Duenas et al v. Freitas et al

Filing 5

ORDER by Judge Wilken for Judge Armstrong denying 3 Motion for TRO (cwlc1, COURT STAFF) (Filed on 2/26/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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5 GERARD DUENAS, HAROLD GOLDMAN, In
Pro Se,
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Plaintiffs,
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vs.
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STEVEN FREITAS, AKA STEVE
9 FREITAS, in his Official and
Private Capacity, SONOMA COUNTY
10 SHERIFF’S DEPARTMENT, KATHRYN
STRALEY, in her official and
11 private capacity, DOES 1-15,
Inclusive,
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Defendants.
/
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Case No:

C 13-0836 SBA

ORDER DENYING
PLAINTIFFS’ EX PARTE
APPLICATION FOR A
TEMPORARY RESTRAINING
ORDER

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Plaintiffs Gerard Duenas and Harold Goldman, proceeding pro

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se, bring the instant action against Defendants Sonoma County

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Sheriff Steven Freitas, the Sonoma County Sheriff’s Department

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(SCSD), and SCSD employee Kathryn Straley, pursuant to 42 U.S.C.

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§ 1983, among other claims.

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temporary restraining order (TRO) to enjoin Defendants from

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evicting Goldman, a former tenant of Duenas, from property

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previously owned by Duenas.

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the Complaint or the application for TRO.

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decided on the papers that have been submitted.

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all of the papers filed by Plaintiffs, the Court denies the

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application for an ex parte TRO.

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Plaintiffs apply ex parte for a

Defendants have not been served with
This matter will be
Having considered

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BACKGROUND
Duenas is the former owner of property located at 6285

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Highway, Santa Rosa, California. Goldman, an 82-year male,

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previously entered into a lease agreement with Duenas for the

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property for the period from December 3, 2009 to December 2, 2014.

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On or about April 11, 2011, the property was sold at a non-

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judicial foreclosure sale to Deutsche Bank National Trust Company,

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which has not been joined as a party in this action.

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not specified in the pleadings, Deutsche Bank commenced an

On a date

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unlawful detainer (UD) action in Sonoma County Superior Court to

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take possession of the property.

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Co. v Duenas, et al., Sonoma Cnty. Super. Ct. No. MCV 21771.

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state court originally issued a Writ of Possession in favor of

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Deutsche Bank on October 4, 2011, at which time it attempted to

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evict Plaintiffs from the Property.1

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See Deutsche Bank Nat’l Trust
The

On February 20, 2013, the Sonoma County Superior Court issued

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a second Writ of Possession in favor of Deutsche Bank which was

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served on the same date.

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writ states that all occupants of the property must vacate the

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premises by no later than 6:01 a.m. on February 27, 2013.

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The Notice to Vacate attached to the

On February 25, 2013, Plaintiffs filed a verified Complaint

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in this Court which alleges the following claims against

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Defendants:

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Practices Act (FDCPA); (2) violation of due process and

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intentional infliction of emotional distress; (3) violation of the

(1) fraud and violation of the Fair Debt Collection

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It is not clear whether Duenas was residing at the property
when Deutsche Bank first attempted to enforce the Writ of
Possession.
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Fourth Amendment; (4) violation of the Protecting Tenants in

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Foreclosure Act (PTFA).

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Plaintiffs have filed a two-page application for a TRO which seeks

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to enjoin Defendants from proceeding with the eviction of Goldman

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on February 27, 2013.

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neither the Complaint nor the TRO application on Defendants.

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Dkt. 1.

Dkt. 3.

Along with the Complaint,

As noted, Plaintiffs have served

LEGAL STANDARD
A temporary restraining order may be issued only if
“immediate and irreparable injury, loss, or damage will result to

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the applicant” if the order does not issue.

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65(b).

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TRO and a motion for a preliminary injunction.

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Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th

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Cir. 2001).

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party must show: (1) a likelihood of success on the merits; (2) a

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likelihood of irreparable harm to the moving party in the absence

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of preliminary relief; (3) that the balance of equities tips in

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the moving party’s favor; and (4) that an injunction is in the

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public interest.

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U.S. 7, 20 (2008).

Fed. R. Civ. P.

The same legal standard applies to an application for a
See Stuhlbarg

To obtain immediate injunctive relief, the moving

Winter v. Natural Res. Def. Council, Inc., 555

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Under the Ninth Circuit’s “sliding scale” approach, the first

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and third elements of the Winter test are to be balanced such that

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“serious questions” going to the merits and a balance of hardships

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that “tips sharply” in favor of the movant are sufficient for

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relief so long as the other two elements are also met.

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for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir.

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2011).

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extraordinary remedy that may only be awarded upon a clear showing

Alliance

Nevertheless, a preliminary injunction is “an

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that the plaintiff is entitled to such relief,” Winter, 555 U.S.

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at 22, and the moving party bears the burden of meeting all four

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Winter prongs, see Cottrell, 632 F.3d at 1135; DISH Network Corp.

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v. FCC, 653 F.3d 771, 776-77 (9th Cir. 2011).

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DISCUSSION
I.

Request for Ex Parte TRO
A TRO may be issued without notice to the adverse party or

its counsel only if:
A) specific facts in an affidavit or a
verified complaint clearly show that
immediate and irreparable injury, loss, or
damage will result to the movant before the
adverse party can be heard in opposition;
and (B) the movant’s attorney certifies in
writing any efforts made to give notice and
the reasons why it should not be required.

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Fed. R. Civ. P. 65(b)(1); N.D. Cal. Civ. R. 65-1(b).
There are “very few circumstances justifying the issuance of

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an ex parte TRO.”

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1126, 1131 (9th Cir. 2006).

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where it “is impossible either because the identity of the adverse

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party is unknown or because a known party cannot be located in

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time for a hearing.”

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providing “notice to the defendant would render fruitless the

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further prosecution of the action” because the adverse party is

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likely to destroy evidence.

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Reno Air Racing Ass’n Inc. v. McCord, 452 F.3d

Id.

For instance, notice may be excused

Or, notice may not be required where

Id.

Here, Plaintiffs have not submitted an affidavit or otherwise

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made any showing in accordance with Rule 65-1(b) that they will

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suffer immediate and irreparable harm before Defendants can be

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heard in opposition to the TRO request.

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made no showing that notice should be excused due to their
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Likewise, Plaintiffs have

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inability to identify or locate Defendants or that providing

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notice would render further prosecution of the action fruitless.

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Id.

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issuance of a TRO without notice, standing alone, warrants the

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denial of their request for a TRO.2

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II.

Plaintiffs’ failure to satisfy the requirements for the

Likelihood of Success

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Even if Plaintiffs had provided notice to Defendants or

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satisfied the requirements for an ex parte TRO, they have failed

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to demonstrate a likelihood of success on the merits.

The

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gravamen of Plaintiffs’ claims is that Deutsche Bank had no legal

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right to foreclose on the property and therefore the Writ of

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Possession is void.

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federal courts lack jurisdiction to review the propriety of state

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court rulings, including a Writ of Possession rendered during the

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course of a state court UD proceeding.

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Mercy Hous. Cal., 2012 WL 174186, at *2 (N.D. Cal.) (denying

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motion for preliminary injunction which sought to enjoin eviction

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by the county sheriff); Drawsand v. F.F. Props., L.L.P., 866 F.

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Supp. 2d 1110, 1123 (N.D. Cal. 2011) (“To the extent that Drawsand

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is attempting to challenge the adverse ruling in the UD action,

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such claim is barred under the Rooker–Feldman doctrine.”).

Under the Rooker-Feldman doctrine, however,

See, e.g., Richards v.

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The fact that Plaintiffs are proceeding pro se does not
excuse their non-compliance with the procedural rules of this
Court. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)
(“Although we construe pleadings liberally in their favor, pro se
litigants are bound by the rules of procedure.”) (per curiam);
Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir. 1987) (“[i]gnorance
of court rules does not constitute excusable neglect, even if the
litigant appears pro se.”) (citation omitted).
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Jurisdictional flaws aside, Plaintiffs have not shown that

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their claims have any substantive merit.

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directly affected by the impending eviction, alleges that he is

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protected under the PTFA.

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party acquiring an interest in property through foreclosure to

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provide existing tenants with ninety days’ notice to vacate.

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Pub. L. No. 111-22, tit. VII, § 702, 123 Stat. 1632, 1660-61

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(2009).

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a party to the action--failed to provide the requisite notice.

Compl. ¶ 2.

Goldman, the party most

The PTFA requires any

See

Plaintiffs do not allege that Deutsche Bank--which is not

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See Compl. ¶¶ 123-24.

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private right of action to enforce the PTFA.

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Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir. 2012); Nat’l Trust

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Co. v. Eaddy, 2012 WL 4173987, at * 1 (N.D. Cal.); Nativi v.

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Deutsche Bank Nat’l Trust Co., 2010 WL 2179885 (N.D. Cal.).

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for Duenas, he no longer owns the property and thus lacks standing

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to challenge Goldman’s eviction.

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In any event, Congress did not create a
See Miller v. Chase

As

Plaintiffs also have failed to allege any viable claims

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against Defendants.

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they served the Writ of Possession at the property address.

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Plaintiffs allege that in doing so Defendants are attempting to

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seize the property without a warrant in violation of the Fourth

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Amendment.

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writ of possession may be effectuated without a warrant.”

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v. Torres, 905 F. Supp. 766, 772 (C.D. Cal. 1995) (citing People

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v. Jackson, 117 Cal. App. 3d 654, 658 (1981)).

Defendants’ only role in the matter is that

Compl. ¶¶ 10, 18.

Under California law, however, “a
Busch

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Finally, Plaintiffs’ likelihood of success is undermined by

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their failure to join Deutsche Bank, the real party in interest,

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as a defendant.

Almost all of the allegations of misconduct are
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