Filed 6/27/13 Jobe v. Kronsberg CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


SHIRLEY JOBE,
                                                                       G046853
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 30-2011-00522139)
         v.
                                                                       OPINION
DON KRONSBERG et al.,

     Defendants and Appellants.


                   Appeal from an order of the Superior Court of Orange County, Francisco F.
Firmat, Judge. Affirmed.
                   Lazo Law Offices, Marc Y. Lazo and Christi Jo Elkin for Defendants and

Appellants.
                   Callahan & Blaine, Edward Susolik and Raphael Cung for Plaintiff and
Respondent.

                                          *                  *                  *
              Don Kronsberg, Brenda Kronsberg, Vinnie Ruggieri, Mark G. Kogut, and
Aline R. Kogut, individually and as trustees of a deed of trust (collectively hereafter
defendants or the Kronsberg defendants), appeal from the trial court’s preliminary
injunction enjoining them from foreclosing on plaintiff Shirley Jobe’s home.1
Defendants contend the trial court erred in granting the injunction because Jobe’s claims

of fraud, financial elder abuse, unfair business practices, quiet title, and declaratory relief
are barred by the applicable statutes of limitations. They also argue the trial court erred
by failing to sustain their objections to Jobe’s evidence. They further argue dismissal is
required without reaching the merits because the trial court’s order referred only to
potential fraud by different defendants who obtained the first deed of trust on Jobe’s
property, while their loan had secondary priority, and therefore they argue the court erred
in including them among the enjoined parties.
              Finally, addressing the merits, they insist there was no likelihood Jobe
could prevail on any of her claims and that the trial court erred in balancing the

preliminary injunction’s relative effects by failing to give greater weight to their potential
financial harm compared to Jobe’s potential loss of her home. They also argue the
$1,000 injunction bond was too meager despite the trial court’s finding ample equity in

the home protected their interests. As we explain, the trial court did not abuse its
discretion in granting the preliminary injunction or setting the bond amount, and we
therefore affirm the trial court’s rulings.




       1     Appellants’ opening brief includes Margo Rosen among the Kronsberg
defendants and appellants, but it does not appear she filed a notice of appeal.

                                               2
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              At age 65, Jobe obtained a second mortgage in July 2007 on the Corona del
Mar home in which she had lived since 1975, secured by a second deed of trust in
defendants’ favor. Defendants, a small, close-knit group of private investors, made the

$1.6 million loan to Jobe at an annual interest rate of 14 percent, not including loan
origination costs or fees. Over its five-year term, the loan required monthly payments of
almost $19,000, plus a final balloon payment of more than 1.6 million dollars. The

balloon payment of $1,618,667.76 exceeded the original loan amount of 1.6 million
dollars.
              According to Jobe, her only regular income consisted of her monthly Social

Security check. She had received, at an unspecified date, the Corona del Mar home and
two commercial properties in the City of Stanton in a divorce settlement with her ex-
husband. She claimed “limited” knowledge of financial affairs, grasping “little about
refinancing, the various types of mortgage loans, loan ‘points,’ discount points, how to
determine the prevailing market rates for interest, deeds of trust, etc.”
              Jobe alleged defendants and her financial advisor, APEX Mortgage

Services (Apex), which brokered the loan and is a codefendant in this action,
“insufficiently disclosed to me certain important facts” about the second mortgage loan
and other loans they made to her, secured by other properties. According to her

declaration below: “I was not told, for instance, that the up-front loan fees of 8-9 percent
that I was being charged were extremely high, particularly for loans in the amounts at
which I was borrowing, and that most mortgage borrowers pay from 0 percent to

2 percent as up-front fees. I also was not told that the 14-16+ percent in annual interest



                                              3
rates on these loans were similarly very high and significantly higher than what another
person in the same situation would have paid. I have since learned that the interest rate
on home equity loans and lines of credit during the same period were at the prime rate, or
about 5-6 percent, so I was paying at least 3 times more.”
              Contrary to Apex’s repeated assurances that “it was ‘getting the best deals’

for me,” Jobe later calculated Apex’s exorbitant fees cost her “at least $800,000.” Jobe
alleged: “This is in addition to the hundreds of thousands of dollars or potentially over
1 million dollars in excess interest rates, fees, and other expenses that I would not have

been charged with if APEX and the lenders had not induced me to accept such loans, and
had instead obtained and provided only the loans that were appropriate for my financial
and personal situation.”

              According to Jobe, the second mortgage and defendants’ eventual
foreclosure proceedings in this matter had their origin in 2004 when Apex counseled her
to tap the equity in her home and the Stanton parcels to invest the proceeds in real estate.
Through various refinancings, the loan balance secured by the first deed of trust on her
home in favor of JP Morgan Chase Bank, another defendant, grew from an $800,000
initial balance to $3.5 million by early 2007. Based on Apex’s advice, Jobe used these

funds to purchase a second residence in Las Vegas and two commercial properties, one in
Costa Mesa and one in Yucaipa in San Bernardino County. Defendants financed Jobe’s
purchase of the Yucaipa property.

