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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MICHELE FOTINOS, on behalf of
herself and as Guardian ad Litem
for her minor children, R.F. and
A.F.,
Plaintiff,
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United States District Court
For the Northern District of California
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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,
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No. C 12-953 CW
Defendant.
________________________________/
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Plaintiff Michele Fotinos applies for a temporary restraining
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order on behalf of herself and her minor daughter R.F. against
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Defendants John Fotinos and Dawn Grover.1
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application and the entire record in the case, the Court DENIES
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Plaintiff’s application.
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Having considered the
BACKGROUND
This case arises out of a nine-year custody battle between
Plaintiff Michele Fotinos and her ex-husband, Defendant John
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Although Plaintiff states that she moves ex parte, the
application was served on Defendants’ counsel through the
Electronic Case Filing system.
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Fotinos.
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physically and emotionally abusing their two children, R.F. and
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A.F. and alienating them from her.
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efforts to gain custody of her children in state court, on
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February 24, 2012, Plaintiff filed this lawsuit against numerous
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Defendants on behalf of herself and as guardian ad litem for R.F.
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and A.F.
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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
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United States District Court
For the Northern District of California
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prevention restraining orders against her ex-husband and his
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partner Dawn Grover on behalf of her daughter R.F.
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Those restraining orders state that they “end on” June 28, 2013 at
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midnight.
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reevaluated at the conclusion of John Fotinos’ criminal case.”
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Id.
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submitted requests to the San Mateo County Court to renew the
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restraining orders “permanently.”
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judicial officer of the San Mateo County Court entered a notice of
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hearing on the request to renew the restraining order against John
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Fotinos,2 setting a hearing for July 18, 2013 at 9:00 AM.
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The line on the Notice of Hearing form that states, “The
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restraining order (Order of Protection) stays in effect until the
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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.
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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.
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officer.
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restraining order, Plaintiff indicates that her attorney “sought a
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continuance to August 9, 2013” for the hearing on the request to
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renew the state restraining order.
Id.
In the instant application for a temporary
Application at 3.
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Plaintiff now seeks a temporary restraining order from this
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Court, essentially extending the state court restraining orders.
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LEGAL STANDARD
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“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
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Burgess v. Forbes, 2009 WL 416843, at *2 (N.D. Cal.).
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preliminary injunction, the moving party must “establish that he
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is likely to succeed on the merits, that he is likely to suffer
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irreparable harm in the absence of preliminary relief, that the
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balance of equities tips in his favor, and that an injunction is
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in the public interest.”
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Inc., 129 S. Ct. 365, 374 (2008).
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restraining order could issue where “the likelihood of success is
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such that serious questions going to the merits were raised and
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the balance of hardships tips sharply in plaintiff’s favor,” so
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long as the plaintiff demonstrates irreparable harm and shows that
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the injunction is in the public interest.
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Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation
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and internal quotation and editing marks omitted).
Winter v. Natural Res. Def. Council,
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Alternatively, a temporary
Alliance for the Wild
DISCUSSION
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To obtain a
I.
Rooker-Feldman Doctrine
A federal district court, as a court of original
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jurisdiction, has no authority to review the determinations of a
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state court in judicial proceedings.
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28 U.S.C. § 1257; District
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of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983);
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Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923).
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Rooker-Feldman doctrine has been described as “a powerful doctrine
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that prevents federal courts from second-guessing state court
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decisions by barring the lower federal courts from hearing de
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facto appeals from state-court judgments.”
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334 F.3d 895, 898 (9th Cir. 2003).
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even issued a final ruling on Plaintiff’s request to renew the
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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
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from this Court.
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been scheduled for July 18, 2013, although Plaintiff states that
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she has requested a continuance to August 9, 2013.
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lacks jurisdiction to consider Plaintiff’s request.
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II.
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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
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request, the application for a temporary restraining order lacks
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merit.
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she will prevail on her underlying claims, the only support for
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that argument is her assertion that “[j]ust considering the gender
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violence, assault and battery, false imprisonment, and defamation
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claims, the Court can easily conclude that there is a substantial
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likelihood that Plaintiffs will prevail on those claims in front
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of a jury.”
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likelihood of success on the merits.
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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
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Dawn Grover is operating under the assumption that the restraining
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orders remain in place.
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states, “Since [the criminal case against John Fotinos] has not
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Barry Dec. Ex. 2 (email from counsel that
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resolved, the restraining order remains in place.”).
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assumption, together with Plaintiff’s decision to seek a
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continuance of the state court hearing on her request to renew the
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restraining order, undermines any claim of irreparable harm in the
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absence of preliminary relief.
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This
Finally, the purpose of a temporary restraining order is to
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preserve the status quo pending the complete briefing and thorough
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consideration contemplated by full proceedings pursuant to a
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preliminary injunction.
See Granny Goose Foods, Inc. v.
United States District Court
For the Northern District of California
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Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining
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orders “should be restricted to serving their underlying purpose
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of preserving the status quo and preventing irreparable harm just
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so long as is necessary to hold a hearing, and no longer”).
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Plaintiff asserts that the order she seeks is necessary because
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R.F. fears his father and his partner and the stress R.F. is
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experiencing as a result of the “denial” of the renewal of the
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restraining order is having serious detrimental effects on R.F.’s
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health.
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it is not clear how issuance of the requested temporary
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restraining order will preserve the status quo as it relates to
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this case.
While the health problems Plaintiff describes are severe,
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In this case, Plaintiff seeks “declaratory judgment that
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Defendants’ actions violate Plaintiffs’ right to equal protection
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and due process under the Fourteenth Amendment” and money damages
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against Defendants.
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There is nothing to suggest that if Plaintiff succeeded on the
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merits of her case, she would be entitled to injunctive relief
See Second Amended Complaint, Docket No. 93.
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preventing John Fotinos or Dawn Grover from having contact with
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R.F.
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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.
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Dated: 7/18/2013
CLAUDIA WILKEN
United States District Judge
United States District Court
For the Northern District of California
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