Filho v. Gansen

Filing 39

ORDER by Judge Kandis A. Westmore denying Plaintiff's 34 Motion for Restraining Order; Order denying motion to compel. (kawlc1, COURT STAFF) (Filed on 6/4/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ROBERTO FILHO,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 4:18-cv-00337-KAW
ORDER DENYING PLAINTIFF'S
MOTION FOR A RESTRAINING
ORDER; ORDER DENYING MOTION
TO COMPEL

v.
KAREN GANSEN,

Re: Dkt. No. 34

Defendant.

12
13

On April 26, 2018, Plaintiff Roberto Fihlo filed a motion for a restraining order. On May

14

31, 2018, the Court held a hearing concurrently with Defendant’s motion to dismiss the first

15

amended complaint, and, after careful consideration of the parties’ arguments and moving papers,

16

and for the reasons set forth below, the Court DENIES Plaintiff’s motion for a restraining order.

17
18

I.

BACKGROUND

Plaintiff Roberto Filho alleges that he was unlawfully discriminated against by Defendant

19

Karen Gansen based on disability, in violation of the Fair Housing Act (“FHA”). Plaintiff is a

20

resident of the William Penn Hotel, which is managed by the Chinatown Community

21

Development Center. Plaintiff alleges that he is a physically disabled person and that Defendant

22

discriminated against him by making statements that he was mentally ill, accusing him of

23

substance abuse, posting discriminatory advertisements and notices, illegally entering his room,

24

and failing to make a reasonable accommodation for his physical disabilities by refusing to

25

provide him with a private bathroom. (First Am. Compl., “FAC,” Dkt. No. 24 at 3-13.) Plaintiff

26

also alleges that Defendant’s employees and other tenants physically and verbally attacked him

27

and his service animal. Id.

28

Plaintiff filed his original complaint on January 16, 2018, and his first amended complaint

1

on April 2, 2018.

2

On April 26, 2018, Plaintiff filed a motion for a restraining order. (Pl.’s Mot., Dkt. No. 34.)

3

On May 3, 2018, Defendant filed an opposition. (Def.’s Opp’n, Dkt. No. 36.) Plaintiff did not file

4

a reply.

5
6

II.
A.

LEGAL STANDARD

Restraining Order
Federal Rule of Civil Procedure 65(b) allows a court to issue a temporary restraining order

7
8

to prevent "immediate and irreparable injury, loss, or damage . . . to the movant." The standard for

9

issuing a temporary restraining order is “substantially identical” to that of a preliminary
injunction. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir.

11
United States District Court
Northern District of California

10

2001). Thus, as the moving party, Plaintiff has the burden of establishing that “he is likely to

12

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

13

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

14

Klein v. City of San Clemente, 584 F.3d 1196, 1199 (9th Cir. 2009) (internal quotation omitted).

15

All four factors must be established for an injunction to issue. Alliance for the Wild Rockies v.

16

Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

17
18

B.

Request for Judicial Notice
As a general rule, a district court may not consider any material beyond the pleadings in

19

ruling on a motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). A district court

20

may take notice of facts not subject to reasonable dispute that are “capable of accurate and ready

21

determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R.

22

Evid. 201(b); United States v. Bernal–Obeso, 989 F.2d 331, 333 (9th Cir. 1993). “[A] court may

23

take judicial notice of ‘matters of public record,’” Lee, 250 F.3d at 689 (citing Mack v. S. Bay Beer

24

Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents whose contents

25

are alleged in a complaint and whose authenticity no party questions, but which are not physically

26

attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other

27

grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). The court need not

28

accept as true allegations that contradict facts which may be judicially noticed. See Mullis v.
2

1

United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987).

2

III.

3

A.

DISCUSSION

Request for Judicial Notice
As a preliminary matter, Defendant asks that the Court take judicial notice of four

4

documents in support of her opposition: A) the May 3, 2007 prefiling order deeming Plaintiff a

6

vexatious litigant, entered in San Francisco County Superior Case No. CGC06-458176; B) the

7

August 16, 2007 prefiling order deeming Plaintiff a vexatious litigant, entered in San Francisco

8

County Superior Case No. CGC06-455369; C) excerpts from the “Vexatious Litigants List,”

9

maintained by the California Administrative Office of the Courts (updated April 6, 2018), which

10

contains Plaintiff’s name; D) Chinatown Community Development Center, Inc.’s Certificate of

11
United States District Court
Northern District of California

5

Amendment and Restatement of Articles of Incorporation, filed with the California Secretary of

12

State’s Office on December 23, 1997. (Req. for Judicial Notice, “RJN,” Dkt. No. 36-1,” Exs. A-

13

D.)
Plaintiff did not object to the request for judicial notice. The exhibits are true and correct

14
15

copies of official public records, whose authenticity is capable of accurate and ready determination

16

by resort to sources whose accuracy cannot reasonably be questioned. See Fed. R. Evid. 201(b).
Accordingly, the Court GRANTS Defendant’s request for judicial notice.

