Bear Capital Partners, Inc. vs. Smith

Plaintiffs Bear Capital Partners, Inc. and Ronald L. Meer’s move for Modification of the Preliminary Injunction. “In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” (Code Civ. Proc., § 533.)

Plaintiffs seek to modify the bond requirement. Previously the bond was set at $668,750 which included $568,750 for the 455 days of interest for the first Deed of Trust (DOT) and $100,000 for defense costs.

Defendants waived interest on the first DOT in a May 2024 email. (Meer Decl., Ex. 1.) In the email Michael Smith wrote “[w]e will wave 100% of the interest that we are owed, both the original 8% and the current 12.5% we are currently contractually entitled to.” Defendants failed to oppose the claim they waived interest and, thus, concede the issue. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 (DuPont) [“By failing to argue the contrary, plaintiffs concede this issue”].) Defendants’ argument the lender may still recover interest on the DOT is not persuasive as to how Defendants would be entitled to recover the interest from Plaintiffs.

Defendants seek to include new damages in the bond. Defendants request interest on the second DOT, property taxes, homeowner’s insurance, monthly utilities, repairs and staging, and increased defense costs.

The Court finds Plaintiffs’ argument, Defendant cannot claim certain costs because they caused the delays in construction, is without merit. The Court has not determined the merits of the case and whether Defendants caused their own damages is a question of fact. A preliminary injunction hearing is not a summary adjudication hearing. Plaintiffs provide no authority which 25

authorizes the court to prematurely determine the merits of an action. (See Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695 [a preliminary injunction requires a showing of a likelihood of prevailing on the merits not a determination the party has proved their claims].)

The Court finds there is no merit to Defendants’ request to double the estimated defense costs from $100,000 to $200,000. The remaining costs are properly covered by the bond. The Court estimates trial will take place in 18 months. Defendants claim the yearly interest accrued on the second DOT is $96,130.97, yearly property taxes are $32,916.51, monthly insurance is $541.67, and monthly utilities are $300. Thus, the bond for the continuing expenses is $208,721.28. Adding in the $37,000 in repair and staging costs and the $100,000 in defense costs brings the total modified bond to $345,721.28.

Tentative Ruling: Plaintiffs Bear Capital Partners, Inc. and Ronald L. Meer’s Motion for Modification of the Preliminary Injunction is GRANTED. The Court modifies the bond requirement for the preliminary injunction entered on October 20, 2025. The original bond requirement of $668,750 is modified to $345,721.28.