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