Judge Keri G. Katz, Case 37-2023-00042482-CU-OR-CTL 2023-12-20 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2023-00042482-CU-OR-CTL, Date: 2023-12-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 19, 2023

12/20/2023 11:00:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2023-00042482-CU-OR-CTL AITKEN VS PHH MORTGAGE CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's application for a preliminary injunction is GRANTED.

In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442 [261 Cal.Rptr. 574, 777 P.2d 610].) . . . .

The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.

(King v. Meese (1987) 43 Cal.3d 1217, 1227-1228 [240 Cal.Rptr. 829, 743 P.2d 889].) Of course, '[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.' (Common Cause, supra, 49 Cal.3d at p. 442.) A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. (Id., at pp. 442-443.) Butt v. State of California (1992) 4 Cal.4th 668, 677–678. See also, Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286. Plaintiffs must also establish irreparable harm/inadequacy of legal remedies.

White v. Davis (2003) 30 Cal.4th 528, 554.

Irreparable Injury/Inadequacy of Legal Remedies The court finds the uniqueness of real property sufficient to establish irreparable injury/inadequacy of legal remedies. See, Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463. See also, CC § 3387; Wheat v. Thomas (1930) 209 Cal. 306. The court is not persuaded by Defendants' arguments that Plaintiff's monetary remedies are adequate. While there is evidence Plaintiff intends to sell the property, such evidence does not minimize evidence that the property at issue is Plaintiff's home.

Likelihood of Prevailing The complaint alleges three causes of action for Violation of CC § 2923.6, Intentional Interference with Prospective Economic Advantage and Violation of Business and Professions Code § 17200, et seq.

As to the CC § 2923.6 cause of action Plaintiff submits evidence that Plaintiff has a 'complete loan modification application pending as of early September 2023' [Declaration of Philip Aitken, ¶ 10]. It appears undisputed that the loan at issue is a first lien. In opposition Defendants PHH Mortgage Calendar No.: Event ID: TENTATIVE RULINGS

3058666 4 CASE NUMBER: CASE TITLE: AITKEN VS PHH MORTGAGE CORPORATION [IMAGED] 37-2023-00042482-CU-OR-CTL Corporation and Western Progressive, LLC, submit evidence that on September 14, 2023, Defendants' loan servicer NewRez sent correspondence to Plaintiff regarding Plaintiff's 'short sale application' [Declaration of Kevin Flannigan, ¶ 17]. However, there is no evidence from Defendants as to Plaintiff's alleged September, 2023, loan modification application. Pursuant to CC § 2923.6: (c) If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee's sale until any of the following occurs: (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired.

(2) The borrower does not accept an offered first lien loan modification within 14 days of the offer.

(3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower's obligations under, the first lien loan modification.

Based on the evidence that Plaintiff has a complete first lien loan modification application pending, and the absence of evidence that any of the conditions specified in CC § 2923.6(c) has occurred, the court finds Plaintiff establishes a likelihood of prevailing as to Plaintiff's CC § 2923.6 cause of action. A violation of CC § 2923.6 is sufficient to support a finding of an 'unlawful . . . business act or practice' for purposes of Plaintiff's B&P Code§ 17200 cause of action. As such, the court finds Plaintiff establishes a likelihood of prevailing as to Plaintiff's B&P Code § 17200 cause of action as well. The court finds Plaintiff's likelihood of prevailing as to the CC § 2923.6 and B&P Code § 17200 causes of action sufficient to support imposition of a preliminary injunction. As such, the court does not reach the parties' arguments as to the interference cause of action or as to Plaintiff's unpled claims under CC § 2923.7.

The court is not persuaded by evidence that Plaintiff is no longer eligible for a first lien loan modification from Defendants. None of the authorities Defendants rely on hold that such evidence disposes of the statutory requirements of CC § 2923.6. To the extent Defendants argue that Plaintiff's pending first lien loan application is not complete, such factual dispute does not negate Plaintiff's showing of a likelihood of prevailing on this application.

Balance of Harms Although Plaintiff's showing of a likelihood of prevailing is not particularly strong, considering Plaintiff's showing of irreparable injury/inadequacy of legal remedies and also considering the significant harm to Plaintiff should Defendants proceed with the foreclosure sale of Plaintiff's home, the court finds the balance of harms weighs in favor of Plaintiff.

Based on the foregoing, the court exercises its discretion in favor of imposition of a preliminary injunction.

Injunction The court orders: Defendants, their employees, agents and/or any other person or entity acting with them or on their behalf are restrained and enjoined from the sale of the property located at 1404 Bush St., San Diego, CA 92103, until this matter is fully adjudicated.

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3058666 4 CASE NUMBER: CASE TITLE: AITKEN VS PHH MORTGAGE CORPORATION [IMAGED] 37-2023-00042482-CU-OR-CTL Bond The court sets the bond at $10,00.00. CCP § 529.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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