              Despite the significant market value of her properties, Jobe found she “had
little or no positive cash flow from them.” According to Jobe, “Because of, among other
things, decreased rents, high maintenance and upkeep costs, and my inability to manage

the properties due to my age, I was losing money on them, or at best, breaking even every



                                             4
month.” Consequently, she “lived primarily on my Social Security payments, plus some
loan proceeds.”
              She turned to Apex for further advice, and Apex urged her to commit more
equity to its investment strategy. Thus, “during the period of 2004 to 2008, APEX
advised me to obtain, and arranged for and brokered, about 30 loans to me secured by

[her various] real properties,” including her Corona del Mar home. Defendants worked
with Apex as the loan broker in July 2007 to provide Jobe the $1.6 million second
mortgage loan at issue in this case.

              According to Jobe, she did not have to fill out an application for the loan,
but later in discovery she learned someone prepared and submitted on her behalf an
application suggesting she was qualified for the loan because she earned $65,000 in

monthly income and held $450,000 in various bank accounts. These figures were wildly
inaccurate. Don Kronsberg denied he or his fellow private investors who loaned Jobe the
$1.6 million were the source of this false information, but he also claimed the false
figures had no significance, even if he had seen the loan application. According to
Kronsberg, Jobe’s age, actual financial condition, and other details made no difference
for the simple reason that her Corona del Mar home, a valuable oceanfront property, had

substantial remaining equity. Accordingly, he and his investors determined she qualified
for the loan on the basis of her collateral, regardless of her actual, minimal income and
bank assets. Put another way, they concluded it did not matter whether Jobe could make

her monthly loan payments because they could foreclose on her property and gain
repayment that way. As Don Kronsberg phrased it in his deposition: “She had good
equity in the property and a good location. And I did not think whether she could pay it

back or not pay it back.”



                                             5
               Jobe soon found herself in “a seemingly endless cycle of new loans,
refinancings of previous loans, and the need to use the proceeds of one loan to make the
payments on another to avoid default and foreclosure.” By 2008, she knew “[t]his cycle
could no longer be sustained”: given her high loan balances “on each property, and due
to the crash in the credit market . . . , I could no longer borrow any more money, or

enough money, secured by one property to make interest payments owing on another
property.”
               Jobe’s priority was to stay in her residence until death by “obtain[ing] a

reverse mortgage,” but her efforts to do so failed. It appears Jobe held out hope she could
remain in her home because the Corona del Mar property consisted of two parcels (lots
14 and 15) with different tax identification numbers that the county separately assessed

each year, and she intended to and believed she had only mortgaged to defendants the
back parcel (lot 14). According to Jobe, Apex knew and understood from the beginning
that her goal was to live at home “for the rest of my life,” and at each step along the way
assured her that “it and the lenders with whom APEX worked would ‘take care of all the
paperwork,’ and that all I had to do was sign documents presented to me.” According to
Jobe, “Often times these would be just the last page of a document, where I was asked to

sign and did sign,” as occurred when she granted defendants a second deed of trust on her
Corona del Mar home. In any event, as Jobe’s financial predicament grew more dire, she
continued to attempt to make her loan payments on the first and second mortgages on her

home. She sold one Stanton property to raise funds in an apparently futile attempt to
become current with defendants, and she lost the other Stanton property to creditors in
foreclosure.




                                              6
              She sued defendants and others in San Bernardino County in 2009 to
attempt to save her Yucaipa commercial property from foreclosure, and she separately
alleged in that action fraud, financial elder abuse, and similar claims concerning
defendants’ second mortgage loan secured by her Corona del Mar home. Defendants,
however, succeeded in foreclosing on their loan against her Yucaipa lot. Defendants do

not suggest the court in the San Bernardino action resolved Jobe’s claims concerning
their loan on her Corona del Mar home. According to Jobe, once she lost the Yucaipa
property in foreclosure, she dismissed her action there voluntarily in November 2011 and

refiled her remaining claims for convenience the next week in Orange County, closer to
home.
              Subsequently, in a first amended complaint, Jobe alleged against

defendants, Apex, and other codefendants causes of action for fraud, financial elder
abuse, quiet title, unfair business practices, and (against Apex only) breach of fiduciary
duty and negligence, and she sought declaratory judgment, restitution, damages, and
injunctive relief. Jobe specified defendants and Apex committed “fraud, predatory
lending, and other wrongful conduct” in two different ways.
              First, while Jobe had agreed to grant defendants a second priority deed of

trust “with respect to Lot 14/Parcel 2” of her Corona del Mar property, “unbeknownst to
[her], after asking her to sign only the last page of the second deed of trust, the Apex
defendants and the Kronsberg defendants filled in and/or changed the reference on the

first page thereof to reflect the encumbrance of both Parcels 14 and 15” by adding the tax
assessor’s parcel numbers for both lots, “i.e., the notation ‘Apn: 052-062-14 & 15.’”
(Note to reader: Complaint’s use of all-caps deleted in this and subsequent quotations.)