17
18
19
20
21
22

B.

Merits
In making the motion, Plaintiff requests a restraining order and a request to order

Defendant to produce for discovery all of the videos he has requested. (Pl.’s Mot. at 2.)
i.

Motion to Compel

As an initial matter, Plaintiff’s apparent request to compel the production of videos that he

23

has requested is procedurally improper, as not only has he not met and conferred with Defendant

24

regarding discovery prior to filing the instant motion, the undersigned does not entertain motions

25

to compel, so Plaintiff’s request is DENIED. If Defendant has not timely responded to the

26

discovery propounded, or Plaintiff believes that the responses are insufficient, Plaintiff is ordered

27

to meet and confer with Defendant regarding the responses before seeking court intervention by

28

way of joint letter. (See Judge Westmore’s General Standing Order ¶ 13.)
3

1
2

ii.

Motion for a Restraining Order

In moving for a restraining order, Plaintiff argues that he verbally told Defendant to cease

3

and desist, and that despite this “notice,” Defendant continues to harass him and cause “extreme

4

physical and emotional harm to [Plaintiff] and [his] medical service animal[.]” (Pl.’s Mot. at 2.)

5

Plaintiff further alleges that defense counsel, Nathanial Dunn, is committing hate crimes against

6

him, in violation of the Hate Crimes Act, 18 U.S.C. § 249. Id.

7
8

a. Hate Crimes Act
Plaintiff does not have standing to bring criminal charges against defense counsel. In fact,
Plaintiff’s attempts to do so appear to be in an effort to harass defense counsel, an assumption

10

bolstered by Mr. Dunn’s production of the 36 emails Plaintiff sent him between April 15, 2018

11
United States District Court
Northern District of California

9

and April 22, 2018. (Decl. of Nathanial L. Dunn, “Dunn Decl.,” Dkt. No. 36-2 ¶ 5, Ex. A.)

12

Included are emails directed to federal law enforcement agencies and San Francisco District

13

Attorney George Gascon regarding defense counsel, including threats of disbarment. (See, e.g.,

14

Dunn Decl., Ex. A at A009, A013, A025, A032.) Plaintiff is advised against contacting law

15

enforcement regarding Mr. Dunn. If Plaintiff continues to harass Mr. Dunn, he risks being

16

declared a vexatious litigant in federal court.

17
18
19
20

b. Restraining Order
As an initial matter, Plaintiff has erroneously named Ms. Gansen as a defendant, so the
Court will not enter a restraining order against her.
Notwithstanding, Plaintiff is unable to establish that he is likely to prevail on the merits,

21

because his first amended complaint has been dismissed for failure to state a claim on the grounds

22

that it does not comply with Federal Rules of Civil Procedure 8(a) and 10. See Taimani v.

23

Residential Mortg. Loan Tr. 2013-TT2, No. 16-CV-02992-YGR, 2016 WL 9175877, at *3 (N.D.

24

Cal. June 7, 2016)(improper to issue a temporary restraining order when the complaint fails to

25

comply with Rule 8(a)). Moreover, the undersigned lacks subject matter jurisdiction to issue a

26

restraining order because there is no operative complaint. Buenrostro v. Castillo, No. 1:14-CV-

27

00075-BAM PC, 2014 WL 6801589, at *2 (E.D. Cal. Dec. 2, 2014)(citing Zepeda v. United States

28

Immigration and Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983)).
4

1

Even if the operative complaint satisfied pleading standards, the undersigned is unlikely to

2

grant a motion for a restraining order, because Plaintiff has not shown irreparable harm due to

3

actions of the Chinatown Community Development Center. To constitute irreparable harm,

4

Plaintiff would have to explain what irreparable injury he is likely to suffer in the absence of an

5

injunction against Defendant. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The

6

incidents described, however, do not constitute irreparable harm by Defendant, because they were

7

not committed by her or the Chinatown Community Development Center, and acts committed by

8

others are insufficient to enjoin Defendant. Thus, while the denial is without prejudice, Plaintiff is

9

advised against filing another request for a restraining order in the future.
IV.

10

United States District Court
Northern District of California

11
12
13
14

CONCLUSION

In light of the foregoing, Plaintiff’s motion for a restraining order is DENIED without
prejudice. Furthermore, Plaintiff’s motion to compel is DENIED.
IT IS SO ORDERED.
Dated: June 4, 2018
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
5