Sharma v. City of Redding

Filing 5

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr. on 3/8/2017 ORDERING that the Court DENIES Plaintiff's 2 Motion to the extent it requests that the Court issue a TRO. A hearing on Plaintiff's alternative request f or a PI is, however, set for 4/6/2017, at 2:00 p.m. Plaintiff is directed to provide notice of that hearing date to Defendants not later than 3/10/2017. Defendants' opposition to Plaintiff's Motion must be filed not later than 3/24/2017, and a reply, if any, is due on 3/31/2017. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NARENDRA SHARMA, assignee for
Shree Shiva LLC,
Plaintiff,

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MEMORANDUM AND ORDER

v.

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No. 2:17-cv-00487-MCE-AC-PS

CITY OF REDDING, a municipal
corporation, RICHARDSON C.
GRISWOLD, a court appointed
receiver,

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Defendants.

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On March 6, 2017, Plaintiff Narendra Sharma, Assignee for Shree Shiva LLC

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(“Plaintiff”) filed a Complaint (ECF No. 1) and a Motion for Temporary Restraining

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(“TRO”) and Preliminary Injunction (“PI”). ECF No. 2. Plaintiff, acting in pro se, seeks to

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enjoin the sale of Americana Lodge, a motel located in Redding, California. As set forth

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below, because Plaintiff has failed to demonstrate the presence of an immediate

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irreparable injury, his application for a TRO is denied. Plaintiff may, however, proceed in

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pursuing his request for a PI, and a hearing in that regard is scheduled for April 6, 2017

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at 2:00 p.m.

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BACKGROUND

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In his Complaint, Plaintiff alleges that Defendant City of Redding (“City”) filed a

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complaint for nuisance against Shree Shiva LLC, the then owner of the Americana

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Lodge, and sought the appointment of a receiver. According to the Complaint, Shree

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Shiva agreed to a court appointed receiver on grounds that it would both expedite

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bringing the property back into compliance with City ordinances and save costs of

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litigation. On January 22, 2016, the court appointed Defendant Richardson C. Griswold

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as Receiver, and Mr. Griswold, who is also a Defendant here, took possession and

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control of the property on March 22, 2016.

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Plaintiff alleges that Defendants in fact intended to seize the property in violation

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of the Fifth Amendment’s Taking Clause. He alleges that the Receiver is now attempting

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to sell the Americana Lodge on a “fire sale” basis and, on December 1, 2016, accepted a

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purchase offer from Hignell, Inc. for $375,000.00. Pl.’s Motion, 7:12-13.

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According to the Declaration of Bhupenrda Thakor, he and his wife, Sudha

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Thakor, each owned 50 percent of the interests in Shree Shiva LLC, the California

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limited liability company which purchased the Americana Lodge in March of 2004.

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Thakor Decl., ECF No. 2-1, 15:21-23. Attached to Mr.Thakor’s Declaration as Exhibit 1

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is a purported subsequent sale agreement of Shree Shiva, LLC to Plaintiff Narendra

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Sharma for the purchase price of one dollar. Sharma apparently bases his right to sue

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on that agreement, and seeks to enjoin the City and Receiver from proceeding with any

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sale of the property.

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As indicated above, however, the Receiver allegedly accepted Hignell’s offer to

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purchase the Americana Lodge more than three months ago. Although Plaintiff appears

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to contend the property is in escrow, there is no indication in the papers when that

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escrow is scheduled to close, let alone whether it is imminent.

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STANDARD

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The purpose of a temporary restraining order is to preserve the status quo

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pending the complete briefing and thorough consideration contemplated by full

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proceedings pursuant to a preliminary injunction. See Granny Goose Foods, Inc. v.

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Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining orders “should be

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restricted to serving their underlying purpose of preserving the status quo and preventing

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irreparable harm just so long as is necessary to hold a hearing, and no longer”); see also

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Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006); Dunn v.

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Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. April 19, 2010).

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Issuance of a temporary restraining order, as a form of preliminary injunctive

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relief, is an extraordinary remedy, and plaintiffs have the burden of proving the propriety

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of such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general,

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the showing required for a temporary restraining order and a preliminary injunction are

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the same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839

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n.7 (9th Cir. 2001).

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The party requesting preliminary injunctive relief must show that “he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20

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(2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter).

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The propriety of a TRO in particular hinges on a significant threat of irreparable injury

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that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d

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668, 674 (9th Cir. 1988).

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ANALYSIS

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The papers submitted by Plaintiff contain no indication of imminent irreparable

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harm that cannot be remedied by monetary damages. As set forth above, there is no

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indication that escrow will close on the alleged sale of the property to Hignell, Inc. at any

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particular time, let alone imminently. While Plaintiff argues that the business in the

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property that has been built up over the last twelve years will be “eviscerated overnight”

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once the sale becomes final, the Court cannot justify issuance of the extraordinary

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remedy represented by a temporary restraining order, particularly without giving

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Defendants the opportunity to be heard on the matter beforehand, when there is no

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indication when or if the sale will in fact be finalized.
In addition, while Plaintiff’s TRO Checklist filed concurrently with his Motion states

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that there has been no undue delay in applying for a TRO, the Court is not convinced.

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According to Plaintiff, the disputed sale agreement with Hignell, Inc. was reached on

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December 1, 2016, more than three months ago. Shree Shiva LLC has therefore been

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on notice of the impending sale since that time, and Plaintiff himself claims the rights to

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Shree Shiva were assigned to him by Sales Agreement dated January 28, 2017, more

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than five weeks ago. It is not clear why Plaintiff waited until March 6, 2016 to move the

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emergency remedy of a TRO, and Plaintiff has provided no explanation for his delay,

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which also undermines the argument that any harm he may suffer is imminent and

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irreparable. Because Plaintiff and Shree Shiva have not treated this situation as an

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emergency over the preceding three months, this Court declines to do so now. Instead,

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no satisfactory reason has been offered why this matter should not be fully briefed and

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considered in the context of a regularly noticed request for PI, as Plaintiff alternatively

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seeks.

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CONCLUSION

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For all of the above reasons, the Court DENIES Plaintiff’s Motion (ECF No. 2) to

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the extent it requests that the Court issue a TRO. A hearing on Plaintiff’s alternative

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request for a PI is, however, set for April 6, 2017, at 2:00 p.m. Plaintiff is directed to

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provide notice of that hearing date to Defendants not later than March 10, 2017.

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Defendants’ opposition to Plaintiff’s Motion must be filed not later than March 24, 2017,

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and a reply, if any, is due on March 31, 2017.

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IT IS SO ORDERED.

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DATED: March 8, 2017

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_______________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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