Asper v. Wells Fargo Bank et al
Filing
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ORDER Denying 11 Plaintiff's Ex Parte Motion for Temporary Restraining Order. The Court finds that Plaintiff's pending motion for a TRO does not establish that he is entitled to injunctive relief. Accordingly, the Court denies Plaintiff's ex parte motion for a TRO. Signed by Judge Michael M. Anello on 2/16/2018. (rmc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 18cv0049-MMA (JLB)
LAITH KH ASPER,
v.
ORDER DENYING PLAINTIFF’S EX
PARTE MOTION FOR
TEMPORARY RESTRAINING
ORDER
Plaintiff,
WELLS FARGO BANK, a National
Association,
[Doc. No. 11]
Defendant.
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Plaintiff Laith KH Asper (“Plaintiff”) filed this action against Defendant Wells
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Fargo Bank, N.A. (“Defendant”) on January 5, 2018, alleging four causes of action in
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connection with real property located at 1247 Jamacha Road, El Cajon, California,
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92019, for: (1) fraud; (2) violations of the Fair Credit Billing Act (“FCBA”), 15 U.S.C. §
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1666, et seq.; (3) violations of the California Homeowner Bill of Rights (“HBOR”); and
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(4) violations of California’s Unfair Competition Law (“UCL”), Business & Professions
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Code § 17200, et seq. See Complaint. On February 1, 2018, Defendant filed a motion to
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dismiss Plaintiff’s Complaint. See Doc. No. 6. On February 14, 2018, Plaintiff filed an
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ex parte motion for a temporary restraining order (“TRO”) seeking to prohibit Defendant
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from “engaging in or performing any act to deprive Plaintiff of his interest and possession
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18cv0049-MMA (JLB)
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of the subject property including the ‘trustee sale’ planned for February 22, 2018[.]”
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Doc. No. 11. Defendant filed an opposition to Plaintiff’s ex parte motion on February
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15, 2018. Doc. No. 12. For the reasons set forth below, the Court DENIES Plaintiff’s
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motion for a TRO.
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LEGAL STANDARD
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A temporary restraining order (“TRO”) may be granted upon a showing “that
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immediate and irreparable injury, loss, or damage will result to the movant before the
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adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of
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such an order, as a form of preliminary injunctive relief, is to preserve the status quo and
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prevent irreparable harm “just so long as is necessary to hold a hearing, and no longer.”
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Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). A
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request for a TRO is evaluated by the same factors that generally apply to a preliminary
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injunction. See Stuhlbarg Int’l. Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839
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n.7 (9th Cir. 2001). However, a TRO is an “extraordinary remedy” and is “never granted
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as of right,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Instead, the
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moving party bears the burden of demonstrating that “he is likely to succeed on the
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merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
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the balance of equities tips in his favor, and that an injunction is in the public interest.”
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Id. at 20. Although a plaintiff must satisfy all four of the requirements set forth in
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Winter, this Circuit employs a sliding scale whereby “the elements of the preliminary
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injunction test are balanced, so that a stronger showing of one element may offset a
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weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
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1131 (9th Cir. 2011). Accordingly, if the moving party can demonstrate the requisite
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likelihood of irreparable harm and show that an injunction is in the public interest, a
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preliminary injunction may issue so long as there are serious questions going to the
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merits and the balance of hardships tips sharply in the moving party’s favor. Id.
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18cv0049-MMA (JLB)
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DISCUSSION
Based on a thorough reading of Plaintiff’s motion, the Court finds that Plaintiff has
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not shown a likelihood of success on the merits of his claims or raised serious questions
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going to the merits. As set forth above, Plaintiff’s Complaint advances four causes of
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action for: (1) fraud; (2) violations of the FCBA; (3) violations of HBOR; and (4)
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violations of the UCL. See Complaint. Plaintiff’s discussion regarding his likelihood of
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success on the merits, however, is brief and conclusory. For example, Plaintiff
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summarily asserts that he “will demonstrate at future dates that the assignment of the
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property by Defendant to pendent state parties are not valid.” Doc. No. 11 at 6 (emphasis
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added). Such a statement, without more, is insufficient for purposes of showing a
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likelihood of success on the merits. See Caldwell v. Wells Fargo Bank, N.A., 2012 WL
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12892687, at *2 (C.D. Cal. Nov. 13, 2012) (denying the plaintiff’s motion for a TRO
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where the plaintiff’s discussion of her likelihood of success on the merits “consist[s] of
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little more than a bare contention that Plaintiff is likely to succeed on the merits.”).
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Moreover, aside from summarily concluding that “[f]or these reasons, Plaintiff will
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likely succeed on the FCBA claims,” Plaintiff entirely fails to address his remaining three
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causes of action. Doc. No. 11 at 6; see also Caldwell, 2012 WL 12892687, at *2 (finding
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plaintiff had not met her burden of establishing a likelihood of success on the merits
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where she only specifically mentioned two out of her eleven causes of action).
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Additionally, Plaintiff also references the California Consumer Legal Remedy Act in his
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motion (Doc. No. 11 at 7), yet Plaintiff does not plead any such cause of action in his
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Complaint.
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Finally, Plaintiff’s ex parte motion does not comply with Civil Local Rule
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83.3.g.2, which requires counsel to submit an affidavit or declaration explaining that the
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moving party informed the opposing party or counsel of the motion, attempted to inform
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the opposing party and counsel, or specified reasons why the moving party should not be
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required to inform the opposing party or counsel. See CivLR 83.3.g.2. As such,
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injunctive relief is inappropriate here.
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CONCLUSION
For the reasons set forth above, the Court finds that Plaintiff’s pending motion for
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a TRO does not establish that he is entitled to injunctive relief. Accordingly, the Court
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DENIES Plaintiff’s ex parte motion for a TRO.
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IT IS SO ORDERED.
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Dated: February 16, 2018
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge
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