                                              7
              According to Jobe, “as evidenced by the lack of [her] initials on any pages
of the second deed of trust (and except for her signature on the last page), she did not see
and did not know that [the] Apex defendants and the Kronsberg defendants had added in
(after her signing) the references to Lot 14/Parcel 2 and Lot 15/Parcel 1” on the first page
of the deed of trust. (Original italics and boldface.) She noted that “[c]onveniently for

the Apex defendants and the Kronsberg defendants,” one of Apex’s principals served as
the notary for Jobe’s signature on the loan documents and the second deed of trust.
              Jobe’s second specific allegation of “fraud, predatory lending, and other

wrongful conduct” consisted of her claim that Apex and defendants “knew that given her
very limited income, there was no way that [she] could pay back the borrowed amount,
especially given the high up-front fees charged and high interest rates. They made the

loan knowing and specifically intending that [she] would default on it, thereby allowing
them to seize the Property for significantly less than its fair market value.”
              Jobe made similar allegations that Washington Mutual Bank and its
successor in interest, JP Morgan Chase Bank, improperly obtained the first priority deed
of trust on the whole property instead of just the back parcel, and that the lender similarly
engaged in predatory practices. Jobe sought a preliminary injunction to prevent the

trustees of the first and second priority deeds of trust from foreclosing on her home
before her claims could be tried. The trial court granted her motion, and only the
Kronsberg defendants now appeal.




                                              8
                                               II
                                        DISCUSSION
A.     Defendants’ Stipulation Does Not Require Dismissal
              Preliminarily, Jobe asserts defendants stipulated to the injunction, and
therefore their appeal must be dismissed. (See Jacobs Farm/Del Cabo, Inc. v. Western

Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1520 [“defendant waived objection to
the preliminary injunction by expressly stipulating to it”]; Smith v. Adventist Health
System/West (2010) 182 Cal.App.4th 729, 742 [“‘While a bond is generally required for a

preliminary injunction . . . , this requirement may be waived under circumstances where
the parties stipulate to the injunction’”].)
              Here, counsel for defendants wrote the words “IT IS SO STIPULATED”

on the injunction order Jobe’s counsel drafted, and counsel then signed his name under
the stipulation before the trial court signed and entered the order. Defendants assert
counsel stipulated only “to the form of the [o]rder,” and insist they did not intend to
waive their right to appeal. They rely on the longstanding rule that “after an issue has
been regularly determined against a party” by the court, “mere consent to the entry of
judgment as a formal matter of procedure . . . does not constitute such acquiescence as

will deprive him of the right of appeal.” (Grant Mem. Park v. Robla School Dist. (1939)
33 Cal.App.2d 528, 532.)
              Jobe asserts the written stipulation is dispositive and unambiguous, and she

relies on the parol evidence rule to counter the notion defendants harbored a secret intent
to consent only to the form of the order when they did not say so. Although defendants
strenuously resisted the injunction at the hearing, we observe that stipulating to a

preliminary injunction still could be viewed as consistent with defendants’ stated



                                               9
concerns at the hearing about the drawn-out nature of their attempts to foreclose on
Jobe’s home. The trial court attempted to meet that concern, promising, “I will part the
waves on my calendar to make sure that this case can be tried as soon as possible.” The
court observed, “I think what this case really deserves is a very, very early trial date, as
early as counsel can be ready.” The court suggested “you can have any Monday that you

want starting” in six weeks. Thus, one could view defendants’ stipulation as a decision to
avoid further delays, including the delay inherent in appeal, only to have defendants
subsequently reconsider and decide to appeal.

              Viewed in context, however, defendants’ stipulation is not the
unambiguous consent to the preliminary injunction Jobe claims. Jobe’s counsel drafted
the order in advance of the injunction hearing based on the trial court’s tentative ruling

granting the preliminary injunction, but Jobe’s counsel included a final, one-sentence
paragraph that was neither in the court’s tentative ruling, nor drawn from the court’s oral
remarks pronouncing its ruling. Defendant counsel’s handwritten notation, “IT IS SO
STIPULATED,” immediately follows this stray paragraph, which someone, presumably
counsel for defendants, crossed out with large, handwritten “X” marks. We therefore
view defendants’ “stipulation” as merely acknowledging and consenting to striking this

language.2 In other words, as defendants phrase it, counsel’s stipulation and signature
simply “ensur[ed] that the text of the [o]rder conformed to what the trial court actually
ruled.”




          2    The stricken paragraph stated: “This Order and Preliminary Injunction
shall remain in effect until the Court renders final judgment in this action, and all appeals
regarding the judgment have been resolved or the time for all appeals has expired.”
Striking this language demonstrated fidelity to the trial court’s ruling, which did not
include anything similar to this language.

