Doyka v. Superior Court

Opinion

MERRILL, Acting P. J.

This petition challenges an order enjoining petitioner from using in any way the sum of $125,000 held in any bank account. We conclude that the court exceeded its authority.

Petitioner Thaddeus C. Doyka borrowed $125,000 from the Lord Trust through its trustee John A. Lord, upon a promise to secure the loan with a second deed of trust on property at 2572-2588 Pine Street in San Francisco. For reasons known best to Doyka, instead of a second deed of trust on the three related parcels at that address, he secured the loan with a third deed of

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trust on only the parcel at 2576 Pine Street. At the request of John Lord, the superior court has now enjoined Doyka from “secreting, using, distributing, transferring, or otherwise disposing of all or any portion of funds in the sum of One Hundred Twenty-five Thousand and no/100 ($125,000.00), whether on deposit in The Pacific Bank, or

in any other lending or financial institution

... for any purpose relating to the construction, renovation, and/or sale or other disposition of all or any portion of the real property and improvements located at 2572-2588 Pine Street, San Francisco, California,

or for any other use or purpose

whatsoever.” (Italics added.)

Doyka asserts that he does not have $125,000 in any bank account or accounts and that the order prevents him from spending any money to meet his payroll or for the necessities of life. He says that the renovation project is over 95 percent complete and all but $900 of the Lord Trust loan has been used for the property improvements. To justify his actions he avers that he gave more than adequate security for the Lord Trust loan. He complains that the court has given the Lord Trust through an injunction more than it could have achieved by a prejudgment attachment and he notes that the court had already denied the Lord Trust’s request for a prejudgment attachment.

In his opposition brief, Lord argues convincingly that Doyka did not fulfill his bargain with the Lord Trust and that the trust should be made whole. We are not convinced, however, that an injunction against use for any purpose of money on deposit in any bank is a proper legal remedy. However “just” the court’s order might appear, it effectively imposes a prejudgment attachment upon all of Doyka’s liquid assets without satisfying the statutory requirements for an attachment. We issue a writ of mandate to compel the court to vacate its injunction.