S-CV-0040458 Smith, Shaun vs. Pingora Loan Servicing, LLC et al
This tentative ruling is issued by the Honorable Michael W. Jones. If oral argument is requested, it shall be heard at 8:30 a.m. in Department 43:

Plaintiff’s OSC re Preliminary Injunction

Preliminary Matters

As an initial matter, plaintiff filed a first amended verified complaint on March 1, 2018, which substantially changed the claims brought against the defendants. The claims are now limited to negligence; breach of contract; and breach of implied covenant of good faith and fair dealing. Since the original complaint has now been superseded with the filing of the first amended complaint, the court will look to the amended pleading in analyzing the current request.

Request for Judicial Notice

Defendants’ request for judicial notice is granted under Evidence Code section
452.

Ruling on Preliminary Injunction

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The request is denied. The court may grant a preliminary injunction when it appears from the complaint that the plaintiff is entitled to the demanded relief and the plaintiff would suffer irreparable injury if the enjoined action were allowed to proceed. (CCP§526(a).) A foreclosure sale may be enjoined under the same elements applicable for other requests for injunctive relief, namely after a (1) balancing of the hardships of the parties and (2) a showing by the plaintiff of a reasonable probability of prevailing on the merits. (Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 824; Robbins v. Superior Court (1985) 38 Cal.3d 199.) The plaintiff has the burden of showing he or she would be harmed if the preliminary injunction were not granted. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 838.)

Plaintiff has not made a sufficient showing as to either element. Initially, the evidence presented to the court shows that defendants have been ready and willing to receive mortgage payments from plaintiff. (Constantine declaration ¶20.) Defendants have responded to plaintiff’s requests for reinstatement along with providing him loan payoff amounts. (Id. at ¶¶14-20.) Plaintiff remains in default and defendants suffer monetary damage, which include payment of taxes and insurance for the property. (Id. at ¶¶20-21.) The hardship here tips in favor of defendants.

Plaintiff has also failed to show he will prevail on his causes of action for negligence; breach of contract; or breach of the implied covenant of good faith and fair dealing. To reiterate, defendants have presented contradictory evidence that shows they have been cooperative in attempting to reinstate plaintiff’s loan but have received no payments from plaintiff. The option for reinstatement remains available along with reinstating plaintiff’s regular monthly payment of $2,752.14. (Id. at ¶20.) The evidence presented to the court tends to show that it is plaintiff’s breach of the loan that prevents him from reinstating its terms rather than actions on the part of defendants. For these reasons, the application is denied.

The temporary restraining order is dissolved forthwith.