                                              10
              Our conclusion no forfeiture occurred is bolstered by the Supreme Court’s
similar conclusion long ago in Mecham v. McKay (1869) 37 Cal. 154 (Mecham), holding
that a stipulation to an order denying a new trial did not waive the defendants’ right to
appeal. The high court concluded: “The stipulation in this case on which the order
denying a new trial was entered is not free from doubt, but, taking it all together, and

construing it as a whole, in connection with the other facts disclosed by the record, we
conclude that it was intended by the parties that the motion for a new trial should be
denied pro forma, only to hasten the appeal; and that in consenting to the order the

defendants did not intend to abandon their motion, or their objections to the rulings of the
[c]ourt on the various points raised on the trial.” (Id. at p. 159.)
              Similarly, the stricken paragraph preceding counsel’s signature suggests

only a pro forma intent to ensure the accuracy of the order, rather than to forfeit both
parties’ right to appeal. (See Code Civ. Proc., § 904.1, subd. (a)(6) [an order granting or
denying a preliminary injunction is appealable].) Like the Supreme Court in Mecham,
we consider it “in no degree probable, after the fierce contest which occurred [below],
and the elaborate statement prepared by the defendants in support of their [position], that
they intended, by consenting to the order denying it, to abandon the chief grounds of their

defense.” (Mecham, supra, 37 Cal. at p. 159.) We therefore turn to the merits of
defendants’ appeal.

B.     The Absence of Express Findings Does Not Require Reversal

              Defendants first contend the injunction must be reversed because it is
“based on evidence which has absolutely no bearing on any” of Jobe’s claims against
them. (Bold typeface removed.) They rely on the trial court’s express citation in its

injunction order to evidence of fraud committed by the lender secured by the first deed of



                                              11
trust, J.P. Morgan Chase Bank. They infer that because the trial court’s order expressly
cited evidence supporting a likelihood of success on Jobe’s fraud claims against that
specific lender, no evidence supported the trial court’s decision to also enjoin them — the
Kronsberg defendants — from foreclosure. Specifically, the trial court’s order noted:
“There is substantial evidence that someone added a notation ‘15’ that added the second

parcel (Lot 15) after Plaintiff signed the Deed of Trust and received copies of the
documents[.] A Deed of Trust that is based on a forgery is ‘null and void and of no legal
effect.’ (See page 3[,] Exhibit C of Jobe declaration . . . ).” As defendants correctly point

out, Jobe’s Exhibit C consisted of the trust deed Jobe executed in favor of the first lender
and its successor in interest, JP Morgan Chase Bank, not the Kronsberg defendants.
Defendants are mistaken, however, in their assertion that “the trial court committed

prejudicial error when it used another party’s deed of trust to determine that [Jobe] was
likely to prevail on [her] claim” against the Kronsberg defendants.
              Defendants’ reasoning is flawed. That the trial court mentioned some
evidence against another defendant does not mean no evidence supported the trial court’s
preliminary injunction ruling against defendants. Defendants cite no basis for their
unstated premise that the trial court must detail the evidence supporting its ruling. (See

7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 392, p. 460 [“A statement of decision is
not required in ruling on a motion”].) To the contrary, the appellate posture and doctrine
of implied findings require that we “must infer the trial court . . . made every factual

finding necessary to support its decision.” (Fladeboe v. American Isuzu Motors, Inc.
(2007) 150 Cal.App.4th 42, 61 (Fladeboe).) This doctrine stems from three fundamental
principles of appellate review: “(1) a judgment is presumed correct; (2) all intendments

and presumptions are indulged in favor of correctness; and (3) the appellant bears the



                                             12
burden of providing an adequate record affirmatively proving error.” (Id. at p. 58.) We
therefore must presume the trial court impliedly made the requisite findings to support its
ruling, and defendants’ challenge on the basis of express findings concerning a different
defendant therefore fails.

C.     The Statutes of Limitations Do Not Require Reversal
              Defendants assert the trial court should not have reached the merits of
Jobe’s preliminary injunction motion because the applicable statutes of limitations barred
her claims. Jobe alleged in her first amended complaint that defendants “engaged in
fraud, predatory lending, and other wrongful conduct . . . in connection with” her loan
and the second deed of trust she provided them in return for the loan, which issued in
July 2007. She did not file this action until November 2011 and, because her claims have

a maximum four-year limitations period, defendants argue they were all time-barred.
(See Welf. & Inst. Code, § 15657.7 [four-year limitations period for financial elder
abuse]; Bus. & Prof. Code, § 17208 [four years for unfair business practices]; Code Civ.
Proc., § 338, subd. (d) [three years for fraud]; see also Oates v. Nelson (1969)
269 Cal.App.2d 18, 21 [quiet title limitations period tracks underlying fraud claim];
Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 734 [same for declaratory relief

based on fraud].) Accordingly, defendants assert the trial court could not grant the
preliminary injunction because it could not reasonably conclude Jobe had any likelihood
of prevailing on any of her claims, given they had expired.
              Defendants note Jobe did not raise in her complaint or at the preliminary
injunction any claim that the limitations periods were tolled by her belated discovery of
their alleged misdeeds. Instead, she relied on the doctrine of equitable tolling because
she originally filed her lawsuit in San Bernardino Superior Court in January 2009 to stave



                                             13
off foreclosure by defendants on the same loan and Corona del Mar property now at issue
in this action and on another loan defendants made to her secured by commercial
property she owned in San Bernardino County (the Yucaipa property).
              Equitable tolling applies when “‘an injured person has several legal
remedies and, reasonably and in good faith, pursues one.’” (Elkins v. Derby (1974)

