Fotinos v. Fotinos et al

Filing 123

ORDER by Judge Claudia Wilken Denying PLAINTIFFS 122 APPLICATION FOR A TEMPORARY RESTRAINING ORDER. (ndr, COURT STAFF) (Filed on 7/18/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6

MICHELE FOTINOS, on behalf of
herself and as Guardian ad Litem
for her minor children, R.F. and
A.F.,
Plaintiff,

7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14

ORDER DENYING
PLAINTIFF’S
APPLICATION FOR A
TEMPORARY
RESTRAINING ORDER

v.
JOHN FOTINOS; DAWN GROVER; RENEE
LA FARGE; BONNIE MILLER; KAMALA
HARRIS, Attorney General; JAYNE
KIM, Chief Trial Counsel, State
Bar of California; ROBYN PITTS,
City of Belmont Police Officer;
MARK REED, San Mateo County
Deputy Sheriff; PATRICK CAREY,
San Mateo County Deputy Sheriff;
SHANNON MORGAN; CITY OF BELMONT;
COUNTY OF SAN MATEO; and RENEE
LAFARGE,

15
16

No. C 12-953 CW

Defendant.
________________________________/

17
18

Plaintiff Michele Fotinos applies for a temporary restraining

19

order on behalf of herself and her minor daughter R.F. against

20

Defendants John Fotinos and Dawn Grover.1

21

application and the entire record in the case, the Court DENIES

22

Plaintiff’s application.

23
24
25

Having considered the

BACKGROUND
This case arises out of a nine-year custody battle between
Plaintiff Michele Fotinos and her ex-husband, Defendant John

26
1

27
28

Although Plaintiff states that she moves ex parte, the
application was served on Defendants’ counsel through the
Electronic Case Filing system.

1

Fotinos.

2

physically and emotionally abusing their two children, R.F. and

3

A.F. and alienating them from her.

4

efforts to gain custody of her children in state court, on

5

February 24, 2012, Plaintiff filed this lawsuit against numerous

6

Defendants on behalf of herself and as guardian ad litem for R.F.

7

and A.F.

8

In her complaint, Plaintiff accuses her ex-husband of

After numerous setbacks in her

Plaintiff submits evidence that, on June 29, 2012 she
obtained, from the San Mateo County Court, domestic violence

10
United States District Court
For the Northern District of California

9

prevention restraining orders against her ex-husband and his

11

partner Dawn Grover on behalf of her daughter R.F.

12

Those restraining orders state that they “end on” June 28, 2013 at

13

midnight.

14

reevaluated at the conclusion of John Fotinos’ criminal case.”

15

Id.

16

submitted requests to the San Mateo County Court to renew the

17

restraining orders “permanently.”

18

judicial officer of the San Mateo County Court entered a notice of

19

hearing on the request to renew the restraining order against John

20

Fotinos,2 setting a hearing for July 18, 2013 at 9:00 AM.

21

The line on the Notice of Hearing form that states, “The

22

restraining order (Order of Protection) stays in effect until the

23

hearing date,” is crossed off and initialed by the judicial

Id.

See Exs. 1, 2.

The orders also state that they “may be

The criminal case is ongoing.

On June 26, 2013, Plaintiff

Exs. 3, 4.

On July 2, 2013, a

Ex. 5.

24
25
26
27
28

2

Although Plaintiff suggests that the renewal of both
restraining orders has been “denied,” the notice of hearing
attached as an exhibit to the application for a temporary
restraining order relates only to the restraining order against
John Fotinos. There is no evidence regarding the resolution of
the request to extend the restraining order against Dawn Grover.
2

1

officer.

2

restraining order, Plaintiff indicates that her attorney “sought a

3

continuance to August 9, 2013” for the hearing on the request to

4

renew the state restraining order.

Id.

In the instant application for a temporary

Application at 3.

5

Plaintiff now seeks a temporary restraining order from this

6

Court, essentially extending the state court restraining orders.

7

LEGAL STANDARD

8
9

“The standard for issuance of a temporary restraining order
is the same as that for issuance of a preliminary injunction.”

United States District Court
For the Northern District of California

10

Burgess v. Forbes, 2009 WL 416843, at *2 (N.D. Cal.).

