Hiramanek et al v. Clark et al

Filing 45

ORDER by Judge Edward M. Chen denying 40 Plaintiff's Motion for Preliminary Injunction or Temporary Restraining Order (emclc1, COURT STAFF) (Filed on 9/13/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ADIL HIRAMANEK, et al.,

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Plaintiffs,

For the Northern District of California

United States District Court

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No. C-13-0228 EMC

v.

ORDER DENYING PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTION OR TEMPORARY
RESTRAINING ORDER

L. MICHAEL CLARK, et al.,

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Defendants.
(Docket No. 40)

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___________________________________/
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Plaintiff Roda Hiramanek, proceeding pro se, has filed an ex parte motion for an “immediate

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temporary Preliminary Injunction” or a temporary restraining order against Defendant the Superior

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Court of California (County of Santa Clara). Having reviewed the papers filed, and all other

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evidence of record, the Court hereby DENIES the request for relief.1

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I.
A.

DISCUSSION

Notice
As a preliminary matter, the Court notes that it is troubled by Ms. Hiramanek’s decision to

pursue relief on an ex parte basis.2 Ms. Hiramanek has not provided any reason as to why it was

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The Court notes that its order of September 3, 2013, precluded Ms. Hiramanek from filing
any motion until after the Superior Court and Judge Clark have made an appearance in this
case and the case management conference is held on November 21, 2013. See Docket No. 39 (Order
at 12). Although Ms. Hiramanek has violated the Court’s order by filing the pending motion, the
Court shall not reject the motion on that basis – although it could, particularly given the lack of
substantive merit to the motion.
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Several days after she filed her motion, Ms. Hiramanek filed a certificate of service in
which her son claims that he delivered a copy of the motion to the Superior Court. See Docket No.
42 (certificate of service). The motion, however, was simply directed “Superior Court of California,

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necessary for her to proceed on such a basis. Nor can the Court divine of any such reason.

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Accordingly, the Court would well be within its right to deny Ms. Hiramanek’s motion on the basis

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that ex parte relief is not justified.

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B.

Delay

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Aside from the notice problem, Ms. Hiramanek’s request for relief is problematic because

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she delayed in seeking relief. See Oakland Trib., Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377

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(9th Cir. 1985) (stating that “[p]laintiff’s long delay before seeking a preliminary injunction implies

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a lack of urgency and irreparable harm”); Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211,

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1213 (9th Cir. 1984) (stating that “[a] delay in seeking a preliminary injunction is a factor to be
considered in weighing the propriety of relief”). Here, the allegedly wrongful conduct identified by

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For the Northern District of California

United States District Court

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Ms. Hiramanek took place at a state court hearing on August 16, 2013. See Docket No. 40

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(Hiramanek Decl., Ex. D). However, she did not seek any relief from this Court until almost a

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month later.

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Ms. Hiramanek argues that she did not delay because she filed the motion with this Court

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within two court days of her receiving a transcript of the August 16 hearing. See Mot. at 2. But that

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argument is unconvincing because she has failed to demonstrate that it was not possible for her to

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seek relief from this Court without having a copy of the transcript. Notably, all that the transcript

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reflects is that Ms. Hiramanek argued to the state court that she did not appear in person because she

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is disabled. Ms. Hiramanek could easily have submitted that evidence to the Court through her own

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declaration.

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C.

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Merits of Request for Relief
Ms. Hiramanek’s motion for relief is also flawed on the merits.3

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Court Services.” Mr. Hiramanek also claims that he e-mailed a copy of the motion to the Superior
Court at “[e-mail].” This does not appear to constitute valid service and thus the
motion is still considered ex parte.
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For purposes of this opinion, the Court assumes that Younger abstention, see Younger v.
Harris, 401 U.S. 37 (1971), is not applicable. Previously, Ms. Hiramanek sought similar
preliminary injunctive relief, but the Court denied the relief based on Younger abstention (among
other independent grounds). See Docket No. 29 (Order at 1-2). Here, Ms. Hiramanek is essentially
asking the Court to reconsider its Younger abstention ruling.

