1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ENFINITY CENTRAL VAL 2 PARLIER No. 2:19-cv-01607-MCE-KJN LLC, 12 Plaintiff, 13 MEMORANDUM AND ORDER v. 14 CITY OF PARLIER, 15 Defendant. 16
17 18 19 In instituting the present lawsuit, Plaintiff Enfinity Central Val Parlier LLC 20 (“Enfinity”) seeks damages stemming from the alleged failure of Defendant City of Parlier 21 (“Parlier”) to make payments for electricity generated by a solar power system installed 22 by Enfinity for Parlier. Enfinity’s Complaint (ECF No. 1) was filed on August 19, 2019 23 and two days later Enfinity filed an Ex Parte Application for Temporary Restraining Order 24 (“TRO”). ECF No. 7. That TRO is presently before the Court for adjudication. Having 25 reviewed the papers submitted in support of the TRO, and for the reasons set forth 26 below, Enfinity’s TRO request is DENIED. 27 //// 28 //// 1 BACKGROUND 2 3 According to Enfinity’s Complaint, its predecessor in interest, Enfinity America 4 Corporation, entered into a Solar Energy Services Agreement and Easement 5 (“Agreement”) with Parlier dated October 6, 2010. Under the terms of that Agreement, in 6 exchange for installation of an electricity grid-connected photovoltaic solar power plant 7 with a specified total generating capacity, Parlier agreed to buy the total energy output of 8 the solar facility. Parlier apparently continued to pay those charges through October of 9 2018, but since that time has failed to do so, allegedly on grounds that the facility is not 10 producing the electrical output it claims. 11 In addition to specifying Parlier’s obligation to pay for electricity generated by the 12 solar plant, the Agreement provides an easement under the terms of which “Customer 13 [Parlier] also hereby grants Service Provider [Enfinity] an easement on, over and across 14 the Site(s) and all Permitted Areas (the “Access Easement”) as necessary to install, 15 operate, maintain, improve and repair the Solar Facility[s]”. (Pl.’s Compl., Ex A, Art. 3.1. 16 Plaintiff alleges that on August 14, 2019, when its agents sought to inspect the solar 17 facility for safety issues as envisioned by the easement, those individuals were not 18 permitted to do so and were instructed to leave the property. The present TRO request 19 is premised on that refusal, with Enfinity claiming that Parlier’s refusal to grant access 20 risks not only the solar facility itself, but also “the lives and the environment of the 21 surrounding community.” Decl. of Dylan Sontag, ECF No. 7-2, ¶ 9. According to Mr. 22 Sontag, the Director of Asset Operations and Performance Engineering for Silicon 23 Ranch Corporation, the company who bought all membership interests in Enfinity and 24 currently serves as Enfinity’s Manager, the maintenance schedule for the facility requires 25 inspection “to ensure none of the fast-growing grasses in the area reach a dangerous 26 height.” Id. at ¶ 10. Sontag claims that with each increment of growth the risk of fire as 27 a result of loose wire connections or damaged wires increases exponentially. Id. He 28 further points out that California has recently seen a “staggering increase in devastating 1 fires caused by electrical equipment encountering unmaintained vegetation.” Id. at ¶ 12. 2 Enfinity therefore contends that an ex parte TRO is needed to enjoin Parlier from 3 continuing to interfere with Enfinity’s inspection and maintenance of the facility as it 4 deems necessary. 5 6 STANDARD 7 8 The purpose of a temporary restraining order is to preserve the status quo 9 pending the complete briefing and thorough consideration contemplated by full 10 proceedings pursuant to a preliminary injunction. See Granny Goose Foods, Inc. v. 11 Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining orders “should be 12 restricted to serving their underlying purpose of preserving the status quo and preventing 13 irreparable harm just so long as is necessary to hold a hearing, and no longer”); see also 14 Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006); Dunn v. 15 Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. April 19, 2010). 16 Issuance of a temporary restraining order, as a form of preliminary injunctive 17 relief, is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety 18 of such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general, 19 the showing required for a temporary restraining order and a preliminary injunction are 20 the same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 21 n.7 (9th Cir. 2001). 