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