12 Cal.3d 410, 414.) In Addison v. State of California (1978) 21 Cal.3d 313, 319, our
Supreme Court set out three requirements in deciding whether the doctrine of equitable
tolling will suspend the running of the statute of limitations while an alternative remedy

is pursued during the limitations period. The three requirements are: (1) timely notice to
the defendant in filing the first claim, (2) lack of prejudice to defendant in gathering
evidence to defend against the second claim, and (3) good faith and reasonable conduct

by the plaintiff in filing the second claim. (Ibid.) Defendants dispute only the third
requirement. They do not dispute Jobe could have filed her action concerning foreclosure
on her Corona del Mar property in Orange County in 2009 instead of joining it for
convenience to the San Bernardino action.
              Defendants also acknowledge Jobe’s San Bernardino action alleged the
same or similar causes of action based on the same or similar misconduct claims Jobe

alleges in this action. Indeed, they cite the similarity as evidence of litigation harassment
and forum shopping precluding Jobe from invoking equitable tolling to pursue this action
after the applicable limitations periods expired. They rely on Mitchell v. Frank R.

Howard Memorial Hospital (1992) 6 Cal.App.4th 1396 (Mitchell), which summarized
California’s equitable tolling precedent as follows: “The underlying assumption of these
cases is that when the plaintiff has several alternative remedies and makes a good faith,

reasonable decision to pursue one remedy in order to eliminate the need to pursue the



                                             14
other, the doctrine of equitable tolling will suspend the running of the statue of
limitations if it becomes necessary to pursue the alternative remedy.” (Id. at pp. 1407-
1408.) Defendants highlight Mitchell’s cautionary language that “equitable tolling is not
available to a plaintiff whose conduct evidences an intent to delay disposition of the case
without good cause; and it is certainly not available to a plaintiff who engages in the

procedural tactic of moving the case from one forum to another in the hopes of
obtaining more favorable rulings.” (Id. at p. 1408, italics and bold typeface added by
defendants.)

               Defendants argue Jobe engaged in serial, vexatious litigation completely at
odds with the equitable tolling doctrine. Specifically, defendants paint Jobe in a poor
light for seeking refuge in federal bankruptcy proceedings after the San Bernardino trial

court denied her preliminary injunction request in August 2009, and they insist it was
only “[o]nce she realized that she would not prevail in the San Bernardino [a]ction [that
she] voluntarily dismissed that action on November 3, 2011.” They ascribe nefarious
motives to her in filing this action “[s]even days later, on November 10, 2011, . . .
alleging the same causes of action . . . .” They also note, from their perspective, an
unfortunate turn of events when, after the Orange County trial court initially denied

Jobe’s request for a preliminary injunction, she retained new counsel and the court felt
constrained to recuse itself based on a conflict of interest created by new counsel’s
substitution, and Jobe then obtained a preliminary injunction on her renewed motion.

               Defendants, however, do not suggest principles of collateral estoppel or res
judicata required the trial court to adhere to either the initial Orange County preliminary
injunction ruling or the earlier denial in San Bernardino. In any event, the flaw in

defendants’ approach on appeal is that applying the equitable tolling doctrine is



                                             15
necessarily a fact-bound determination, committed to the trial court’s sound discretion.
“[A trial] court’s decision whether a statute of limitations has been equitably tolled is
generally reviewed for an abuse of discretion, unless the facts are undisputed, in which
event the legal question is reviewed de novo. [Citations.]” (Santa Maria v. Pacific Bell
(9th Cir. 2000) 202 F.3d 1170, 1175 [applying California law], rejected on another

ground in Socop-Gonzalez v. I.N.S. (9th Cir. 2001) 272 F.3d 1176, 1196.) Here, the facts
are disputed. In particular, defendants contend Jobe engaged in forum shopping and only
refiled her claim in Orange County as a form of litigation harassment delaying their

inevitable right to foreclose on her property.
              But in granting the preliminary injunction, the trial court implicitly rejected
these contentions and found the requisite likelihood of success and balance of harms

weighed in Jobe’s favor, as we discuss below. Nor may we second-guess the trial court’s
implicit credibility findings. “‘[T]he trial court is the judge of the credibility of the
affidavits filed in support of the application for preliminary injunction and it is that
court’s province to resolve conflicts.’ [Citation.] Our task is to ensure that the trial
court’s factual determinations, whether express or implied, are supported by substantial
evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the

prevailing party and indulge in all reasonable inferences in support of the trial court’s
order.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625.)
              A reasonable trier of fact could find Jobe dismissed her San Bernardino

action in good faith and not to forum shop or unreasonably delay the proceedings. Given
Jobe had lost her Yucaipa property, the trial court could credit her explanation that the
matter belonged in Orange County, closer to all the parties and to her home, the subject

matter of the litigation. Defendants’ argument against equitable tolling therefore fails.



