Leticia Munguia v. Wells Fargo Bank NA et al

Filing 12

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: Plaintiff's Application for a Temporary Restraining Order 5 is DENIED without prejudice to its being renewed upon service of defendants. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00582-CAS(JCx)

Title

LETICIA MUNGUIA v. WELLS FARGO BANK NA, ET AL.

Present: The Honorable

Date

‘O’

February 4, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

I.

(In Chambers) PLAINTIFF’S APPLICATION FOR
TEMPORARY RESTRAINING ORDER (Dkt. No. 5, filed
February 2, 2015)

INTRODUCTION

On January 26, 2015, plaintiff Leticia Munguia filed this lawsuit against
defendants Wells Fargo Bank, N.A.; NBS Default Services, LLC, APB Properties, LLC,
and Does 1 through 10. Dkt. No. 1. Plaintiff alleges claims under the California
Homeowner’s Bill of Rights (“HBOR”), Cal. Civil Code §§ 2924.18(a)(1), 2923.6(b);
and the federal Sherman Antitrust Act, Clayton Antitrust Act, and Cartwright Act.
On February 2, 2015, plaintiff filed an application for a temporary restraining
order, as well as a supporting memorandum and declaration. Dkt. Nos. 5–7. Plaintiff
seeks to prevent defendants from taking possession of her home, Dkt. No. 5 at 2, which
appears to have been sold at a trustee’s sale on September 25, 2014, Compl. ¶¶ 23–28.
II.

DISCUSSION

The standards for issuing a temporary restraining order and a preliminary
injunction are “substantially identical.” Stuhlbarg Int’l Sales Co. v. John D. Brushy &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary
remedy.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Am.
Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); see
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-00582-CAS(JCx)

February 4, 2015

Title

LETICIA MUNGUIA v. WELLS FARGO BANK NA, ET AL.

also Cal Pharms. Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir. 2009).
Alternatively, “ ‘serious questions going to the merits’ and a hardship balance that tips
sharply toward the plaintiff can support issuance of an injunction, assuming the other two
elements of the Winter test are also met.” Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1132 (9th Cir. 2011). A “serious question” is one on which the movant “has a
fair chance of success on the merits.” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739
F.2d 1415, 1421 (9th Cir. 1984).
A court may issue a temporary restraining order without notice to the adverse party
or its attorney only if “(A) specific facts in an affidavit or a 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.” Id. 65(b)(1) (emphasis added). The Supreme Court and the Ninth Circuit have
explained that “the circumstances justifying the issuance of an ex parte [temporary
restraining] order are extremely limited.” Reno Air Racing Ass’n, Inc. v. McCord, 452
F.3d 1126, 1131 (9th Cir. 2006) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters
& Auto Truck Drivers, 415 U.S. 423, 438–39 (1974)). These stringent restrictions
“reflect the fact that our entire jurisprudence runs counter to the notion of court action
taken before a reasonable notice and an opportunity to be heard has been granted both
sides of a dispute.” Granny Goose, 415 U.S. at 438–39. An ex parte temporary
restraining order “may be appropriate ‘where notice to the adverse party is impossible
either because the identity of an adverse party is unknown or because a known party
cannot be located in time for a hearing.’ ” Reno Air Racing, 452 F.3d at 1131 (quoting
Am. Can Co. v. Mansukhani, 742 F.3d 314, 322 (7th Cir. 1984)). But “[i]n cases where
notice could have been given to the adverse party, courts have recognized a very narrow
band of cases in which ex parte orders are proper because notice to the defendant would
render fruitless the further prosecution of the action.” Id. (internal quotation marks
omitted).
Plaintiff has filed proofs of service indicating that the summons and complaint
were served upon all three named defendants on January 28, 2015. Dkt. Nos. 8–10.
Plaintiff states in her memorandum in support of her application that she will take certain
efforts to put defendants on notice of her request for a temporary restraining order. See
Dkt. No. 6 at 4. Plaintiff cites Rule 65(b) in her application, and submits a declaration
that appears calculated to apprise the Court of why resolution of her request for relief
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-00582-CAS(JCx)

February 4, 2015

Title

LETICIA MUNGUIA v. WELLS FARGO BANK NA, ET AL.

cannot wait for service of and response from defendants. Plaintiff declares that she will
face irreparable injury if a temporary restraining order is not granted because she has a
cognizable claim under HBOR and because ten people live in the property at issue. Dkt.
No. 7 ¶¶ 5, 6, 8. Plaintiff does not satisfactorily explain, however, why she will suffer
irreparable harm if her requested relief is not granted before defendants are served and
have an opportunity to respond. Accordingly, the Court does not find plaintiff’s
application appropriate for resolution on an ex parte basis.
Plaintiff’s application is therefore DENIED without prejudice to its being renewed
upon service of defendants.
IT IS SO ORDERED.
00
Initials of Preparer

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CMJ

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