Asper v. Wells Fargo Bank et al

Filing 13

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 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. 17 18 19 Plaintiff Laith KH Asper (“Plaintiff”) filed this action against Defendant Wells 20 Fargo Bank, N.A. (“Defendant”) on January 5, 2018, alleging four causes of action in 21 connection with real property located at 1247 Jamacha Road, El Cajon, California, 22 92019, for: (1) fraud; (2) violations of the Fair Credit Billing Act (“FCBA”), 15 U.S.C. § 23 1666, et seq.; (3) violations of the California Homeowner Bill of Rights (“HBOR”); and 24 (4) violations of California’s Unfair Competition Law (“UCL”), Business & Professions 25 Code § 17200, et seq. See Complaint. On February 1, 2018, Defendant filed a motion to 26 dismiss Plaintiff’s Complaint. See Doc. No. 6. On February 14, 2018, Plaintiff filed an 27 ex parte motion for a temporary restraining order (“TRO”) seeking to prohibit Defendant 28 from “engaging in or performing any act to deprive Plaintiff of his interest and possession -1- 18cv0049-MMA (JLB) 1 of the subject property including the ‘trustee sale’ planned for February 22, 2018[.]” 2 Doc. No. 11. Defendant filed an opposition to Plaintiff’s ex parte motion on February 3 15, 2018. Doc. No. 12. For the reasons set forth below, the Court DENIES Plaintiff’s 4 motion for a TRO. 5 LEGAL STANDARD 6 A temporary restraining order (“TRO”) may be granted upon a showing “that 7 immediate and irreparable injury, loss, or damage will result to the movant before the 8 adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of 9 such an order, as a form of preliminary injunctive relief, is to preserve the status quo and 10 prevent irreparable harm “just so long as is necessary to hold a hearing, and no longer.” 11 Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). A 12 request for a TRO is evaluated by the same factors that generally apply to a preliminary 13 injunction. See Stuhlbarg Int’l. Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 14 n.7 (9th Cir. 2001). However, a TRO is an “extraordinary remedy” and is “never granted 15 as of right,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Instead, the 16 moving party bears the burden of demonstrating that “he is likely to succeed on the 17 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 18 the balance of equities tips in his favor, and that an injunction is in the public interest.” 19 Id. at 20. Although a plaintiff must satisfy all four of the requirements set forth in 20 Winter, this Circuit employs a sliding scale whereby “the elements of the preliminary 21 injunction test are balanced, so that a stronger showing of one element may offset a 22 weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 23 1131 (9th Cir. 2011). Accordingly, if the moving party can demonstrate the requisite 24 likelihood of irreparable harm and show that an injunction is in the public interest, a 25 preliminary injunction may issue so long as there are serious questions going to the 26 merits and the balance of hardships tips sharply in the moving party’s favor. Id. 27 /// 28 /// -2- 18cv0049-MMA (JLB) 1 2 DISCUSSION Based on a thorough reading of Plaintiff’s motion, the Court finds that Plaintiff has 3 not shown a likelihood of success on the merits of his claims or raised serious questions 4 going to the merits. As set forth above, Plaintiff’s Complaint advances four causes of 5 action for: (1) fraud; (2) violations of the FCBA; (3) violations of HBOR; and (4) 6 violations of the UCL. See Complaint. Plaintiff’s discussion regarding his likelihood of 7 success on the merits, however, is brief and conclusory. For example, Plaintiff 8 summarily asserts that he “will demonstrate at future dates that the assignment of the 9 property by Defendant to pendent state parties are not valid.” Doc. No. 11 at 6 (emphasis 10 added). Such a statement, without more, is insufficient for purposes of showing a 11 likelihood of success on the merits. See Caldwell v. Wells Fargo Bank, N.A., 2012 WL 12 12892687, at *2 (C.D. Cal. Nov. 13, 2012) (denying the plaintiff’s motion for a TRO 13 where the plaintiff’s discussion of her likelihood of success on the merits “consist[s] of 14 little more than a bare contention that Plaintiff is likely to succeed on the merits.”). 15 Moreover, aside from summarily concluding that “[f]or these reasons, Plaintiff will 16 likely succeed on the FCBA claims,” Plaintiff entirely fails to address his remaining three 17 causes of action. Doc. No. 11 at 6; see also Caldwell, 2012 WL 12892687, at *2 (finding 18 plaintiff had not met her burden of establishing a likelihood of success on the merits 19 where she only specifically mentioned two out of her eleven causes of action). 20 Additionally, Plaintiff also references the California Consumer Legal Remedy Act in his 21 motion (Doc. No. 11 at 7), yet Plaintiff does not plead any such cause of action in his 22 Complaint. 23 Finally, Plaintiff’s ex parte motion does not comply with Civil Local Rule 24 83.3.g.2, which requires counsel to submit an affidavit or declaration explaining that the 25 moving party informed the opposing party or counsel of the motion, attempted to inform 26 the opposing party and counsel, or specified reasons why the moving party should not be 27 required to inform the opposing party or counsel. See CivLR 83.3.g.2. As such, 28 injunctive relief is inappropriate here. -3- 18cv0049-MMA (JLB) 1 2 CONCLUSION For the reasons set forth above, the Court finds that Plaintiff’s pending motion for 3 a TRO does not establish that he is entitled to injunctive relief. Accordingly, the Court 4 DENIES Plaintiff’s ex parte motion for a TRO. 5 6 IT IS SO ORDERED. 7 8 9 10 11 Dated: February 16, 2018 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 18cv0049-MMA (JLB)

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