gno.law

Gorman v. Dwyer CA4/1

California Court of Appeal · D065330 · 2015-03-06 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. 37-2013-00056178-CU-BC-CTL
Trial judge
Ronald S. Prager
Outcome
affirmed — Affirmed.
Area
civil
Panel
Richard D. Huffman, Sr. (author), Judith L. Haller, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:22Z · confidence high

The trial court denied Gorman's ex parte application for a preliminary injunction, finding he failed to establish a reasonable probability of prevailing on the merits. The Court of Appeal affirmed the order, concluding that Gorman failed to demonstrate an abuse of discretion due to a lack of argument, citations, and a complete record.

Ruling reviewedStandardThe courtThe model
Denial of ex parte application for preliminary injunction
“Plaintiff has failed to establish reasonable probability of prevailing on the merits. [¶] Request for Preliminary Injunction is DENIED.”
abuse of discretioncorrectagree with court
The appellate court correctly applied the abuse of discretion standard and the presumption of correctness for trial court orders. Because the appellant failed to provide a transcript, supporting evidence, or legal argument to rebut the presumption, the court was legally compelled to affirm the order as correct on any theory.

Authorities

  • relied: People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 — Establishes the two-factor test for preliminary injunctions: likelihood of prevailing on the merits and relative interim harm.
  • relied: Butt v. State of California (1992) 4 Cal.4th 668 — Defines the standard of review for preliminary injunctions as abuse of discretion and requires a showing of potential merit.
  • relied: IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 — Defines abuse of discretion as exceeding the bounds of reason or contravening uncontradicted evidence.
  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — Establishes that trial court orders are presumed correct and all inferences are made to support them when the record is silent.
  • relied: Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857 — Points raised by an appellant without reasoned argument and citations to authority are treated as waived.
  • relied: In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814 — The appellate court is not bound to develop an appellant's argument for them.
  • relied: Wantuch v. Davis (1995) 32 Cal.App.4th 786 — In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know procedural rules.
  • relied: Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 — The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits.
  • relied: Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 — A trial court must deny a preliminary injunction if there is no reasonable likelihood the moving party will prevail on the merits.
  • relied: Yu v. University of La Verne (2011) 196 Cal.App.4th 779 — An order denying a preliminary injunction should be affirmed if the trial court correctly found the moving party failed to satisfy the required factors.
  • relied: Estate of Beard (1999) 71 Cal.App.4th 753 — If an order is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning.
  • relied: D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 — Supports the principle that an appellate court affirms an order if it is correct on any theory.

The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard and the presumption of correctness to a record that lacks the necessary evidence and argument to challenge the trial court's ruling. The court properly identified that the appellant's failure to provide a transcript or legal citations precluded a finding of abuse of discretion.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The San Diego Superior Court denied Joe Wayne Gorman's ex parte application for a preliminary injunction in his action over a car loan and related collection activity, finding his motion not in proper form and that he had not shown a reasonable probability of prevailing on the merits. The Court of Appeal affirmed because Gorman, appearing in pro. per., supplied no record of the application, evidence, or hearing, and his brief did not address the injunction ruling or show any abuse of discretion.

Ruling reviewedStandardThe courtThe model
Denial of ex parte application for preliminary injunction for failure to establish a reasonable probability of prevailing on the merits
“Simply put, Gorman has not made a clear showing that the trial court abused its discretion here.”
abuse of discretioncorrectagree with court
The appellate court correctly applied the abuse of discretion standard from Butt and IT Corp., invoked the presumption of correctness under Denham, and treated the unsupported point as waived under Nelson and Falcone & Fyke. With no application, evidence, or transcript in the record and an opening brief that never addressed the injunction ruling, there was no basis on which to find error, and the trial court's finding of no reasonable likelihood of success independently justified denial under Common Cause and Yu.

Authorities

  • relied: Butt v. State of California (1992) 4 Cal.4th 668 — Preliminary injunction turns on a mix of likelihood of success and interim harm; review is for abuse of discretion; no injunction may issue absent some possibility of prevailing on the merits.
  • relied: IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 — Abuse of discretion exists only where the court exceeded the bounds of reason or contravened uncontradicted evidence; appellant bears the burden of a clear showing of abuse.
  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — An order is presumed correct on appeal and all intendments and presumptions are indulged to support it where the record is silent.
  • relied: Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857 — Points not supported by reasoned argument and citation to authority are treated as waived.
  • relied: In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814 — Appellate court need not develop an appellant's argument; absence of cogent argument permits treating the contention as waived.
  • relied: Wantuch v. Davis (1995) 32 Cal.App.4th 786 — Self-represented litigants are held to the same rules as represented parties.
  • relied: Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 — A preliminary injunction must be denied where there is no reasonable likelihood the moving party will prevail on the merits.
  • relied: Yu v. University of La Verne (2011) 196 Cal.App.4th 779 — Denial of a preliminary injunction should be affirmed if the trial court correctly found the movant failed on either of the two factors.
  • relied: People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 — Trial court weighs likelihood of success on the merits and relative interim harm in deciding a preliminary injunction.
  • relied: Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 — A preliminary injunction preserves the status quo and does not adjudicate the ultimate rights in controversy.

