Judge: Ronald F. Frank, Case: YC070538, Date: 2023-03-02 Tentative Ruling

Case Number: YC070538    Hearing Date: March 2, 2023    Dept: 8

Tentative Ruling: Fred Tucker v PNC Bank, Case No. YC070538

 

            Before the Court on the March 2, 2023 calendar is Plaintiff’s ex parte application for a Temporary Restraining Order, seeking to stop a looming non-judicial foreclosure of real property currently scheduled to take place on March 23, 2023.  On December 9, 2022, the Court stayed further proceedings in the judicial proceedings at the trial level of this case pending Plaintiff’s appeal of the Court’s granting of a defense motion for summary judgment.  The Court’s tentative ruling is to DENY the requested TRO for the following reasons:

1.       The Court’s Stay Order applied only to further judicial proceedings, not non-judicial proceedings;

2.       The Court’s Stay Order was issued in the context of efforts by the prevailing party defendant to “monetize” its judgment by seeking attorneys’ fees and costs of suit as a prevailing party.  Because the Court exercised its discretion to defer ruling on the fee and costs issues while an appeal was pending, the Court did not see any need for Plaintiff to post a bond pending the appeal;

3.       The exercise of a power of sale in a deed of trust through non-judicial foreclosure is not a judicial proceeding, was not discussed at the hearing on the motion for stay, and was not encompassed within the Court’s December 9 Stay Order;

4.       Plaintiff has not carried his burden of proving a substantial likelihood of success on the merits on appeal, a prerequisite for issuance of a TRO.  See Code of Civil Procedure §526(a)(1) and (2). 

5.       Plaintiff has an adequate remedy to forestall the foreclosure, i.e., to bid on the property at the trustee’s sale or potentially to post a bond