Judge Melvin D. Sandvig, Case 20CHCV00385 2022-07-29 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 20CHCV00385, Date: 2022-07-29 Tentative Ruling

Case Number: 20CHCV00385 Hearing Date: July 29, 2022 Dept: F47

Dept. F47

Date: 7/29/22

Case #20CHCV00385

MOTION FOR TEMPORARY RESTRAINING ORDER

Ex parte application/Motion filed on 7/12/22.

MOVING PARTY: Plaintiffs Jose Alberto Diaz and Jose Diaz, Sr.

RESPONDING PARTY: Defendants Pauline Macareno, Erik Candelaria, Margie Candelaria and Design to Build Developments, Inc.

NOTICE: ok

RELIEF REQUESTED: An order granting a temporary restraining order (“TRO”). Plaintiffs move for an order allowing Plaintiffs to attach the real property located at 13109 Leach Street in Sylmar, California 91342 (the “Leach property”), or in the alternative, that the funds from any sale of said property be held in escrow by court order in order to effectuate the terms of the parties June 3, 2022 partial settlement agreement.

RULING: The motion is denied.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. See also CRC 3.1110(f)(4). Plaintiffs have failed to bookmark the declaration, exhibits and proof of service attached to the moving papers. Failure to comply with these requirements in the future may result in matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

This action arises out of Plaintiffs Jose Alberto Diaz and Jose Diaz Sr.’s (Plaintiffs) claims that they were victims of fraudulent loans made to Defendant Pauline Macareno which were to be secured by various real properties. Plaintiffs further allege that Pauline Macareno’s family, Defendants Margie Candelaria and Erik Candelaria, were part of the fraudulent scheme.

On 6/3/22, the parties entered into a settlement agreement whereby Defendants Pauline Macareno (Macareno) and Design to Build agreed to pay Plaintiffs $130,000.00 from the sale of real property located at 13109 Leach Street in Sylmar, California 91342 (the “Leach property”). Plaintiffs contend that they are at serious risk if immediate remedial measures are not implemented because Macareno was recently incarcerated and Plaintiffs believe she may encumber the Leach Property to pay for criminal defense fees, post a bond or flee the country. Therefore, on 7/12/22, Plaintiffs filed an ex parte application seeking an order granting a temporary restraining order (“TRO”), or, in the alternative, for an order shortening time to hear a motion for restraining order. Plaintiffs move for an order allowing Plaintiffs to attach the real property located at 13109 Leach Street in Sylmar, California 91342 (the “Leach property”), or in the alternative, that the funds from any sale of said property be held in escrow by court order in order to effectuate the terms of the parties June 3, 2022 partial settlement agreement. Defendants opposed the ex parte application.

On 7/13/22, this Court granted the ex parte application, in part, by shortening the time to hear the motion for a Temporary Restraining Order and set the matter for hearing on 7/29/22. (See 7/13/22 Minute Order). The Court deemed the ex parte application and supporting papers to be the moving papers; allowed Plaintiffs to file a supplemental brief on or before 7/20/22; ordered any [supplemental] opposition to be filed and served on or before 7/26/22 and indicated that Plaintiffs represented no reply would be filed. Id. Neither Plaintiffs nor Defendants have filed supplemental briefs in support of their positions.

The relief requested by Plaintiffs is not clearly set forth as required. See CRC 3.1110(a); CRC 3.1204(a)(1). As noted above, Plaintiffs seek an order granting a temporary restraining order, to attach the Leach Property, or in the alternative to hold the funds from any sale of the Leach Property in escrow by court order to effectuate the terms of the partial settlement agreement. (See Ex Parte Application, p.1:25-p.2:3).

With regard to the request for a temporary restraining order, it is not clear what activity Plaintiff’s seek to restrain as the selling or refinancing of the Leach Property to pay Plaintiffs $130,000.00 is a term of the partial settlement agreement. (See 6/3/22 Settlement Terms After Settlement Conference, No.2).

With regard to the request to attach the Leach Property, Plaintiffs have not set forth any authority to support such relief. Authority for the issuance of a writ of attachment requires a showing that the claim is one upon which an attachment is proper, that the property is not exempt from attachment and the posting of an undertaking. See CCP 483.010, et seq.

The request that the funds from the sale of the Leach Property be held in escrow by court order is also unclear as the settlement terms already provide that the $130,000 will be paid from the escrow from the sale or refinance of the Leach Property. (See 6/3/22 Settlement Terms After Settlement Conference, No.2).

Plaintiffs have failed to establish that there is a likelihood that Defendant Macareno will not comply with the terms of the settlement agreement based on her recent incarceration for which she is currently out on bail. (See Kim Decl. ¶3). Until Plaintiffs withdraw the lis pendens on the Leach Property, which they agreed to do in the partial settlement agreement, the pending sale cannot proceed. If Plaintiffs do not comply with the foregoing term, it seems that the Defendants will be making a motion to enforce the settlement agreement pursuant to CCP 664.6. (See Kim Decl. ¶6, Ex.1; Opp. p.4:21-p.5: 5).