The appellate opinion: sound — The opinion correctly states the governing standards for preliminary injunctions and appellate review and applies the presumption of correctness and waiver doctrines to an appellant who provided no record of the ex parte proceeding and did not address the ruling appealed from. Given the state of the record and briefing, affirmance was the only defensible result, and the authorities cited squarely support it.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 3/6/15 Gorman v. Dwyer CA4/1 NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOE WAYNE GORMAN, D065330

Plaintiff and Appellant, v. (Super. Ct. No. 37-2013-00056178- CU-BC-CTL) DAVID DWYER, et al., Defendants and Respondents.

APPEAL from an order of the Superior Court of San Diego County, Ronald S.

Prager, Judge. Affirmed.

Joe Wayne Gorman, in pro. per., for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Joe Wayne Gorman appeals an order denying his ex parte request for a preliminary injunction. We affirm.

Initially, we observe that Gorman, as an in propria persona litigant, is "entitled to the same, but no greater, rights than [a] represented litigant and [is] presumed to know the [procedural and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

For any appellant, "[a]ppellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' "

(Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)

On appeal, the order of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, if the order is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) All intendments and presumptions are made to support the order on matters as to which the record is silent. (Denham, supra, at p. 564.)

As best as we can discern from the record, Gorman sued certain defendants in relation to a car loan and collection activities related to that car loan. At some point, he applied ex parte for a preliminary injunction. However, the record does not contain Gorman's application or any supporting pleadings or evidence. There is no transcript of the ex parte proceeding. Gorman's brief does not discuss in detail what occurred at the ex 2 parte hearing. Indeed, we primarily are left with the superior court's minute order as the sole indication of what occurred during the ex parte hearing. The order states:

"Motion set for 9/27/13 is not in proper form.

"Even if the Court were to consider the declaration of Joe Wayne Gorman, this does not establish that plaintiff was harassed. [¶] Further there is not competent evidence that Chase Auto Finance is not a licensed lender in California, nor is there any competent evidence that loan disclosure documents were improper. [¶] Further there is no competent evidence that the debt collection agency in Arizona is unlicensed. Plaintiff has failed to establish reasonable probability of prevailing on the merits. [¶] Request for Preliminary Injunction is DENIED.

"Therefore the Court declines to approve method of service. Instead plaintiff may submit a formal request for entry of default to the Court Clerk. [¶] For convenience of plaintiff, Court Clerk explains apparent deficiencies in service of Summons and Complaint."

Gorman's opening brief does not address the court's order denying his apparent request for a preliminary injunction. Instead, Gorman focuses on his efforts to serve certain defendants. The issue of service is not before this court. Gorman appealed an order denying his application for a preliminary injunction.

The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) " 'The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial 3 on the merits, the defendant should or . . . should not be restrained from exercising the right claimed by him.' " (Ibid.)

A trial court must weigh two interrelated factors when deciding whether to grant a plaintiff's motion for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial; and (2) the relative interim harm to the parties from the issuance or nonissuance of the injunction; that is, the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the preliminary injunction is issued. (People ex rel. Gallo v. Acuna (1997)

14 Cal.4th 1090, 1109; Butt v. State of California (1992) 4 Cal.4th 668, 677-678 (Butt).)

Thus, "[t]he trial court's determination must be guided by a 'mix' of the potential- merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction." (Butt, supra, 4 Cal.4th at p. 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." (Ibid.) Accordingly, the trial court must deny a motion for a preliminary injunction if there is no reasonable likelihood the moving party will prevail on the merits. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 447; see Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 786-787 [order denying a motion for preliminary injunction should be affirmed if the trial court correctly found the moving party failed to satisfy either of the two factors].)

4 Appellate review of a trial court's order granting or denying a motion for preliminary injunction generally is "limited to whether the trial court's decision was an abuse of discretion." (Butt, supra, 4 Cal.4th at p. 678; see Yu v. University of La Verne, supra, 196 Cal.App.4th at pp. 786-787.) "A trial court will be found to have abused its discretion only when it has ' "exceeded the bounds of reason or contravened the uncontradicted evidence." ' " (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.)

The burden rests with the party challenging a trial court's decision to grant or deny a preliminary injunction to make a clear showing of an abuse of discretion. (Ibid.)

Gorman's opening brief is devoid of any citations to the record or case law that could challenge, in any way, the superior court's order denying Gorman's application for a preliminary injunction. The record does not include the reporter's transcript. The record does not contain Gorman's application or any other pleading supporting Gorman's desired preliminary injunction. And the record is devoid of any evidence Gorman offered in support of his ex parte application. Gorman's brief does not explain how the trial court abused its discretion in denying his application for a preliminary injunction. As such, on the record before us, we cannot ascertain whether the trial court abused its discretion in denying Gorman's ex parte application for a preliminary injunction.

Simply put, Gorman has not made a clear showing that the trial court abused its discretion here. (See IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 69.) We therefore must affirm the order.

5 DISPOSITION

The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

Cites, in this corpus