22 The party requesting preliminary injunctive relief must show that “he is likely to 23 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 24 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 25 the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 26 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter). 27 The propriety of a TRO hinges on a significant threat of irreparable injury that must be 28 imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th 1 Cir. 1988). 2 Alternatively, under the so-called sliding scale approach, as long as the Plaintiffs 3 demonstrate the requisite likelihood of irreparable harm and show that an injunction is in 4 the public interest, a preliminary injunction can still issue so long as serious questions 5 going to the merits are raised and the balance of hardships tips sharply in Plaintiffs’ 6 favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) 7 (concluding that the “serious questions” version of the sliding scale test for preliminary 8 injunctions remains viable after Winter). 9 In order to qualify for injunctive relief under either variant, Plaintiff must, at 10 minimum, demonstrate a “fair chance of success” that his claims will ultimately prevail on 11 their merits. See, e.g., Johnson v. Calif. State Bd. Of Accountancy, 72 F.3d 1427, 1430 12 (9th Cir. 1995). This means that Plaintiff must demonstrate some likelihood of obtaining 13 a favorable result in his case in chief. Original Appalachian Artworks v. Topps Chewing 14 Gum, 642 F.Supp. 1031, 1034 (N.D. Ga. 1986); A&M Records, Inc. v. Napster, Inc., 239 15 F.3d 1004, 1005, fn. 3 (9th Cir. 2001). In addition, Plaintiff must also demonstrate a 16 significant threat of irreparable injury. Simula, Inc. Autoliv, Inc., 175 F.3d 716, 725 (9th 17 Cir. 1999). 18 19 ANALYSIS 20 21 As stated above, Enfinity’s stated objective in seeking the emergency injunctive 22 relief of a TRO is to obtain a preliminary finding that Parlier’s August 14, 2019 refusal to 23 permit inspection of the solar facility at issue poses a threat of irreparable injury. Given 24 the extraordinary remedy entailed by the injunctive relief Enfinity seeks, however, it has 25 the burden of establishing the propriety of that relief through clear and convincing 26 evidence. Kinman v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ENFINITY CENTRAL VAL 2 PARLIER No. 2:19-cv-01607-MCE-KJN LLC, 12 Plaintiff, 13 MEMORANDUM AND ORDER v. 14 CITY OF PARLIER, 15 Defendant. 16
17 18 19 In instituting the present lawsuit, Plaintiff Enfinity Central Val Parlier LLC 20 (“Enfinity”) seeks damages stemming from the alleged failure of Defendant City of Parlier 21 (“Parlier”) to make payments for electricity generated by a solar power system installed 22 by Enfinity for Parlier. Enfinity’s Complaint (ECF No. 1) was filed on August 19, 2019 23 and two days later Enfinity filed an Ex Parte Application for Temporary Restraining Order 24 (“TRO”). ECF No. 7. That TRO is presently before the Court for adjudication. Having 25 reviewed the papers submitted in support of the TRO, and for the reasons set forth 26 below, Enfinity’s TRO request is DENIED. 27 //// 28 //// 1 BACKGROUND 2 3 According to Enfinity’s Complaint, its predecessor in interest, Enfinity America 4 Corporation, entered into a Solar Energy Services Agreement and Easement 5 (“Agreement”) with Parlier dated October 6, 2010. Under the terms of that Agreement, in 6 exchange for installation of an electricity grid-connected photovoltaic solar power plant 7 with a specified total generating capacity, Parlier agreed to buy the total energy output of 8 the solar facility. Parlier apparently continued to pay those charges through October of 9 2018, but since that time has failed to do so, allegedly on grounds that the facility is not 10 producing the electrical output it claims. 11 In addition to specifying Parlier’s obligation to pay for electricity generated by the 12 solar plant, the Agreement provides an easement under the terms of which “Customer 13 [Parlier] also hereby grants Service Provider [Enfinity] an easement on, over and across 14 the Site(s) and all Permitted Areas (the “Access Easement”) as necessary to install, 15 operate, maintain, improve and repair the Solar Facility[s]”. (Pl.’s Compl., Ex A, Art. 3.1. 