Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-08-CV-119109
MIHARA, Acting P. J.
This appeal arises in the larger context of an inter- and intra-family dispute among Ferrari and Odell family members over two apartment complexes and the limited partnerships that own and manage them. In January 2009, a majority of the limited partners in each partnership voted to remove appellants Bernardo and Dominic Ferrari (appellants) as general partners and to elect Mary Jane Ferrari and respondent Tim Odell in their stead. Maria Ferrari Mapps retained her status as the third general partner of each limited partnership. The new general partners then terminated appellants’ services as offsite property managers of the two apartment complexes. Appellants refused to accept their removal as general partners or their termination as offsite property managers and continued to maintain what respondents and others describe as a “stranglehold” on the partnerships and their properties.
The initial complaint, seeking dissolution of the partnerships, restitution, and damages, was filed in August 2008 by appellants’ sister Teresa Ferrari Votruba and her husband. Three cross-complaints followed. Another of appellants’ sisters, Maria Ferrari Mapps, cross-complained against appellants, seeking reformation of the partnership agreements, restitution, and damages. Her children separately cross-complained against appellants. In 2009, respondents Tim Odell, his former wife Marilyn Odell, and his brother Joshua Odell cross-complained for dissolution of the partnerships, breach of the partnership agreements, breach of fiduciary duty, accounting, and restitution. Appellants’ mother Mary Jane Ferrari sued Bernardo, her daughter Alicia Ferrari, and Bernardo’s wife, alleging, among other things, breach of contract, elder abuse, assault, battery, and fraud. We sometimes refer to the parties and their family members by their first names, not out of disrespect, but for convenience and clarity.
In May 2009, Tim Odell, his former wife Marilyn Odell, and his brother Joshua Odell (the Odells or respondents) amended their cross-complaint to add three causes of action seeking declaratory and injunctive relief with regard to appellants’ removal as general partners, the termination of Bernardo as offsite property manager of the Fayette Arms apartment complex, and the termination of Dominic (through his management company, Ferrari Community Management) as offsite property manager of the Glenwood Station apartment complex. Contemporaneously, the Odells sought a preliminary injunction prohibiting appellants from “preventing, interfering with, or impeding” the transfer of power to Tim Odell and Mary Jane Ferrari or the hiring of a new property management firm or firms to act as offsite managers of the two complexes. The trial court issued the preliminary injunction.
On appeal, appellants challenge the trial court’s order granting the Odells’ motion for a preliminary injunction. Appellants contend the court erred (1) in failing to expressly rule on their evidentiary objections and (2) in issuing a preliminary injunction, “to ratify a state of affairs that first arose long after” the litigation commenced, (3) “without sufficient evidence that respondents will prevail at trial, ” and (4) “without any evidence of irreparable injury.” We strike the portion of the injunction enjoining appellants from “preventing, interfering with, or impeding the New General Partners from hiring a new property management firm or firms to act as offsite managers..., ” and, as modified, affirm the order.
I. Factual Background
In 1979, appellants’ parents, Gerald and Mary Jane Ferrari, entered into an informal partnership with Tim Odell’s parents, Bob and Ruth Odell, to purchase the Fayette Arms apartment complex in Mountain View. For many years, the senior Ferraris managed that property to the complete satisfaction of the senior Odells, who were largely silent partners. In 1988, Dominic Ferrari began assisting his parents in managing the Fayette Arms property. He described his parents’ management style as “very informal” and noted that they “did not maintain detailed records.”
When the senior Ferraris and the senior Odells decided to purchase a second apartment complex, the lender required them to formally define their business relationship. The Fayette Properties limited partnership was formed in 1993, and the Glenwood Station limited partnership was formed in 1994, each for the purpose of “engag[ing] in the business of investment in an Apartment Building... and any activities that are related or incidental to that business.” Gerald and Dominic Ferrari were the original general partners of each limited partnership. The limited partners were, in large part, Ferrari and Odell extended family members.
The partnership agreements expressly provided that Gerald Ferrari’s company, Ferrari Management Company, would continue to be “employed as the off-site manager at a compensation of six percent... of the gross income” of the Fayette Properties limited partnership and “five percent... of the gross income” of the Glenwood Station limited partnership.
In 2002, Gerald Ferrari was terminally ill. Shortly before he died, he resigned as general partner, and Bernardo and Maria joined Dominic as general partners of the Fayette Properties and Glenwood Station limited partnerships. Maria’s declaration stated that her father asked her to serve as general partner with her brothers “in order to facilitate communication between the two of them.” The partnership agreements were amended to specify that Dominic, Bernardo, and Maria would serve as co-general partners of both partnerships. The amendments also provided that, in lieu of Ferrari Management Company, “Bernardo Ferrari, or such business entity as [he] shall choose to form, ” would serve as the offsite property manager for Fayette Arms, and “Dominic Ferrari, or such business entity as [he] shall choose to form, ” would serve as the offsite property manager for Glenwood Station.
Ruth Odell passed away in 1994, and Bob Odell died in 2006. The senior Odells’ interests in the partnerships were eventually distributed to their three children, with 20 percent of Tim’s share going to his former wife Marilyn. As executor of his father’s estate, Tim Odell began investigating the management of the properties. Since he lives, coincidentally, near Maria Ferrari Mapps, he began to learn of and to share her concerns about Bernardo’s and Dominic’s management of the properties.
In March 2008, Maria wrote Bernardo and Dominic about various issues she and Tim Odell were concerned about. Dominic subsequently admitted, in his March 21, 2008 letter to the Glenwood Station limited partners, that “repairs were neglected” in order to keep investor distributions from falling below $15,000 per month, and the deferred maintenance, in turn, “further reduc[ed] income.” To compensate, he had deferred the collection of his management fees “and made short term loans to cover expenses.” “Then, in January and February of 2007, a resident manager... misallocated rental income... in what appears to have been an embezzlement scheme.” By Dominic’s own calculation, the loss was at least $84,500. Dominic told the limited partners that “[i]n an effort to compensate the Glenwood investors for financial losses they may have suffered, I have written off deferred management fees, have not collected management fees since August of 2007 and will not collect management fees through the remainder of 2008.” The full extent of the embezzlement and whether the foregone management fees were sufficient to cover the loss to the Glenwood partnership remain unknown.
Although Dominic stated that the embezzlement lasted only two months, Bernardo declared that “[i]n May 2007, it came to my attention that a previous on-site manager of Glenwood... had embezzle[d] funds from the business in 2006 and 2007.” Bernardo “initially proposed a change of management at Glenwood” but later decided that diversion of Dominic’s management fee to reimburse the loss of income was “sufficient reparation for the losses the business had suffered.”
