Kwong v. Santa Clara County Sheriff's Office et al

Filing 7


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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SUZANNE DUYEN KWONG, Plaintiff, 8 9 10 11 v. SANTA CLARA COUNTY SHERIFF'S OFFICE, et al., United States District Court Northern District of California Defendants. 12 13 Case No. 17-cv-02127-BLF ORDER DENYING PLAINTIFF’S APPLICATION TEMPORARY RESTRAINING ORDER AND MOTION FOR LEAVE TO RECORD A LIS PENDENS [Re: ECF 2] Before the Court is an ex parte application for a temporary restraining order (“TRO”) and a 14 motion to record a lis pendens by Plaintiff Suzanne Duyen Kwong. Mot., ECF 2. Kwong filed 15 this action on April 17, 2017, and simultaneously filed the instant motion. See generally Compl., 16 ECF 1. As best the Court can tell, Plaintiff seeks a TRO restraining Defendants Santa Clara 17 County Sheriff’s Office, Laurie Smith, and R. Vrscaj (collectively, “Defendants”), from “all 18 wrongful attempts at carrying out [e]victions” and to stay her eviction from the property located at 19 1519 Rangewood Drive, San Jose, CA. Mot. 2. For the reasons discussed below, Kwong’s 20 application for a TRO and motion to record a lis pendens are DENIED. 21 In her complaint, Kwong alleges that the Sheriff’s department attempted to “get her to 22 vacate [her property] without a warrant,” and with a Writ of Execution signed not by a judge, but 23 “by Wells Fargo Bank stamped by C. Page the deputy Clerk.” Compl. ¶ 3. Kwong further alleges 24 that Defendants violated the Fourth and Fourteenth Amendments to the U.S. Constitution by 25 attempting to access her property without a warrant. Id. She further claims that “Defendant[s’] 26 attempts to evict or eject [her] from her home are in violation of both federal and state law.” Id. ¶ 27 4. Specifically, she contends that she was denied due process because she did not receive a 28 warrant or a writ of execution until three days before the Sheriff planned to evict her, and that her 1 rights under the Homeowner Bill of Rights, Cal. Civ. Code § 2923, were violated, as well.1 Id. ¶¶ 2 4–5. 3 I. TRO APPLICATION 4 A. 5 The substantive standard for issuing a temporary restraining order is identical to the 6 standard for issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush 7 & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001); Lockheed Missile & Space Co. v. Hughes Aircraft, 8 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). An injunction is a matter of equitable discretion and is 9 “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is Legal Standard entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). 11 United States District Court Northern District of California 10 A plaintiff seeking preliminary injunctive relief must establish “[1] that he is likely to succeed on 12 the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] 13 that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. 14 at 20. Alternatively, an injunction may issue where “the likelihood of success is such that serious 15 questions going to the merits were raised and the balance of hardships tips sharply in plaintiff’s 16 favor,” provided that the plaintiff can also demonstrate the other two Winter factors. All. for the 17 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011) (citation and internal quotation 18 marks omitted). Under either standard, the plaintiff bears the burden of making a clear showing 19 on these elements and on entitlement to this extraordinary remedy. Earth Island Inst. v. Carlton, 20 626 F.3d 462, 469 (9th Cir. 2010). 21 B. 22 Before addressing the Winter factors, the Court addresses whether it has subject matter Discussion 23 jurisdiction over this action. “Federal courts are courts of limited jurisdiction. They possess only 24 that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” 25 26 27 28 1 In her motion, Kwong states that she brings claims (1) for declaratory relief, (2) to set aside a wrongful foreclosure, (3) fraud, (4) slander of title, (5) statutory violations of the Real Estate Settlement Procedures Act (“RESPA”), and (6) defective foreclosure. See Mot. 2. Because these claims are not pled in the complaint, the Court does not consider them for the purpose of this order. 2 1 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). 2 “A party invoking the federal court’s jurisdiction has the burden of proving the actual existence of 3 subject matter jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (citation 4 omitted). This Court has an independent obligation to ensure that it has subject matter jurisdiction 5 over a matter and may raise the question, sua sponte, at any time during the pendency of the 6 action. Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002). If a court determines that it 7 lacks subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). 8 9 The two main sources of subject matter jurisdiction are federal question jurisdiction (also known as “arising under” jurisdiction) and diversity jurisdiction. Federal subject matter jurisdiction based on the presence of a federal question is governed by 28 U.S.C. § 1331 and 11 United States District Court Northern District of California 10 requires a civil action to arise under the constitution, laws, or treaties of the United States. Federal 12 subject matter jurisdiction based upon diversity is governed by 28 U.S.C. § 1332(a)(1) and 13 requires complete diversity of citizenship and an amount in controversy in excess of $75,000. 14 The basis for the Court’s jurisdiction in this case is not clear. As presently before the 15 Court, Plaintiff has not met her burden of demonstrating that the Court has diversity jurisdiction 16 over this action because the complaint says nothing about the amount in controversy or the 17 citizenship of the Defendants. However, broadly construing the Complaint, it appears that 18 Plaintiff may be attempting to state a federal claim under 42 U.S.C. § 1983, as well as claims for 19 unlawful eviction and a violation of the California Homeowner Bill of Rights. See Compl. ¶¶ 3–5. 20 If Plaintiff is indeed attempting to state a claim under § 1983, the Court would have subject 21 matter jurisdiction over this action. Because Kwong is proceeding pro se, and courts are to 22 broadly construe pleadings filed by pro se litigants and give such plaintiffs “the benefit of the 23 doubt,” the Court construes the complaint to include a federal claim. See Bretz v. Kelman, 773 24 F.2d 1026, 1027 n.1 (9th Cir. 1985). Nevertheless, the Court advises Plaintiff that it has a duty to 25 continuously review subject matter jurisdiction, and will not hesitate to dismiss this action if it 26 becomes clear that Plaintiff seeks remedies under state law alone. 27 Turning to the Winter factors, the Court concludes that Kwong has demonstrated neither a 28 likelihood of success nor serious questions going to the merits of her only potential federal claim. 3 1 Indeed, she provides insufficient factual details to adequately state a claim under 42 U.S.C. § 1983 2 and thus, she has not demonstrated a likelihood of success. Absent a viable federal claim, the 3 Court declines to exercise supplemental jurisdiction over any remaining state law claims. Thus, 4 the application for a TRO is DENIED. 5 II. LIS PENDENS Kwong also seeks leave to record a lis pendens. As a pro se litigant, she “needs court 6 7 approval to file a lis pendens regarding the property at issue in this litigation.” Stowers v. Wells 8 Fargo Bank, N.A., No. 13-cv-5426, 2014 WL 1245070, at *11 (N.D. Cal. Mar. 25, 2014) (citing 9 Cal. Civ. Proc. Code § 405.21)). As discussed above, however, Kwong has failed to make out a viable federal claim, and absent a viable federal claim, the Court declines to exercise supplemental 11 United States District Court Northern District of California 10 jurisdiction over any remaining state law claims. Thus, Kwong has not asserted any claims in this 12 action that would justify the recording of a lis pendens. The motion for leave to record a lis pendens is DENIED. 13 14 III. ORDER 15 For the foregoing reasons, it is HEREBY ORDERED that: 16 1. The application for a TRO is DENIED; and 17 2. The motion for leave to record a lis pendens is DENIED. 18 19 20 21 Dated: April 17, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 22 23 24 25 26 27 28 4

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