Judge: Melissa R. Mccormick, Case: "Global Premier Regency Palms Oxnard, LP v. Nano Banc", Date: 2022-08-04 Tentative Ruling
Plaintiff Global Premier Regency Palms Oxnard, LP’s Motion for Preliminary Injunction
Plaintiff Global Premier Regency Palms Oxnard, LP seeks a preliminary injunction enjoining defendant JKO Group LLC from proceeding with a foreclosure sale of property subject to a commercial loan between defendant Nano Bank and plaintiff. Nano Bank assigned its rights in the loan to JKO. The court granted plaintiff’s ex parte application for a temporary restraining order on May 10, 2022 to enable the court to address the parties’ arguments on a more complete record. For the following reasons, plaintiff’s motion is denied.
In determining whether a preliminary injunction should issue, a trial court evaluates two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of its claim, and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. Fleishman v. Superior Ct. (2002) 102 Cal.App.4th 350, 355-56. The moving party bears the burden of presenting facts establishing the requisite reasonable probability of prevailing on the merits of its claims. Id. at 356. Before issuing a preliminary injunction, the trial court must carefully weigh the evidence and decide whether the facts require such relief. Id. The court evaluates the credibility of witnesses and makes factual findings on disputed evidence. Id.
Plaintiff alleges five causes of action against JKO and Nano Bank: breach of oral contract; breach of the implied covenant of good faith and fair dealing; declaratory relief; promissory estoppel; and violation of Business & Professions Code section 17200. Plaintiff has not demonstrated a likelihood of prevailing on any of these causes of action.
Plaintiff’s breach of contract, breach of implied covenant, and promissory estoppel causes of action rest on plaintiff’s allegations (i) Nano Bank’s representative Anthony Gressak “recommended” to plaintiff’s representative Andrew Hanna that plaintiff obtain a “C-Pace loan” to bring the loan current and cure plaintiff’s default (Andrew Hanna Decl. ¶ 40), and (ii) Gressak told Andrew Hanna that “if [plaintiff] made the past due interest amounts [payment] totaling . . . $556,183.32 (with default interest rate being waived), [Nano Bank] would accept that payment as curing the default, and the loan would be current.” Complaint ¶ 40. Plaintiff’s evidence substantiating these allegations consists of the Declarations of Andrew Hanna and Miao Yu. As an initial matter, a “recommendation” does not constitute an agreement or a promise. In addition, the Yu Declaration does not support plaintiff’s description of Gressak’s alleged oral statements. Moreover, JKO has presented extensive evidence rebutting plaintiff’s evidence, including written correspondence stating Nano Bank would not waive default interest, loan documents containing a “no oral modification” provision, and evidence Gressak had left Nano Bank before the alleged conversation about the default interest occurred. See, e.g., Gressak Decl. ¶¶ 9-10; Taxman Decl. ¶¶ 4-23 & Exs. B through I; Chen Decl. ¶¶ 2-4 & Ex. 1. Plaintiff has not demonstrated a likelihood of prevailing on its breach of oral contract, breach of the implied covenant of good faith and fair dealing, or promissory estoppel causes of action.
Plaintiff alleges JKO and Nano Bank violated section 17200 by failing to honor the alleged oral agreement and promise discussed above. As discussed, plaintiff has not demonstrated a likelihood of success on the merits of that argument. In addition, plaintiff alleges JKO and Nano Bank violated section 17200 by assigning the loan to JKO in alleged violation of the California Financial Code. Plaintiff also contends JKO is not registered to do business in California.
Plaintiff has not demonstrated the assignment of the loan from Nano Bank to JKO violated the California Financial Code. In addition, JKO submitted evidence it has been registered to do business in California since before Nano Bank assigned the loan to JKO. Kluchin Decl. ¶ 34 & Ex. Z.
In reply, plaintiff asserts new arguments about alleged procedural defects in the notice of default and foreclosure sale. The court declines to consider plaintiff’s new reply arguments. See, e.g., Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542 (“[W]e do not entertain new points raised for the first time in a reply brief absent good cause. [Citation.] There is absolutely no sound reason this issue could not have been raised in the . . . opening brief.”); Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 526 n.8 (“it is unfair to raise new arguments for the first time in a reply brief; we therefore need not consider the contention”). Moreover, plaintiff has not demonstrated that any alleged procedural irregularities prejudiced plaintiff. See Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32 Cal.App.5th 943, 950 (“To successfully challenge a foreclosure sale based on a procedural irregularity, the plaintiff must show both that there was a failure to comply with the procedural requirements for the foreclosure sale and that the irregularity prejudiced the plaintiff.”) (italics in original).
Plaintiff has not demonstrated a likelihood of prevailing on its declaratory judgment cause of action, which is premised on the same allegations discussed above.
JKO’s evidentiary objections to the Yu, White, Andrew Hanna, and Magdy Hanna Declarations were not material to the disposition of the motion.
Plaintiff’s evidentiary objection No. 9 to the Gressak Declaration is sustained. Plaintiff’s other evidentiary objections and requests to strike evidence are overruled and denied, respectively.
The temporary restraining order issued on May 10, 2022 is dissolved.
The Case Management Conference scheduled for October 6, 2022 is continued to October 13, 2022 at 1:30 p.m. in Department C13 to be heard with the motion for change of venue.
JKO to give notice.