In July 2008, 55 percent of the Fayette Properties limited partners voted to remove Bernardo and Dominic as general partners and to elect Mary Jane Ferrari and Tim Odell in their stead. Appellants challenged the vote, asserting, among other things, that Maria’s 11.68 percent limited partnership interest should not have been counted.
Section 5.03 of the Fayette Arms limited partnership agreement (“Removal of General Partners”) provides that “[a]ny general partner may be removed by the affirmative vote of the Limited Partners who are not also General Partners....” (Italics added.)
On September 20, 2008, a meeting of the limited partners was held in Mountain View. At that meeting, which lasted most of the day, 99.1 percent of Fayette Properties owners and 92.8 percent of Glenwood Station owners were either present or represented by proxy. At the end of the meeting, 74 percent of Fayette Properties limited partners and 75 percent of Glenwood Station limited partners voted to remove Bernardo and Dominic as general partners and to elect the same slate of general partners that had been presented in July: Mary Jane Ferrari, Maria Ferrari Mapps, and Tim Odell. Appellants again refused to relinquish control, objecting to the adequacy of the notice given and arguing that, since the partnership agreements require specific removal of general partners, a vote to elect Mary Jane Ferrari and Tim Odell as general partners was not a vote to replace appellants.
The description of the vote at this meeting, and the vote tallies, are taken from the Declaration of Tim Odell in Support of Motion for Preliminary Injunction or, in the Alternative, for Appointment of Receiver. Tim Odell was present at the September 20, 2008 meeting. The unobjected-to minutes of that meeting (apparently recorded by Bernardo’s daughter Anna) state, “5pm [¶] 74.07% elect slate of GP’s at Fayette. Tim [Odell], Mary Jane [Ferrari], Maria [Ferrari Mapps]. Subject to lender approval” and “__% elect slate of GP’s at Glenwood. Tim [Odell], Mimi [Maria Ferrari Mapps], and Mary Jane [Ferrari].” The record contains no other evidence of the September 20, 2008 vote.
In January 2009, a majority of the limited partners of each partnership signed an Action by Written Consent of Limited Partners removing Dominic and Bernardo as general partners and electing Tim Odell and Mary Jane Ferrari in their stead. The record reflects that 62.7 percent of Fayette Properties limited partners and 58.12 percent of Glenwood Station limited partners consented to the action. By written notice dated February 19, 2009, Bernardo and Dominic were informed that their removal as general partners would be effective as of April 1, 2009. On April 2, 2009, Bernardo and Dominic were individually notified, in writing, that the partnership was terminating their services as offsite property managers.
Appellants refused to acknowledge their removal as general partners and their termination as offsite property managers for the Fayette Arms and Glenwood Station apartment complexes. In a letter to the limited partners, they stated generally that they “dispute[d] that proper procedure has been followed....”
II. Procedural Background
After Dominic and Bernardo refused to acknowledge the limited partners’ third vote to remove them as general partners, the Odells amended their cross-complaint to add causes of action for declaratory and injunctive relief. Contemporaneously, they sought a preliminary injunction prohibiting appellants from “preventing, interfering with, or impeding” the transfer of power to Mary Jane Ferrari and Tim Odell or the hiring of a new property management firm or firms to act as offsite property managers. In the alternative, the Odells asked that a receiver be appointed. The Votrubas, Mary Jane Ferrari, Maria Ferrari Mapps, and her children joined in the Odells’ motion. Papers filed in support of the motion chronicled appellants’ ongoing mismanagement of the properties, their self-dealing, and their long-standing refusal to cooperate with the third general partner, Maria Ferrari Mapps, who submitted a declaration stating that her brothers routinely ignored her input and out-voted her “on every significant issue.” Asserting that “Dominic actively and repeatedly concealed problems at Glenwood from me, ” she noted, for example, that she had not learned until discovery in this action that Dominic had executed a security agreement in connection with the 2003 refinance of Glenwood Station, that the driveway repairs and termite work the lender required had not yet been completed, and that the partnership was consequently in default on the mortgage. In a supplemental declaration, she stated that Bernardo had blocked her access to the partnership’s browser-based accounting system for property management and refused to divulge the names of Fayette Arms employees. Appellants’ opposition papers, while attempting to minimize problems at the properties, implicitly conceded, among other things, that they had not obtained the limited partners’ express consent to refinance the Glenwood Station mortgage in 2003 and have only recently begun the driveway repairs and termite work the lender required. Dominic acknowledged “termite activity” at Glenwood Station, “a problem with bedbugs” in units “rented to people who were friendly with one another, ” and rats in a unit rented to “excessively slovenly” tenants.
At the hearing on June 4, 2009, the court first noted that it had “fully read the papers in this matter, the responses, and the replies.” “The Court believes that there has been sufficient showing... pursuant to CCP 526(a)(1), that the moving party is likely to prevail in this matter. And the Court is inclined to grant the preliminary injunction that’s been requested.” The court explained, “I believe, just for background, that there was an appropriate election, the partnership agreement was followed, and that the meetings... were certainly held with more than ten percent of the parties wishing to have such a meeting. And to the extent that they were held on short notice, there was a consent to act without greater notice. [¶] So that’s the Court’s indicated ruling.... [¶]... [¶] I believe that implicit in the Court’s order will be that the managing partners can hire a new property management company. And I would order that the master keys be turned over to the new management partners if they’ve not already been given to them. [¶] And any documents that need to be executed need to be done by the outgoing general partners.” The court issued a preliminary injunction as follows:
“Defendants and cross-defendants DOMINIC FERRARI and BERNARDO FERRARI and... all others through whom they may act:
“1. Shall be and hereby are enjoined, restrained and prohibited from preventing, interfering with, or impeding MARY JANE FERRARI and/or TIM ODELL from assuming their roles and carrying out their duties as duly-admitted general partners of the Fayette Properties and Glenwood Station limited partnerships;
“2. Shall be and hereby are restrained and prohibited from preventing, interfering with, or denying access by MARIA FERRARI MAPPS, MARY JANE FERR[A]RI or TIM ODELL (the ‘New General Partners’) to the partnership properties and shall forthwith provide ‘Master Keys, ’ lock combinations, and any other items or information necessary to afford the New General Partners unrestricted access to the partnership properties....
“3. Shall be and hereby are restrained and prohibited from preventing, interfering with, or denying access by the New General partners to any and all partnership records and accounts and other partnership property and shall forthwith deliver to the New General Partners all partnership records, accounts and other partnership property in their possession....
