Judge James C. Chalfant, Case Number: 25STCV04371, Date: 2025-03-27 Tentative Ruling

1008 Ogden LLC et al. v. Loans Marom Kislev 4 Limited Partnership et al., 25STCV04371
Tentative decision on application for preliminary injunction: granted

Plaintiffs 1008 Ogden LLC and 1020 Ogden LLC (collectively, “Ogden”) apply for a preliminary injunction enjoining Defendants Loans Marom Kislev 4 Limited Partnership (“Marom”) and Peak Foreclosure Services, Inc. (“Peak”) from foreclosing on 1008 North Ogden Drive (“1008 Property”) and 1020 North Ogden Drive (“1020 Property”), both in West Hollywood, California 90046 (collectively, “Properties”).

The court has read and considered the ex parte moving papers (no opposition was filed) and renders the following tentative decision.

Plaintiff Ogden filed the Complaint against Marom and Peak on February 13, 2025, alleging causes of action for (1) quiet title, (2) declaratory relief, (3) wrongful foreclosure, and (4) and accounting. The first, second, and third causes of action each seek a permanent injunction restraining Marom and Peak from seeking to further enforce deeds of trust on the Properties by foreclosure. The Complaint alleges in pertinent part as follows.

On June 30, 2020, Ilan Kenig (“Kenig”) manager of both 1008 Ogden LLC and 1020 Ogden LLC, executed a promissory note secured by a deed of trust for the 1008 Property in favor of Marom (“1008 Note”) and another promissory note secured by deed of trust for the 1020 Property, also in favor of Marom (“1020 Note”). The 1008 Note promised payment of $1,137,500 in principal and $242,303 in interest. The 1020 Note promised $1,500,000 in principal and $319,521 in interest.

On October 16, 2020, Kenig executed a deed of trust, assignment of rents, security agreement and fixture filing for the 1020 Property, dated June 30, 2020, in favor of Marom (“Prior 1020 Trust Deed”). The Prior 1020 Trust Deed referenced the 1020 Note and was recorded in Los Angeles County as Instrument Number 20220543632.

On September 2, 2021, Kenig executed a deed of trust, assignment of rents, security agreement and fixture filing for the 1008 Property, dated June 30, 2020, in favor of Marom (“Prior 1008 Trust Deed”). The Prior 1008 Trust Deed referenced the 1008 Note but described the principal as $887,500. The Prior 1008 Trust Deed was recorded in Los Angeles County as Instrument Number 20211369067.

On May 13, 2022, Kenig executed a deed of trust, assignment of rents, security agreement and fixture filing for the 1008 Property, dated May 13, 2022, in favor of Marom (“Subsequent 1008 Trust Deed”). The Subsequent 1008 Trust Deed referenced the 1008 Note but described the principal as $667,500. The Subsequent 1008 Trust Deed was recorded in Los Angeles County as Instrument Number 20220680334.

Also on May 13, 2022, Kenig executed a deed of trust, assignment of rents, security agreement and fixture filing for the 1020 Property, dated May 13, 2022, in favor of Marom (“Subsequent 1020 Trust Deed”). The Subsequent 1020 Trust Deed referenced the 1020 Note but described the principal as $850,000. The Subsequent 1008 Trust Deed was recorded in Los Angeles County as Instrument Number 20220690229.

On August 7, 2024, Marom recorded a notice of default and election to sell under deed of trust for the 1008 Property (“1008 NOD”) and for the 1020 Property (“1020 NOD”). The 1008 NOD was recorded as Instrument Number 20240528427 and the 1020 NOD was recorded as Instrument Number 20240529554. On December 26, 2024, Marom recorded for each property a notice of trustee’s sale (“NOS”) as Instrument Numbers 20240920985 and 20240920994, respectively.

Ogden alleges that the Subsequent 1008 Trust Deed and the Subsequent 1020 Trust Deed are not supported by consideration, because: (a) no funds referenced in the 1008 Note or 1020 Note were disbursed to Ogden; (b) to the extent any funds were disbursed, those funds are not the amounts reflected in the 1008 Note or 1020 Note; and (c) to the extent any funds were disbursed, those funds were disbursed to FMB Consulting, LLC or FMB Capital, Inc.

