King v. Hensley et al

Filing 10

ORDER by Judge Yvonne Gonzalez Rogers denying 8 Motion for TRO; terminating 8 Motion for Permanent Injunction (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/15/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 JOHN LABRUCE KING, 7 Plaintiff, 8 Case No.: 13-CV-051 YGR ORDER DENYING EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER vs. 9 HUCK HENSLEY, et al., 10 Defendants. United States District Court Northern District of California 11 Plaintiff John Labruce King (“Plaintiff”) has filed a second “Emergency Ex Parte 12 13 Application for Temporary Restraining Order and Permanent Injunction To Stop In-Progress 14 Retaliatory Eviction of Elderly Disabled Petitioner for Assertion of A.D.A. Civil Rights” 15 (“Application for TRO”). (Dkt. No. 8.) Plaintiff attaches a proof of service indicating that he has 16 served the Application for TRO on at least one defendant, Brian Hall. No opposition has been 17 filed. 18 19 Having carefully considered the papers submitted and the complaint in this action, and for the reasons set forth below, the Court hereby DENIES the Application for TRO. 20 Requests for temporary restraining orders are governed by the same general standards that 21 govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 22 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 23 F.3d 832, 839 n. 7 (9th Cir. 2001). A preliminary injunction is an “extraordinary and drastic 24 remedy,” that is never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal 25 citations omitted). Whether seeking a temporary restraining order or a preliminary injunction, a 26 plaintiff must establish four factors, specifically, that: (1) he is likely to succeed on the merits; (2) 27 he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of 28 1 equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Resources 2 Defense Council. Inc., 555 U.S. 7, 20 (2008). 3 With respect to the success on the merits and balance of harms factors, courts will permit a 4 plaintiff making a strong showing on one factor to offset a weaker showing on the other, so long as 5 all four factors are established. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1 1 3 5 (9th 6 Cir. 2011). For example, if the balance of hardships tips sharply in plaintiff’s favor, she may 7 satisfy the likelihood of success factor by showing that there are at least “serious questions” 8 favoring the merits of her claim. Id. However, even a lesser showing of a “serious question” 9 requires evidence that the plaintiff “has a fair chance of success on the merits.” Sierra On-Line, 10 Inc. v. Phoenix Software. Inc., 739 F.2d 1415, 1421 (9th Cir. 1984). United States District Court Northern District of California 11 Here, Plaintiff has not satisfied any of the four factors. Plaintiff has not demonstrated that 12 he will suffer irreparable harm in the absence of injunctive relief. As the Court previously noted, 13 the dispute concerns a commercial property and Plaintiff’s showing is insufficient to demonstrate 14 that monetary damages would be inadequate. Based on a review of the papers submitted in 15 connection with this Application for TRO, as well as the previous similar application (See Dkt. No. 16 1 and 3), Plaintiff has not demonstrated a “fair chance” that he will succeed on his claims that his 17 eviction from his office is in retaliation for asserting his rights under the Americans With 18 Disabilities Act and a breach of his rental contract. Moreover, the “Three Day Notice Quit 19 (Nuisance),” filed as Exhibit D to the Application for TRO, indicates that Plaintiff is committing or 20 allowing the commission of a nuisance on the premises, is using the premises as a primary 21 residence rather than an office, contrary to California law, and is engaged in other conduct on the 22 premises that interferes with the business of other tenants. Thus, the balance of equities and public 23 interest do not favor injunctive relief. Accordingly, the Application for TRO must be and is 24 DENIED. 25 IT IS SO ORDERED. Date: January 15, 2013 26 27 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 28 2

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