“4. Shall be and hereby are restrained and prohibited from preventing or interfering with the change in general partners and shall reasonably cooperate in executing whatever documents are necessary to effectuate the change in general partners for the Fayette Properties and Glenwood Station limited partnerships, including the execution of an amended Certificate of Limited Partnership for each partnership upon presentation thereof by the New General Partners or their counsel, changing the general partners for the partnerships;
“5. Shall be and hereby are enjoined, restrained and prohibited from preventing, interfering with, or impeding the [N]ew [G]eneral [P]artners from hiring a new property management firm or firms to act as offsite managers for the Fayette Properties and Glenwood Station limited partnerships.”
The court conditioned the preliminary injunction on the Odells’ posting of a $20,000 undertaking.
Appellants filed a timely notice of appeal.
III. Discussion
A. Evidentiary Objections
We begin with a threshold issue: appellants’ contention that reversal is required because the trial court’s “unjustified refusal” to expressly rule on their evidentiary objections “was wrong and prejudicially denied appellants their right to a fair hearing.” Asserting that “[p]resumably, [the trial court] considered and relied on the objected-to evidence, ” appellants claim that “had the trial court ruled on [their] objections... and excluded the evidence, it is likely a result more favorable to appellants would have been forthcoming.”
Appellants interposed 36 written objections to evidence and, at the hearing, asked the court to rule on them. The court responded that “[t]he evidentiary objections were not made in the proper form pursuant to the Rules of Court. And so the Court is not going to make rulings on the evidentiary objections at this time.” Appellants’ counsel replied, “Okay” and moved on to another issue. Counsel did not raise the issue again.
Appellants contend they have “a right to have the trial court address on the merits all properly made objections.” The cases they cite are summary judgment cases, and the rule they rely on is well-established in the summary judgment context. (Code Civ. Proc., § 437c; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 (Google); e.g., Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642-643 [trial courts have duty to rule on property presented evidentiary objections].) This, however, is not a summary judgment case. None of the cases appellants cite establishes that a failure to expressly rule on evidentiary objections outside the summary judgment context constitutes reversible error. (See Google, at pp. 532-535 [if trial court fails to rule, objections are preserved on appeal].)
Appellants next contend that their objections were well-taken, and if the trial court had sustained them and excluded the objected-to evidence, “it is likely a result more favorable to appellants would have been forthcoming.” We disagree.
1. “Unauthorized Documents”
Appellants divide their 36 objections into just two categories: “[u]nauthorized documents” and “[h]earsay and other objections.” The eight objections in the “[u]nauthorized documents” category challenge the admission of “the partnership agreements, ‘purported minutes, ’ a purported written consent, checks, tax returns, notices, and proofs of service.” “As a matter of law, ” appellants assert, “the above-mentioned documents were not properly authenticated and thus were improperly considered by the trial court.”
Appellants interposed the identical objection to each of these documents, which were attached to the declaration of respondents’ counsel Paul Avilla: “Even though a writing is relevant and not subject to an exclusionary rule, a foundation must be laid by authentication before it can be introduced into evidence. [Citations.] The declaration of Moving Parties’ counsel in this action does not sufficiently authenticate this document in that the declaration alleges no personal knowledge of the document or any reason why counsel would be competent to authenticate such document. Moreover, Mr. Avilla is neither a subscribing witness nor any other witness in the execution of said document and is therefore incompetent to testify on the subject.”
The trial court could properly have considered the partnership agreements notwithstanding appellants’ objections to the Avilla declaration, because identical copies of those agreements were attached to and authenticated by the verified cross-complaint of Maria Ferrari Mapps without any objection from appellants. The court could also properly have considered the “unauthenticated” copies of partnership checks attached to the Avilla declaration because, in disputing respondents’ characterization of those checks, Bernardo Ferrari himself authenticated them.
The court could also properly have considered the notices and proofs of service sent by Mr. Avilla’s law firm. “Generally speaking, documents must be authenticated in some fashion before they are admissible in evidence.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525, italics added.) Simply taking “counsel’s word for it that he could have a witness lay the necessary foundation” is insufficient (id. at p. 526, italics added), but that is not what happened here. Mr. Avilla declared that he is “a partner in the law firm of McPharlin, Sprinkles..., attorneys of record for [respondents], ” that he had “personal knowledge of each fact stated in this declaration, ” and that the copies of documents attached to it were “true and correct copies.” This was sufficient to authenticate the notices and proofs of service that Mr. Avilla’s firm mailed on its clients’ behalf. (See John Siebel Associates v. Keele (1986) 188 Cal.App.3d 560, 567-568 [“In the declaration the attorney states that he could competently testify to Siebel’s version of the facts surrounding the check in question. Thus, the showing of personal knowledge was made”].)
Appellants’ foundational challenges to the three remaining documents-the “ ‘purported minutes, ’ a purported written consent, ... [and] tax returns”-have merit. But the challenged evidence was not material and, in our view, would not have changed the result had the trial court considered it. Respondents cited the minutes to support their statement that Bernardo and Dominic often “inappropriately included discussion of Ferrari family disputes” in the minutes they circulated. The objected-to minutes reflect that during one such meeting, “Maria began laughing maniacally” and “yelling to the point where the speaker phone would cut out.” (Italics omitted.) We fail to see what these documents could add to a record that is replete with evidence of contentious relations between the general partners. At best, this evidence was cumulative.
The “purported written consent” is Maria’s consent, as the third general partner, to the admission of new general partners Mary Jane Ferrari and Tim Odell. Respondents cited it to show that the January 2009 removal of appellants as general partners complied in all respects with the requirements of the partnership agreements. This evidence is immaterial, because appellants have never disputed that Maria consented (as the agreements require) to the admission of the new general partners. Nowhere in their briefs is that requirement even mentioned. To the contrary, instead of disputing Maria’s consent, appellants claim she was the driving force behind the effort to oust them as general partners and offsite property managers.
The Fayette Properties partnership’s tax returns were cited only once, to support respondents’ argument that comparing them with “checks that are identified as payment of Bernardo’s management fees for [2002 and 2003]” revealed “a discrepancy (overpayment) of approximately $66,000.” Bernardo vigorously challenged this argument in his declaration and in doing so, detailed the purpose of each check to establish that none represented payment of his management fee. In their reply brief in the trial court, respondents asserted that Bernardo’s “explanation raises more questions than it answers, ” but they offered no supplemental declarations to attack it. Under the circumstances, we consider it unlikely the trial court credited respondents’ “overpayment” argument. Appellants have not suggested any other improper use the trial court might have made of the partnership tax returns. This evidence is immaterial.
2. “Hearsay and Other Objections”
Appellants do not discuss their remaining 28 objections. Instead, they summarily assert that, since respondents “did not address these objections [in their reply brief below]... and, at the hearing, did not claim the objected-to evidence was admissible..., this Court should assume respondent agrees that the objections were well-taken and that the evidence was inadmissible.” We disagree.
