Judge: David A. Hoffer, Case: 30-2022-01283350, Date: 2023-08-14 Tentative Ruling

Before the Court is an Order to Show Case re: Issuance of a Preliminary Injunction to prevent Defendants from proceeding with foreclosure and sale of the Subject Property.

The court finds a Preliminary Injunction is not warranted in this instance. The burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. (O’Connell v. Superior Court (2006) 141 Cal.App. 4th 1452, 1481.) The moving party has the burden to show that it is reasonably probable it will prevail on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442; Weil & Brown, ¶ 9:632.1.) Additionally, “[i]n deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: [1] the likelihood the moving party ultimately will prevail on the merits, and [2] the relative interim harm to the parties from the issuance or noninsurance of the injunction.” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449–1450).

Here, Plaintiffs have not shown a reasonable likelihood they will prevail on the merits at trial, as they provide no analysis of the merits of any of their individual causes of action.  To the contrary, the claims appear time barred in that, while the Plaintiffs assert they discovered the illegality of Defendant’s actions in consulting with an attorney in 2022, it is clear that the facts were known to them at least as far back as their complaint against Defendant to the Department of Real Estate in 2007.  Indeed, plaintiffs cite that complaint as notice to Defendant of their intent to litigate.  Further, Defendant asserts that Plaintiffs’ 2015 Chapter 13 plan was confirmed, and that order is res judicata as to the validity of the loan and the lien. Plaintiffs do not address this argument in their reply, and only assert that judicial estoppel for failing to schedule the causes of action against Defendant is a question for a jury.  As such, Plaintiffs have utterly failed to show that it is reasonably probable they will prevail on the merits and the preliminary injunction is denied.

The temporary restraining order is vacated as of the date of this hearing.

Moving party is ordered to give notice of this ruling .