Kinney v. Lavin et al

Filing 9

ORDER by Judge Hamilton denying 3 Ex Parte Application for TRO (pjhlc1, COURT STAFF) (Filed on 8/22/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHARLES KINNEY,
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Plaintiff,

No. C 14-3817 PJH

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v.
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For the Northern District of California

United States District Court

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LOS ANGELES COUNTY SUPERIOR
COURT JUDGE LUIS A. LAVIN, et al.,

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Defendants.
_______________________________/

ORDER DENYING EX PARTE
APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND OSC
RE PRELIMINARY INJUNCTION;
ORDER TO SHOW CAUSE RE
DISMISSAL

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Before the court is the ex parte application of plaintiff Charles Kinney for a temporary

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restraining order and order to show cause re preliminary injunction. Having read plaintiff's

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papers and considered his arguments and the relevant legal authority, the court hereby

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DENIES the application.

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Requests for temporary restraining orders are governed by the same general

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standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd.

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v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg Int’l Sales Co., Inc. v. John

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D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001).

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In addition, under Federal Rule of Civil Procedure 65(b)(1):

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The court may issue a temporary restraining order without written or oral
notice to the adverse party or its attorney only if:

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(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

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(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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Ex parte injunctive relief is to be granted sparingly. “The stringent restrictions

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imposed . . . by Rule 65, on the availability of ex parte temporary restraining orders reflect

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the fact that our entire jurisprudence runs counter to the notion of court action taken before

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reasonable notice and an opportunity to be heard has been granted both sides of a

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dispute.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 438-39

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(1974).

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Accordingly, courts have generally confined ex parte injunctive relief to two

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situations – where notice to the adverse party is impossible either because the identity of

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the adverse party is unknown or because a known party cannot be located in time for a

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hearing; and, in a very limited number of cases, where notice to the defendant would
render fruitless the further prosecution of the action. See Reno Air Racing Ass'n, Inc. v.

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For the Northern District of California

United States District Court

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McCord, 452 F.3d 1126, 1131 (9th Cir. 2006).

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An injunction is a matter of equitable discretion and is “an extraordinary remedy that

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may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf

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v. Geren, 553 U.S. 674, 689-90 (2008). A preliminary injunction “should not be granted

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unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

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Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted).

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A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public interest.

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Winter, 555 U.S. at 20. Alternatively, the plaintiff may demonstrate that the likelihood of

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success is such that “serious questions going to the merits were raised and that the

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balance of hardships tips sharply in the plaintiff's favor,” so long as the other two elements

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of the Winter test are met. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32

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(9th Cir. 2011).

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Showing “serious questions going to the merits” requires more than establishing that

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“success is more likely than not,” and it requires a plaintiff to demonstrate a “substantial

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case for relief on the merits.” Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011).
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And even where success on the merits is likely or “serious questions” are raised an

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injunction “is not a remedy which issues as of course.” Weinberger v. Romero-Barcelo,

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456 U.S. 305, 311 (1982).

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In the complaint in the present action, plaintiff, a California attorney, asserts a single

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cause of action under the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18

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U.S.C. §§ 1961-1968, against two California state judges – the Honorable Luis A. Lavin of

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the Superior Court of California, County of Los Angeles; and the Honorable Roger W.

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Boren of the California Court of Appeal, Second Appellate District. As far as the court can

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ascertain, the allegations in the complaint all pertain to plaintiff's dissatisfaction with
decisions rendered and orders issued by the California Superior Court or the California

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For the Northern District of California

United States District Court

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Court of Appeal, a number of those decisions finding plaintiff himself and one of his clients

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to be vexatious litigants. Plaintiff seeks damages, declaratory and injunctive relief, and

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costs of suit.

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In his ex parte application for a TRO, plaintiff seeks an order enjoining all

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proceedings in an action currently pending before the California Court of Appeal, Second

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District, Case No. B248713 (underlying Los Angeles Superior Court Case No. BC374938),

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including an oral argument scheduled for August 28, 2014 before the California Court of

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Appeal.

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The application is DENIED, for the following reasons. First, under the Anti-Injunction

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Act, federal courts "may not grant an injunction to stay proceedings in a State court except

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as expressly authorized by an Act of Congress, or where necessary in aid of its jurisdiction,

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or to protect or effectuate its judgments." 28 U.S.C. § 2283. Because none of the three

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limited exceptions applies in this case, the court cannot issue an order enjoining the

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pending state court proceedings. The Anti-Injunction Act also applies to declaratory

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judgments if those judgments have the same effect as an injunction. California v.

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Randtron, 284 F.3d 969, 975 (9th Cir. 2002).

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Second, plaintiff's application does not comport with the requirements of Rule

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65(b)(1) for the issuance of ex parte injunctive relief, in that plaintiff has not provided proof
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of service of the summons and complaint on the defendants, and has not filed a declaration

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showing good cause as required by the Rule. His declaration states only that he "called

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the attorney" for the California Court of Appeal "in my U.S. District Court, Northern District

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of California, federal civil rights case, Kinney v. State Bar, Case No. C-13-1396 MMC, and

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left a message with the receptionist 'Edmond' to inform that attorney of this ex-parte

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application for a TRO" and that he would "thereafter provide that attorney with a set of the

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moving papers and the underlying complaint." However, there is no proof that the

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defendants have been served with the summons and complaint or the moving papers as of

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this date.
Third, plaintiff's application does not meet the standards for issuance of injunctive

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For the Northern District of California

United States District Court

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relief in federal court. Not only has plaintiff failed to cite the applicable standard, but he has

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also failed to make any showing whatsoever regarding his likelihood of success on the

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merits of this RICO claim against the two defendants.

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Fourth, plaintiff is barred from seeking damages from these defendants. A state

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court judge is absolutely immune from civil liability for damages for acts performed in his

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judicial capacity. Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Whether an act by a judge

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is a judicial one relates to whether it is a function normally performed by a judge, and to

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whether the parties dealt with the judge in his judicial capacity. Stump v. Sparkman, 435

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U.S. 349, 362 (1978); see also, e.g., Mireles v. Waco, 502 U.S. 9, 11-13 (1991); Simmons

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v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003).
Here, the actions about which plaintiff complains are rulings and orders in cases

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pending before the two state courts at issue. Thus, defendants are immune from any

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claims for damages. While judicial immunity does not bar claims for prospective injunctive

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relief against state court judges acting in their official capacities, see Pulliam v. Allen, 466

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U.S. 522, 541-42 (1984), in this case, no injunctive relief is available for the reasons stated

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above.

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The court ORDERS plaintiff to show cause in writing no later than September 2,
2014 why this case should not be dismissed for lack of subject matter jurisdiction. Broadly
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construed, plaintiff's claim appears to involve a forbidden de facto appeal from a state court

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judgment, as he is in essence complaining of a legal wrong allegedly committed by the

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Superior Court, as well as by the Court of Appeal, and seeks relief from the judgment of the

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state court. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84

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(2005); see also Cooper v. Ramos, 704 F.3d 772, 778 (9th Cir. 2012). Where claims

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raised in a federal court action are "inextricably intertwined" with the state court's decision

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such that adjudication of the federal claims would undercut the state ruling or require the

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district court to interpret the application of state laws, then the federal complaint must be

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dismissed for lack of subject matter jurisdiction. Bianchi v. Rylaarsdam, 334 F.3d 895, 898
(9th Cir. 2003).

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: August 22, 2014

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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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