Filed 2/23/23 Doe v. County of Los Angeles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JANE DOE,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and 

Respondent.

 B318070

 (Los Angeles County Super.

 Ct. No. 21STCV44756)

APPEAL from the order of the Superior Court of Los 

Angeles County, Maurice A. Leiter, Judge. Affirmed.

Jane Doe, in pro. per., for Plaintiff and Appellant.
2

Collins + Collins, Erin R. Dunkerly and David C. Moore for 

Defendant and Respondent. 

* * * * * *

Jane Doe (plaintiff) sued the County of Los Angeles (the 

County), alleging that one of the County’s Sheriff’s deputies had 

exceeded the scope of plaintiff’s consent when the deputy made a

mirror image of the entire cell phone plaintiff had given the 

deputy as evidence of an alleged crime. Within days of filing her 

complaint, plaintiff moved for a preliminary injunction. The trial 

court denied her motion, and she appeals. Because the trial court 

did not abuse its discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts1

In July 2019, plaintiff went to the Los Angeles Sheriff’s 

Department (the Department) to report a rape.2 On July 2, 2019, 

plaintiff met with Sheriff’s Detective Liliana Jara (Detective 

Jara). During their meeting, plaintiff reported that she met a 

man on an app called “WeChat,” that he plied her with alcohol, 

and that he raped her. As proof, plaintiff showed Detective Jara 

1 These facts are drawn from the documents presented to the 

trial court, which include several filings and orders from a 

parallel lawsuit plaintiff filed against the County in federal court. 

Because neither party objected to this evidence, it is properly 

before us for purposes of reviewing the order on appeal. (See, 

e.g., Alexander v. Codemasters Group Limited (2002) 104 

Cal.App.4th 129, 140; Fibreboard Paper Prods. Corp. v. East Bay 

Union of Machinists (1964) 227 Cal.App.2d 675, 700; Evid. Code, 

§ 353.)

2 Plaintiff initially went to the El Monte Police Department, 

but for jurisdictional reasons, that office referred her to the 

Sheriff’s Department.
3

various messages on the WeChat app on her cell phone. As 

Detective Jara scrolled through the WeChat messages, she saw 

messages indicating that plaintiff’s interactions with the man 

were consensual, that plaintiff had invited future dates with the 

man, that plaintiff had become upset with the man because he 

was continuing to be active on the app after their encounter, and 

that plaintiff had warned him that she “could make him lose his 

job.”

Plaintiff agreed to let Detective Jara take custody of her 

cell phone to copy it and provided her the password. Plaintiff 

signed a receipt form indicating that the Department now had 

her phone.

The scope of plaintiff’s consent is in dispute. Plaintiff 

insists that she consented to having the Department copy only

the “incriminating messages” exchanged between herself and the 

man she was accusing on WeChat. In contrast, and because it is 

undisputed that such targeted copying is not a feasible 

investigative option, Detective Jara maintains that plaintiff 

consented to having the Department make a mirror image of “any 

and all data” on the cell phone, and that plaintiff executed a 

written consent form so indicating. Plaintiff initially denied 

seeing any written consent form, but later acknowledged signing 

a form but claimed that her signature on the consent form was 

forged.

A few weeks later, the Department’s High Tech Task Force 

created a mirror-image copy of all of the data on plaintiff’s cell 

phone, saving it to a USB drive. 

In October 2019, plaintiff retrieved her cell phone.

There is no evidence that, at any point after Detective Jara 

reviewed the messages during the July 2, 2019 meeting, 
4

Detective Jara or any other Department employee viewed any of 

the data on or from plaintiff’s cell phone, or otherwise 

transmitted that data to any third party.

II. Procedural Background

On December 8, 2021, plaintiff sued the County3 for the 

“unreasonable seizure of [her] cell phone data.” Plaintiff alleged 

that the County’s conduct (1) violated the California 

Constitution’s protection against unreasonable searches and 

seizures (Cal. Const., art. I, § 13), (2) violated her right of privacy 

protected by the California Constitution (id., art. I, § 1), and (3) 

amounts to a conversion entitling her to relief under a theory of 

claim and delivery.

