Danilo Jose v. Fremont Investment and Loan et al

Filing 7


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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANILO JOSE, 12 13 14 Plaintiff, v. FREMONT INVESTMENT AND LOAN, et al., 15 Defendants. 16 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-02467 DDP (MANx) ORDER DENYING PLAINTIFF’S APPLICATION FOR TEMPORARY RESTRAINING ORDER 17 18 Before the Court is Plaintiff Danilo Jose’s Application for a 19 Temporary Restraining Order.1 20 her complaint and request for a TRO on April 8, 2013. 21 denies Plaintiff’s Application. 22 Plaintiff, appearing pro se, filed The court As an initial matter, it does not appear that Plaintiff has 23 notified or attempted to notify any of the named Defendants of the 24 instant Application for a TRO. 25 Procedure 65(b), a court may issue a temporary restraining order 26 Pursuant to Federal Rule of Civil without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a 27 28 1 While Plaintiff has not filed an Application for a TRO, she appears to request a TRO in an attachment to his complaint, filed April 8, 2013. 1 2 3 4 5 verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. Fed. R. Civ. P. 65(b)(1) (emphasis added). The court has carefully reviewed Plaintiff’s Complaint and the 6 Memorandum submitted in support of her Application for a TRO, and 7 has done so while keeping mind Plaintiff’s pro se status. 8 Plaintiff asserts that her counsel provided telephonic “Ex Parte 9 notice” to defendant Recontrust Company. (Application at 16.) 10 Plaintiff, however, has not named any such defendant. 11 the facts asserted in the Application, is Plaintiff represented by 12 counsel. 13 was provided on Friday, June 12, 2009, almost four years ago. 14 These facts do not appear relevant to the instant case. 15 Nor, despite Lastly, the Application indicates that telephonic notice Basic principles of due process generally require the adverse 16 party to have notice and opportunity to be heard. 17 seeking relief has had significant notice of the impending harm, it 18 is inimical to the spirit and intent of those due process notions – 19 as well as basic concepts of fairness – for a plaintiff to take an 20 approach which avoids any chance of determination on the merits. 21 Because Plaintiff has offered no reason why notice should not have 22 been required in light of the circumstances presented here, the 23 court denies Plaintiff’s request for a TRO. 24 65(b)(1)(B). Where the party See Fed. R. Civ. P. 25 Furthermore, even if Plaintiff had shown that notice had or 26 need not be given, she has not demonstrated that she will suffer 27 irreparable harm in the absence of injunctive relief. 28 restraining order is meant to be used only in extraordinary 2 A temporary 1 circumstances. To establish entitlement to a TRO, the requesting 2 party must show (1) that she is likely to succeed on the merits, 3 (2) that she is likely to suffer irreparable harm in the absence of 4 preliminary relief, (3) that the balance of equities tips in her 5 favor, and (4) that an injunction is in the public interest. 6 Winter v. Natural Res. Defense Counsel, 555 U.S. 7, 20 (2008). 7 TRO may be warranted where a party (1) shows a combination of 8 probable success on the merits and the possibility of irreparable 9 harm, or (2) raises serious questions and the balance of hardships A 10 tips in favor of a TRO. 11 Inc., 819 F.2d 935, 937 (9th Cir. 1987). 12 represent two points on a sliding scale in which the required 13 degree of irreparable harm increases as the probability of success 14 decreases.” 15 demonstrate a “fair chance of success on the merits” and a 16 “significant threat of irreparable injury.”2 Id. See Arcamuzi v. Continental Air Lines, “These two formulations Under both formulations, however, the party must Id. 17 The Application appears to request that the court enjoin a 18 Trustee’s Sale of property located at 3525 Landfair Road, Pasadena, 19 Calififornia 91107. 20 however, is unclear. 21 occur “tomorrow,” and refers to “Tuesday’s trustee sale.” 22 Plaintiff’s complaint was filed on Monday, April 8, 2013 the 23 verified complaint and TRO are signed and dated April 5, 2013. 24 Even assuming that the Application refers to Tuesday, April 9 as (Application at 22.) The date of the sale, The Application states that the sale will While 25 2 26 27 28 Even under the “serious interests” sliding scale test, a plaintiff must satisfy the four Winter factors and demonstrate “that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 3 1 the relevant date, it does not appear that a TRO would afford 2 Plaintiff any relief. 3 that Defendants have already foreclosed upon the subject property. 4 (Compl. ¶¶ 13, 15.) 5 sold at auction on July 27, 2012, approximately nine months ago. 6 (Id.) 7 eviction proceedings against Plaintiff’s tenants in October 2012.3 8 (Complaint ¶ 51.) 9 that she is entitled to a TRO.4 10 11 Plaintiff’s complaint repeatedly alleges According to the complaint, the property was The complaint further alleges that Defendants initiated Under such circumstances, Plaintiff cannot show For these reasons, Plaintiff’s Application for a TRO is DENIED. 12 13 14 IT IS SO ORDERED. 15 16 17 Dated: April 10, 2013 DEAN D. PREGERSON United States District Judge 18 19 20 21 22 23 24 3 25 26 27 28 There is no indication whether the property is Plaintiff’s primary residence. 4 Having determined that Plaintiff has not shown irreparable harm, the court does not address the remaining factors. The court takes no position, however, on the viability of Plaintiff’s claims or the likelihood that she will succeed on the merits of those claims, many of which appear to be grounded in the tax code. 4

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