Ogden has demanded an accounting of the 1008 Note and the 1020 Note, and Marom and Peak have refused to provide an accounting for either.

Ogden seeks to quiet title to the 1008 Property in 1008 Ogden LLC and to the 1020 Property in 1020 Ogden LLC. Ogden seeks a declaration of the respective rights and interests of all parties in the Properties, and all rights, interests, and obligations concerning the 1008 Note, the 1020 Note, and the Subsequent Trust Deeds. Finally, Ogden seeks injunctive relief restraining Marom and Peak from seeking to further enforce the Subsequent Trust Deeds by foreclosure.

Proofs of Service on file reflect service of the Summons and Complaint on Marom through personal service on the Secretary of State as authorized agent on February 19, 2025 and on Peak through personal service on February 20, 2025.

On March 6, 2025, the court granted Ogden’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) enjoining the foreclosure of the Properties.

Proofs of service on file show that Marom was served with the TRO/OSC on March 6, 2025 through personal service on the Secretary of State as authorized agent and that Peak was served the same date.

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. Code of Civil Procedure (“CCP”) §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

1008 Ogden LLC executed the 1008 Note dated June 30, 2020 for $1,137,500 in principal sum, $242,303 in previously accrued interest, and future interest to accrue on the unpaid principal balance at an annual rate of 10%. Compl., Ex. 2.

1020 Ogden LLC executed the 1020 Note dated June 30, 2020 for $1,500,00 in principal sum, $319,521 in previously accrued interest, and future interest to accrue on the unpaid principal balance at an annual rate of 10%. Compl., Ex. 3.

The 1008 Note and the 1020 Note state that Marom is an Israeli limited partnership. Compl., Ex. 2-3. 1008 Ogden, LLC and 1020 Ogden, LLC were incorporated under the laws of California. Compl., Ex. 2-3.

On October 16, 2020, 1020 Ogden LLC executed the Prior 1020 Trust Deed for the 1020 Property, dated June 30, 2020, in favor of Marom. Compl., Ex. 3.

On September 2, 2021, 1008 Ogden LLC executed the Prior 1008 Trust Deed for the 1008 Property, dated June 30, 2020, in favor of Marom. Compl., Ex. 2. The Prior 1008 Trust Deed references the 1008 Note but describes the principal as $887,500.

On May 13, 2022, 1008 Ogden LLC executed the Subsequent 1008 Trust Deed for the 1008 Property, dated May 12, 2022 in favor of Marom. Compl., Ex. 2. The Subsequent 1008 Trust Deed references the 1008 Note but describes the principal as $667,500. Compl., Ex. 2.

On May 13, 2022, 1020 Ogden LLC executed the Subsequent 1020 Trust Deed for the 1020 Property, dated the same day, in favor of Marom. Compl., Ex. 3. The Subsequent 1020 Trust Deed references the 1020 Note, but describes the principal as $850,000. Compl., Ex. 3.

On August 6, 2024, Peak issued the 1008 NOD and the 1020 NOD. Compl., Ex. 4. The NODs indicate that Ogden failed to pay the full balances on the 1008 Note and the 1020 Note, which became due on May 31, 2022. Compl., Ex. 4.

On December 12, 2024, Peak issued a NOS for each Property. Compl., Ex. 4. Each NOS stated that the Properties would be sold at public auction on January 22, 2025. Compl. Ex. 4.[3]

Boca Jom, LLC (“BJ”) is the current manager of 1008 Ogden LLC and 1020 Ogden LLC. Jacob Decl., ¶1. Mo Jacob (“Jacob”) is the manager of BJ. Jacob Decl., ¶1.