On December 17, 2021, plaintiff moved for a preliminary 

injunction compelling the Department (1) to return the USB 

drive and any other copies of her cell phone data, (2) not to “read, 

explore, use, copy, transfer, distribute, disclose, or release any of 

[p]laintiff’s electronic data seized from her smartphone by LASD, 

including, but not limited to, photographs, videos, app data, 

messages, emails, notes, and search histories etc.,” and (3) to 

execute an affidavit detailing “any use of [p]laintiff’s electronic 

data seized from her smart phone, including but not limited to 

when, how, who, and the purpose of the use.”

After full briefing and a hearing, the trial court denied 

plaintiff’s motion for a preliminary injunction. The court 

reasoned that plaintiff had failed to show any “irreparable harm 

from [the Department’s possession of her cell phone data] other 

than a general ‘loss of privacy’” because plaintiff presented “no 

3 Because the Department is part of the County, plaintiff 

properly named the County as a defendant. (E.g., Pierce v. San 

Mateo Sheriff’s Dept. (2014) 232 Cal.App.4th 995, 1020.)
5

evidence any unlawful use of [her] data has occurred or is likely 

to occur.”

Plaintiff filed this timely appeal.

DISCUSSION

Plaintiff argues that the trial court erred in denying her 

motion for a preliminary injunction.

I. Pertinent Law

A preliminary injunction is an “extraordinary” form of relief 

because it is issued “prior to a full adjudication of the merits.” 

(College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; 

White v. Davis (2003) 30 Cal.4th 528, 554 (White).) In deciding 

whether to award such relief, a trial court is to examine “two 

interrelated factors: (1) the likelihood that the [plaintiff, as the 

party moving for the preliminary injunction,] will prevail on the 

merits [at trial], and (2) the relative balance of harms that is 

likely to result from the granting or denial of the interim 

injunctive relief.” (White, at p. 554; IT Corp. v. County of 

Imperial (1983) 35 Cal.3d 63, 69-70 (IT Corp.).) “These two 

[factors] operate on a sliding scale: ‘[T]he more likely it is that 

[the party seeking the injunction] will ultimately prevail, the less 

severe must be the harm that they allege will occur if the 

injunction does not issue.’” (Integrated Dynamic Solutions, Inc. v. 

VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183 (Integrated 

Dynamic), quoting King v. Meese (1987) 43 Cal.3d 1217, 1227 

(King); accord, Fairrington v. Dyke Water Co. (1958) 50 Cal.2d 

198, 200 [applying this principle].) Because preliminary 

injunctions are generally designed to “‘preserve the status quo 

pending a determination on the merits of the action’” (Law School 

Admission Council, Inc. v. State of California (2014) 222 

Cal.App.4th 1265, 1280), an injunction—such as the one 
6

requested here—that changes the status quo is reserved for those 

“‘“extreme cases where the right thereto is clearly established.”’” 

(City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 

Cal.App.4th 291, 299.) 

A party is not entitled to have the trial court examine the 

potential merits and “relative balanc[ing] of harms” factors 

unless and until there is some evidence that the movant’s claim 

has merit and some evidence that the movant would suffer some

harm during the interim period while the case is being litigated. 

This is why a trial court need not look to the relative balance of 

harms if the movant fails to show “some possibility” that his 

claims have merit. (Butt v. State of California (1992) 4 Cal.4th 

668, 678 (Butt); Jessen v. Keystone Sav. & Loan Assn. (1983) 142 

Cal.App.3d 454, 459; County of Los Angeles Dept. of Public Health 

v. Superior Court (2021) 61 Cal.App.5th 478, 486.) And this is 

why a trial court need not look at the potential merits of a claim

if the movant fails to show that she “will suffer” or is 

“threatened” with suffering “irreparable injury” “if an injunction 

does not issue” (Loder v. City of Glendale (1989) 216 Cal.App.3d 

777, 786 (Loder); Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 

1352 (Intel Corp.); E.H. Renzel Co. v. Warehousemen’s Union 

I.L.A. 38-44 (1940) 16 Cal.2d 369, 373; City of Tiburon v. 

