KSHIRSAGAR vs NABER, et al.

23CV001802: KSHIRSAGAR vs NABER, et al. 02/20/2025 Hearing on Motion - Other to Dissolve Preliminary Injunction in Department 54

in part and denied it in part. The injunction was ultimately issued on February 14, 2024.

The injunction prohibits Defendant from:

(1) Constructing a fence between the two properties; (2) Erecting any type of barrier that blocks Plaintiff’s side yard; (3) Cutting/pruning/damaging the fruit trees between the parties’ properties; and (4) Engaging in any activity that stops or changes the water drainage off Plaintiff’s property onto Defendant’s property.

(02/14/2024 Exh. A, p. 2.)

The injunction also mandates Defendant:

(1) Deconstruct the wood fence Defendant recently constructed in Plaintiff’s side yard; (2) Take down and remove the temporary fencing and signs that Defendant erected in Plaintiff’s side yard; and (3) Remove any and all cameras that can view or record Plaintiff in his side yard.

(02/14/2024 Order, Exh. A, pp. 2-3.)

On May 3, 2024, Plaintiff filed a motion for an order to show cause re: contempt based on Defendant’s purported failure to comply with the injunction by constructing a new fence in the disputed area of the properties. On July 31, 2024, the Court denied Plaintiff’s contempt motion, concluding that Defendant had not “willfully disobeyed the order.” (07/31/2024 Minute Order, p. 2.) The Court noted the ambiguity in its minute order granting the motion for preliminary injunction—which ultimately became the injunction order itself—since it prohibited Defendant from constructing a fence between the properties but also, “in order to return the parties to the status quo,” directed Defendant to remove the partial fence she had constructed “and re-erect the old fence that was located at the front of Defendant’s property.” (02/14/2024 Order, Exh. A, p. 6.)

Defendant now moves to dissolve the injunction on the basis that Plaintiff is not likely to prevail on his prescriptive easement claims at trial. Defendant contends that since the injunction was issued, a survey was conducted that shows there is no express or implied easement burdening Defendant’s property. Defendant asserts that “[h]istorical evidence regarding the easements was not presented to the Court at the time the injunction was ordered and Plaintiff obstructed Defendant’s efforts to obtain a survey of her property for more than a year.” (Mot. MPA, p. 2:20- 22.) The survey was purportedly completed in June of 2024. Defendant filed the present motion on November 13, 2024.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 02/20/2025 Hearing on Motion - Other to Dissolve Preliminary Injunction in Department 54

Discussion

Code of Civil Procedure section 533 states:

In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.

Section 533 “articulates three independent bases on which a modification [or dissolution] of an injunction may be predicated—(1) change in the facts, (2) change in the law, or (3) ends of justice.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 85.) “[T]he burden is on the restrained party to show by a preponderance of the evidence that one of the circumstances set forth in Code of Civil Procedure section 533 is present and justifies a termination of the restraining order.” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1504.)

Defendant contends that she has established two of the bases to dissolve an injunction under section 533: (1) the survey constitutes a material change in facts upon which the injunction was granted; and (2) dissolution would serve the ends of justice because it would return the parties to the appropriate status quo pending trial.

The parties argue about whether the findings from Defendant’s survey actually constitute “new” facts that could not have been presented at the hearing on the motion for preliminary injunction. Defendant contends that Plaintiff “thwarted” her attempts to conduct a survey in February of 2023, prior to the commencement of this litigation, by not allowing her surveyor onto his property. Defendant submits an email exchange produced by Plaintiff in discovery which confirms that Plaintiff had denied Defendant’s surveyor access to his property. (Kramer Decl., Exh.

A.) Plaintiff contends that Defendant’s declaration in support of her opposition to the motion for preliminary injunction contradicts her claim that the survey findings are “new,” since she previously declared that she “ordered a survey.” (Opp. MPA, p. 3:14.) Plaintiff’s argument is rejected for two reasons. First, Defendant’s prior declaration does not appear to contradict her current declaration. She declared that she “ordered a survey” in January of 2023, but that “Plaintiff refused to allow the surveyor to survey the property to determine the boundary line.” (Opp.

MPA, p. 3:14-15.) The remaining portions of Defendant’s prior declaration highlighted by Plaintiff do not establish that she previously conducted a survey of the boundary line, but instead they show that the surveyor conducted only a partial survey and was blocked from fully assessing the boundary line. Second, nothing in Code of Civil Procedure section 533 requires that the “change in facts” be new or different in the same manner as Code of Civil Procedure section 1008, which governs motions for reconsideration.

While a failure to present information

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 02/20/2025 Hearing on Motion - Other to Dissolve Preliminary Injunction in Department 54

at the injunction hearing that could have been presented at the time may be a consideration that weighs towards denying a motion to dissolve an injunction, it is not explicitly required. The statute states that an injunction may be dissolved upon a showing of “a material change in the facts upon which the injunction or temporary restraining order was granted.” (Code Civ. Proc. § 533.) The fact that an injunction may also be dissolved if “the ends of justice would be served” indicates that Court has wide discretion in considering equitable factors in making its determination.

Defendant contends that the recently completed survey “shows that her garbage can enclosure is entirely on her property, that the trees are all on her property and that the 1-foot wood retaining wall that was constructed by Plaintiff was constructed on her property.” (Mot. MPA, p. 8:7-9.) Defendant further contends that the survey “shows that the distance between Plaintiff's house and his property line is 6.7” which exceeds the minimum distance for the side yards contemplated in the development, which explains why no easement was recorded or implied for Lot 144 (102 Cobble Ridge Road).” (Mot.

MPA, p. 8:10-12.) Defendant further contends that documents produced by Plaintiff during discovery confirm that no easement was recorded benefiting Plaintiff. Defendant also argues that Plaintiff has confirmed that he was “expressly advised by the previous owners that there was no easement burdening Defendant’s property.” (Mot. MPA, p. 9:19-20.) The Court is unable to confirm this last point based on Defendant’s moving papers.

Even accepting that the survey constitutes a “material change in facts,” the Court declines to dissolve the injunction at this time. Defendant has already removed the partial fence she erected between the properties and reinstalled the prior barrier. (See Naber Decl., ¶¶ 48-50.) Thus, it appears the parties have maintained the status quo regarding the primary issue in this dispute. Defendant asserts that Plaintiff has trespassed onto her property in various ways since the injunction was issued, and thus she needs to be permitted to construct a fence on what she claims is her property, according to the survey. (Naber Decl., ¶¶ 52-56.)

Whether that is true does not seem to be relevant to the question of whether the injunction should be dissolved. Further, Defendant has not shown that Plaintiff is not likely to prevail on his prescriptive easement claim. Defendant’s argument in this regard focuses on a drainage easement, but Plaintiff’s prescriptive easement claim is not limited to drainage. Given these considerations, it appears that the most appropriate remedy is to allow the injunction to remain in place pending trial, which is currently set for January 5, 2026.

Accordingly, Defendant’s motion is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 02/20/2025 Hearing on Motion - Other to Dissolve Preliminary Injunction in Department 54

NOTICE:

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