Judge: Carolyn M. Caietti, Case: 37-2023-00023459-CU-OR-CTL, Date: 2023-11-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2023-00023459-CU-OR-CTL WARD VS EXECUTIVE CAPITAL GROUP INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff Ronald Ward's Motion to Excuse Bond Requirement is GRANTED.

On July 21, 2023, the Court granted Plaintiff's request for a preliminary injunction, restraining Defendants from proceedings with a foreclosure sale of the home. (ROA 44.) The Court further ordered Plaintiff to: (i) make an undertaking of $20,000; (ii) make payments in the amount of $2,020 (the amount of his mortgage before the alleged fraud) on the first of every month during this litigation, keep any other liens out of default, pay taxes and insurance on the property and waive any claim accepting payments pursuant to these conditions waives any default. The Court ordered the first payment of $2,020 to be made to Plaintiff's counsel's trust account to cover insurance costs for the year with all other payments made to Defendant's counsel's trust account. (ROA 44 – Minute Order dated July 21, 2023.) On granting an injunction, courts must require an undertaking. (C.C.P., § 529(a).) The Bond and Undertaking Law (C.C.P., § 995.010 et seq.) generally governs all bond and undertaking requirements, including those in C.C.P. section 529. (Stevenson v. City of Sacramento (2020) 55 Cal.App.5th 545, 554, citing C.C.P., § 995.020(a).) 'And this law expressly grants courts discretion to 'waive a provision for a bond in an action or proceeding...if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers.'' (Ibid., citing C.C.P., § 995.240.) 'In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.' (C.C.P., § 995.240; see also, BBBB Bonding Corp. v. Caldwell (2021) 73 Cal.App.5th 349, 379, reh'g denied (Jan.

18, 2022), review denied (Apr. 13, 2022) (holding trial court did not abuse its discretion in excusing bond requirement and explaining judicial authority to facilitate meaningful access to indigent litigants extends to excusing statutorily imposed expenses that are intended to protect third parties and to devise alternative procedures so indigent litigants are not denied their day in court).) Here, Plaintiff is unable to secure the bond, indigent and unable to obtain sufficient sureties. The character of the action is a predatory lending case involving Plaintiff's primary residence. As alleged, after Plaintiff's wife passed away in 2020, Defendant Daniel Contreras said he could help Plaintiff obtain a Veteran's Administration Home Loan refinance to resolve financial distress. (Complaint, at ¶ 13.) Plaintiff, 72 years-old, alleges he attempted to refinance his real property home to pay consumer debts and expenses, but Defendants conspired to take excessive fees, interest and equity in Plaintiff's primary residence without following certain consumer protection laws and defrauding Plaintiff. In particular, Calendar No.: Event ID:  TENTATIVE RULINGS

3006326  44 CASE NUMBER: CASE TITLE:  WARD VS EXECUTIVE CAPITAL GROUP INC [IMAGED]  37-2023-00023459-CU-OR-CTL Defendant Contreras misled Plaintiff into verifying his home was an investment property.

Plaintiff's expenses exceed his fixed-income. (ROA 70 - Plaintiff's Decl., at ¶ 11.) Plaintiff does not have any savings accounts, stocks, bonds or personal property other than an encumbered car. (Plaintiff's Decl., at ¶ 12.) He is in debt. (Id., at ¶ 10.) Plaintiff applied for five surety bonds and all failed due to his credit score and his only asset being the home under threat of foreclosure. (Id., at ¶ 13 & Ex. 29.) Attempts to secure assistance from family and friends also failed. (Id., at ¶14.) In light of the nature of the dispute, the alleged equity in the home is not available to be used as a basis for obtaining a surety bond. (Id., at ¶ 16.) As the home is Plaintiff's only asset, the potential harm of losing the home is great.

Defendant Executive Capital Group, Inc. is a private entity. The potential harm to Defendant is limited.

First, the parties do not appear to dispute the home holds equity. Second, any harm can be further limited by requiring Plaintiff to make payments to Defendant in lieu of the bond. (See, C.C.P., § 995.710.) Plaintiff proposes $500 per month, which the Court will require him to make to Defendant's counsel's trust account, in addition to the amounts previously ordered.

Conclusion For these reasons, the motion is GRANTED.

Plaintiff is excused from securing a $20,000 bond. In lieu of a bond, Plaintiff is ordered to deposit funds to Defendant's counsel's trust account on the first of every month in the amount of $500 starting on December 1, 2023, for four consecutive months.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Plaintiff is ordered to serve written notice of the Court's final ruling on all parties by November 14, 2023.

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3006326  44