Fotinos v. Fotinos et al

Filing 123


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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

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