Super Mario Plumbing et al v. Belodedov et al

Filing 21

ORDER signed by District Judge Troy L. Nunley on 2/14/2018 DENYING 9 Motion for a Preliminary Injunction. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUPER MARIO PLUMBING, a California
corporation; and DIMITAR DECHEV, an
individual,

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Plaintiffs,

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v.

No. 2:17–cv–02545–TLN-AC

ORDER DENYING PLAINTIFFS’
MOTION FOR A PRELIMINARY
INJUNCTION

OLEG BELODEDOV, an individual;
PETRU VERHOVETCHI, an individual;
5-STAR PLUMBING, INC., a California
corporation,

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Defendants.

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This matter is before the Court pursuant to Plaintiffs Super Mario Plumbing (“Super

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Mario”) and Dimitar Dechev’s (“Dechev”) (collectively, “Plaintiffs”) Motion for a Preliminary

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Injunction (ECF No. 9). Defendants Oleg Belodedov (“Belodedov”) and Petru Verhovetchi

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(“Verhovetchi”) (collectively, “Individual Defendants”) oppose. (ECF No. 13.) The corporate

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defendant, 5-Star Plumbing (“5-Star”), has not filed an opposition. Plaintiffs filed a reply. (ECF

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No. 15.) For the reasons detailed below, the Court DENIES Plaintiffs’ Motion for a Preliminary

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Injunction (ECF No. 9).

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I.

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Plaintiffs allege Individual Defendants are former employees of Super Mario. (ECF No.

FACTUAL AND PROCEDURAL BACKGROUND

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9-1 at 5.) Plaintiffs allege Defendants founded 5-Star as a competitor to Super Mario, although

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Plaintiffs allege 5-Star is not licensed as a plumber. (ECF No. 9-1 at 6.) Plaintiffs allege

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Defendants attempted to sabotage Super Mario’s business by trying to bribe Super Mario’s

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dispatcher to send its service calls to 5-Star instead, signing up on Angie’s List as a competitor

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plumber, and posting fake negative reviews of Plaintiffs’ services on-line. (ECF No. 9-1 at 5–6.)

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Plaintiffs allege the fake negative reviews appeared on-line as early as the beginning of
November 2017. (ECF No. 9-1 at 5.) Plaintiffs allege their business has dropped 25% since,

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which they attribute to the reviews. (ECF No. 9-1 at 9.) Plaintiffs allege they have had to reduce

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the work hours of two employees from full-time to part-time due to the reduction in business

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Plaintiffs attribute to Defendants’ alleged conduct. (ECF No. 9-1 at 9; ECF No. 9-2 at 4.)

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Plaintiffs allege they know the reviews are fake because the language in many of the

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reviews is copied verbatim from older posts about other plumbing companies in different states.

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(ECF No. 9-1 at 7.) Plaintiffs allege some of the fake reviews contain the names of the other

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plumbing companies. (ECF No. 9-1 at 8.) Plaintiffs allege they know Defendants are responsible

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for the fake negative reviews partly because Defendants threatened that action. (ECF No. 9-1 at

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6.) Further, Plaintiffs allege Dechev confronted Verhovetchi, who denied responsibility, Dechev

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confronted both Individual Defendants and they laughed, and a Super Mario employee confronted

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Beledodov and he refused to respond to the accusation. (ECF No. 9-1 at 8–9; ECF No. 9-2 ¶ 12;

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ECF No. 9-3 ¶¶ 4–5.)

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Plaintiffs filed a motion for a temporary restraining order moving the Court to order

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Defendants to remove multiple on-line posts Plaintiffs believe are fake negative reviews of

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Plaintiffs’ services purporting to be from Plaintiffs’ customers, and an order to show cause why a

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preliminary injunction should not issue. (ECF No. 9 at 1–2.) The Court denied Plaintiffs’ motion

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but considered it as a motion for preliminary injunction. (ECF No. 11 at 6.) Individual

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Defendants filed an opposition in the form of two letters signed by them addressed to Plaintiffs’

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attorney and Dechev. (ECF No. 13 at 1–4.) Plaintiffs have replied. (ECF No. 15.)
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II.

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Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

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showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555

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U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The

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purpose of a preliminary injunction is merely to preserve the relative positions of the parties until

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a trial on the merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)

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(emphasis added); see also Costa Mesa City Employee’s Assn. v. City of Costa Mesa, 209 Cal.

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App. 4th 298, 305 (2012) (“The purpose of such an order is to preserve the status quo until a final

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determination following a trial.”) (internal quotation marks omitted); GoTo.com, Inc. v. Walt

STANDARD OF LAW

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Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo ante litem refers not simply to

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any situation before the filing of a lawsuit, but instead to the last uncontested status which

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preceded the pending controversy.”) (internal quotation marks omitted). In cases where the

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movant seeks to alter the status quo, preliminary injunction is disfavored and a higher level of

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scrutiny must apply. Schrier v. University of Co., 427 F.3d 1253, 1259 (10th Cir. 2005).

