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Standard of review-Denial of a Preliminary Injunction
(Citizens for Safer Streets)

Standard of review-Denial of a Preliminary Injunction
(Citizens for Safer Streets)

DISCUSSION

A plaintiff seeking a preliminary injunction bears the burden of presenting facts which show a reasonable probability that he will succeed on the merits.  (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356.)  When the trial court denies the requested relief, the plaintiff bears the burden, as appellant, of overcoming the presumption of correctness which attends the challenged ruling.  (Id. at p. 357.)  Here the dispositive question is whether plaintiffs have carried their burden, as appellants, of showing that the trial court erred in finding that they had not demonstrated a reasonable probability of success on the merits.

Ordinarily, the trial court’s grant or denial of a preliminary injunction is reviewed for abuse of discretion.  (Garamendi v. Executive Life Ins. Co. (1993) 17 Cal.App.4th 504, 512.)  However, where the ruling depends on the construction of a statute, it is to that extent reviewed de novo.  (Ibid.)  Here the trial court denied plaintiffs’ motion in part on the ground that plaintiffs were not likely to succeed on the merits because their claims depended on an interpretation of section 72 which was unlikely to be sustained.  We review this determination de novo.

Plaintiffs’ argument rests on the requirement imposed by section 72 that the City shall “utilize the Route 480 right-of-way or the proceeds from sales of that right-of-way for the sole purpose of constructing an alternate system of local streets pursuant to paragraph (3) of subdivision (a).”  (§ 72, subd. (b)(1).)  Plaintiffs contend that this language required the City either to build the replacement project on the property, or to sell it at market value and apply the proceeds to “road construction.”

Nothing in the statute requires a sale at market value, or on any other particular terms.  Plaintiffs’ argument obliquely implies such a requirement.  But “[a]n intention to legislate by implication is not to be presumed.”  (Rapid Transit Advocates, Inc. v. Southern Cal. Rapid Transit Dist. (1986) 185 Cal.App.3d 996, 1002.)  Plaintiffs have failed to show that the implication on which their argument rests is necessarily derived from the statute.  (See Lubner v. City of Los Angeles (1996) 45 Cal.App.4th 525, 529.)

By its terms the statute requires the City either to use the parcels in question to build an “alternate system of local streets” to replace the demolished freeway (i.e., the Replacement Project), or to apply the proceeds of any sale of those parcels to financing that specific project.  So far as this record shows, the City has complied with these conditions.  The City did not use the parcels as an actual site for the project, but it has adopted a resolution stating that the proceeds from their disposition will be applied to pay for the project.[4]  The City’s proposed actions therefore appear to comply with the letter of section 72.

Citizens for Safer Streets v. S.F. 2/26/04 CA1/4A102773
 

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