                                              16
D.     The Merits: The Trial Court Did Not Abuse Its Discretion in Granting the
       Preliminary Injunction or Setting the Bond Amount
              Defendants claim the trial court abused its discretion both in granting the

preliminary injunction preventing them from foreclosing on Jobe’s home and in setting
the injunction bond amount at $1,000. We review an order granting or denying a
preliminary injunction under the deferential abuse of discretion standard. (Hunt v.
Superior Court (1999) 21 Cal.4th 984, 999.) “As its name suggests, a preliminary
injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits
of its claim. [Citation.] To obtain a preliminary injunction, a plaintiff ordinarily is

required to present evidence of the irreparable injury or interim harm that it will suffer if
an injunction is not issued pending an adjudication of the merits. [Citation.] [¶] . . . [A]s
a general matter, the question whether a preliminary injunction should be granted
involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the
merits, and (2) the relative balance of harms that is likely to result from the granting or
denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 554, italics

omitted.)
              The burden is on the party challenging the injunction to establish that the
trial court clearly abused its discretion. (IT Corp. v. County of Imperial (1983) 35 Cal.3d
63, 69.) “Discretion is abused in the legal sense ‘whenever it may be fairly said that in its
exercise the court in a given case exceeded the bounds of reason or contravened the
uncontradicted evidence.’ [Citations.]” (Continental Baking Co. v. Katz (1968)
68 Cal.2d 512, 527 (Continental).) We review factual findings underlying the trial
court’s ruling for substantial evidence, and independently review any questions of law.
(Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739.) “The classic
rule that if any substantial evidence supports the finding of the trial court as to an issue of


                                              17
fact a reviewing court may not substitute its own evaluation of the evidence, applies to an
appeal from a preliminary injunction. . . . [I]t follows that if substantial evidence
supports the order there is no abuse of discretion. [Citation.]” (San Diego Gas & Elec.
Co. v. San Diego Congress of Racial Equality (1966) 241 Cal.App.2d 405, 407.)
              “The likelihood of plaintiffs’ ultimate success on the merits ‘does affect the

showing necessary to a balancing-of-hardships analysis. That is, the more likely it is that
plaintiffs will ultimately prevail, the less severe must be the harm that they allege will
occur if the injunction does not issue.’” (Rite Site Coalition v. Los Angeles Unified

School Dist. (2008) 160 Cal.App.4th 336, 342, italics added, original italics deleted.) The
converse is necessarily also true, “especially . . . when the requested injunction maintains,
rather than alters, the status quo.” (Ibid.) Thus, the interrelated “‘“mix”’” of relative

harm and likelihood of success “‘“guides the trial court in its exercise of discretion.”’”
(Ibid.; accord, King v. Meese (1987) 43 Cal.3d 1217, 1227.) “‘In the last analysis the trial
court must determine which party is the more likely to be injured by the exercise of its
discretion (citation) and it must then be exercised in favor of that party (citation).’”
(Continental, supra, 68 Cal.2d at p. 528.)
              “Given the drastic implications of a foreclosure, it is not surprising to find

courts quite frequently granting preliminary injunctions to forestall this remedy while the
court considers a case testing whether it is justified under the facts and law. [Citations.]”
(Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985)

168 Cal.App.3d 818, 825.) But the trial court should deny a preliminary injunction when
there is no reasonable probability that the plaintiff will succeed on his or her claims.
(Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1681; Weingand v.

Atlantic Sav. & Loan Assn. (1970) 1 Cal.3d 806, 820.)



                                              18
              If the trial court grants an injunction, it must require an undertaking by the
applicant. (Code Civ. Proc., § 529, subd. (a).) Thus, a preliminary injunction ordinarily
cannot take effect unless the applicant provides an undertaking to ensure it will pay any
damages attributable to the temporary injunction if the court ultimately denies a
permanent injunction. (City of South San Francisco v. Cypress Lawn Cemetery Assn.

(1992) 11 Cal.App.4th 916, 920.) Without the undertaking bond, a preliminary
injunction is a nullity. (Oksner v. Superior Court (1964) 229 Cal.App.2d 672, 687.) The
amount of the bond is committed to the trial court’s sound discretion. (Hummell v.

Republic Fed. Savings & Loan Assn. (1982) 133 Cal.App.3d 49, 51.) “This court cannot
substitute its own view as to the proper amount of bond,” instead, “[i]t remains with the
[trial] court’s discretion, if defendants can show that the amount of damages may exceed

the bond, to require an additional undertaking.” (Greenly v. Cooper (1978)
77 Cal.App.3d 382, 390.) Consequently, a successful appellate challenge to the bond
amount results in remand for a new bond hearing, rather than reversal of the preliminary
injunction.
              With these principles in mind, we turn to defendants’ contentions.

       1.     Likelihood of Success
              Defendants argue Jobe failed to establish the requisite likelihood of success
on any of her claims. “A single cause of action can sustain a preliminary injunction.”
(Lam v. Ngo (2001) 91 Cal.App.4th 832, 844.) Consequently, we must affirm the trial

court’s order if it reasonably could conclude one of Jobe’s claims warranted preliminary
injunctive relief. Her fraud claim alone suffices.
              Forgery is a species of fraud, and tricking a homeowner into signing a trust

deed with different terms than the homeowner intended constitutes a form of forgery. A



                                             19
defendant commits forgery by “procur[ing] a genuine signature to a document by trick or
fraud.” (People v. Looney (2004) 125 Cal.App.4th 242, 248 [noting cases in which
aluminum siding salesmen tricked homeowners into signing trust deeds].) “‘Likewise,
the rule is established in California that alteration of a document without authority with
the intent to defraud may constitute forgery and that such alteration may consist of the

insertion of matter in the document in question after it has been signed. [Citations.]’”
(Id. at p. 247.) Thus, “[e]very person who, with the intent to defraud, alters, corrupts, or
falsifies any record of any . . . conveyance, or other instrument . . . is guilty of forgery.”