To support their assertion, appellants cite Berry v. Ryan (1950) 97 Cal.App.2d 492 (Berry), but their reliance on that case is misplaced. Berry was an action to recover money due under a contract. The plaintiff prevailed below, and the defendant contended on appeal that the evidence did not sustain the findings. After the plaintiff failed to appear in the Court of Appeal, that court reversed the judgment, deeming him to have “abandoned any attempt to support [it].” (Berry, at p. 493.) Berry is factually inapposite. Here, respondents did not fail to appear. Moreover, contrary to appellants’ assertion, respondents did address the objections below, albeit summarily. They noted, for example, that although appellants had raised hearsay objections and “launch[ed] a formalistic attack” on the authenticity of certain evidence, they had not substantively challenged a single document. We do not agree that respondents have conceded the merit of appellants’ evidentiary objections, particularly since appellants failed to press the issue at the hearing. “There is no rule requiring a party ‘to respond to his opponent’s every argument, subargument, and allegation, no matter how meritless or briefly made.’ [Citation.]” (Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 526, fn. 9, quoting People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1070, fn. 13.)
Here, as respondents point out, except for a brief itemization of their eight “failure to authenticate” objections, “[a]ppellants don’t even mention any other particular objection.” “Appellants having the burden of showing error, it [i]s incumbent on them to make it affirmatively appear that error was committed.” (County Nat. Bank etc. Co. v. Sheppard (1955) 136 Cal.App.2d 205, 223.) “An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument. [Citations.].” (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 874.) We conclude that appellants have forfeited any argument that their 28 “hearsay and other” objections had merit.
Moreover, even if we were to assume the trial court erred by admitting the objected-to evidence, appellants have failed to establish prejudice. (Evid. Code, § 353; Jones v. Wagner (2001) 90 Cal.App.4th 466, 476.) Here, as respondents correctly point out, the trial court had before it a wealth of evidence that appellants did not object to, including appellants’ own admissions and testimony. Much of the objected-to evidence was cumulative or irrelevant (e.g., Tim Odell’s statement that before August 21, 2008, “[t]here had never been a partnership meeting for either partnership”). Given the wealth of unobjected-to evidence supporting the trial court’s conclusions, it is not reasonably probable that exclusion of the objected-to evidence, much of which was simply cumulative, would have made any difference.
For example, appellants objected to that portion of Maria Ferrari Mapps’ declaration “that offers her inadmissible lay opinion about embezzlement losses.” They also objected to Brandon Silversprings’ statement that rat infestations “were an ongoing problem at Glenwood [that] had obviously been left untreated for years.” This evidence is merely cumulative, however, because Dominic Ferrari admitted, in his declaration and in his letter to the limited partners, that at least $84,500 was embezzled from the Glenwood Station partnership on his watch. Additionally, Bernardo Ferrari declared that when he learned of the embezzlement, his initial reaction was to propose replacing Dominic as offsite property manager at Glenwood Station. In attempting to refute the allegation that he failed to train Silversprings, Dominic declared that he had “showed him where rats could climb up ivy near the parking lot... gate and chew on the building.”
B. Standard of Review
“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.]... [¶] The 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 the injunction. [Citation.]... 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.” (Butt v. State of California (1992) 4 Cal.4th 668, 677-678 (Butt).)
“Insofar as the court’s ruling rests on evaluating and weighing the substantive factors noted above-the preponderance of likely injury and the likelihood of success-it is said to be vested in the discretion of the trial court, whose ruling will not be disturbed on appeal unless an abuse of discretion is made to appear. [Citation.] Insofar as the trial court’s ruling depends on determination of the applicable principles of law, however, it is subject to independent appellate review. [Citations.] And insofar as the court resolved disputed issues of fact, its findings are reviewed under the substantial evidence standard, i.e., they will be sustained unless shown to lack substantial evidentiary support. [Citations.]” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408-409.) “Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal. ‘[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court’s province to resolve conflicts.’ [Citation.] Our task is to ensure that the trial court’s factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order. [Citations.]” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625 (Shoemaker).)
Because they are less frequently granted, mandatory preliminary injunctions are subject to stricter review on appeal. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493 (Furlotti).) But “[t]he principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied.” (Allen v. Stowell (1905) 145 Cal. 666, 669.) “[E]ach case is to be judged on its own peculiar facts, ” and a mandatory “[p]reliminary injunction may be proper in partnership dissolution proceedings. [Citation].” (Fretz v. Burke (1967) 247 Cal.App.2d 741, 744 (Fretz); Kendall v. Foulks (1919) 180 Cal. 171, 174-175.)
“A mandatory injunction compels action, in contrast to a prohibitory injunction, which prohibits action.” (Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 394, fn. 20.) One consequence of the distinction is that “[a]n appeal stays a mandatory but not a prohibitory injunction.” (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191.) The substance rather than the form of the order controls the classification. (Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, 27.) An injunction compelling the surrender of an office, although prohibitory in form, may be mandatory in effect. (Clute v. Superior Court (1908) 155 Cal. 15, 19-20 [“If the injunction compels him affirmatively to surrender a position which he holds, and which, upon the facts alleged by him, he is entitled to hold, it is mandatory”].) Respondents acknowledge, and we agree, that the injunction that issued here is mandatory in nature.
C. Status Quo
Appellants contend the trial court erred in failing to preserve the status quo, which they define as “that which existed prior to the filing of the complaint and prior to respondents’ January-April 2009 attempts to remove [them] as general partners and off-site managers.” (Original italics.) They claim reversal is required as a matter of law, “regardless of the questions of irreparable injury or the likelihood of prevailing at trial, ” because the trial court’s order “legitimized a changed status.” We disagree.
If appellants’ argument were correct, mandatory preliminary injunctions could never issue. Yet courts have, in appropriate circumstances, issued mandatory preliminary injunctions that altered the status quo. (E.g., Wind v. Herbert (1960) 186 Cal.App.2d 276, 286 [in action for declaratory relief, accounting, and dissolution of limited partnership, affirming issuance of preliminary injunction requiring general partner to obtain a limited partner’s signature on all withdrawals from partnership accounts; rejecting argument that injunction went beyond maintaining status quo that existed when suit was filed]; Fretz, supra, 247 Cal.App.2d 741, 747-748 [in action for dissolution of partnership, accounting, and damages, affirming issuance of preliminary injunction to compel general partner to distribute all but $5,000 of withheld partnership profits to plaintiff limited partners and to pay them their proportionate share of future profits]; McCain v. Phoenix Resources, Inc. (1986) 185 Cal.App.3d 575, 578, 581 (McCain) [affirming issuance of preliminary injunction compelling general partner to allow inspection of records by limited partners].) The dispositive question is not, as appellants suggest, whether a preliminary injunction changes the status quo. (See Butt, supra, 4 Cal.4th at p. 704 [affirming issuance of preliminary injunction “authorizing the [Superintendent of Public Instruction] to assume control of the [Richmond School] District’s affairs, relieve the [School] Board of its duties, and supervise the District’s financial recovery”].) We reject appellants’ contention that reversal is required as a matter of law simply because the trial court’s order “legitimized a changed status” from that which existed when the initial complaint was filed.
