1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MARIMAR CORNEJO, Case No. 20-cv-05813-CRB
9 Plaintiff, ORDER DENYING APPLICATION 10 v. FOR TEMPORARY RESTRAIING ORDER 11 JEFFREY TUMLIN, et al., 12 Defendants.
13 Pro se Plaintiff Marimar Cornejo has filed an application for a temporary restraining order 14 (TRO) against Defendants Jeffrey Tumlin, Director of Transportation of the San Francisco 15 Municipal Transportation Agency, San Francisco Transportation Agency, City & County of San 16 Francisco, Dan Scanlan, Tegsco LLC d/b/a San Francisco Autoreturn, San Francisco Autoreturn 17 LLC, Pacific Gas & Electric Co., Cameron A. Hale in his capacity as CEO of Alvah Contractors 18 Inc., Alvah Contractors Inc., and Nelsons Tow. See App. (dkt. 2). Cornejo’s claims stem from 19 the alleged towing of Cornejo’s Toyota Camry in February of 2020 “without providing any 20 warning, and without giving any notice or opportunity to be heard.” Id. ¶ 1; id. at 8 of 42.1 21 Cornejo alleges that Cornejo has “a newly born son, and the deprivation aside from 22 causing ongoing panic and emotional distress is actively causing me a continued hardship from the 23 loss of use of the subject automobile.” Id. ¶ 3. Cornejo also alleges that Defendant Scanlon 24
25 1 Specifically, Cornejo alleges that Cornejo parked the car in a public parking space in San Francisco near a sign that said, “no parking between 7 am and 4 pm,” and that the car was towed 26 because Defendants Alvah and PG&E had purchased a permit and intended to tow cars from that spot. See id. at 7 of 42– 8 of 42. Contractors from Alvah allegedly placed a “notice of towing” 27 near the car at 7:13 PM, several hours after the car was parked, and initiated a tow request without 1 “intends to sale or dispose of the subject Toyota Camry at any point in time . . . and therefore 2 irreparable harm will occur from the permanent loss of the property which cannot be replaced with 3 an equal by any regular and ordinary process.” Id.2 Cornejo asks the Court to enjoin Defendants 4 “from proceeding with holding, keeping, storing, transferring, assigning or attempting to sell or 5 dispose the [car] and from depriving [Cornejo] from immediate possession thereof.” Id. at 4–5. 6 A TRO is an “extraordinary remedy” that should only be awarded upon a clear showing 7 that the plaintiff is entitled to such relief. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 8 7, 22 (2008). The party seeking a TRO must establish: (1) a likelihood of success on the merits; 9 (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tips in 10 the plaintiff’s favor; and (4) that an injunction is in the public interest. See id. at 20. 11 Alternatively, the moving party must demonstrate that “serious questions going to the merits were 12 raised,” “the balance of hardships tips sharply in the plaintiff’s favor,” and the other two Winter 13 elements are met. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). 14 While it is not clear whether Cornejo is likely or unlikely to succeed on the merits,3 15 Cornejo has not demonstrated a likeliness of irreparable harm. Cornejo argues that “irreparable 16 injury is occurring and will worsen if they keep the car,” and that the car cannot be replaced 17 because it was “carefully selected over a two month period which resulted in over 100 hours of 18 research, travel, and consultation with an auto mechanic” and that the subject Toyota Camry was 19 well taken care of by its owner who also kept the car clean.” App. at 9 of 42. Cornejo continues: 20 “After a diligent search on the internet, I could not locate another Toyota Camry of the year and 21