(Pen. Code, § 470, subd. (c).) Here, Jobe sought a declaratory judgment and injunctive
relief on grounds of fraud because defendants sought to foreclose on a forged deed of
trust purporting to encumber both parcels of her Corona del Mar property, instead of just

one.
              Defendants argue Jobe’s allegation that someone inserted the parcel
numbers on the first page of the deed of trust after she signed the signature page is
insufficient to establish fraud for two reasons. First, even assuming the truth of Jobe’s
allegation, they contend the county assessor’s parcel numbers are irrelevant because “the
legal description [of the property] in a deed of trust takes precedence and is dispositive of

the precise real property to which the deed refers.” They note Jobe “never disputed the
legal description attached to the recorded Second Deed of Trust, which clearly references
both parcels of land separately.” (Italics added.)

              But Jobe submitted to the court her copy of the deed of trust she signed, and
it did not include a legal description of the property. In essence, defendants ask us to
conclude the recorded version of the deed of trust is the one Jobe signed, including the

attached property description. But “it is not the function of the reviewing court to



                                              20
determine the facts.” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) Based on the
copy of the deed Jobe claimed she signed and the court’s assessment of her credibility,
the court reasonably could conclude the deed did not include the property description
when she signed it, and that the belated addition of a different parcel number than Jobe
intended to encumber supported the conclusion a fraud occurred.

              We find no merit in defendants’ contention the trial court erred in
overruling their evidentiary objections. As Jobe observes, the only objection defendants
“specifically discuss is that involving the altered second deed of trust.” Defendants argue

“the trial court allowed [Jobe], without any foundational evidence, to attest to another
version of the Second Deed of Trust which she claims to have signed without requiring
her to provide an authenticated, signed copy of the deed of trust she purports to actually

have signed.” (Original emphasis.) Defendants insist, “If that signed copy of the deed of
trust actually exists, it would have been easily obtainable and admissible as a publicly
recorded document.” (Original italics.)
              The flaw in defendants’ argument is that they simply assume the recorded
document that Jobe signed included the parcel numbers on the first page and the
attachment with the legal description of both parcels when she signed it, without

recognizing this is precisely the factual question Jobe raises in her claim of fraud.
Contrary to defendants’ claim, Jobe adequately provided the foundation for the copy of
the deed of trust she submitted with her declaration, stating, “I kept only the unsigned

version of the second deed of trust that I was provided, a true and correct copy of which
is attached as Exhibit E.” There is no merit to defendants’ evidentiary challenge.
              As a second basis challenging the propriety of the preliminary injunction on

grounds of fraud, defendants argued Jobe did not establish any likelihood of success in



                                             21
showing they inserted the parcel numbers or otherwise committed fraud. Jobe alleged
Apex and defendants engaged in a conspiracy to defraud her of both parcels by
presenting documents without the parcel numbers (or a property description) for her to
sign, with Apex’s principal acting as the notary to conceal the sleight of hand. The
record reflects Apex recorded the deed of trust on Kronsbergs’ behalf. But whether these

facts suffice to establish a conspiracy or that defendants defrauded Jobe is actually beside
the point for determining the propriety of the preliminary injunction.
              As the trial court observed, “A Deed of Trust that is based on a forgery is

‘null and void and of no legal effect.’” Under California law, a “deed that has been
materially altered after it was signed is a forgery.” (La Jolla Group II v. Bruce (2012)
211 Cal.App.4th 461, 477-478.) A forged deed does not divest “the rights of the original

owner . . . even as to a [subsequent] bona fide purchaser.” (Wutzke v. Bill Reid Painting
Service Inc. (1984) 151 Cal.App.3d 36, 43 (Wutzke).)
              The trial court therefore reasonably could enjoin defendants from
foreclosing on Jobe’s home pending adjudication of her fraud claims because even if they
did not defraud her and only Apex tricked Jobe into encumbering more than she intended,
the fraudulent trust deed encumbering two parcels instead of just one would be invalid.

“It has been uniformly established that a forged document is void ab initio and constitutes
a nullity; as such it cannot provide the basis for a superior title as against the original
grantor.” (Wutzke, supra, 151 Cal.App.3d at p. 43.) In other words, defendants could not

validly offer for sale in foreclosure proceedings a trust deed that was null, void, and of no
legal effect. Because the trial court reasonably could conclude Jobe established some
likelihood of success in showing a fraud occurred, the trial court therefore also

reasonably could grant her preliminary injunction request.