D. Removal of Appellants as General Partners
1. Likelihood of Prevailing on the Merits
Appellants contend the trial court erred “in issuing the preliminary injunction without sufficient evidence that respondents will prevail at trial.” The limited partners’ effort to oust them as general partners will not succeed, they argue, because respondents “ ‘did not get the necessary approval required by the partnership agreement for action by written consent’ ” and “failed to send the proper partner-removal notice.” “There is no competent evidence, ” they assert, “that respondents will prevail at trial upon the allegations of their [cross-]complaint.” We disagree.
Appellants state their entire argument in four sentences. In their opening brief, they assert that in 2009, respondents “supposedly removed [them] as general partners” but they “dispute the legitimacy of the removals.” In their reply brief, they assert that, “The third attempt [to remove them as general partners], by written consent in January 2009, was... unsuccessful” because, “[a]s Bernardo declared, ‘Tim Odell, Mapps and Mary Jane Ferrari did not get the necessary approval required by the partnership agreement for action by written consent.’ ”
The record refutes appellants’ contention that “the necessary approval” was lacking. The partnership agreements grant the limited partners certain voting rights, including the right to vote on “[t]he removal of a General Partner.” Such removal “shall require the affirmative written vote of Limited Partners holding at least a majority in interest in the profits and losses of the Partnership....” The requisite number of votes must be cast by “Limited Partners who are not also General Partners....”
The relevant sections of the Fayette Properties and Glenwood Station agreements are identical or substantially the same.
“ ‘Majority in interest of the Limited Partners’ ” is defined in section 1.07(h) of the agreements to mean “fifty-one percent (51%) of the interests of the Limited Partners.”
The January 2009 effort to remove appellants as general partners satisfied these requirements. As Tim Odell explained in his uncontradicted declaration, “[i]n January of 2009, Maria, Mary Jane Ferrari and I sought the limited partners’ written consent to the replacement of Dominic and Bernardo as [general] partners.... All of the procedural objections made to the two previous attempts to replace Dominic and Bernardo were considered. The form of the written consent to action was reviewed by at least four involved attorneys familiar with the partnership agreement, in addition to Tim and Maria. An ‘Action by Written Consent of Limited Partners’ was mailed to all limited partners. A majority of the owners consented in writing to remove Dominic and Bernardo as General Partners. This majority was about 70% for each property, and once again was over 50% without any portion of the vote of either Maria or the Fayette property’s interest in Glenwood.”
Tim Odell and Maria Ferrari Mapps both have law degrees.
Copies of the signed consents were attached to the Odell declaration. They reflect that 15 Fayette Properties limited partners (representing 62.69960 percent of the ownership of the partnership) and 14 Glenwood Station limited partners (representing 58.1183666 percent of the ownership of the partnership) consented to: “1. The removal of Dominic Ferrari as general partner of the Partnership; [¶] 2. The removal of Bernardo Ferrari as general partner of the Partnership; [¶] 3. The admission of Tim Odell as a general partner of the Partnership; [and] [¶] 4. The admission of Mary Jane Ferrari, Trustee as general partner of the Partnership.”
We conclude that substantial evidence supports the trial court’s determination that the votes necessary to remove appellants as general partners and to elect Tim Odell and Mary Jane Ferrari in their stead were obtained.
Appellants next challenge the vote on procedural grounds, asserting that respondents failed to comply with the partnership agreements’ notice requirements. The substance of the argument, however, is unclear. At page 3 of their opening brief, appellants assert that “respondents failed to send the proper partner-removal notice....” They say nothing more on the subject until page 24, where they assert that respondents are unlikely to prevail at trial because they “failed to provide proper notice regarding terminating appellants as general partners.” Their reply brief is no more specific.
“It is the duty of counsel by argument and the citation of authorities to show that the claimed error exists.” (In re Estate of Randall (1924) 194 Cal. 725, 728 (Randall); see Cal. Rules of Court, rule 8.204(a)(1)(B).) “Appellate courts cannot be expected to assume the task of searching the record for the purpose of discovering errors not pointed out by counsel.” (Randall, at p. 728.) When an appellant asserts a point but fails to support it with argument and citations to relevant authority, the court may treat the point as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
To the extent we understand appellants’ claim of deficient notice, we find no support for it in the record. Section 8.07 of the partnership agreements provides that when the limited partners are asked to consent to a matter without a meeting, “each Partner shall be given notice of the matter to be voted upon in the manner described in Section 8.02.”
Section 8.02 sets forth the notice requirements for partner meetings generally. It provides that if a partner or partners request a meeting, notice must “immediately” be given “to all Partners entitled to vote....” “Valid notice may not be given less than ten (10) nor more than sixty (60) days prior to the date of the meeting, and must state the place, date and hour of the meeting and the general nature of the business to be transacted. No business other than the business stated in the notice of the meeting may be transacted at the meeting. Notice must be given by mail, addressed to each partner entitled to vote at the meeting at the address appearing on the books of the Partnership for the Partner.”
Substantial evidence supports the trial court’s determination that, to the extent these requirements can be said to apply to an action without a meeting, they were satisfied here. Tim Odell declared that “[a]n ‘Action by Written Consent of Limited Partners’ was mailed to all limited partners.” Proofs of service reflect that on January 15, 2009, the law firm representing the Odells mailed the “Notice of Request for Action by Written Consent of Limited Partners” and the “Action by Written Consent of Limited Partners” to the limited partners with a cover letter signed by Tim Odell and Mary Jane Ferrari. The cover letter requested each partner’s “consent to the actions described in the Notice, ” stating, “If you approve such action, please sign the enclosed Action by Written Consent of Limited Partners and send your original signed Consent in the enclosed self-addressed, stamped envelope to legal counsel for Timothy Odell (Paul Avilla, McPharlin, Sprinkles & Thomas LLP, 10 Almaden Blvd., Suite 1460, San Jose, CA 95113).” The Action by Written Consent, seeking the removal of Dominic and Bernardo Ferrari as general partners and the election of Tim Odell and Mary Jane Ferrari in their stead, adequately stated “the general nature of the business to be transacted.” There is no claim that any “business other than the business stated in the notice” was transacted.