Northwestern Pac. R. Co. (1970) 4 Cal.App.3d 160, 179; cf. King,

supra, 43 Cal.3d at pp. 1227-1228 [where there is some evidence 

of harm, trial court must examine merits]); showing a “mere 

possibility” of irreparable injury is not enough (Costa Mesa City 

Employees’ Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 

298, 305 (Costa Mesa); Maria P. v. Riles (1987) 43 Cal.3d 1281, 

1292). For these purposes, an injury or harm is “irreparable” (1) 

if the damages arising from that injury or harm are “estimable 
7

only by conjecture and not by any accurate standard” (Donahue 

Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 

Cal.App.4th 1171, 1184 (Donahue); Wind v. Herbert (1960) 186 

Cal.App.2d 276, 285 (Wind) [damages ‘“extremely difficult to 

ascertain”’]; DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. 

(2009) 176 Cal.App.4th 697, 721-722; Grail Semiconductor, Inc. v. 

Mitsubishi Electric & Electronics USA, Inc. (2014) 225 

Cal.App.4th 787, 801 (Grail Semiconductor); Triple A Machine 

Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138

[“inadequacy of legal remedies” suffices]), or (2) if, absent the 

preliminary injunction, the movant will face or is threatened with 

“continued or repeated” injury from the party to be enjoined 

(Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 

Cal.App.3d 242, 250 (Volpicelli); Donahue, at p. 1184; Wind, at p. 

285; Grail Semiconductor, at p. 801). The movant must come 

forward with evidence, either in the form of a verified complaint, 

“facts shown by affidavit,” or some other evidentiary proof; 

unverified allegations of harm are meaningless. (Code Civ. Proc., 

§ 527, subd. (c)(1); Integrated Dynamic, supra, 6 Cal.App.5th at p. 

1185.) 

We review the denial of a preliminary injunction for an 

abuse of discretion (Butt, supra, 4 Cal.4th at p. 678; King, supra, 

43 Cal.3d at p. 1226), reviewing any subsidiary questions of law 

de novo (People ex rel. Feuer v. FXS Management, Inc. (2016) 2 

Cal.App.5th 1154, 1159 (FXS Management); Huong Que, Inc. v. 

Luu (2007) 150 Cal.App.4th 400, 408-409 (Huong Que)) and any 

subsidiary questions of fact for substantial evidence (Huong Que, 

at pp. 408-409; Integrated Dynamic, supra, 6 Cal.App.5th at p. 

1183-1184). Where, as here, the movant bore the burden of proof 

below, we may find that the trial court’s factual findings are 
8

unsupported by substantial evidence only if the evidence in the 

record compels a finding in the movant’s favor as a matter of law. 

(Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 

Cal.App.4th 828, 838.) And where, as here, a trial court relied on 

the absence of one of the two preliminary injunction factors, we 

may affirm the denial of a preliminary injunction if the appellant 

fails to carry her burden of showing an abuse of discretion as to 

either factor. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 

277, 286-287; IT Corp., supra, 35 Cal.3d at pp. 69-70.)

II. Analysis

The trial court did not abuse its discretion in denying 

plaintiff’s motion for a preliminary injunction because substantial 

evidence supports the trial court’s finding that plaintiff did not 

produce any quantum of evidence showing that, absent that

injunction, she would suffer any injury or harm that qualifies as 

irreparable.

Functionally, plaintiff has identified three injuries or 

harms she claims to suffer by virtue of the Department’s 

nonconsensual copying of all of the data on her cell phone—

namely, (1) plaintiff was the victim of an unconstitutional 

“seizure” of that data when the Department initially created a 

mirror image of the data in July 2019; (2) plaintiff faces a 

potential injury if the Department accesses that copied data or 

shares it with a third party; and (3) plaintiff is injured by the 

Department’s mere possession of her data, even if the 

Department never does anything with it.