11

preliminary injunction, the moving party must “establish that he

12

is likely to succeed on the merits, that he is likely to suffer

13

irreparable harm in the absence of preliminary relief, that the

14

balance of equities tips in his favor, and that an injunction is

15

in the public interest.”

16

Inc., 129 S. Ct. 365, 374 (2008).

17

restraining order could issue where “the likelihood of success is

18

such that serious questions going to the merits were raised and

19

the balance of hardships tips sharply in plaintiff’s favor,” so

20

long as the plaintiff demonstrates irreparable harm and shows that

21

the injunction is in the public interest.

22

Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation

23

and internal quotation and editing marks omitted).

Winter v. Natural Res. Def. Council,

26

Alternatively, a temporary

Alliance for the Wild

DISCUSSION

24
25

To obtain a

I.

Rooker-Feldman Doctrine
A federal district court, as a court of original

27

jurisdiction, has no authority to review the determinations of a

28

state court in judicial proceedings.
3

28 U.S.C. § 1257; District

1

of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983);

2

Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923).

3

Rooker-Feldman doctrine has been described as “a powerful doctrine

4

that prevents federal courts from second-guessing state court

5

decisions by barring the lower federal courts from hearing de

6

facto appeals from state-court judgments.”

7

334 F.3d 895, 898 (9th Cir. 2003).

8

even issued a final ruling on Plaintiff’s request to renew the

9

restraining orders that Plaintiff seeks to replace with an order

The

Bianchi v. Rylaarsdam,

Here, the state court has not

United States District Court
For the Northern District of California

10

from this Court.

11

been scheduled for July 18, 2013, although Plaintiff states that

12

she has requested a continuance to August 9, 2013.

13

lacks jurisdiction to consider Plaintiff’s request.

14

II.

15

A hearing on Plaintiff’s state court request has

The Court

Merits of the Request
Even if the Court had jurisdiction to consider Plaintiff’s

16

request, the application for a temporary restraining order lacks

17

merit.

18

she will prevail on her underlying claims, the only support for

19

that argument is her assertion that “[j]ust considering the gender

20

violence, assault and battery, false imprisonment, and defamation

21

claims, the Court can easily conclude that there is a substantial

22

likelihood that Plaintiffs will prevail on those claims in front

23

of a jury.”

24

likelihood of success on the merits.

25

Although Plaintiff argues that there is a likelihood that

Application at 9.

This is not enough to establish a

Moreover, the Court notes that counsel for John Fotinos and

26

Dawn Grover is operating under the assumption that the restraining

27

orders remain in place.

28

states, “Since [the criminal case against John Fotinos] has not
4

Barry Dec. Ex. 2 (email from counsel that

1

resolved, the restraining order remains in place.”).

2

assumption, together with Plaintiff’s decision to seek a

3

continuance of the state court hearing on her request to renew the

4

restraining order, undermines any claim of irreparable harm in the

5

absence of preliminary relief.

6

This

Finally, the purpose of a temporary restraining order is to

7

preserve the status quo pending the complete briefing and thorough

8

consideration contemplated by full proceedings pursuant to a

9

preliminary injunction.

See Granny Goose Foods, Inc. v.

United States District Court
For the Northern District of California

10

Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining

11

orders “should be restricted to serving their underlying purpose

12

of preserving the status quo and preventing irreparable harm just

13

so long as is necessary to hold a hearing, and no longer”).

14

Plaintiff asserts that the order she seeks is necessary because

15

R.F. fears his father and his partner and the stress R.F. is

16

experiencing as a result of the “denial” of the renewal of the

17

restraining order is having serious detrimental effects on R.F.’s

18

health.

19

it is not clear how issuance of the requested temporary

20

restraining order will preserve the status quo as it relates to

21

this case.

While the health problems Plaintiff describes are severe,

22

In this case, Plaintiff seeks “declaratory judgment that

23

Defendants’ actions violate Plaintiffs’ right to equal protection

24

and due process under the Fourteenth Amendment” and money damages

25

against Defendants.

26

There is nothing to suggest that if Plaintiff succeeded on the

27

merits of her case, she would be entitled to injunctive relief

See Second Amended Complaint, Docket No. 93.

28
5

1

preventing John Fotinos or Dawn Grover from having contact with

2

R.F.

3
4
5
6

CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s
application for a temporary restraining order (Docket No. 122).
IT IS SO ORDERED.

7
8
9

Dated: 7/18/2013

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6