The cover letter also stated that “[i]n the event that any current general partner of the Partnership, or limited partners representing more than ten percent (10%) of the interests of the limited partners, request a meeting for the purpose of discussing or voting on the foregoing matters, notice of such meeting will be given pursuant to section 8.02 of the partnership agreement. [¶] If no meeting is requested, the foregoing actions shall become effective fifteen (15) days after limited partners holding a majority in interest in the profits and losses of the Partnership have signed a written consent to such action.” As Tim Odell explained in his declaration, “[f]ollowing the distribution of the Action by Written Consent of Limited Partners, the partners received a notice that a meeting to discuss the Action had been called by unnamed limited partners to be held on March 28, 2009. This notice was unsigned, did not include the names of any partners, and was not accompanied by any cover letter. It was inserted with each partner’s monthly distribution check, and said that ‘No action shall be taken until the meeting is held.’ ” (Italics added.) We find no mention of this anonymous notice in appellants’ briefs. Bernardo and Dominic later sent a signed letter, dated March 17, 2009, to the limited partners. Without revealing who had sent the initial notice, the March 17, 2009 letter stated that “[t]he meeting previously noticed for March 28, 2009 has been cancelled.”
To the extent appellants claim (as respondents report they did in the trial court) that section 8.02 required that the notice “state the place, date and hour of the meeting” and further required that it be given “no less than ten (10) days prior to the date of the meeting, ” we reject their arguments. As respondents correctly point out, section 8.02 sets forth the requirements for in-person meetings as well as for actions by written consent without a meeting. It is obvious to us that an action by written consent without a meeting does not occur at a particular place, date, or hour. Consequently, the notice need not specify those particulars. It is equally obvious that notice of an action by written consent without a meeting need not be provided 10 days in advance of the “meeting.” Appellants do not argue that any of the limited partners failed to receive notice. We conclude that substantial evidence supports the trial court’s implicit determination that the pre-vote notice requirements of section 8.02 were satisfied.
Because we conclude that proper pre-vote notice was given to the limited partners, we need not address appellants’ contention (made in their March 17, 2009 letter to the limited partners and quoted in their reply brief) that “compliance with Section 8.05 has not been met.” Section 8.05 of the partnership agreements provides what appellants describe as “a cure mechanism for improperly noticed meetings....” Appellants fail to explain, and we cannot imagine, how that section might apply here.
Section 8.02 also sets forth post-vote notice requirements: “Written notice of a General Partner’s removal shall be served upon that Partner by certified mail. The notice shall set forth the day on which the removal is to be effective, and that date shall not be less than thirty (30) days after the service of notice on the General Partner.” This provision, too, was complied with. On February 20, 2009, counsel for the Odells notified Dominic and Bernardo, by certified mail, of their removal as general partners. Appellants admitted, in their March 17, 2009 letter to the limited partners, that they received notice of their removal as general partners; they asserted, however, that they did not consider it “authorized by the pertinent agreements.”
Appellants next argue that “the February 19, 2009 termination notices... were sent before several limited partners gave their approval.” They do not explain how this claimed error affects the validity of the vote or of the notices, and it is clear to us that it does not. The only consents signed after February 19, 2009, were those executed on March 17, 2009, by Dominic Ferrari as trustee of minors’ trusts for Kristopher and Gregory Votruba. Those trusts hold a mere 0.0255 percent interest in the Fayette Properties partnership and a mere 0.5244666 percent interest in the Glenwood Arms partnership-interests that were plainly not sufficient to invalidate the vote.
Section 8.07 of the partnership agreements provides that “any action taken without a meeting shall be effective fifteen (15) days after the required minimum number of voters have signed consents to action without a meeting....” Since 62.69960 percent of the ownership of the Fayette Properties partnership and 58.1183666 percent of the ownership of the Glenwood Station partnership consented before February 19, 2009 to the removal of appellants as general partners, there can be no argument that the notices informing appellants of their removal as general partners were prematurely sent. We conclude that substantial evidence supports the trial court’s determination that the post-vote notice requirements of the partnership agreements were satisfied.
Having determined that the requisite percentage of votes was obtained and the pre- and post-vote notice requirements were satisfied, the trial court properly concluded that respondents were likely to prevail at trial on their cause of action seeking declaratory and injunctive relief with respect to appellants’ removal as general partners.
2. Relative Interim Harm
In the trial court, respondents submitted a number of declarations to support their contention that appellants had “both miserably failed to fulfill their most basic responsibilities to: (1) maintain the condition of the partnership properties; (2) competently market and lease units; (3) set and collect appropriate market rents; and (4) make sound financial decisions for the partnerships.” “Given the legally unassailable action to remove [appellants as] general partners and the difficulty of ascertaining the financial loss that the partnership would suffer under [their] continued management and control, ” respondents argued, “the equities weigh heavily in favor of preliminary injunctive relief preventing [appellants] from interfering with the transition of control... to the new... general partners.” Appellants, by contrast, did not identify any harm they would suffer from their removal as general partners. The trial court implicitly resolved the balance of interim harm issue in respondents’ favor.
The only harm appellants identified below was “the loss of management fees that are likely never to be recovered because they will be paid to someone else in the interim.” There is no competent evidence in the record to establish the amount of those fees, but unsupported statements in the briefs variously assert that Bernardo receives $80,000 or $100,000 per year for managing Fayette Arms (six percent of gross profits), and Dominic receives $35,000 or $100,000 for managing Glenwood Station (five percent of gross profits). Those fees for acting as offsite property managers do not depend on appellants’ status as general partners. We note that section 7.04 of the partnership agreements provides that general partners will be compensated for their services “in the total amount of one percent (1%) of the gross income of the Partnership....” There is no competent evidence in the record to establish the amount of that compensation. If the offsite management fee estimates are correct, Bernardo’s general partner compensation would be between $13,334 and $16,667 annually and Dominic’s general partner compensation would be between $7,000 and $20,000 annually.
Appellants challenge that determination here. Characterizing respondents’ declarations as showing “only run-of-the-mill, quibbling disagreements regarding how the family partnerships should be run, ” and asserting that if respondents were to suffer any harm, “ ‘pecuniary compensation’ would certainly ‘afford adequate relief, ’ ” appellants contend respondents “failed to show that they would suffer irreparable damage if a preliminary injunction was not granted.” We disagree.
Substantial evidence supports the trial court’s implicit determination that, as respondents contend, appellants’ “continued control of the partnerships... will not only result in indeterminate loss of income, but will effectively deny the partnerships the fundamental right of self-governance.”
