Ally Bank et al v. Wells Fargo Bank, N.A.

Filing 610

ORDER by Judge Yvonne Gonzalez Rogers denying 600 Motion for TRO and Order to Show Cause re: Preliminary Injunction (fs, COURT STAFF) (Filed on 3/4/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 FIDELITY NATIONAL TITLE INSURANCE COMPANY, et al, Plaintiffs, 9 10 11 Northern District of California United States District Court 12 13 Case No.: 11-CV-896 YGR ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION (DKT. NO. 600) vs. JAMES C. CASTLE AKA J. CHRISTOPHER CASTLE, et al, Defendants. 14 The Motion by Plaintiff Credit One, LLC (“Plaintiff”) for Temporary Restraining Order and 15 Order to Show Cause Why a Preliminary Injunction Should Not Issue against defaulted defendant 16 Curtis Guillotte (Dkt. No. 600) is DENIED. 17 Plaintiff has not submitted evidence sufficient to establish a likelihood of success on the 18 merits of any claim. While Plaintiff contends that it will succeed on its “Constructive Trust Claim,” 19 the Court has already ruled that there is no “claim” for a constructive trust, only other legal claims as 20 to which constructive trust may be (and is) pleaded as a remedy. (See Order Denying Motion to Stay, 21 Granting Motion to Strike and Granting In Part Motion to Dismiss With Leave To Amend, August 22 20, 2012, Dkt. No. 251, at 31:17-24.) The claims alleged against Guillotte in the Fourth Amended 23 Complaint are for fraud, conspiracy to defraud, and negligence. Plaintiff does not attempt to 24 establish a likelihood of success on the elements of any of those claims. Further, Plaintiff offers no 25 authority to establish the propriety of a “constructive trust” over money rather than real or personal 26 property in which the defendant “holds title or some interest.” See Kraus v. Willow Park Pub. Golf 27 Course, 73 Cal. App. 3d 354, 373 (1977) (interest in real property). 28 1 As to irreparable injury, Plaintiff has not established entitlement to the extraordinary remedy 2 of an asset freeze or that a damages remedy would be insufficient under the circumstances. “While a 3 court generally has the power to preserve the status quo by equitable means [and] [a] preliminary 4 injunction is such a means… the equitable power to freeze assets does not exist in all cases: it exists 5 only as ancillary relief necessary to accomplish complete justice.” Reebok Int'l, Ltd. v. Marnatech 6 Enterprises, Inc., 970 F.2d 552, 560 (9th Cir. 1992) (internal citations and quotations omitted). The 7 argument that a defendant might not have sufficient funds to pay a money judgment is not, standing 8 alone, sufficient reason to grant an asset freeze. 9 Finally, Plaintiff argues that Guillotte is not entitled to notice of the motion to freeze the bank notice, he would empty the bank account before the matter could be heard.” (Motion at 8:25-9:3.) 12 Northern District of California account because he is in default in this action1 and his “prior behavior indicates that if he received 11 United States District Court 10 Plaintiff offers no legal authority to support the first proposition, and no evidence to support the 13 second. 14 For these reasons, the Motion is DENIED. 15 IT IS SO ORDERED. 16 This Order terminates Docket No. 600. 17 Date: March 4, 2014 ____________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 18 19 20 21 22 23 1 24 25 26 27 28 Guillotte was served pursuant to the Order Granting Motion for Service by Publication of Summons on Defendant Curtis Guillotte filed on September 12, 2013. (See Dkt. No. 519.) That Order required that the Summons and Fourth Amended Complaint be mailed to 1242 Skyline Drive, Laguna Beach, California (the “Skyline Address”) and 638 Camino De Los Mares, San Clemente, California (the “Camino Address”). The Order also required that the documents be e-mailed to any email addresses discovered for Guillotte. Plaintiff then filed a motion for default on November 21, 2013, and supplemental declaration November 27, 2013, stating that the Fourth Amended Complaint and summons were mailed and e-mailed as required and the e-mails were returned as bad addresses. Guillotte’s default was entered thereafter. 2

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