Cortez et al v. Mili Mortgage Group et al

Filing 11

ORDER Denying 6 Second Ex Parte Application for Temporary Restraining Order. Signed by Judge Roger T. Benitez on 5/20/2013. (knb)

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FILED

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I M.4'1 20 1013 1

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C~ERK, u,s. DISTRICT COURT

SOUTHERN DISTRIC
F ALiFORNIA

BY
DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JUANITO CORTEZ and PRISCILLA
CORTEZ,

CASE NO. 13-CV-982 BEN (WMC)
ORDER DENYING SECOND EX
PARTE APPLICATION FOR
TEMPORARY RESTRAINING
ORDER

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vs.

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Plaintiffs,

MILl MORTGAGE GROUP; et aI.,

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[Docket No.6]

Defendants.

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Presently before the Court is Plaintiffs' Second Ex Parte Application for

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Temporary Restraining Order. (Docket No.6.) For the reasons stated below, the Ex

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Parte Application is DENIED.
BACKGROUND

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On April 24, 2013, Plaintiffs Juanito Cortez and Priscilla Cortez initiated this

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action to set aside the trustee's sale of property located at 4330 Paseo de la Vista,

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Bonita, California, 91902. (Docket No.1.) The Complaint alleges ten claims: (1) set

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aside trustee's sale; (2) cancel trustee's deed upon sale; (3) quiet title; (4) fraud; (5)

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forcible detainer; (6) breach of covenant of good faith and fair dealing; (7) violation

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of California Business & Professions Code § 17200; (8) violation of the Truth in

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Lending Act ("TILA") regulations; (9) declaratory relief; and (10) injunctive relief.

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(Jd.)
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On April 25, 2013, Plaintiffs filed an Ex Parte Application for Temporary

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Restraining Order ("TRO") to enjoin Defendants "from evicting or barring and

3 interfering with them from re-entry and/or possession of th~ir residential property."
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(Ex Parte App. [Docket No.4] at 2.) The Court denied this ex'parte application

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because Plaintiffs did not set forth facts showing that immediate and irreparable injury

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would result before Defendants could be heard in opposition or certify in writing that

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any effort had been made to give notice to Defendants and the reasons why it should

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Presently before the Court is Plaintiffs' Second Ex Parte Application for

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Temporary Restraining Order. (Docket No.6.) Along with the re-filed Ex Parte

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Application, Plaintiffs' counsel George H. Bye filed a declaration that he had left

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voicemail messages for Defendants Alegria Real Estate Fund II, LLC, Alegria Real

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Estate Fund II, LLC, William Gore, and OneWest Bank, FSB, giving them notice of

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the Ex Parte Application. (Docket No.8.) However, Plaintiffs' counsel did not give

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notice to the remaining twelve defendants. For three of these defendants, Plaintiffs'

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counsel asserts that he was unable to locate them. Plaintiffs' counsel claims that the

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remaining nine defendants are "foreclosure services and title companies with little or

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no interest in the proceedings at this point." (Id. at 2-3.)

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DISCUSSION

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A TRO is a form ofpreliminary injunctive relieflimited to "preserving the status

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quo and preventing irreparable harm just so long as is necessary to hold a hearing."

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Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 439 (1974). To obtain a TRO,

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similar to a preliminary injunction, Plaintiffs must demonstrate: (1) a likelihood of

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success on the merits; (2) a risk of irreparable harm absent injunctive relief; (3) the

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balance of equities tip in favor of injunctive relief; and (4) injunctive relief is in the

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public interest. Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 20 (2008). In

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addition, an injunction may be issued "where the likelihood of success is such that

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serious questions going to the merits [are] raised and the balance of hardships tips
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sharply in plaintiff's favor," assuming the other two elements ofthe Winteitest are also

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met. Alliance/or the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131':'32 (9thCir. 20'11)

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(internal quotation marks omitted). Ordinarily before issuinga'TRO, the Court must

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hold a hearing or otherwise provide the opposing party with an opportunity to respond.

5 See FED. R. CIV. P. 65(b).
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First, in regards to providing notice to the opposing parties, Plaintiffs' counsel

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has not provided notice to all ofthe defendants. Attorney Bye filed a declaration that

8 he had left voicemail messages for Defendants Alegria Real Estate Fund II, LLC,
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Alegria Real Estate Fund II, LLC, William Gore, and OneWest Bank, FSB, giving

10 them notice ofthe Ex Parte Application. (Docket No.8.) However, Attorney Bye did
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not give notice to the remaining twelve defendants. (Id) Plaintiffs' counsel claims

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that he is unable to locate and give notice to three ofthese twelve defendants, and that

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the remaining nine defendants are "foreclosure services and title companies with little

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or no interest in the proceedings at this point." (Id at 2-3.) Attorney Bye does not

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state that any effort was made to give notice to nine of the defendants in this action.

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Second, Plaintiffs fail to establish a likelihood of success on the merits. The Ex

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Parte Application does not assert any facts showing that Plaintiffs have a likelihood

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of success on the merits. A preliminary review of Plaintiffs' Complaint similarly

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reveals insufficient factual allegations to establish a likelihood ofsuccess on the merits.

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Because the Court finds that Plaintiffs failed to establish a likelihood of success on the

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merits, the remaining elements of the Winter test need not be addressed.
CONCLUSION

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For the reasons stated above, Plaintiffs' Second Ex Parte Application for
Temporary Restraining Order is DENIED.
IT IS SO ORDERED.

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DATED: MayU, 2013

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