Judge: Elaine W. Mandel, Case: 23SMCV04054, Date: 2023-10-06 Tentative Ruling

Case Number: 23SMCV04054    Hearing Date: December 18, 2023    Dept: P

Tentative Ruling

Lone Oak Fund, LLC v. 1046 Genesee, LLC, Case No. 23SMCV04054

Hearing Date October 19, 2023 continued to December 18, 2023

Plaintiff’s Application for Temporary Restraining Order and Appointment of Receiver Plaintiff – Supplemental Briefing

Plaintiff Lone Oak Fund alleges defendant 1046 Genesee defaulted on its mortgage. Loan Oak argues pursuant to the deed of trust, the court must issue a temporary restraining order preventing use of rental income other than discharging mortgage debt. Lone Oak seeks a receiver. On October 6, 2023 the court continued the hearing to review evidence in Lone Oak’s reply brief and allow Genesee to file a sur-reply.

Lone Oak presents declarations of Hugh Gross and William Licker, who found evidence of habitation, such as a swimming pool with a hose placed inside it, a barbecue with a bag of charcoal, a lighter and lighter fluid nearby and two parked cars. Gross decl. ¶¶3-4. Licker’s photographs show parked cars, a television, shelves of books, pictures and personal items, laundry and kitchen counters covered with containers. Licker decl., exh. 1-7. The photographs -7 are strong evidence the property is being occupied.

That the property is currently occupied, however, does not establish Lone Oak’s entitlement to a receiver. Lone Oak has presented no evidence that irreparable harm will result if a receiver is not appointed. In opposition to the initial motion, Genesee presented ample evidence there is no danger of irreparable harm, since the property is fully insured, secured from outsiders, and up to date on its taxes and assessment. Kenig decl. ¶¶5-7. Without a likelihood of irreparable harm, the court will not take the drastic step of appointing a receiver, regardless of the provisions in the deed of trust. DENIED.