Cupp v. Smith

• Court: District Court, N.D. California
• Decided: July 31, 2020
• Docket: 4:20-cv-03456
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 RONALD CUPP, Case No. 20-cv-03456-PJH 8 Plaintiff,

9 v. ORDER DENYING MOTION TO PROCEED EX PARTE AND SETTING 10 ANDREW SMITH, et al., A BRIEFING SCHEDULE ON MOTION FOR TEMPORARY RESTRAINING 11 Defendants. ORDER 12 Re: Dkt. No. 20

13 On July 31, 2020, plaintiff Ronald Cupp (plaintiff”) filed an ex parte motion for a 14 temporary restraining order and motion for a preliminary injunction against defendants 15 Andrew Smith (“Smith”), Tyra Harrington (“Harrington”), County of Sonoma (“Sonoma 16 County”), and an unspecified Doe defendant (collectively, “defendants”). Dkt. 20. 17 The subject of this action involves an alleged unlawful entry by defendants and 18 other county officials upon plaintiff’s property on February 15, 2019, as well as other 19 alleged deprivations of his procedural rights to challenge certain citations issued by 20 defendants concerning his property since that February 2019 entry. Dkt. 1 ¶¶ 15-57. 21 The subject of this motion involves a search of plaintiff’s property that defendants 22 conducted on the morning of July 30, 2020. Dkt. 20 at 2-3. In his declaration, plaintiff 23 states that he “notified defendant’s counsel, Michael Smith, by email on July 30, 2020” 24 that he “would be filing this application for a TRO.” Dkt. 20-2 ¶ 10. Based on its records, 25 the court understands that plaintiff meant “Michael King” (“counsel King”), not “Michael 26 Smith,” because counsel King and Bruce Goldstein appear to be the only attorneys who 27 have made filings on behalf of defendants in this action. 1 restraining order without written or oral notice to the adverse party or its attorney only if: 2 (A) specific facts in an affidavit or a verified complaint clearly show that immediate 3 and irreparable injury, loss, or damage will result to the movant before the adverse party 4 can be heard in opposition; and 5 (B) the movant's attorney certifies in writing any efforts made to give notice and the 6 reasons why it should not be required.” Fed. R. Civ. Pro. 65(b)(1)(A)-(B). 7 As this court has previously stated, “[e]x parte injunctive relief is to be granted 8 sparingly.” Kinney v. Lavin, 2014 WL 4182478, at *1 (N.D. Cal. Aug. 22, 2014). 9 Accordingly, courts generally limit ex parte injunctive relief to two situations: “[1] where 10 notice to the adverse party is impossible either because the identity of the adverse party 11 is unknown or because a known party cannot be located in time for a hearing; and [2] in a 12 very limited number of cases, where notice to the defendant would render fruitless the 13 further prosecution of the action.” Id. citing Reno Air Racing Ass'n, Inc. v. McCord, 452 14 F.3d 1126, 1131 (9th Cir.2006). 15 Here, plaintiff fails to proffer any argument in support of the ex parte nature of his 16 request. Significantly, plaintiff fails to identify any specific fact that clearly shows that 17 immediate and irreparable injury would result to him during the brief period that 18 defendants would have to oppose his motion. To the contrary, it appears that the injury 19 he complains of (i.e., the allegedly unlawful search) has already occurred. Dkt. 20-2 ¶ 8. 20 Moreover, given that plaintiff himself acknowledged that he already provided notice to 21 counsel King on July 30, 2020 of his intent to file this motion, the court finds that the first 22 general set of situations where ex parte relief is appropriate is necessarily inapplicable. 23 The second set is also inapplicable. Significantly, plaintiff fails to explain why 24 providing defendants notice of this motion would “render fruitless” the prosecution of this 25 action. In any event, this circumstance is typically reserved for situations involving 26 evidence preservation issues, Reno Air Racing Ass’n, Inc., 452 F.3d at 1131 (“To justify 27 an ex parte proceeding on this latter ground, ‘the applicant must do more than assert that 1 contend are present in the instant action. Accordingly, the court DENIES plaintiff’s 2 request to proceed ex parte. 3 That said, to the extent plaintiff relies upon the possibility that defendants might 4 direct third-party PG&E to “shut off” his electricity, Dkt. 20 at 7, the court ORDERS 5 defendants to refrain from issuing any such direction until it has resolved the instant 6 motion. To that end, defendants may file a joint response to plaintiff’s request for a 7 temporary restraining order by 12:00 pm on Tuesday, August 2, 2020. As a courtesy, 8 the court also asks defendants to electronically file legible white retained copies of the 9 pink notice slips proffered by plaintiff (Dkt. 20-1 at 1-7). Unless it informs the parties 10 otherwise, the court will issue its decision on plaintiff’s motion on the papers. 11 IT IS SO ORDERED. 12 Dated: July 31. 2020 13 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 14 United States District Judge

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