Burks v. Caso
Filing
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ORDER signed by District Judge Morrison C. England, Jr on 5/2/17 ORDERING Plaintiff's request for temporary restraining order is DENIED. Plaintiff is ORDERED to SHOW CAUSE in writing on or before 5/8/2017 as to why this case should not b e DISMISSED for lack of jurisdiction. Any response from Defendant shall be filed on or before 5/15/2017. If the Court desires a hearing on this matter, such hearing will take place on 5/18/2017, at 2:00 PM in Courtroom 7. Plaintiff shall provide notice of this order, briefing schedule, and date and time for hearing to Defendant by 5/3/2017. (Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DIOMA BURKS,
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No. 2:17-cv-00894-MCE-DB
Plaintiff,
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v.
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VINCE CASO,
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ORDER
Defendant.
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On April 27, 2017, Plaintiff Dioma Burks filed a Complaint in this Court alleging
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fourteen causes of action against Defendant Vince Caso related to conditions of and
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rental payments for the home Plaintiff rents, and also related to the imminent eviction of
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Plaintiff from that rental property. ECF No. 1. It appears Plaintiff’s primary allegations
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are that Defendant increased rent and utilities without providing notice, charged extra
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rent, accepted “side payments,” provided improper notices to pay or quit, retaliated
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against Plaintiff, forged the rental agreement, and failed to correct what were
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uninhabitable living conditions. ECF No. 1. Plaintiff’s Complaint additionally seeks a
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preliminary injunction and/or temporary restraining order, presumably preventing
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Defendant from evicting Plaintiff from the home. ECF No. 1. The Court addresses what
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it construes as Plaintiff’s request for temporary restraining order in more detail below
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and, for the reasons set forth hereafter, that request is DENIED.
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As a preliminary matter, Eastern District Local Rule 231 governs Temporary
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Restraining Orders. Rule 231(a) provides that “except in the most extraordinary of
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circumstances, no temporary restraining order shall be granted in the absence of actual
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notice to the affected party and/or counsel, by telephone or other means, or a sufficient
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showing of efforts made to provide notice.” E.D. Cal. Local R. 231(a) (citing Fed. R. Civ.
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P. 65(b)). Rule 231(c) additionally requires the filing of, among other things, “an affidavit
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detailing the notice or efforts to effect notice to the affected parties or counsel or showing
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good cause why notice should not be given.” Id. 231(c)(5).
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Furthermore, subsection (b) of Rule 231 states that “[i]n considering a motion for
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a temporary restraining order, the Court will consider whether the applicant could have
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sought relief by motion for preliminary injunction at an earlier date without the necessity
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for seeking last minute relief by motion for temporary restraining order. Should the Court
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find that the application unduly delayed in seeking injunctive relief, the Court may
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conclude that the delay constitutes laches or contradicts the applicant’s allegations of
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irreparable injury and may deny the motion solely on either ground.” Id. 231(b).
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Finally, subsection (c) lists the documents to be filed by a party seeking a
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temporary restraining order. Id. 231(c). Under that rule, “[n]o hearing on a temporary
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restraining order will normally be set unless” certain documents are provided to the Court
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and to the affected parties or their counsel. Id. Those documents are: (1) a complaint;
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(2) a motion for a temporary restraining order; (3) a brief on all relevant legal issues
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presented by the motion; (4) an affidavit in support of the existence of an irreparable
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injury; (5) an affidavit detailing the notice or efforts to effect notice to the affected parties
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or counsel or showing good cause why notice should not be given; (6) a proposed
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temporary restraining order with a provision for a bond; (7) a proposed order with blanks
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for fixing the time and date for hearing a motion for preliminary injunction, the date for
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the filing of responsive papers, the amount of the bond, if any, and the date and hour of
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issuance; and (8) where the temporary restraining order is requested ex parte, the
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proposed order shall further notify the affected party of the right to apply to the Court for
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modification or dissolution on two (2) days’ notice or such shorter notice as the Court
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may allow. Id.
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In the present case, Plaintiff has failed to meet the requirements of Rule 231.
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First, although Plaintiff indicates that she provided notice of the temporary restraining
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order to Defendant, she has not filed the required affidavit establishing as much.
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Additionally, though Plaintiff also indicates in her papers that she will suffer irreparable
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harm absent the requested relief, she has not filed this required affidavit either. Lastly, it
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appears to the Court that Plaintiff has delayed in bringing this action, cutting against any
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imminency argument. The most recent three-day notice to pay or quit was served on
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Plaintiff in February 2017, and the unlawful detainer that appears to have sparked
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Plaintiff’s present suit was filed in Sacramento County Superior Court on March 10,
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2017. The Court is therefore not convinced that Plaintiff is justified in now—more than a
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month and a half later—seeking emergency relief. Plaintiff’s argument that she was
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unaware that the unlawful detainer was proceeding forward is not convincing. For these
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reasons alone, Plaintiff’s request may be denied.
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As for the merits of Plaintiff’s motion, the purpose of a temporary restraining order
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is to preserve the status quo pending the complete briefing and thorough consideration
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contemplated by full proceedings pursuant to a preliminary injunction. See Granny
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Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining
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orders “should be restricted to serving their underlying purpose of preserving the status
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quo and preventing irreparable harm just so long as is necessary to hold a hearing, and
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no longer”); see also Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131
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(9th Cir. 2006); Dunn v. Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal.
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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 Plaintiff has the burden of proving the propriety of
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such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general, the
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showing required for a temporary restraining order and a preliminary injunction are the
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same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7
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(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 temporary restraining order hinges on a significant threat of
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irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v.
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Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
Alternatively, under the so-called sliding scale approach, as long as the Plaintiff
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demonstrates the requisite likelihood of irreparable harm and shows that an injunction is
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in the public interest, a preliminary injunction can still issue so long as serious questions
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going to the merits are raised and the balance of hardships tips sharply in Plaintiff’s
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favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011)
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(concluding that the “serious questions” version of the sliding scale test for preliminary
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injunctions remains viable after Winter).
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As indicated above, the Court is not convinced that Plaintiff has met this standard.
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Specifically, nothing in Plaintiff’s Complaint indicates that the threat of Plaintiff losing her
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home is imminent such that the extreme remedy of a temporary restraining order is
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justified. Moreover, it appears to the Court that Plaintiff has delayed in bringing this
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action in the first place, which, again cuts against any imminence finding. For these
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additional reasons, Plaintiff’s request may be denied.
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Lastly, the Court finds Plaintiff has not established a likelihood of success on the
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merits of her claims, nor has she raised serious questions going to their merits. To the
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contrary, the Court is unclear as to what claims Plaintiff pursues or the bases for those
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claims. As best as this Court can tell, it appears Plaintiff alleges what may amount to
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affirmative defenses to Defendant’s pending unlawful detainer action, rather than a
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potentially successful separate federal suit. For this additional reason, Plaintiff’s request
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is denied.
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Given the denial of Plaintiff’s temporary restraining order request, the Court going
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forward will construe Plaintiff’s motion at ECF No. 1 as a motion for preliminary
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injunction. Due to the pendency of the unlawful detainer in state court, however, Plaintiff
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is ordered to show cause in writing on or before May 8, 2017 as to why this case should
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not be dismissed for lack of jurisdiction. Any response from Defendant shall be filed on
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or before May 15, 2017. If the Court desires a hearing on this matter, such hearing will
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take place on May 18, 2017, at 2:00 PM in Courtroom 7. Plaintiff shall provide notice of
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this order, briefing schedule, and date and time for hearing to Defendant by May 3,
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2017.
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IT IS SO ORDERED.
Dated: May 2, 2017
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