On February 13, 2025, Jacob requested reinstatement and pay-off figures, pursuant to Civil Code section 2924c, by certified mail and by electronic mail to Peak. Jacob Decl., ¶15. Peak did not respond to the requests. Jacob Decl., ¶15. On February 18, 2025, Yossi Attia (“Attia”), Jacob’s associate, spoke with Peak CEO Eli Tene (“Tene”) and asked for a response to the February 13, 2025 requests. Jacob Decl., ¶16. Tene explained that Peak forwarded the requests to Marom and had received no responses from Marom. Jacob Decl., ¶16.

On February 27, 2025, Jacob sent a second set of requests for reinstatement and pay-off figures by certified mail and electronic mail to Peak. Jacob Decl., ¶17. BJ received no responses to either the February 13 requests or the February 27 requests. Jacob Decl., ¶17.

Plaintiff Ogden seeks a preliminary injunction enjoining any foreclosure sale on the Properties. The court’s TRO/OSC was based only on Civil Code section 2924c(e). No opposition is on file.

The Complaint does not specify the legal basis for Ogden’s cause of action for an accounting, but its supporting memorandum identifies Civil Code section 2924c(b). Supp. Br. at 8. This provision provides that a notice of default must contain, among other text, “Upon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay.” Id.; Civil Code §2924c(b). Ogden further notes that Civil Code section 2924(e) contains a statutory right of reinstatement. Supp. Br. at 9. This right begins upon recordation of the notice of default and remains until five business days prior to the sale date set in the initial recorded notice of sale. Civil Code §2924(e). Postponement of the sale revives the right of reinstatement until five business days prior to the postponed sale date. Id.

The original January 22, 2025 sale date in the NOS was postponed to March 10, 2025. Supp. Br. at 2. By the March 6, 2025 date of Ogden’s ex parte application, Ogden’s window to exercise its right of reinstatement, revived by the postponement of the original sale date, had closed. However, Ogden was unable to exercise its right to reinstatement during the statutory window because Peak and Marom refused to supply a written itemization of the amount Ogden must pay. Id; Jacob Decl., ¶¶ 15-17.

Ogden has shown evidence that it sought to exercise its statutory right to reinstatement but was prevented by Marom’s and Peak’s failure to provide Ogden with an itemization of the amount owed. Ogden has demonstrated a reasonable probability of success on the merits.

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

Real property is a unique asset. Where land, or any estate therein, is the subject matter, the inadequacy of the legal remedy is well settled, and the equitable jurisdiction is firmly established. Stockton v. Newman, (1957) 148 Cal. App. 2d 558, 564.

Ogden seeks to preserve its interest in commercial real property, whereas Marom’s interest is in satisfaction of a monetary obligation. Peak’s only interest is as a trustee to Marom. Espinoza Decl., ¶¶ 1-2. While investment property is less subject to protection than a residence, the balance of hardships would favor a preliminary injunction.

The court must require a bond. purpose of a bond is to cover the defendant’s damages from an improvidently issued injunction. CCP §529(a). In setting the bond, the court must assume that the preliminary injunction was wrongly issued. Abba Rubber Co. v. Seaquist, (“Abba”) (1991) 235 Cal.App.3d 1, 15. The attorney’s fees necessary to successfully procure a final decision dissolving the injunction also are damages that should be included in setting the bond. Id. at 15-16. While Abba reasoned that the plaintiff’s likelihood of prevailing is irrelevant to setting the bond, a more recent case disagreed, stating that the greater the likelihood of the plaintiff prevailing, the less likely the preliminary injunction will have been wrongly issued, and that is a relevant factor for setting the bond. Oiye v. Fox, (2012) 211 Cal.App.4^th 1036, 1062. As Marom fails to oppose, the amount of bond may be modest and is set at $5000.

Ogden has shown a reasonable likelihood of success, and without a preliminary injunction, would be subject to an extinguishment of its rights in real property. The application for a preliminary injunction is granted. Ogden has not provided a proposed preliminary injunction and must do so in two court days or it will be waived. Ogden is ordered to post the $5000 bond within one week and provide evidence of posting to Defendants.

[1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

[3] As of the ex parte hearing on March 6, 2025, the trustee’s sale had apparently been postponed to March 10, 2025.