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First, contrary to what she suggests, what she is seeking is really a mandatory injunction and

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not a prohibitory one because, essentially, what she seeks from this Court is an order instructing the

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state court to allow her to make telephonic appearances.4

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Second, she has failed to show a likelihood of success on the merits or even serious questions

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going to the merits. See Conservation Cong. v. United States Forest Serv., 720 F.3d 1048, — (9th

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Cir. 2013) (stating that “[a] preliminary injunction is an ‘extraordinary remedy’ that requires the

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movant to show [inter alia] it is likely to succeed on the merits”). Although Ms. Hiramanek claims

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that Judge Manoukian of the Superior Court discriminated against her on the basis of her disability,

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there is no real evidence to support that claim.
For example, there is no evidence that, prior to the August 16 hearing, Ms. Hiramanek asked

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For the Northern District of California

United States District Court

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Judge Manoukian permission to appear telephonically at the hearing because of her disability.5

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While Ms. Hiramanek did bring up her disability with Judge Manoukian on the actual day of the

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hearing, at that late point in time, it was not unfair or unreasonable for Judge Manoukian to cut her

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off. Ms. Hiramanek could have raised the issue of her disability with Judge Manoukian earlier, but

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she did not.6

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The Court assumes that Younger abstention is not a bar for purposes of this motion because
Ms. Hiramanek has raised at least one argument that may have some merit – i.e., that the second
Younger factor (i.e., that the state court proceeding implicates important state interests) cannot be
met here. See Portrero Hills Landfill, Inc. v. County of Solano, 657 F.3d 876, 886 (9th Cir. 2011)
(stating that, “[t]o establish a vital interest in the state’s judicial functions, an abstention proponent
must assert more than a state’s generic interest in the resolution of an individual case or in the
enforcement of a single state court judgment”; “[r]ather, the interest at stake must go to the core of
the administration of a State’s judicial system, and its importance must be measured by considering
its significance broadly”) (internal quotation marks omitted).
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In her proposed order, Ms. Hiramanek has tried to draft an injunction that is prohibitory in
nature but that attempt falls flat for the reason discussed above. Moreover, Ms. Hiramanek’s
proposed injunction is problematic because it is, in effect, an obey-the-law injunction. Such
injunctions are generally disfavored. See EEOC v. Autozone, Inc., No. 12-1017, 707 F.3d 824, 2013
U.S. App. LEXIS 3311, at *38-39 (7th Cir. Feb. 15, 2013).
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For purposes of this opinion, the Court assumes that Ms. Hiramanek is disabled. Ms.
Hiramanek has submitted at least some evidence to support her claim of disability. See Docket No.
28-2 (sealed document).
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Even though, in the past, Ms. Hiramanek’s request for a telephonic appearance as an
accommodation had been denied, see, e.g., Hiramanek Decl., Ex. C (response to request for
accommodation, dated February 15, 2013) (stating “you failed to provide sufficient information as to
why you are not able to appear in person” but noting that “parties are allowed to appear by phone for

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To the extent Ms. Hiramanek argues that she had brought up the issue of her disability with

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Judge Manoukian previously, that is not clear from the record. The exhibit she submits reflects that

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the request for an accommodation was made to a different judge (Carol Overton). See Hiramanek

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Decl., Ex. H (request for accommodation). Furthermore, that was a request for an accommodation

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made months earlier (in June 2013) and in conjunction with a completely different event (i.e., a

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deposition and not a court hearing). Finally, even if the request was given to Judge Manoukian, Ms.

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Hiramanek states in her declaration that Judge Manoukian referred the request to another person in

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the Superior Court, see Hiramanek Decl., Ex. E (Hiramanek Decl. ¶ 2), which suggests that (1) he

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did not look into any evidence supporting her claim of disability and that (2) he was therefore
unaware of the nature of her disability when Ms. Hiramanek referenced it at the August 16 hearing.