22 2 Elsewhere the Application states that Scanlan intends to sell the car at auction “after July 31, 2020.” Id. at 9 of 42. It is now mid-August; it is not clear to the Court whether a sale has already 23 taken place. 3 This Court dismissed a similar case brought by Cornejo in 2017. In that case, Cornejo sued 24 Teresa Moran, the City & County of San Francisco, and Auto Return, alleging constitutional deprivations in connection with the “booting” of her car. See generally Compl. (dkt. 1) in Case 25 No. 17-cv-4664. After denying a requested TRO, see Order Denying Request for TRO (dkt. 9) in Case No. 17-cv-4664, the Court denied a requested preliminary injunction, and dismissed all 26 claims, holding that the Court lacked jurisdiction over the claims under the Rooker-Feldman doctrine, because the case was essentially an appeal of a hearing officer’s determination that the 27 City properly impounded Cornejo’s car, see Order Denying MPI and Granting MTD (dkt. 21) in 1 model equal to the one Defendants seized, within 70 miles of my current domicile.” Id. Cornejo 2 elsewhere argues that “District Courts have recognized that the seizure of the car alone constitutes 3 irreparable injury.” Compl. (dkt. 1) ¶ 59 (citing Monterey Merch. Co. v. Wilson, 125 F.3d 702, 4 715 (9th Cir 1997); Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)).4 5 The Court will not presume irreparable injury simply because Cornejo alleged a 6 constitutional injury. As Judge Chesney of this district has explained,
7 [A]ny . . . presumption [of irreparable injury] . . . has not been applied uniformly to all constitutional claims. See [Associated General 8 Contractors v. Coalition for Economic Equity, 950 F.2d 1401 (9th Cir. 1991)] (citing, as an example, Northeastern Florida Chapter of Ass’n 9 of Gen. Contractors v. Jacksonville, Fla., 896 F.2d 1283 (1990)); Northeastern Florida Chapter, 896 F.2d at 1286 (observing, “[t]he 10 only area of constitutional jurisprudence where we have said that an on-going violation constitutes irreparable injury is the area of first 11 amendment and right of privacy jurisprudence”; explaining, “[t]he rationale behind these decisions was that chilled free speech and 12 invasions of privacy, because of their intangible nature, could not be compensated for by monetary damages”); see also Los Angeles v. 13 Lyons, 461 U.S. 95, 111 (1983) (holding, in case where plaintiff asserted Fourth Amendment excessive force claim, plaintiff not 14 entitled to injunction “absent a showing of irreparable injury”). Consequently, the Court next considers whether plaintiffs have 15 submitted sufficient evidence to support a finding that they are likely to suffer irreparable injury. . . . 16 See Stevenson v. City & Cty. of San Francisco, No. 11-4950 MMC, 2016 WL 2993104, at *2 17 (N.D. Cal. Mar. 29, 2016); see also Woodfin Suite Hotels, LLC v. City of Emeryville, No. 06- 18 1254 SBA, 2006 WL 2739309, at *11–12 (N.D. Cal. Aug 23, 2006) (noting that Associated 19 General Contractors, 950 F.2d at 1412, “reserved the question whether a presumption arises in 20 cases where a plaintiff, as here, has asserted primarily economic damage” and holding that 21 plaintiffs failed to make an adequate showing). 22 Although Cornejo references constitutional deprivations under the Fourth, Fifth, and 23 Fourteenth Amendments, see App. at 11 of 42– 14 of 42 (in addition to several state law torts), the 24 primary harm that Cornejo complains of is economic: the loss of the car, see id. at 9 of 42, and 25
26 4 Neither case is a district court decision and neither involves the towing of a parked car. See Monterey Merch. Co., 125 F.3d 702 (involving unsuccessful bidder on construction project 27 challenging statute based on equal protection violation); Mills, 571 F.3d 1304
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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MARIMAR CORNEJO, Case No. 20-cv-05813-CRB