The record amply supports respondents’ contention that the partnerships have ceased to function as such. As Maria Ferrari Mapps, the third general partner, declared, “Dominic and Bernardo have supported each other and ignored or out-voted me on every significant issue. Dominic thus has virtually unfettered control of Glenwood and Bernardo controls Fayette. This is epitomized by Dominic and Bernardo holding general partner meetings without me and recently agreeing to pay Dominic $18,796 for unspecified, undocumented expenses incurred by Dominic’s management company.” Maria declared that after they hold general partner meetings from which she is excluded, Dominic and Bernardo prepare “meeting minutes” and distribute them to the limited partners without having sought her vote on the matters they addressed or her approval of the “minutes.” She used to receive at least limited information about partnership properties, but Bernardo has now locked her out of the browser-based property management accounting system for Fayette Properties, which denies her “real-time” access to rent roll, vacancy, and financial information. Even when she had access to the accounting system, she was denied Fayette Properties expense data, because Bernardo does not enter that in the system. He also refuses to provide information on the identities of Fayette Properties employees, and she was therefore unaware (until she read Bernardo’s declaration) that certain individuals were employees or that Bernardo was permitting them to live in Fayette Arms apartments rent-free.
Substantial evidence likewise supports respondents’ contention that appellants’ “continued control of the partnerships... will result in indeterminate loss of income.” The record reflects the limited partners’ concern about this issue. Maria Ferrari Mapps declared that in 2006, her mother, Mary Jane Ferrari, “started to complain to me and others that she thought both apartments should be generating greater net income for the limited partners, ” but her inquiries and suggestions “were ignored by Bernardo and Dominic.” Dominic’s oversight of Glenwood Station was criticized at the September 20, 2008 limited partners’ meeting: “Part of your job as [general partner]... is to know the market. I submit to this group that you have never made this a priority.” The unobjected-to minutes of that meeting reflect Dominic’s admission that “ ‘I was not watching the steering wheel at some point.’ ”
In their declarations, Maria Ferrari Mapps, Tim Odell, and Maria’s son Brandon Silversprings described high vacancy rates and “undesirable tenants” (including “an active drug dealer” and others “who appeared to be involved with drugs”) at Glenwood Station-problems they attributed to Dominic’s failure to adequately screen renters. Dominic stated only that in his opinion, “it is appropriate to leave such details to the resident manager.”
Brandon Silversprings declared that when he arrived at Glenwood Station to take the job as resident manager, he toured the property with one of the maintenance men, who “wanted to be sure that I know those areas... where I should take extra precautions not to get assaulted.” Brandon discovered “there... were no standardized procedures for anything, including procedures to screen tenants[, ] and the tenant mix reflected that.” He found the leasing records at Glenwood Station “in disarray.” “There were many instances where there was no lease in the file for a particular apartment, ” and he spent many hours “to try to confirm what people were supposed to be paying.” “The tenants included many people who had difficulty every month making rent....” He was “immediately inundated with tenant complaints, at all hours of the day and night, ” and he was “surprised at the extent of the problems at Glenwood.”
At Fayette Arms, as Maria Ferrari Mapps declared, Bernardo “rejected any suggestion of improving... units in order to justify increased rents.” He “continued to drop our rental prices because of the dot-com crash, ” although her research indicated that the rents were at market. When she “prepared a rent roll and asked him to keep it up to date so we could each keep an eye on our pricing, ... he said it was too much work for the manager....” Although the partnership had borrowed $300,000 in 2003 “to be used to make improvements to Fayette Arms, ” “[a]s of today, no improvements have been made....” “Bernardo didn’t want to spend any money.”
Given this wealth of evidence, the trial court could reasonably have concluded (even without evidence of appellants’ self-dealing) that if the preliminary injunction did not issue, and appellants continued as general partners, the partnership properties would not only fail to perform as well as they could under new general partners but would, in addition, decline in value due to unperformed maintenance. Balancing this harm against the harm likely to result from issuance of the preliminary injunction-harm appellants failed to identify-the court could reasonably have concluded that the equities favored respondents. We conclude that since respondents were likely to prevail on the merits, and the balance of interim harm also favored them, the trial court did not abuse its discretion when it enjoined appellants from interfering with the transfer of power to the new general partners.
E. Termination of Appellants as Offsite Property Managers
1. Likelihood of Prevailing on the Merits
Section 5.01 of the partnership agreements gives the general partners “sole and exclusive control of the Limited Partnership.” Subject to certain express limitations, it authorizes them “to take any action from time to time as they may deem to be necessary, appropriate, or convenient... including without limitation the power to: [¶... ¶] (e) Employ, retain, or otherwise secure the services of any personnel or firms deemed necessary by the General Partners for or to facilitate the conduct of Partnership business affairs, all on the terms and for the consideration as the General Partners deem advisable.” As amended in 2002, section 5.01 recognizes that Bernardo and Dominic (or such business entity as either shall choose to form) “[are], and ha[ve] been, employed as the off-site manager at a [stated] compensation; and, any change in the agreement with [either of them] will be subject to the approval of eighty percent (80%) interest of the Limited Partners....” (Italics added.)
Relying on this language, appellants contend it is unlikely respondents will prevail on the merits at trial “because [they] failed to obtain the necessary 80% approval of the limited partners to remove appellants as off-site managers....” Respondents counter that “the obvious intent behind the 80% approval provision” compels a different interpretation. “Reading Section 5.01 as a whole, ” they argue, “it is clear that the 80% clause was never intended to protect non-performing off-site managers. To the contrary, the only logical purpose of the 80% clause is to protect the limited partners from self-dealing by a general partner who is also acting as off-site manager, or who is affiliated with the off-site manager.”
Each side calls the other side’s reading of section 5.01 “tortured.” While we do not find respondents’ interpretation tortured, we think it at best suggests the contract language is ambiguous. (Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448 [“If a contract is capable of two different reasonable interpretations, the contract is ambiguous”].)
To resolve contract ambiguities, courts consider “objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.) Extrinsic evidence may be introduced “to prove a meaning to which the language of the instrument is reasonably susceptible.” (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37.) “[W]here extrinsic evidence has been properly admitted as an aid to the interpretation of a contract and the evidence conflicts, a reasonable construction of the agreement by the trial court which is supported by substantial evidence will be upheld.” (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747.) “The interpretation of a written instrument, even though it involves what might properly be called questions of fact, is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect.” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, citations omitted.)
Here, the parties urged conflicting interpretations of section 5.01. But what little extrinsic evidence respondents offered does not support their position. There was no declaration from founding partner Mary Jane Ferrari to explain the types of “changes”-beyond those expressly described in the partnership agreements-that the parties thought should require an 80 percent vote. Maria Ferrari Mapps declared that she drafted the 2002 amendments “according to [her] father’s wishes” to provide that appellants would replace Ferrari Management Company as offsite property managers. She declared that “[t]hose amendments were approved by the limited partners.” Her declaration failed to specify, however, what percentage of the limited partners approved them-80 percent (which would be consistent with appellants’ interpretation of section 501(e)) or, as she alleged on information and belief in her verified cross-complaint, some smaller percentage (which might be consistent with respondents’ interpretation).