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For the Northern District of California

United States District Court

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As for Ms. Hiramanek’s point that, under the California Rules of Court, a party may make a

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telephonic appearance for certain kinds of hearings, including discovery hearings, regardless of

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whether the party is disabled, that is true. See generally Cal. R. of Court 3.670. However, a specific

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procedure must be followed in order to make a telephonic appearance, and Ms. Hiramanek has not

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made an adequate showing that she followed that process. For example, there is no evidence that

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Ms. Hiramanek gave notice to Judge Manoukian that she would be appearing telephonically for the

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August 16 hearing. See Cal. R. of Court 3.670(g) (providing that a party choosing to appear by

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telephone must either place the phrase “Telephone Appearance” below the title of the moving,

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opposing, or reply papers or, at least three days before the appearance, notify the court and all other

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parties of the intent to appear by telephone, either orally or in writing); Hiramanek Decl., Ex. E

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(Hiramanek Decl. ¶ 3) (simply stating that she “scheduled a Court-Call appearance for Aug. 16,

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2013 hearing”). And even if Ms. Hiramanek did give proper notice, that fact did not preclude Judge

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Manoukian from requiring her personal appearance, see Cal. R. of Court 3.670(e)(2), which he did,

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i.e., through the tentative order, stating that “Plaintiff Roda Hiramanek is to appear.” Hiramanek

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Decl., Ex. A (tentative order).

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[certain] proceedings . . . as a regular court process”), that does not mean that a request would
necessarily be denied in the future, particularly if there were new facts in support.

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To the extent Ms. Hiramanek suggests that she was not given sufficient notice of the

one point in her papers that the tentative was issued only “a few hours before the hearing time,”

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Hiramanek Decl., Ex. E (Hiramanek Decl. ¶ 5), she states at another point that the tentative came out

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the day before. See Hiramanek Decl., Ex. E (Decl. ¶ 8). The latter is consistent with the state

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court’s order, which states that the tentative was posted on the afternoon of August 15. See

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Hiramanek Decl., Ex. G (Order at 1). Because the hearing was not until the following morning, Ms.

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Hiramanek did have time to contact the Superior Court to ask for relief from the personal appearance

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requirement prior to the hearing. Cf. Cal. R. of Court 3.670(h) (indicating that one day’s notice can

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be reasonable in certain circumstances). And in any event, the provision in the California Rules of

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For the Northern District of California

personal appearance requirement, the record is inconclusive. Although Ms. Hiramanek claims at

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United States District Court

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Court that a party be given reasonable notice of a personal appearance requirement applies only

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where a party has followed the notice procedure as specified in California Rule of Court 3.670(g),

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see Cal. R. of Court 3.670(h) (stating that, “[a]fter a party has requested a telephone appearance

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under (g), if the court requires the personal appearance of the party, the court must give reasonable

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notice”), and, as noted above, Ms. Hiramanek has failed to provide sufficient evidence that she

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complied with that procedure.

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Third, even if Judge Manoukian had discriminated against Ms. Hiramanek on the basis of her

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disability, that does not mean that she automatically has standing to pursue injunctive relief. See

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City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (stating that “‘[past] exposure to illegal

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conduct does not in itself show a present case or controversy regarding injunctive relief . . . if

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unaccompanied by any continuing present adverse effects’”). There must be a “real and immediate”

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threat of repeat conduct by Judge Manoukian or the Superior Court. Id. at 105. Here, Ms.

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Hiramanek has failed to make such a showing. The mere fact that she is scheduled to appear before

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Judge Manoukian again in the future, see Hiramanek Decl. ¶ 13, is not enough. It is not clear, for

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example, whether Judge Manoukian will in fact require Ms. Hiramanek to appear personally again if

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she requests a telephonic appearance pursuant to California Rule of Court 3.670. And it is not clear

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that the relief that she seeks would necessarily be denied if, e.g., she asks for a telephonic

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appearance as an accommodation based on her disability which is supported by competent evidence.

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II.

CONCLUSION

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For each of the foregoing reasons, Ms. Hiramanek’s request for relief is denied.

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The Court reiterates its prior ruling that both Plaintiffs are barred from filing any motion

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until after the Superior Court and Judge Clark have made an appearance in this case and the case

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management conference is held on November 21, 2013. See Docket No. 39 (Order at 12).

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This order disposes of Docket No. 40.

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IT IS SO ORDERED.

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Dated: September 13, 2013

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For the Northern District of California

United States District Court

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_________________________
EDWARD M. CHEN
United States District Judge

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