9 Plaintiff, ORDER DENYING APPLICATION 10 v. FOR TEMPORARY RESTRAIING ORDER 11 JEFFREY TUMLIN, et al., 12 Defendants.
13 Pro se Plaintiff Marimar Cornejo has filed an application for a temporary restraining order 14 (TRO) against Defendants Jeffrey Tumlin, Director of Transportation of the San Francisco 15 Municipal Transportation Agency, San Francisco Transportation Agency, City & County of San 16 Francisco, Dan Scanlan, Tegsco LLC d/b/a San Francisco Autoreturn, San Francisco Autoreturn 17 LLC, Pacific Gas & Electric Co., Cameron A. Hale in his capacity as CEO of Alvah Contractors 18 Inc., Alvah Contractors Inc., and Nelsons Tow. See App. (dkt. 2). Cornejo’s claims stem from 19 the alleged towing of Cornejo’s Toyota Camry in February of 2020 “without providing any 20 warning, and without giving any notice or opportunity to be heard.” Id. ¶ 1; id. at 8 of 42.1 21 Cornejo alleges that Cornejo has “a newly born son, and the deprivation aside from 22 causing ongoing panic and emotional distress is actively causing me a continued hardship from the 23 loss of use of the subject automobile.” Id. ¶ 3. Cornejo also alleges that Defendant Scanlon 24
25 1 Specifically, Cornejo alleges that Cornejo parked the car in a public parking space in San Francisco near a sign that said, “no parking between 7 am and 4 pm,” and that the car was towed 26 because Defendants Alvah and PG&E had purchased a permit and intended to tow cars from that spot. See id. at 7 of 42– 8 of 42. Contractors from Alvah allegedly placed a “notice of towing” 27 near the car at 7:13 PM, several hours after the car was parked, and initiated a tow request without 1 “intends to sale or dispose of the subject Toyota Camry at any point in time . . . and therefore 2 irreparable harm will occur from the permanent loss of the property which cannot be replaced with 3 an equal by any regular and ordinary process.” Id.2 Cornejo asks the Court to enjoin Defendants 4 “from proceeding with holding, keeping, storing, transferring, assigning or attempting to sell or 5 dispose the [car] and from depriving [Cornejo] from immediate possession thereof.” Id. at 4–5. 6 A TRO is an “extraordinary remedy” that should only be awarded upon a clear showing 7 that the plaintiff is entitled to such relief. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 8 7, 22 (2008). The party seeking a TRO must establish: (1) a likelihood of success on the merits; 9 (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tips in 10 the plaintiff’s favor; and (4) that an injunction is in the public interest. See id. at 20. 11 Alternatively, the moving party must demonstrate that “serious questions going to the merits were 12 raised,” “the balance of hardships tips sharply in the plaintiff’s favor,” and the other two Winter 13 elements are met. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). 14 While it is not clear whether Cornejo is likely or unlikely to succeed on the merits,3 15 Cornejo has not demonstrated a likeliness of irreparable harm. Cornejo argues that “irreparable 16 injury is occurring and will worsen if they keep the car,” and that the car cannot be replaced 17 because it was “carefully selected over a two month period which resulted in over 100 hours of 18 research, travel, and consultation with an auto mechanic” and that the subject Toyota Camry was 19 well taken care of by its owner who also kept the car clean.” App. at 9 of 42. Cornejo continues: 20 “After a diligent search on the internet, I could not locate another Toyota Camry of the year and 21
22 2 Elsewhere the Application states that Scanlan intends to sell the car at auction “after July 31, 2020.” Id. at 9 of 42. It is now mid-August; it is not clear to the Court whether a sale has already 23 taken place. 