Judge: Joel R Wohlfeil, Case: 37-2024-00008038-CU-OR-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - March 28, 2024

03/29/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2024-00008038-CU-OR-CTL LEONARD BLOOM SUCCESSOR TRUSTEE UNDER THE CELE TRUST BLOOM TRUST DATED SEPTEMBER 7 1985 VS FARMERS & MERCHANTS TRUST CAUSAL DOCUMENT/DATE FILED: Motion for Protective Order, 02/27/2024

Plaintiff Leonard Bloom, as Successor Trustee under the Cele Bloom Trust, dated September 7, 1985 ('Plaintiff') has filed two Notices of Motion: (1) 'PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION' (ROA # 12); and (2) 'NOTICE OF PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION' (ROA # 13). Both of these Motions appear to seek the same relief. As this is not an ex parte hearing seeking an expedited temporary restraining order, the Court treats both Notices as a single Motion seeking a preliminary injunction.

Plaintiff's Motion (ROA # 12 and 13) for a preliminary injunction, is DENIED.

The Court considers two interrelated questions in deciding whether to issue a preliminary injunction: (1) is Plaintiff likely to suffer greater injury from a denial of the injunction than Defendant is likely to suffer from its grant; and (2) is there a reasonable probability that Plaintiff will prevail on the merits. Robbins v. Superior Court (1985) 38 Cal. 3d 199, 206; Code Civ. Proc. 526(a).

The Court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors.

Butt v. State of California (1992) 4 Cal. 4th 668, 678.

A preliminary injunction is appropriate when pecuniary compensation would not afford adequate relief; or where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. Code Civ. Proc. 526(a).

A preliminary injunction amounts to a mere interlocutory order to maintain the status quo pending a determination of the action on its merits. Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 191.

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 potential loss of unique real property is sufficient to establish irreparable harm such that money damages are an inadequate legal remedy. See Baypoint Mortgage Corp. v. Crest Premium Real Estate Etc. Trust (1985) 168 Cal. App. 3d 818, 825 ('[g]iven the drastic implications of a foreclosure, it is not surprising to find courts quite frequently granting preliminary injunctions ...').

Although this action involves ownership of unique real property, it is undisputed that the foreclosure sale Calendar No.: Event ID:  TENTATIVE RULINGS

3095659 CASE NUMBER: CASE TITLE:  LEONARD BLOOM SUCCESSOR TRUSTEE UNDER THE CELE TRUST  37-2024-00008038-CU-OR-CTL has already taken place and that Plaintiff no longer resides in the home. Therefore, money damages offer a sufficient remedy. Plaintiff has recorded a notice of pending action. See ROA # 10. As a result, any subsequent purchaser will be on notice of Plaintiff's claim such that no exigent circumstances exist warranting a preliminary injunction.

Regarding the probability of prevailing, Plaintiff's Motion is not supported by evidence. No declarations or documents have been submitted in support of this Motion. Although the Complaint is verified, the statements contained within the Complaint are vague and conclusory.

This action involves a default and foreclosure related to a second deed of trust secured by the subject property. Plaintiff's causes of action are premised, in large part, on violations of Civil Code sections 2923.6 and 2923.5, part of the Homeowners Bill of Rights ('HOBR'). However, HOBR only applies to owner occupied residences secured by a first deed of trust. See Civ. Code 2924.15.

The evidence presented by Defendants demonstrates Plaintiff is unlikely to succeed on the claim for intentional infliction of emotional distress because he did not live at the subject property. In any event, monetary damages would afford adequate relief for this claim.

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