Lenkner et al v. County of Tehama

Filing 12

ORDER signed by District Judge John A. Mendez on 9/11/2017 DENYING 1 Plaintiffs' Application for Temporary Restraining Order and Preliminary Injunction. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LENKNER, et al., 12 Plaintiffs, 13 14 v. COUNTY OF TEHAMA, a municipal corporation; and DOES 1-50, No. 2:17-cv-1839-JAM-CMK ORDER DENYING PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION 15 Defendants. 16 Plaintiffs seek a temporary restraining order (TRO) and 17 18 preliminary injunction enjoining Defendant Tehama County from 19 conducting hearings, assessing penalties prior to a hearing, or 20 carrying out an enforcement action pursuant to Tehama County 21 Ordinance § 9.06.035. 22 3. 23 from Defendant that they are in violation of § 9.06.035 and 24 penalties would begin to accrue against them, starting September 25 7, 2017, prior to a hearing on the matter. Lenkner Decl., Exh. 1. 26 Plaintiffs argue that the ordinance violates their due process 27 rights by denying them financial resources and interest in their 28 real property without procedural due process. See Plaintiffs’ Proposed Order, ECF No. 1- Plaintiffs are Tehama County residents who received notices 1 Mot., ECF No. 1-2, 1 at 4–5. 2 unlawful, warrantless searches. 3 4 5 Plaintiffs also allege a Fourth Amendment claim for See Compl. Defendant filed its Opposition on September 7, 2017, and Plaintiffs replied the following day. ECF Nos. 10 & 11. To obtain either a TRO or preliminary injunction, a 6 plaintiff must satisfy the four-factor test set out in Winter v. 7 Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). 8 establish that she (1) is likely to succeed on the merits, 9 (2) that she is likely to suffer irreparable harm in the absence She must 10 of preliminary relief, (3) that the balance of equities tips in 11 her favor, and (4) that an injunction is in the public interest. 12 Id. at 20. 13 Plaintiffs have not shown that irreparable harm is likely. 14 See id. (holding that irreparable harm must be likely, not just 15 possible). 16 finding at a hearing. 17 Such monetary injuries are not considered irreparable. 18 Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th 19 Cir. 1984). 20 issue against Plaintiffs’ real property after an administrative 21 hearing which results in an adverse finding, and, then, only if 22 the assigned penalties are not paid within ninety days. 23 2–3 (citing Ordinance § 9.06.165). 24 Court would also delay further action. 25 alleged adverse impact on Plaintiffs’ real property interest is 26 speculative. 27 28 Plaintiffs will only owe penalties after an adverse See Lenkner Decl., ECF No. 1-4, Exh. 1. Lydo Further, as Defendant points out, a lien will only Opp. at An appeal to the Superior Id. At this point, the Plaintiffs also have not shown that they are likely to succeed on the merits of their claim. 2 Although penalties begin 1 to accrue prior to a hearing date, Plaintiffs are not required to 2 pay any penalty until after a full administrative hearing, which 3 may be subject to an appeal that further extends the due date. 4 See Ordinance § 9.06.165. 5 procedure is insufficient under Mathews v. Eldridge, 424 U.S. 319 6 (1976). 7 compliance procedures amount to an unlawful search under the 8 Fourth Amendment, Plaintiffs’ brief is both factually and legally 9 insufficient to persuade the Court that they are likely to 10 Plaintiffs have not shown that this To the extent Plaintiffs contend that Defendant’s succeed on this claim. 11 For the reasons set forth above, Plaintiffs’ Application for 12 Temporary Restraining Order and Preliminary Injunction is DENIED. 13 14 IT IS SO ORDERED. Dated: September 11, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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