Judge: Mel Red Recana, Case: 24STCV04202, Date: 2024-08-15 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 24STCV04202 Hearing Date: August 15, 2024 Dept: 45
Hearing Date: August
15, 2024
Moving
Party: Plaintiffs
Darren Haas and Heather Strauch
Responding
Party: Defendant
Peak Foreclosure Services, Inc.
Motion:
Plaintiffs’ Motion For Order
To Show Cause Why Defendant Peak Foreclosure Services, Inc. Should Not Be Found
In Contempt Of Court
Tentative
Ruling: The
Court considered the moving papers, opposition, and reply. Plaintiffs Motion is GRANTED. Additionally, the Court will impose monetary sanctions on Peak,
and award them to Plaintiff in the total amount of $5,970.00, due to
Plaintiff within 20 days of this order.
Background
On
February 21, 2024 Darren Haas (Haas) and Heather Strauch (Strauch,
collectively, Plaintiffs) filed a Complaint against Peak Foreclosure Services,
Inc. (Peak) and Richards Real Estate (Richards) for four causes of action
related to wrongful foreclosure: (1) wrongful foreclosure, (2) violation of
Civ. Code §2924 et seq., (3) declaratory relief, (4) injunctive relief. In
August of 2020 Plaintiffs executed two promissory notes with a maximum amount
of $600,000.00 that were secured by Plaintiffs’ interest in two separate real
properties: one located at 745 Pacific Coast Highway, Hermosa Beach,
California, the other at 825 Pacific Coast Highway, Hermosa Beach, California
(the Properties). Plaintiffs never requested an advance, nor are there amounts
due under either note. (Complaint, ¶¶9-11.)
In
addition to the February 21, 2024 Complaint, Plaintiffs filed for and were
granted a temporary restraining order (TRO) on the same day. On March 18, 2024,
the Court granted a preliminary injunction which prohibited Peak and Richards from
“conducting any Trustee’s sale of or other effort to foreclose” on either of
Plaintiffs’ properties. (Declaration of James J. Ficenec, hereinafter Ficenec
Decl., ¶3. Also see Exh. A.)
The
motion now before the Court is Plaintiffs Motion For Order To Show Cause Why Defendant Peak Foreclosure Services,
Inc. Should Not Be Found In Contempt Of Court (the Motion) because Plaintiffs
contend the preliminary injunction was violated. Plaintiffs additionally ask
for monetary sanctions. Peak opposes the Motion; Plaintiffs file a reply.
Discussion
Legal Standard
The elements of
proof necessary to support punishment for contempt are: (1) a valid, clear,
specific, and unequivocal court order, (2) the alleged contemnor's knowledge of
the order, and (3) noncompliance. (Inland Counties Regional Center, Inc. v.
Superior Court (2017) 10 Cal.App.5th 820, 827.)
Analysis
In
their moving papers, Plaintiff contend that although there is a valid Court
order in place prohibiting Peak from taking steps towards foreclosure, Peak
violated the order by sending Plaintiffs notices of postponements of the
trustee’s sale of the properties. (Declaration of Darren Haas, hereinafter Haas
Decl., ¶11.) The notice attached to the Haas Decl. as exhibit A shows a
document titled “NOTICE TO BORROWER OF POSTPONEMENT OF TRUSTEE’S SALE” and
notifies the borrower that a sale has been postponed from May 8, 2024 to May
24, 2024. The notice additionally warns the borrower may not receive written
notice of further postponements and that the borrower should check in with a
series of telephone numbers and websites to keep themselves apprised.
Upon
opposition Peak argues that the notices do not constitute efforts to foreclose
but are simply statutory requirements per Civ. Code §2924g(d), which require
Peak to notice a postponement of a sale. Additionally, Peak argues that the Court’s
order does not require Peak to cancel the sale. Peak points to both Hicks v.
E.T. Legg & Associates (89 Cal.App.4th 496, and bankruptcy
cases where postponement was permitted. The Court is unpersuaded.
First,
the Hicks discussion surrounds whether postponement of a nonjudicial
foreclosure sale violates legislative intent and makes no mention of contempt. Second,
Peak’s reliance on In re Tome (1990) 113 B.R. 626 is misplaced. In Re
Tome makes clear that secured creditors may rely on Civ. Code §2924g(c)(2)
to postpone a sale a month at a time, with no maximum limit under California
law, while a bankruptcy case is pending. This is not a bankruptcy case, and the
opposition papers fail to provide authority supporting their assertion outside
the bankruptcy context.
The
preliminary injunction issued on March 18, 2024 was clear. No efforts toward
the foreclosure of either of the Properties was to take place, noticing the
Properties for sale constitutes efforts to foreclose. Moreover, the notices
have caused unsolicited trespassers to inspect and photograph the Properties, disturbing
the tenants who reside there. (Haas Decl., ¶ 12.) The elements of contempt have
been met. There was a valid order in place, Peak knew of the order, then Peak
sent a notice showing the Properties would still be for sale, violating the
order. Plaintiffs have fulfilled the elements.
Sanctions
At
this time, the Court will only award the fees Plaintiffs incurred while filing
this Motion. Plaintiff’s counsel provides the following calculations:
·
Counsel’s hourly rate is $475.00
·
Counsel spent 2.5 hours drafting
the Motion
·
Counsel’s associate has an hourly
rate of $365 and spent 9.5 hours assisting in preparation of the Motion
·
Counsel anticipates an additional
$1,315.00 to prepare for and attend the hearing on this Motion
Accordingly,
the Court will impose monetary sanction on Peak, and award them to Plaintiff in
the total amount of $5,970.00.
Conclusion
Plaintiffs Motion is GRANTED. Additionally, the Court will impose
monetary sanction on Peak, and award them to Plaintiff in the total amount of $5,970.00,
due to Plaintiff within 20 days of this order.
It is so ordered.
Dated:
_______________________
MEL RED RECANA
Judge of the
Superior Court