In Re City of San Bernardino, California

Filing 15

ORDER DENYING APPELLANTS' EX PARTE MOTION FOR STAY OR INJUNCTION PENDING APPEAL 6 by Judge Otis D. Wright, II. SEE ORDER FOR FURTHER AND COMPLETE DETAILS. (jre)

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United States District Court
Central District of California

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Case № 5:15-cv-01562 ODW

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In Re:

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CITY OF SAN BERNARDINO,

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CALIFORNIA,

ORDER DENYING APPELLANTS’
Debtor,

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INJUNCTION PENDING APPEAL

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SAN BERNARDINO CITY

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PROFESSIONAL FIREFIGHTERS

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LOCAL 891; GREGORY PARKER; SAM

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BASHAW; CHRIS NIGG; THOMAS

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JEFF ENGLISH; RICHARD LENTINE;

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STEVE TRACY; and KENNETH

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KONIOR,

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Plaintiffs-Appellants,
v.

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CITY OF SAN BERNARDINO,

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CALIFORNIA; ALAN PARKER; and

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DOES 1-10, inclusive,

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EX PARTE MOTION FOR STAY OR

Defendants-Appellees.

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I.

INTRODUCTION

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Appellants San Bernardino City Professional Firefighters Local 891, Gregory

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Parker, Sam Bashaw, Chris Nigg, Thomas Jeff English, Richard Lentine, Steve Tracy,

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and Kenneth Konior (collectively “Firefighters”) move ex parte for: (1) an order

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staying the Bankruptcy Court’s Order dismissing their sixth cause of action without

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leave to amend; or (2) a preliminary injunction prohibiting Appellee City of San

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Bernardino, California (“City”), from contracting out firefighting services or

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terminating any firefighters currently employed by the City. For the reasons discussed

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below, the Court DENIES Firefighters’ ex parte Motion. (ECF No. 6.)

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II.

BACKGROUND

This matter arises out of the City of San Bernardino’s municipal bankruptcy,

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which is currently pending before the Bankruptcy Court.

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Bernardino, Cal., No. 6:12-bk-28006-MJ (Bankr. C.D. Cal.).

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firefighters employed by the City and their union, who have filed an adverse action

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against the City in the Bankruptcy Court. (Mot. Ex. 8.) Firefighters have appealed

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from an Order issued by the Bankruptcy Court in the adverse action dismissing

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Firefighters’ sixth cause of action without leave to amend.1 (ECF No. 2.) That cause

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of action sought a judicial declaration that firefighting services could not be contracted

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out under the City’s Charter and state law. (Mot. Ex. 8.)

In re: City of San
Appellants are

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On July 16, 2015, the Bankruptcy Court granted a 20-day stay of its Order.

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(Mot. Ex. 4.) However, upon further reflection, the court noted that the stay order had

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no real effect because an order dismissing a claim is “essentially a denial that’s self-

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executing, and it doesn’t have anybody do anything, so there was nothing to stay.”

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(Opp’n Ex. 3 at 14–15.)

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On August 6, 2015, Firefighters appeared ex parte before the Bankruptcy Court

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for (1) a temporary restraining order (“TRO”) prohibiting the City from contracting

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Firefighters have appealed five other Orders issued by the Bankruptcy Court. Three of those
Orders were affirmed; the remaining appeals are still pending before this Court.

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out firefighting services or terminating any firefighters currently employed by the

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City, and (2) an order setting a hearing on a preliminary injunction regarding the

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same. (Id. at 6–7.) The court declined to grant the TRO, but set a preliminary

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injunction hearing for September 17, 2015. In denying the TRO, the court first noted

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that Firefighters were tardy in bringing their adverse action, and thus were in part to

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blame for creating the emergency. (Id. at 7–8.) The court had advised Firefighters

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several times over the course of a year to file their adverse action, yet they

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inexplicably waited until April 2015 before doing so. (Id.)

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The court then reasoned that there was no immediate danger of irreparable harm

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to Firefighters.

