CHRIS B. BARGER vs. ANDREW W. LANDIES, ET AL

Defendants and Cross-Complainants Andrew W. Landies and Kristina J. Landies’ (“Cross-Complainants”) motion for a preliminary injunction is DENIED.

BACKGROUND

This is a dispute between neighbors over the use of a well. Plaintiff and Cross-Defendant Chris Barger (“Barger”) alleges that he owns 682 Wilson Avenue in Novato (“ the Barger Property”), where he lives with his wife, Cross-Defendant Myrna Barger. (Complaint, ¶ 1.) Cross-Complainants own and reside at 688 Wilson Avenue (“the Landies Property”). (Id. at ¶ 4.) Barger alleges that prior to 1972, the Barger Property and the Landies Property were each part of the same parcel owned by Dora Cash Young. (Id. at ¶ 11.) In 1972, Young subdivided the parcel into smaller parcels comprising the Pine Knoll Estates Subdivision. (Id. at ¶ 12.) The subdivision’s Lot 3 became the Landies Property, and a portion of its Lot 4 became the Barger Property. (Id. at ¶ 13.)

The complaint states that there is a well on the Barger Property. (Complaint, ¶ 15.) Barger alleges that he has the right to use the water from the well and that the Landieses have no recorded easement or license pertaining to the well. (Id. at ¶¶ 17-19.) Still, the Landieses allegedly believe that they have a right to use the water from the well and to encroach upon the Barger Property to do it. (Id. at ¶¶ 21-22.) Barger claims that in October 2023, the Landieses ran a pipe from the Landies Property through the Barger Property to the well. (Id. at ¶ 22.) Barger’s complaint asserts causes of action to quiet title and for declaratory relief and trespass.

The Landieses responded with an unverified cross-complaint against the Bargers. The operative pleading alleges that beginning in 1925, the large parcel from which the Barger Property and the Landies Property were later carved out belonged to Joseph and Dora Cash. (Second Amended Cross-Complaint (“SAXC”), ¶ 6.) After Joseph’s death, Dora and their son, Lester Cash, owned the property. (Ibid.) They dug the well at issue in this case. (Ibid.)

In 1982, Lester Cash allegedly submitted an application to the California State Water Resources Control Board (“SWRCB”) to formalize his and his mother’s exclusive rights to use the well. (SAXC, ¶ 6.) In connection with that application, Cash presented materials showing that the well was located on what is now the Barger Property, but was equipped to deliver water to what is now the Landies Property. (Ibid.) According to the SAXC, the water license the SCWRB granted Cash is recorded, and the Landieses and all of their predecessors in ownership of the Landies Property have complied with legal requirements to maintain it. (Id. at ¶ 7.)

Cross- Complainants allege that they and all of their predecessors in interest since the Cashes’ parcel was subdivided have used the well on the Barger Property to benefit the Landies Property. (Ibid.) They further allege the existence of an agreement, recorded with the Marin County Recorder’s Office in 1973, establishing an easement for use of the well benefiting the Landies Property and burdening the Barger Property. (Id. at ¶ 14.) Cross-Complainants allege that the well is properly used only to benefit the Landies Property, and that Barger has been improperly diverting water from the well for his own use, which has reduced the water available to Cross-Complainants to a trickle at best. (Id. at ¶¶ 10-13.)

The Cross-Complaint asserts claims to quiet title in an easement over the Barger Property to access the well and for trespass, fraud, and declaratory and injunctive relief.

The Court now considers Cross-Complainants’ request for a preliminary injunction.

LEGAL STANDARD

A preliminary injunction may be granted, among other circumstances, “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.” (Code Civ. Proc., § 526, subds. (a), (b).) The purpose of a preliminary injunction is to preserve the status quo until a final determination on the merits. (Continental Baking Co. v Katz (1968) 68 Cal.2d 512, 528.) The determination of whether to grant a preliminary injunction rests in the sound discretion of the trial court. (Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1470 (“Tahoe Keys”).)

Motions for a preliminary injunction must be based on a verified complaint or on declarations. (Code Civ. Proc., § 527, subd. (a).) Trial courts evaluate two interrelated factors when deciding whether to issue a preliminary injunction. (Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1680.) The first is the likelihood that the moving party will prevail at trial. (Id. at pp. 1680-1681.) The second is the interim harm the movant would likely sustain if the injunction were denied as compared to the harm the opposing party would likely suffer if the injunction were issued. (Id. at p. 1681.) “[T]he greater the [movant’s] showing on one” of the two preliminary injunction factors, “the less must be shown on the other to support an injunction.” (Jamison v.

Department of Transp. (2016) 4 Cal.App.5th 356, 361-62.) The burden is on the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (See O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

DISCUSSION

Procedural Matters

Both Barger and Cross-Complainants have requested judicial notice of certain material, and Barger has submitted objections to some of Cross-Complainants’ evidence. The Court does not rule on the requests for judicial notice or on Barger’s evidentiary objections because the evidence at issue was not material to its disposition of the motion. As discussed below, the Court is denying the motion because Cross-Complainants have not offered any legal argument in support of the merits of their case. There is no point in ruling on the propriety of the evidence when the moving party has not defined the legal issues at which that evidence is directed. To the extent the Court addresses Cross-Complainants’ evidence at all, Barger has not objected to the material at issue.