The amendments expressly require an 80 percent vote of the limited partners to distribute profits less frequently than quarterly (section 4.02), to “alienate, encumber, ... sell, ... or transfer... all or substantially all of the assets of the Partnership” (sections 5.01(d), 7.07(a)(2)), to retain partners or affiliates of partners to perform services in excess of $1,000 (section 5.01(e)), and to amend “the provisions of” the partnership agreements (section 14.02).
Only some of the assertions in Maria Ferrari Mapps’ verified cross-complaint were made on information and belief.
Our review of the record finds support for appellants’ position. It appears that Maria Ferrari Mapps has, at times, interpreted the 80 percent vote provision as appellants do. The minutes of the September 20, 2008 limited partners’ meeting, for example, reflect Maria’s comment that “[o]n its face [the provision] requires an 80 percent approval.” An allegation in her verified cross-complaint for reformation of the agreements is consistent with her statement at the limited partners’ meeting. Dominic Ferrari’s declaration provides further support for appellants’ interpretation. He explained that after his father retired from practicing law, he and his parents “agreed to split management responsibilities and management fees so that my parents would get 6% of the gross income of another property and I would get 6% of the gross income of Fayette.” He further declared (without objection) that “[s]ometime later, in what I believe was an effort to ensure that my brother Bernardo would have enough money to keep the family home maintained, the management of Fayette was transferred to Bernardo as memorialized in the Second Amendments to the partnership agreements.” If, as these comments suggest, family members were dependent on the income the management fees provided, the 80 percent provision could plausibly have been intended to safeguard that income.
Respondents have not adduced any competent evidence to support their position. If, in fact, the 2002 amendments were not approved by 80 percent of the limited partners, that might establish that before they became embroiled in litigation, none of the parties-not even appellants-interpreted section 5.01 to require an 80 percent vote to replace the offsite property managers. Unfortunately for respondents, however, we cannot credit Maria Ferrari Mapps’ allegation that the amendments were not approved by 80 percent of the limited partners, because that allegation was made on information and belief. (Star Motor Imports v. Superior Court (1979) 88 Cal.App.3d 201, 204 [“Matters alleged on ‘information and belief’ do ‘not serve to establish the facts... because an affidavit which is to be used as evidence must be positive, direct and not based upon hearsay.’ [Citation.]”].) It follows that the trial court’s implied conclusion that respondents are likely to prevail on the merits is not supported by substantial evidence.
Respondents contend the new general partners can replace Bernardo Ferrari as offsite property manager for an independent reason: because he lacks a broker’s license. Instead of advancing an argument to support their contention, however, they simply assert that by failing to dispute that Bernardo lacks a license, “appellants have waived any challenge to the factual finding that respondents are likely to prevail on their declaratory relief claim to terminate [his] services as off-site manager....” We are not persuaded. Bernardo’s lack of a broker’s license may preclude him from bringing suit to compel compensation for certain services he provides to the partnerships, (see Bus. & Prof. Code, § 10136), but it does not, without more, compel the conclusion that he can be terminated as offsite property manager without the approval of 80 percent of the limited partners.
Respondents do not address this point. Nor did they address it in the trial court. There, they simply asserted (without citation to the record) that Bernardo’s “primary responsibility as off-site manager for Fayette is to oversee the leasing of apartment units and the collection of rents.” From this they concluded (with no more than a footnoted reference to “Bus. & Prof. Code § 10130, et seq.”) that “[u]nder the Business and Professions Code, it is unlawful for Bernardo to perform this service without a real estate broker’s license, which is an additional ground for a preliminary injunction prohibiting him from doing so.”
“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) “When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) For this reason, we reject respondents’ broker’s license contention.
2. Relative Interim Harm
Having concluded that respondents are not likely to prevail on the merits of their claim respecting appellants’ termination as offsite property managers, we need not consider the relative interim harm that issuance or nonissuance of a preliminary injunction might cause. (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. [Citation.]”].) Our decision, of course, “does not constitute a final adjudication of the ultimate rights in controversy.... In reviewing the propriety of a ruling on an application for a preliminary injunction, we merely decide whether the trial court abused its discretion based on the record before it at the time of the ruling.” (Shoemaker, supra, 37 Cal.App.4th at pp. 625-626, citations omitted.)
F. Conclusion
The question of an appropriate disposition remains. Arguing that appellants’ “unjustified stranglehold on these partnerships and their continued extraction of management fees” makes this “the type of extreme case that warrants mandatory injunctive relief, ” respondents urge us to affirm the injunction in its entirety, while appellants contend nothing short of reversal is required.
We are mindful that the preliminary injunction in this case is a mandatory rather than a prohibitory one, that mandatory injunctions are infrequently granted, and that they are subject to stricter review on appeal. (Furlotti, supra, 70 Cal.App.4th at p. 1493.) “ ‘The modern approach to discretion in this area is that the court need not decide wholly for the plaintiff or the defendant. It may grant partial injunctive relief; it may impose terms and conditions on the relief granted; and it may substitute its own form of relief for the one demanded by the plaintiff.’ [Citation.]” (Bennett v. Lew (1984) 151 Cal.App.3d 1177, 1186 [affirming issuance of preliminary injunction mandating removal of fence, conditioned on respondent’s posting of $10,000 bond].)
In Farmers Insurance Exchange v. Ruiz (1967) 250 Cal.App.2d 741 (Ruiz), the brother of an individual killed by an uninsured motorist filed a demand for arbitration under the terms of an automobile liability policy. Disputing the decedent’s status as an insured under that policy, the insurance company filed a declaratory relief action and sought a preliminary injunction enjoining the arbitrators from continuing with the arbitration until the court resolved the coverage issue. (Ruiz, at p. 743.) Believing it lacked the power to issue a limited injunction, the trial court enjoined the arbitration in its entirety. (Ruiz, at p. 746.) The Court of Appeal affirmed the order “insofar as [it] restrained the parties from arbitrating the coverage issue, ” but reversed the order in all other respects. (Ruiz, at p. 749.) “The court’s power to restrain an arbitration in its entirety is established, ” the court explained. (Ruiz, at p. 747.) “That power includes the lesser power to enjoin arbitration of a single issue.” (Ibid.)
We agree with the court’s approach in Ruiz, and take a similar approach here. We will modify the order by striking item number 5, which enjoins, restrains, and prohibits appellants “from preventing, interfering with, or impeding the [N]ew [G]eneral [P]artners from hiring a new property management firm or firms to act as offsite managers for the Fayette Properties and Glenwood Station limited partnerships.”
IV. Disposition
The paragraph numbered “5” is stricken from the trial court’s order. As modified, the order is affirmed.
WE CONCUR: McAdams, J., Duffy, J.