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Preliminary injunction is not automatically denied simply because the movant seeks to alter the

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status quo, but instead the movant must meet heightened scrutiny. Tom Doherty Associates, Inc.

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v. Saban Entertainment, Inc., 60 F.3d 27, 33–34 (2d Cir. 1995).

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“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed

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on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

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[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”

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Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test

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to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

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(9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may

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weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A

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stronger showing on the balance of the hardships may support issuing a preliminary injunction

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even where the plaintiff shows that there are “serious questions on the merits...so long as the

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plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the

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public interest.” Id. Simply put, Plaintiff must demonstrate, “that [if] serious questions going to
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the merits were raised [then] the balance of hardships [must] tip[ ] sharply in the plaintiff’s

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favor,” in order to succeed in a request for preliminary injunction. Id. at 1134–35 (emphasis

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added).

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III.

ANALYSIS

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Plaintiffs argue a preliminary injunction, ordering Defendants to remove what Plaintiffs

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allege are fake negative online reviews of their business, is necessary to protect them and the

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public. (ECF No. 15 at 2.) Individual Defendants filed an opposition denying all of the

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allegations. (ECF No. 13 at 1, 3.) Plaintiffs argue the Court should not consider Individual

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Defendants’ opposition because it was due on a Wednesday but filed the following Monday.

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(ECF No. 15 at 4.) The Court will accept Individual Defendants’ late filing and construe it as an

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opposition. Masaoka v. JPMorgan Chase NA, 2012 WL 13018552, at *1 (C.D. Cal. May 21,

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2012) (granting a pro se litigant leave to file an opposition 21 days after the deadline); see also

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Visant Corp. v. Barrett, 2013 WL 3450512, at *4 (S.D. Cal. July 9, 2013) (considering a pro se

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filing which included attached emails as a motion to dismiss and motion to strike, citing

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Bernhardt v. L.A. Cty., 339 F.3d 920, 925 (9th Cir. 2003), which stated “[c]ourts have a duty to

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construe pro se pleadings liberally.”).

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A.

Plaintiffs Request a Mandatory Injunction, Which is Subject to a
Heightened Standard

“A preliminary injunction can take two forms. A prohibitory injunction prohibits a party

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from taking action and preserves the status quo pending a determination of the action on the

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merits. A mandatory injunction orders a responsible party to take action.” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009)

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(internal quotation marks and citations omitted); Garcia v. Google, 786 F.3d 733, 740 (9th Cir.

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2015) (en banc). Plaintiffs move the Court to order Defendants to remove negative reviews of

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Super Mario from websites. Plaintiffs request a mandatory injunction.

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The Ninth Circuit has adopted a heightened standard with respect to mandatory

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injunctions. Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1161

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(9th Cir. 2011). A mandatory injunction “goes well beyond simply maintaining the status quo”
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during litigation and is “particularly disfavored.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320

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(9th Cir. 1994). A district court should deny a mandatory injunction, “unless the facts and law

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clearly favor the moving party.” Id. “In general, mandatory injunctions are not granted unless

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extreme or very serious damage will result[,] and are not issued in doubtful cases or where the

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injury complained of is capable of compensation in damages.” Marlyn Nutraceuticals, 571 F.3d

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at 879 (internal quotation marks and citations omitted); Garcia, 786 F.3d at 740.

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B.

Plaintiffs Have Not Shown the Law and Facts Clearly Favor Their Position

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A party moving for a preliminary injunction must “make a showing on all four prongs” of

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the Winter test. Alliance for the Wild Rockies, 632 F.3d at 1135. “The first factor under Winter is

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the most important—likely success on the merits.” Garcia, 786 F.3d at 740. Although courts

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consider the same factors in evaluating either type of preliminary injunction, the standard for

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evaluating those factors for a mandatory injunction is “doubly demanding.” Id. The movant must

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show “the law and facts clearly favor [the movant’s] position, not simply that [the movant] is

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likely to succeed.” Id. (emphasis original). Thus, Plaintiffs here must show that the law and facts

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clearly favor their position, not simply that they are likely to succeed on the merits.

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Plaintiffs argue they are likely to succeed on the merits because Defendants “fail to deny”

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the allegations, have a motive to post fake negative reviews to harm a competitor, benefited from

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fake positive reviews during the same time, and threatened to post fake reviews of Super Mario.

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(ECF No. 15 at 4–5.)

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Individual Defendants did deny the allegations in their pro se filing. (ECF No. 13 at 1, 3)

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(stating “all of these accusations are false”). Only 5-Star, which cannot appear pro se in federal

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court, has failed to respond to Plaintiffs’ motion. Additionally, Plaintiffs’ argument Defendants

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have a motive to harm a competitor would apply equally to all other plumbing businesses.