The trial court did not abuse its discretion in concluding 

that none of these three injuries qualifies as the type of 

“irreparable injury” that must exist before a preliminary 

injunction may issue. The harm plaintiff suffered by virtue of 
9

any unauthorized copying in July 2019 is wholly in the past; it 

cannot justify a preliminary injunction now. (Gleaves v. Waters

(1985) 175 Cal.App.3d 413, 417 [“Past exposure to illegal conduct 

does not itself establish a right to injunctive relief . . .”].) Plaintiff 

has not established that the injury she might suffer from the 

Department accessing her copied data or sharing it with third 

parties is anything more than speculation or a “mere possibility” 

because the evidence indicates the Department has done nothing 

with her data since it copied that data more than 30 months ago. 

This falls far short of the necessary showing of “actual evidence” 

of a “realistic prospect that the party [to be] enjoined intends to 

engage in the prohibited activity.” (Korean Philadelphia 

Presbyterian Church v. California Presbytery (2000) 77 

Cal.App.4th 1069, 1084.) And the injury plaintiff suffers by the 

Department’s mere continued possession of her data is at most a 

type of emotional distress damages, which is a type of damages 

regularly fixed by juries.4 (E.g., Thing v. La Chusa (1989) 48 

Cal.3d 644, 648-649 [emotional distress damages inflicted as a 

result of intentional conduct may be awarded by juries].) What is 

more, because all that the Department is doing is possessing a 

copy of the data on plaintiff’s phone (rather than the phone 

itself), this is not a situation where the Department’s continued 

possession deprives plaintiff of any right or access to the phone or 

the information on it. (Cf. Blair v. Pitchess (1971) 5 Cal.3d 258, 

284 [seizure of tangible goods can constitute irreparable harm, 

even if temporary], superseded by statute on other grounds as 

4 To the extent the Department’s conduct is merely 

negligent, any emotional distress plaintiff suffered is not 

compensable at all—via damages or in equity. (Branch v. 

Homefed Bank (1992) 6 Cal.App.4th 793, 801.)
10

described in Simms v. NPCK Enterprises, Inc. (2003) 109 

Cal.App.4th 233, 242-243.)

III. Plaintiff’s Further Arguments

Plaintiff responds with what can be grouped into four

categories of arguments.

First, plaintiff argues that the trial court got the law wrong 

in rejecting her motion based solely on her failing to show any 

“irreparable injury” because, according to plaintiff, there is no 

formal requirement that a party seeking a preliminary injunction 

show some quantum of irreparable injury. Admittedly, the case 

law on this point is murky, with some cases seeming to erect a 

separate, threshold prerequisite of irreparable injury (Costa 

Mesa, supra, 209 Cal.App.4th at p. 306), and others seeming to 

disclaim any such separate prerequisite except in very specific 

circumstances (White, supra, 30 Cal.4th at p. 554; cf. IT Corp., 

supra, 35 Cal.3d at p. 72; FXS Management, supra, 2 Cal.App.5th 

at pp. 1158-1159 [where government entity moves for 

preliminary injunction to enforce a statute, relative balance of 

harms is rebuttably presumed to favor injunction unless person 

to be enjoined shows “grave or irreparable harm from the 

issuance of the preliminary injunction”]). We need not wade 

through this quicksand because, as our discussion of the case law 

above establishes, a movant’s request for a preliminary 

injunction may be denied if she fails to adduce some evidence 

that she “will suffer” or is “threatened” with suffering 

“irreparable injury” “if an injunction does not issue” (Loder,

supra, 216 Cal.App.3d at p. 786; Intel Corp., supra, 30 Cal.4th at 

p. 1352); this power to deny relief exists regardless of whether 

this minimum threshold showing of some irreparable injury is 

classified as a third, separate factor operating as a prerequisite to 
11

preliminary injunctive relief or instead as part of the threshold 

that must be satisfied before a party is entitled to have a court 

engage in relative balancing of harms factor. (Accord, City of 

Torrance v. Transition Living Centers for Los Angeles, Inc. (1982) 