Merits

Cross-Complainants request that Barger and any of his associates be restrained from interfering with the Landieses rights to use the well, including by impeding their access to the well or by interfering with any infrastructure attached to it (i.e., pipes, pumps, and the like). (Ex Parte Application, pp. 4-5; see also Proposed Order.) They further request an order permitting them to send contractors onto the Barger Property to inspect and repair any damage to the well and ensure that it is properly sending water to the Landies Property. (Ibid.)

Regardless of a party’s statutory basis for seeking a preliminary injunction, the party is required to show some likelihood that it will prevail in the action as a prerequisite to obtaining preliminary injunctive relief. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442 [a preliminary injunction “must not issue” unless, based on the party’s showing, “it is reasonably probable that the moving party will prevail on the merits”]; accord Butt v. State of California (1992) 4 Cal.4th 668, 678 [“A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.”].)

A party makes this showing by presenting legal authority defining the elements of one or more of the causes of action at issue in the case and then explaining how the evidence maps onto those elements.

Cross-Complainants have neglected to set forth the legal elements of any one of their causes of action. They likewise have not set forth the elements of any of Barger’s causes of action and articulated an argument that, viewing the evidence through the prism of those elements, they are likely to be prevailing defendants on Barger’s complaint. Cross- Complainants’ brief does not include a single citation to a legal authority addressing, in any way, the merits of any cause of action in this case.

Every one of their cited legal authorities pertains to the appropriateness of injunctive relief, an issue only on the table provided the party seeking that relief has made some showing of a reasonable probability of prevailing on the merits. (See San Francisco Newspaper Printing Co., supra, 170 Cal.App.3d 438, 442; Butt, supra, 4 Cal.4th 668, 678.) Cross-Complainants simply have not attempted to make a legal case for the relief they request.

By seeking relief contingent on a likelihood of prevailing in this case without presenting any law on what is required to prevail, Cross-Complainants are implicitly asking the Court to develop their case for them from the ground up. If the Court accepted this invitation, it would permit itself to be conscripted as counsel for Cross-Complainants, which would obviously be unfair to Barger.

Because Cross-Complainants have not made any legal argument regarding their likelihood of prevailing on any cause of action in this litigation, they necessarily have not carried their burden. (See O’Connell, supra, 141 Cal.App.4th 1452, 1481.)

Although it believes Cross-Complainants’ failure to make their case compels denial of the motion, the Court will address their showing of harm. Cross-Complainants’ arguments here hinge on evidence that Barger has tampered with the well to cause it to divert water to his own property. (Scheer Dec., ¶¶ 9-10.) Cross-Complainants contend that Barger’s conduct has interfered with their access to water from the well. (Andrew Landies Dec., ¶ 9.) They do not argue that Barger’s conduct has impacted their access to water writ large, as they have access to water from North Marin Water District at their property, just like any property owner in the district who does not have a well on site. (See Memorandum, p. 14; Andrew Landies Dec., ¶ 10.) Cross-Complainants are dissatisfied because NMWD water is more expensive than water from the well. (Andrew Landies Dec., ¶ 10.)

If Cross-Complainants are being forced to rely on more expensive NMWD water due to Barger’s misconduct, that is a financial injury that can be sufficiently addressed by an award of damages after trial. Similar considerations apply to Cross-Complainants’ insistence that Barger is delaying their ability to develop their property, including by landscaping and by installing a delivery system to bring well water into their residence. Cross-Complainants can install landscaping whenever they like using NMWD water and be compensated for the price difference later.

As for the water delivery system, a system installed tomorrow is just as valuable as a system installed after this case is resolved. The Court does not see that Cross-Complainants are being harmed, irreparably or otherwise, by having to wait to make this improvement to their property. Finally, Cross-Complainants cite irreparable injury in the form of an “impact” on their “ability to refinance their property” due to this lawsuit and “uncertainty regarding the Well.” (Memorandum, p. 14.) They do not cite to any evidence establishing that they are having difficulties refinancing, and the Court has not found any.

More fundamentally, this argument is not tailored to the relief requested. The legal dispute over who is entitled to use the well would persist even if the Court granted the preliminary injunction Cross-Complainants are requesting.

In summary, Cross-Complainants have not made a compelling showing that the conduct they seek to enjoin is causing them harm that is either great, irreparable, or incapable of cure by way of a damages award (Code Civ. Proc., § 526, subd. (a)(2), (a)(3)), or is damaging them in a way that would render any potential judgment in this case toothless (Code Civ. Proc., § 526, subd. (a)(3)). The motion for a preliminary injunction is DENIED.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for July, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov