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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1 UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 OAKLAND DIVISION 4 5 GERARD DUENAS, HAROLD GOLDMAN, In Pro Se, 6 Plaintiffs, 7 vs. 8 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, 12 Defendants. / 13 Case No: C 13-0836 SBA ORDER DENYING PLAINTIFFS’ EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER 14 15 Plaintiffs Gerard Duenas and Harold Goldman, proceeding pro 16 se, bring the instant action against Defendants Sonoma County 17 Sheriff Steven Freitas, the Sonoma County Sheriff’s Department 18 (SCSD), and SCSD employee Kathryn Straley, pursuant to 42 U.S.C. 19 § 1983, among other claims. 20 temporary restraining order (TRO) to enjoin Defendants from 21 evicting Goldman, a former tenant of Duenas, from property 22 previously owned by Duenas. 23 the Complaint or the application for TRO. 24 decided on the papers that have been submitted. 25 all of the papers filed by Plaintiffs, the Court denies the 26 application for an ex parte TRO. 27 28 Plaintiffs apply ex parte for a Defendants have not been served with This matter will be Having considered 1 2 BACKGROUND Duenas is the former owner of property located at 6285 3 Highway, Santa Rosa, California. Goldman, an 82-year male, 4 previously entered into a lease agreement with Duenas for the 5 property for the period from December 3, 2009 to December 2, 2014. 6 On or about April 11, 2011, the property was sold at a non- 7 judicial foreclosure sale to Deutsche Bank National Trust Company, 8 which has not been joined as a party in this action. 9 not specified in the pleadings, Deutsche Bank commenced an On a date 10 unlawful detainer (UD) action in Sonoma County Superior Court to 11 take possession of the property. 12 Co. v Duenas, et al., Sonoma Cnty. Super. Ct. No. MCV 21771. 13 state court originally issued a Writ of Possession in favor of 14 Deutsche Bank on October 4, 2011, at which time it attempted to 15 evict Plaintiffs from the Property.1 16 See Deutsche Bank Nat’l Trust The On February 20, 2013, the Sonoma County Superior Court issued 17 a second Writ of Possession in favor of Deutsche Bank which was 18 served on the same date. 19 writ states that all occupants of the property must vacate the 20 premises by no later than 6:01 a.m. on February 27, 2013. 21 The Notice to Vacate attached to the On February 25, 2013, Plaintiffs filed a verified Complaint 22 in this Court which alleges the following claims against 23 Defendants: 24 Practices Act (FDCPA); (2) violation of due process and 25 intentional infliction of emotional distress; (3) violation of the (1) fraud and violation of the Fair Debt Collection 26 27 28 1 It is not clear whether Duenas was residing at the property when Deutsche Bank first attempted to enforce the Writ of Possession. - 2 - 1 Fourth Amendment; (4) violation of the Protecting Tenants in 2 Foreclosure Act (PTFA). 3 Plaintiffs have filed a two-page application for a TRO which seeks 4 to enjoin Defendants from proceeding with the eviction of Goldman 5 on February 27, 2013. 6 neither the Complaint nor the TRO application on Defendants. 7 8 9 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 10 the applicant” if the order does not issue. 11 65(b). 12 TRO and a motion for a preliminary injunction. 13 Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th 14 Cir. 2001). 15 party must show: (1) a likelihood of success on the merits; (2) a 16 likelihood of irreparable harm to the moving party in the absence 17 of preliminary relief; (3) that the balance of equities tips in 18 the moving party’s favor; and (4) that an injunction is in the 19 public interest. 20 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 21 Under the Ninth Circuit’s “sliding scale” approach, the first 22 and third elements of the Winter test are to be balanced such that 23 “serious questions” going to the merits and a balance of hardships 24 that “tips sharply” in favor of the movant are sufficient for 25 relief so long as the other two elements are also met. 26 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 27 2011). 28 extraordinary remedy that may only be awarded upon a clear showing Alliance Nevertheless, a preliminary injunction is “an - 3 - 1 that the plaintiff is entitled to such relief,” Winter, 555 U.S. 2 at 22, and the moving party bears the burden of meeting all four 3 Winter prongs, see Cottrell, 632 F.3d at 1135; DISH Network Corp. 4 v. FCC, 653 F.3d 771, 776-77 (9th Cir. 2011). 5 6 7 8 9 10 11 12 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. 13 14 15 Fed. R. Civ. P. 65(b)(1); N.D. Cal. Civ. R. 65-1(b). There are “very few circumstances justifying the issuance of 16 an ex parte TRO.” 17 1126, 1131 (9th Cir. 2006). 18 where it “is impossible either because the identity of the adverse 19 party is unknown or because a known party cannot be located in 20 time for a hearing.” 21 providing “notice to the defendant would render fruitless the 22 further prosecution of the action” because the adverse party is 23 likely to destroy evidence. 24 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 25 made any showing in accordance with Rule 65-1(b) that they will 26 suffer immediate and irreparable harm before Defendants can be 27 heard in opposition to the TRO request. 28 made no showing that notice should be excused due to their - 4 - Likewise, Plaintiffs have 1 inability to identify or locate Defendants or that providing 2 notice would render further prosecution of the action fruitless. 3 Id. 4 issuance of a TRO without notice, standing alone, warrants the 5 denial of their request for a TRO.2 6 II. Plaintiffs’ failure to satisfy the requirements for the Likelihood of Success 7 Even if Plaintiffs had provided notice to Defendants or 8 satisfied the requirements for an ex parte TRO, they have failed 9 to demonstrate a likelihood of success on the merits. The 10 gravamen of Plaintiffs’ claims is that Deutsche Bank had no legal 11 right to foreclose on the property and therefore the Writ of 12 Possession is void. 13 federal courts lack jurisdiction to review the propriety of state 14 court rulings, including a Writ of Possession rendered during the 15 course of a state court UD proceeding. 16 Mercy Hous. Cal., 2012 WL 174186, at *2 (N.D. Cal.) (denying 17 motion for preliminary injunction which sought to enjoin eviction 18 by the county sheriff); Drawsand v. F.F. Props., L.L.P., 866 F. 19 Supp. 2d 1110, 1123 (N.D. Cal. 2011) (“To the extent that Drawsand 20 is attempting to challenge the adverse ruling in the UD action, 21 such claim is barred under the Rooker–Feldman doctrine.”). Under the Rooker-Feldman doctrine, however, See, e.g., Richards v. 22 23 24 25 26 27 28 2 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). - 5 - 1 Jurisdictional flaws aside, Plaintiffs have not shown that 2 their claims have any substantive merit. 3 directly affected by the impending eviction, alleges that he is 4 protected under the PTFA. 5 party acquiring an interest in property through foreclosure to 6 provide existing tenants with ninety days’ notice to vacate. 7 Pub. L. No. 111-22, tit. VII, § 702, 123 Stat. 1632, 1660-61 8 (2009). 9 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 10 See Compl. ¶¶ 123-24. 11 private right of action to enforce the PTFA. 12 Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir. 2012); Nat’l Trust 13 Co. v. Eaddy, 2012 WL 4173987, at * 1 (N.D. Cal.); Nativi v. 14 Deutsche Bank Nat’l Trust Co., 2010 WL 2179885 (N.D. Cal.). 15 for Duenas, he no longer owns the property and thus lacks standing 16 to challenge Goldman’s eviction. 17 In any event, Congress did not create a See Miller v. Chase As Plaintiffs also have failed to allege any viable claims 18 against Defendants. 19 they served the Writ of Possession at the property address. 20 Plaintiffs allege that in doing so Defendants are attempting to 21 seize the property without a warrant in violation of the Fourth 22 Amendment. 23 writ of possession may be effectuated without a warrant.” 24 v. Torres, 905 F. Supp. 766, 772 (C.D. Cal. 1995) (citing People 25 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 26 Finally, Plaintiffs’ likelihood of success is undermined by 27 their failure to join Deutsche Bank, the real party in interest, 28 as a defendant. Almost all of the allegations of misconduct are - 6 -

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