No layoff notices had been issued to Firefighters, and the City

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represented to the court that “the City doesn’t have – is not planning any layoffs and is

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not anticipating any changes in terms and conditions of employment until – not until

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between now and the time if a hearing is set in September.” (Id. at 36.) And although

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the City was evaluating outside proposals for firefighting services, the court noted that

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the City “[wasn’t] about to elect the contract, so that snowball isn’t going to turn into

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an avalanche real quick before we would have an opportunity to do this the right way”

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by setting a reasonable briefing schedule for the hearing. (Id. at 13.) However, the

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court felt that it would be “pressed to do something” sooner if layoff notices were

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issued or if execution of a contract became imminent. (Id. at 42.)

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On August 20, 2015, Firefighters filed an ex parte Motion in this Court to: (1)

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stay the Bankruptcy Court’s Order dismissing their Sixth Cause of Action without

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leave to amend; or (2) issue a preliminary injunction prohibiting the City from

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contracting out firefighting services or terminating any firefighters currently employed

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by the City. (ECF No. 6.) On August 21, 2015, the City filed an Opposition to

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Firefighters’ Motion. (ECF No. 10.) Firefighters’ ex parte Motion is now before the

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Court for consideration.

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III.

LEGAL STANDARD

An ex parte motion must “establish why [a] motion for the ultimate relief

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requested cannot be calendared in the usual manner. In other words, it must show

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why the moving party should be allowed to go to the head of the line in front of all

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other litigants and receive special treatment.” Mission Power Eng’g Co. v. Cont'l Cas.

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Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995).

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“What showing is necessary to justify ex parte relief? First, the evidence must

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show that the moving party’s cause will be irreparably prejudiced if the underlying

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motion is heard according to regular noticed motion procedures. Second, it must be

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established that the moving party is without fault in creating the crisis that requires ex

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parte relief, or that the crisis occurred as a result of excusable neglect.” Id.

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IV.
A.

DISCUSSION

Stay of Order Pending Appeal

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The Court agrees with the City and the Bankruptcy Court that staying the Order

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dismissing Firefighters’ sixth cause of action pending appeal would be pointless.

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Staying the Order would do nothing more than permit Firefighters to move forward

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with their cause of action while this Court reviews the Order; it would not prevent the

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City from contracting out firefighting services in the meantime. Firefighters’ request

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to stay the Order is therefore denied. Mission Power Eng’g Co., 883 F. Supp. at 492

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(denial of ex parte relief is appropriate where the substantive request lacks merit).

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B.

Injunction

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Despite the Bankruptcy Court setting a hearing on September 17, 2015

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regarding their requested injunction, as well as the court’s willingness to consider

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granting emergency relief if circumstances change in the interim, Firefighters

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nevertheless seek an immediate injunction from this Court. Firefighters contend that

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the City might contract out firefighting services on August 24, 2015, and that

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Firefighters might be terminated as a result. In their Opposition, the City presents

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evidence that it only intended to make certain recommendations to the City Council

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that day, and that no contract will be signed on August 24, 2015.

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The Court finds that Firefighters are not entitled to ex parte relief based on the

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evidence presented.

First, Firefighters delayed significantly in bringing their

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adversary proceeding in the first place, and thus bear at least some fault in “creating

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the crisis that requires ex parte relief.” Mission Power Eng’g Co., 883 F. Supp. at

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492. Second, Firefighters are not at risk of any immediate and irreparable harm or

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prejudice if an injunction is not immediately issued. Although the City is taking steps

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toward contracting out firefighting services, there appears to be no imminent danger

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of a contract being executed. No layoff notices have been issued to Firefighters, and

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the City has represented that no change in the terms and conditions of Firefighters’

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employment will occur prior to September 17, 2015. Firefighters’ speculation that

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something could happen between now and then is insufficient to justify ex parte relief.

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And even if circumstances do in fact change in the interim, the Bankruptcy Court has

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indicated that it will consider granting emergency relief.

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V.

CONCLUSION

For the reasons discussed above, the Court DENIES Firefighters’ ex parte

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Motion in its entirety. (ECF No. 6.)

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IT IS SO ORDERED.

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August 31, 2015

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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