30 Cal.3d 516, 526 [quoting cases favorably that seem to indicate 

irreparable injury is an absolute requirement].) Plaintiff cites 

language from cases indicating that an express finding of 

irreparable injury is not required, but those cases deal with how 

a court’s ruling is to be documented; they do not purport to 

examine whether there is a substantive requirement of 

irreparable injury. (Conover v. Hall (1974) 11 Cal.3d 842, 850; 

Volpicelli, supra, 109 Cal.App.3d at p. 248.)

Second, plaintiff claims that she did establish the 

minimum quantum of irreparable injury necessary to require the 

trial court to fully address the balance of relative harms and the 

merits of her claims. She makes three points in this regard. To 

begin, she argues that any constitutional violation automatically 

establishes irreparable injury as a matter of law. She is wrong, 

as the cases she cites involve violations of the First Amendment 

(Elrod v. Burns (1976) 427 U.S. 347, 373; accord, Loder, supra, 

216 Cal.App.3d at p. 780 [“Nowhere did the Elrod court suggest 

that constitutional violations other than those offending the First 

Amendment automatically amount to irreparable injury”]), 

involve a factual showing of irreparable injury (Robbins v. 

Superior Court (1985) 38 Cal.3d 199, 213-218), or do not discuss 

the irreparable injury requirement at all (American Academy of 

Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 837-838; 

Long Beach City Employees Assn. v. City of Long Beach (1986) 41 

Cal.3d 937, 940-941, 946, 948). Plaintiff next asserts that she 

suffered irreparable injury because she did not seek damages. We 
12

reject this assertion. As noted above, an injury may be 

irreparable because damages are incalculable; if, as plaintiff 

seems to suggest, an injury became irreparable merely because a 

plaintiff did not seek damages that were otherwise calculable, 

then every plaintiff would have a surefire way to satisfy the 

irreparable injury requirement. We decline to create such a 

cheat. Plaintiff contends that she sufficiently proved irreparable 

harm (with evidence) because (1) she opined that the time she 

spent in this litigation caused her emotional distress, (2) she 

found one WeChat message on her phone (after she retrieved it

from the Department) that had been translated from Chinese to 

English, and (3) a litigant in a different case against her has 

subpoenaed the data in the Department’s possession, and that 

data is now subject to a litigation hold. These contentions also 

lack merit: The time plaintiff spent litigating this case, even if 

we assume it is a compensable form of damage,5 would be a type 

of emotional distress, and emotional distress damages are 

regularly proven in court; there is no evidence that Detective 

Jara or anyone else at the Department hit the translate button 

on one message on plaintiff’s cell phone, so plaintiff’s supposition 

that Detective Jara did so is pure speculation; and the litigation 

hold presents no danger because, as the trial court observed, the 

court managing discovery in that other case will be the one to 

regulate any access to that data, so no injunction in this case will 

impact that other litigation.

5 This is a dubious assumption, for if the investment of time 

in litigation were enough to give rise to a claim, it would exist in 

every case and we would be inundated with lawsuits seeking 

compensation for being the subject of lawsuits.
13

Third, plaintiff asserts that the Department has yet to 

articulate a counterbalancing justification for retaining her cell 

phone data that would be harmed by its surrender back to her. 

This assertion is beside the point because a court may balance 

the relative harms only if the party moving for a preliminary 

injunction first proves some irreparable injury; here, as we have 

explained, plaintiff has not.

Fourth, plaintiff exhaustively argues that her claims have 

merit. Because we have an independent basis for affirming the 

trial court’s denial of her motion for a preliminary injunction, we 

have no occasion to address those arguments. 

DISPOSITION

The order is affirmed. The County is entitled to its costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