3 This Court dismissed a similar case brought by Cornejo in 2017. In that case, Cornejo sued 24 Teresa Moran, the City & County of San Francisco, and Auto Return, alleging constitutional deprivations in connection with the “booting” of her car. See generally Compl. (dkt. 1) in Case 25 No. 17-cv-4664. After denying a requested TRO, see Order Denying Request for TRO (dkt. 9) in Case No. 17-cv-4664, the Court denied a requested preliminary injunction, and dismissed all 26 claims, holding that the Court lacked jurisdiction over the claims under the Rooker-Feldman doctrine, because the case was essentially an appeal of a hearing officer’s determination that the 27 City properly impounded Cornejo’s car, see Order Denying MPI and Granting MTD (dkt. 21) in 1 model equal to the one Defendants seized, within 70 miles of my current domicile.” Id. Cornejo 2 elsewhere argues that “District Courts have recognized that the seizure of the car alone constitutes 3 irreparable injury.” Compl. (dkt. 1) ¶ 59 (citing Monterey Merch. Co. v. Wilson, 125 F.3d 702, 4 715 (9th Cir 1997); Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)).4 5 The Court will not presume irreparable injury simply because Cornejo alleged a 6 constitutional injury. As Judge Chesney of this district has explained,
7 [A]ny . . . presumption [of irreparable injury] . . . has not been applied uniformly to all constitutional claims. See [Associated General 8 Contractors v. Coalition for Economic Equity, 950 F.2d 1401 (9th Cir. 1991)] (citing, as an example, Northeastern Florida Chapter of Ass’n 9 of Gen. Contractors v. Jacksonville, Fla., 896 F.2d 1283 (1990)); Northeastern Florida Chapter, 896 F.2d at 1286 (observing, “[t]he 10 only area of constitutional jurisprudence where we have said that an on-going violation constitutes irreparable injury is the area of first 11 amendment and right of privacy jurisprudence”; explaining, “[t]he rationale behind these decisions was that chilled free speech and 12 invasions of privacy, because of their intangible nature, could not be compensated for by monetary damages”); see also Los Angeles v. 13 Lyons, 461 U.S. 95, 111 (1983) (holding, in case where plaintiff asserted Fourth Amendment excessive force claim, plaintiff not 14 entitled to injunction “absent a showing of irreparable injury”). Consequently, the Court next considers whether plaintiffs have 15 submitted sufficient evidence to support a finding that they are likely to suffer irreparable injury. . . . 16 See Stevenson v. City & Cty. of San Francisco, No. 11-4950 MMC, 2016 WL 2993104, at *2 17 (N.D. Cal. Mar. 29, 2016); see also Woodfin Suite Hotels, LLC v. City of Emeryville, No. 06- 18 1254 SBA, 2006 WL 2739309, at *11–12 (N.D. Cal. Aug 23, 2006) (noting that Associated 19 General Contractors, 950 F.2d at 1412, “reserved the question whether a presumption arises in 20 cases where a plaintiff, as here, has asserted primarily economic damage” and holding that 21 plaintiffs failed to make an adequate showing). 22 Although Cornejo references constitutional deprivations under the Fourth, Fifth, and 23 Fourteenth Amendments, see App. at 11 of 42– 14 of 42 (in addition to several state law torts), the 24 primary harm that Cornejo complains of is economic: the loss of the car, see id. at 9 of 42, and 25
26 4 Neither case is a district court decision and neither involves the towing of a parked car. See Monterey Merch. Co., 125 F.3d 702 (involving unsuccessful bidder on construction project 27 challenging statute based on equal protection violation); Mills, 571 F.3d 1304 (involving Fourth 1 expenses relating to replacing the car, see Compl. § 61 (“I and another owner suffered loss of 2 || earnings in the sum approximate of $3500, and out of pocket expenses of $203.57, and were 3 required to rent a car during the days of March 3, 2020 through July 7, 2020 incurring expenses of 4 $4,003.41.”). Notwithstanding Cornejo’s protestations that the car is irreplaceable, see App. at 9 5 of 42, a Toyota Camry is not a rare piece of jewelry. See Fed. Trade Comm’n v. Kutzner, No. 6 || CV1600999BROAFMX, 2017 WL 5188334, at *9 (C.D. Cal. Mar. 10, 2017) (“the harm to 7 || Defendant Foti of selling valuable and unique pieces of jewelry that he will likely be unable to 8 || recover should he be found not liable in this case, is irreparable.”’) (citing United States v. Kaplan, 9 839 F.3d 795, 801 (9th Cir. 2016) (“discussing the intangible, sentimental nature and difficulty in 10 || replacing certain personal property”). Assuming Cornejo prevails on the merits, the losses 11 associated with the improper towing of the car could be quantified. 12 Because Corjeno cannot meet the Winter factors, see 555 U.S. at 22, the Application for a 13 |} TRO is DENIED. IT IS SO ORDERED. g K 8 15 Dated: August 20, 2020 CHARLES R. BREYER 16 United States District Judge
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