alleging 10 causes of action arising out of defendants' attempt to conduct a nonjudicial foreclosure sale of plaintiffs' residence. The same day they filed their complaint, plaintiffs presented an ex parte application for a temporary restraining order (TRO) and an order to show cause (OSC) re preliminary injunction against NDEx West only, seeking to enjoin it from conducting the trustee's sale. The trial court granted the TRO, restraining NDEx West from proceeding with the trustee's sale of plaintiffs' property, pending further hearing, and setting the matter for an OSC hearing. Wells Fargo¹ filed a response opposing issuance of a preliminary injunction; NDEx did not file any opposition.

The matter was heard on March 2, 2012, with plaintiffs and Wells Fargo appearing at the hearing. On that date, the trial court entered a minute order granting the request for a preliminary injunction against NDEx West and enjoining it from proceeding with the foreclosure sale. The minute order did not mention a bond or undertaking. The trial court took the matter under submission as to the remaining defendants. On March 5, 2012, the trial court issued a minute order granting a preliminary injunction as to all remaining parties. The order stated: "No bond is necessary; the property is sufficient security." (Capitalization omitted.) On March 8, 2012, the trial court entered a formal order, signed by the judge, enjoining NDEx West from proceeding with the trustee's saleof plaintiffs' property, which was then set for March 12, 2012. The formal order did not mention Wells Fargo or the individual defendants; it did not require plaintiffs to post a bond or undertaking.²

Wells Fargo and NDEx West appeal from the three orders granting plaintiffs' request for a preliminary injunction. They contend the order against Wells Fargo is void because it fails to describe what activities are enjoined, all three orders are void because they failed to require a bond or undertaking as mandated by statute, and, even if the trial court had discretion to issue a preliminary injunction without a bond or undertaking, it abused its discretion by doing so because there was no evidence in the record to support a finding that the real property in issue was sufficient security to dispense with a bond.

Plaintiffs contend NDEx West waived its objections to the preliminary injunction by failing to file opposition to plaintiffs' request, both NDEx West and Wells Fargo waived any objection to the lack of a bond or undertaking by failing to file a motion to object to the amount of the bond pursuant to Code of Civil Procedure § 995.930, defendants failed to demonstrate the amount of bond or undertaking needed to protect them, and the trial court may have declined to require a bond or undertaking because it properly determined plaintiffs were indigent. The amici curiae brief in support of plaintiffs' position argues the trial court properly denied a bond because defendants failed to demonstrate they would be harmed by the preliminary injunction, their security interest in the property was sufficient to protect them from harm, and the trial court had inherent discretion to waive the bond requirement.³

DISCUSSION

I. Standard of review

Generally, the trial court's decision to issue a preliminary injunction is reviewed for abuse of discretion. (In re Pham (2011) 195 Cal.App.4th 681, 685.) Questions underlying the preliminary injunction, however, are reviewed under the standard appropriate to the particular question. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136.) Findings of fact are reviewed for substantial evidence; the interpretation and application of statutory or constitutional law are reviewed de novo. (Ibid.; Pham, supra, at p. 685.)

II. Failure to specify what conduct is enjoined

The only order entered against Wells Fargo was the March 5, 2012, minute order, which states: "The court finds as follows: [¶] Preliminary injunction is granted as to all remaining parties. No bond is necessary; the property is sufficient security." (Capitalization omitted.) The order does not describe any conduct of Wells Fargo or the other remaining defendants that is enjoined.

"The party bound by an injunction must be able to determine from its terms what he may and may not do ...." (Brunton v. Superior Court (1942) 20 Cal.2d 202, 205.) "A directive 'in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' [Citation.]" (In re Berry (1968) 68 Cal.2d 137, 156 (Berry).) "An injunction must be definite enough to provide a standard of conduct for those whose activities are proscribed, as well as a standard for the ascertainment of violations of the injunctive order by the courts called upon to apply it." (Pitchess v. Superior Court (1969) 2 Cal.App.3d 644, 651 (Pitchess).) "[I]n determining whether a defendant has been given sufficient notice of the conduct proscribed, the language of the injunction must be interpreted in light of the record which discloses the kind of conduct that was sought tobe enjoined." (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 534 (Continental Baking).)

Continental Baking involved a dispute over the scope of an easement for ingress and egress over the defendant's property. (Continental Baking, supra, 68 Cal.2d at pp. 518-520.) The plaintiff contended it was permitted to use the easement to reach its loading area and the defendant contended the easement only permitted entry to another area. (Id. at p. 517.) A preliminary injunction was entered, restraining the defendant from erecting any structure on, obstructing, or interfering with the plaintiff's use of the easement. (Id. at pp. 533-534.) The defendant appealed.

The defendant contended the preliminary injunction was void for uncertainty and overbreadth. The deed that granted the easement specifically gave the defendant the right to build a structure over the easement, supported on posts and walls, and the injunction seemed to conflict with that right. Construing the injunction in light of the record, the court concluded: "The order of the trial court in this case was clearly intended to preserve the status quo pending a trial on the merits. In the light of the record we must conclude that [the defendant] has been given proper notice as to what conduct has been enjoined; he must not obstruct ingress and egress from the driveway to [the defendant's] concrete loading area. When viewed in this light the injunction is neither uncertain nor overbroad." (Continental Baking, supra, 68 Cal.2d at p. 534.)

In Continental Baking, the court interpreted the language of the order defining the prohibited conduct in light of other documents in the record indicating what relief was requested. Here, in contrast, the March 5, 2012, minute order contained no language at all defining the proscribed conduct, so there was no ambiguous language to interpret in light of plaintiffs' request for relief. Further, the OSC did not request an injunction against Wells Fargo, so there is nothing in the request to provide guidance regarding what conduct of Wells Fargo the trial court intended to restrain.

Plaintiffs contend the March 5, 2012, order merely extended the March 2, 2012, order to the other defendants, "so that there is perfect clarity as to the specific activity that is enjoined, stayed, or prohibited." The March 5 order, however, made no reference to the March 2 order; it named the defendants other than NDEx West and stated that the "[p]reliminary injunction is granted as to all remaining parties." (Capitalization omitted.) The conduct of Wells Fargo and the other defendants that is restrained is not described in the order or in any application for a preliminary injunction. The nature of the conduct enjoined is not clear enough to permit enforcement.

"An injunction which forbids an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application exceeds the power of the court." (Pitchess, supra, 2 Cal.App.3d at p. 651.) An order made in excess of jurisdiction is void and cannot be enforced by contempt. (Berry, su...