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Plaintiffs argue fake positive reviews appeared on 5-Stars’s website at the same time that

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fake negative reviews appeared about Super Mario, and that the similarity in tactic and time make

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it “next to impossible” to conclude Defendants were not responsible for all of the behavior. (ECF

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No. 15 at 5.) Even assuming Super Mario received fake negative reviews and 5-Stars’s website

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contains fake positive reviews, Plaintiffs do not cite any authority for the proposition that a Court
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must infer that a company with fake positive reviews must be responsible for fake negative

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reviews of a competitor business.

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Finally, Plaintiffs state Defendants threatened to post negative reviews. (ECF No. 15 at

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5.) Plaintiffs attached a declaration from Dechev stating he contacted Defendants to discuss their

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disagreements and Defendants told “Dechev that if he ‘poked his nose’ into Defendants’ business,

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there will be bad reviews posted online on [Super Mario’s] websites aimed at [Super Mario].”

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(ECF No. 9-2 ¶ 7.) Individual Defendants, as noted above, deny all allegations. (ECF No. 13 at

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1, 3.) Plaintiffs offer no basis for their speculation that Defendants are responsible for the

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negative reviews beyond Dechev’s interpretation that Defendants threatened that behavior when

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Dechev spoke with them. Levitt v. Yelp! Inc., No. C 10-1321 MHP, 2011 WL 13153230, at *9

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(N.D. Cal. Mar. 22, 2011) (finding “no basis from which to infer that Yelp authored or

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manipulated the content of the negative reviews complained of by [the] plaintiffs,” where the

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plaintiffs alleged negative reviews appeared directly after they declined Yelp’s offer to improve

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ratings if the plaintiffs purchased advertising).

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Further, in both their First Amended Complaint and their motion, Plaintiffs advance

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interpretations of conversations with Individual Defendants which are not supported by the

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attached declarations. In their First Amended Complaint, Plaintiffs allege Belodedov told a Super

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Mario employee named Uri, “that he would be open to negotiations, but that he believed that Uri

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did not have the authority to negotiate, intimating that he, [Verhovetchi] and 5-STAR were

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behind the negative reviews.” (ECF No. 8 ¶ 20.) Plaintiffs attach the declaration of Uri Murga

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(“Uri”) to their motion, in which Uri states he called Belodedov who refused to respond to Uri’s

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accusations because Uri did not have “the authority to discuss it with him,” but stated Belodedov

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would speak to someone else about the subject. (ECF No. 9-3 ¶¶ 4–5.) The declaration does not

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mention the word “negotiation” or the concept of being “open to negotiations.”

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In their motion, Plaintiffs allege that “[i]n conversations with Plaintiffs, Defendants all but

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admitted they posted the fraudulent and fabricated ‘reviews’.” (ECF No. 9-1 at 15.) Plaintiffs

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attach a declaration from Dechev in which Dechev states that he accused Verhovetchi of posting

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the fake negative reviews and Verhovetchi laughed at the accusation and stated he did not post
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the reviews. (ECF No. 9-2 ¶ 12.) Dechev states he later saw both Individual Defendants and

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accused them of posting the reviews and they both laughed at him. (ECF No. 9-2 ¶ 12.) Neither

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declaration supports the strong conclusions Plaintiffs attribute to them.

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Plaintiffs have not alleged any facts sufficient to allow the Court to draw a reasonable

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inference that Defendants are responsible for posting fake negative reviews of Super Mario.

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Plaintiffs, therefore, have not established a likelihood of success on the merits, the more lenient

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standard applicable to assessing prohibitory injunctions. Kwong v. Santa Clara Cty. Sheriff’s

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Office, 2017 WL 4950005, at *4 (N.D. Cal. Nov. 1, 2017) (analyzing both a motion for

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preliminary injunction and a motion to dismiss, and finding that as the plaintiff failed to allege

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sufficient facts for the court to infer the defendant was liable for the misconduct, “[i]t follows that

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[the plaintiff] has not established that she is likely to succeed on the merits”).

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As Plaintiffs have not satisfied even the Winter standard to show a likelihood of success

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on the merits, Plaintiffs have not satisfied the heightened standard applicable to mandatory

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injunctions — to establish that the law and facts clearly favor their position. Garcia, 786 F.3d at

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740 (stating, “In plain terms, mandatory injunctions should not issue in doubtful cases.”); Park

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Vill. Apartment Tenants Ass’n, 636 F.3d at 1160.

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C.

The Court Need Not Consider the Remaining Winter Factors

“Because it is a threshold inquiry, when a plaintiff has failed to show the likelihood of

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success on the merits, [a court] need not consider the remaining three Winter elements.” Garcia,

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786 F.3d at 740. Plaintiffs have not satisfied the first Winter factor, therefore, the Court need not

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consider the remaining Winter factors. Accordingly, the Court DENIES Plaintiffs’ motion for a

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preliminary injunction.

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IV.

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For the foregoing reasons, the Court DENIES Plaintiffs’ Motion for a Preliminary

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CONCLUSION

Injunction (ECF No. 9).
IT IS SO ORDERED.
Dated: February 14, 2018

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Troy L. Nunley
United States District Judge