Judge: Lee W. Tsao, Case: 24NWCV01111, Date: 2024-04-16 Tentative Ruling

Case Number: 24NWCV01111    Hearing Date: April 16, 2024    Dept: C

Concha, et al. vs. Arakelian, Trustee of the Michael Arakelian Living Trust, et al., Case No. 24NWCV01111

This action arises out of the sale of an allegedly defective home. Plaintiffs Arturo Concha and Erika De La Teja move ex parte for a temporary restraining order and order to show cause re preliminary injunction enjoining Defendant from selling, auctioning, transferring, disposing of, or encumbering the real property subject to dispute, a.k.a. 16275 Aurora Crest Drive, Whittier, California 90605 (“the Property”).  A trustee’s sale is scheduled for April 17,2024. 

On April 10, 2024, Plaintiffs filed a Complaint for Temporary Restraining Order, Preliminary and Permanent Injunctions, and Damages.  The Complaint alleges that in September 2022, Plaintiffs and Defendant entered into a California Residential Purchase Agreement and Joint Escrow Instructions for the Property. (Complaint ¶ 13.)  The gravamen of their Complaint is that Defendant failed to disclose, and instead actively concealed, water intrusion of which he was aware, resulting in damages to the Plaintiffs. (Id., ¶ 54.) Plaintiffs assert they are entitled to offset these damages under the Note (Id., ¶ 55.) and will suffer irreparable harm if Defendant is allowed to proceed with the Trustee’s Sale (Id., ¶ 60.). 

Defendant argues that the core factual allegations in the Complaint – Defendant’s failure to disclose water intrusion -- do not support the relief Plaintiffs seek in this ex parte application – enjoining the foreclosure sale.  That is because the foreclosure sale is based upon Plaintiff’s default on the note, which Plaintiffs do not contest.  Plaintiffs argue that they have made significant repairs to the home because of the undisclosed water damage, and they are entitled to offset those damages under the note.  Yet, they cite no authority for such an entitlement.  Therefore, Plaintiffs have failed to demonstrate that the relief they are seeking in their ex parte application is within the scope of relief likely to be obtained at trial on the merits. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.) 

Accordingly, Plaintiff’s application for ex parte relief is DENIED.

Moving party to give Notice.