                                              22
              Defendants claim in a footnote in their reply brief that the trial court has
now sustained their demurrer as to Jobe’s fraud, quiet title, and declaratory relief claims
in the third amended complaint she filed sometime after the preliminary injunction. As
the trial court observed at the preliminary injunction hearing, however, defendants could
move to dissolve the preliminary injunction if they subsequently filed a successful

demurrer. We must conclude they have not done so or that the trial court denied their
motion. In any event, we review the trial court’s preliminary injunction ruling at the time
it was made, and defendants fail to establish the trial court abused its discretion. As

noted above, the trial court reasonably could conclude Jobe established a likelihood of
success on her fraud claims against Apex, which would justify a preliminary injunction
against defendants foreclosing on a deed of trust fraudulently encumbering two parcels

instead of one.

       2.     Balance of Harms and Bond Amount
              Defendants contend that “[e]ven if” Jobe established a likelihood of success
on any of her claims, the trial court abused its discretion in granting the preliminary
injunction because it misjudged the balance of harms. Defendants assert “the irreparable
loss of their investment” outweighed Jobe’s potential loss of her home. Indeed, they

argue it was mere speculation “the Property would be sold to a bona fide purchaser for
value by the time a trial on the merits was completed,” implying the injunction was
unnecessary. In a related claim, they assert the trial court gravely undervalued their
potential harm from the injunction by setting Jobe’s bond obligation at a mere $1,000.
              Defendants’ claim that the injunction was unnecessary is specious. The
record shows they scheduled a trustee’s sale to foreclose on Jobe’s home in March 2012,




                                             23
which she only avoided by obtaining the preliminary injunction that month. Defendants’
other claims are similarly without merit.
               Defendants argue they suffer increasing and irreparably grave harm from
the preliminary injunction because “with each passing day” pending the trial, Jobe “owes
more and more on her loans secured by the Property.” This argument betrays a

misunderstanding of both the preliminary injunction and the appeal. Neither the
preliminary injunction, nor defendants’ appeal causes any harm to defendants by delay
precisely because neither delays adjudication of their right to foreclose on Jobe’s

property. Simply stated, “[a]n appeal from an order denying a preliminary injunction
does not deprive the trial court of jurisdiction to proceed to try the case on the merits.”
(MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.) Defendants

note in their briefing that the matter has still not gone to trial, but that delay is not
attributable to the preliminary injunction or to the appeal. (See ibid.)
               In essence, defendants confuse the concepts of increasing harm and
irreparable harm. Specifically, the trial court determined that if a trial showed defendants
were entitled to foreclose because Jobe failed to prove her claims, and the injunction
therefore should be dissolved, ample home equity was available through foreclosure to

make them whole on all they were owed. Defendants’ right to outstanding interest is
implicit in this ruling, and therefore the increasing accrual of interest over the life of the
loan and duration of trial was not irreparable. Defendants cite no contrary evidence or

calculations they provided the trial court, nor do they do so on appeal.
               Instead, defendants attempt to reargue on appeal a battle of experts in which
they contend the trial court misgauged the amount of equity because Jobe’s expert

incompetently overvalued the home at $13 million, while their expert more credibly



                                               24
valued the home at a lower amount that they do not specify. We do not, however, resolve
credibility contests on appeal. In any event, as noted, defendants do not argue or specify
with calculations how their expert’s lower equity figure would fail to make them whole
on the amounts owed by Jobe. Consequently, they fail to meet their burden on appeal to
show prejudicial error. (Fladeboe, supra, 150 Cal.App.4th at p. 58 [judgment is

presumed correct; appellant must affirmatively demonstrate error].)
              We note that the balance of harms and defendants’ challenge to the bond
amount are necessarily interrelated. A bond protects the party opposing a preliminary

injunction against harm they may suffer from the trial court enjoining otherwise lawful
conduct. In the foreclosure context here, the equity in Jobe’s home essentially serves as
an additional bond while the lawfulness of foreclosure on defendants’ trust deed is

adjudicated. Consequently, the trial court’s conclusion the equity in the home protected
defendants against any irreparable loss also invalidates their attack on the bond amount.
If anything, the existence of ample equity in the home suggests the trial court reasonably
could have imposed a lower bond amount, rather than the higher one defendants demand,
because the equity alone adequately protected defendants.
              Defendants rely on ABBA Rubber Company v. Seaquist (1991)

235 Cal.App.3d 1, 14-17, for the proposition that attorney fees and costs incurred in
appealing a preliminary injunction or in proceeding to trial after the trial court has
granted an injunction may factor into the sufficiency of the bond amount. (Id. at p. 17

[“When attorney fees . . . are added into the equation, the utter inadequacy of the
undertaking is clear”].) But nothing in the Legislature’s bond requirement for injunctions
(Code Civ. Proc, § 529, subd. (a)) suggests it is a fee-shifting statute. To the contrary,

parties are ordinarily required to bear their own fees. In any event, the unique



                                             25
circumstances of this case require us to affirm the trial court’s bond amount.
Specifically, the true bond amount effectively included Jobe’s equity in the home, and
defendants have failed their burden on appeal to establish that figure was too low.
                                            III
                                      DISPOSITION

              The trial court’s preliminary injunction and bond rulings are affirmed.
Respondent is entitled to her costs on appeal.




                                                  ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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