16 Plaintiff alleges that on August 14, 2019, when its agents sought to inspect the solar 17 facility for safety issues as envisioned by the easement, those individuals were not 18 permitted to do so and were instructed to leave the property. The present TRO request 19 is premised on that refusal, with Enfinity claiming that Parlier’s refusal to grant access 20 risks not only the solar facility itself, but also “the lives and the environment of the 21 surrounding community.” Decl. of Dylan Sontag, ECF No. 7-2, ¶ 9. According to Mr. 22 Sontag, the Director of Asset Operations and Performance Engineering for Silicon 23 Ranch Corporation, the company who bought all membership interests in Enfinity and 24 currently serves as Enfinity’s Manager, the maintenance schedule for the facility requires 25 inspection “to ensure none of the fast-growing grasses in the area reach a dangerous 26 height.” Id. at ¶ 10. Sontag claims that with each increment of growth the risk of fire as 27 a result of loose wire connections or damaged wires increases exponentially. Id. He 28 further points out that California has recently seen a “staggering increase in devastating 1 fires caused by electrical equipment encountering unmaintained vegetation.” Id. at ¶ 12. 2 Enfinity therefore contends that an ex parte TRO is needed to enjoin Parlier from 3 continuing to interfere with Enfinity’s inspection and maintenance of the facility as it 4 deems necessary. 5 6 STANDARD 7 8 The purpose of a temporary restraining order is to preserve the status quo 9 pending the complete briefing and thorough consideration contemplated by full 10 proceedings pursuant to a preliminary injunction. See Granny Goose Foods, Inc. v. 11 Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining orders “should be 12 restricted to serving their underlying purpose of preserving the status quo and preventing 13 irreparable harm just so long as is necessary to hold a hearing, and no longer”); see also 14 Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006); Dunn v. 15 Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. April 19, 2010). 16 Issuance of a temporary restraining order, as a form of preliminary injunctive 17 relief, is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety 18 of such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general, 19 the showing required for a temporary restraining order and a preliminary injunction are 20 the same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 21 n.7 (9th Cir. 2001). 22 The party requesting preliminary injunctive relief must show that “he is likely to 23 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 24 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 25 the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 26 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter). 27 The propriety of a TRO hinges on a significant threat of irreparable injury that must be 28 imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th 1 Cir. 1988). 2 Alternatively, under the so-called sliding scale approach, as long as the Plaintiffs 3 demonstrate the requisite likelihood of irreparable harm and show that an injunction is in 4 the public interest, a preliminary injunction can still issue so long as serious questions 5 going to the merits are raised and the balance of hardships tips sharply in Plaintiffs’ 6 favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) 7 (concluding that the “serious questions” version of the sliding scale test for preliminary 8 injunctions remains viable after Winter). 9 In order to qualify for injunctive relief under either variant, Plaintiff must, at 10 minimum, demonstrate a “fair chance of success” that his claims will ultimately prevail on 11 their merits. See, e.g., Johnson v. Calif. State Bd. Of Accountancy, 72 F.3d 1427, 1430 12 (9th Cir. 1995). This means that Plaintiff must demonstrate some likelihood of obtaining 13 a favorable result in his case in chief. Original Appalachian Artworks v. Topps Chewing 14 Gum, 642 F.Supp. 1031, 1034 (N.D. Ga. 1986); A&M Records, Inc. v. Napster, Inc., 239 15 F.3d 1004, 1005, fn. 3 (9th Cir. 2001). In addition, Plaintiff must also demonstrate a 16 significant threat of irreparable injury. Simula, Inc. Autoliv, Inc., 175 F.3d 716, 725 (9th 17 Cir. 1999). 18 19 ANALYSIS 20 21 As stated above, Enfinity’s stated objective in seeking the emergency injunctive 22 relief of a TRO is to obtain a preliminary finding that Parlier’s August 14, 2019 refusal to 23 permit inspection of the solar facility at issue poses a threat of irreparable injury. Given 24 the extraordinary remedy entailed by the injunctive relief Enfinity seeks, however, it has 25 the burden of establishing the propriety of that relief through clear and convincing 26 evidence. Kinman v. Wells Fargo Bank, N.A., 2012 WL 6096984 at *1 (E.D. Cal. Dec. 7, 27 2012), citing Mazurek, 520 U.S. at 972. For purposes of a TRO, that burden includes 28 not only irreparable injury but also a showing that said injury is imminent in nature. 1 Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d at 674. After careful review of the 2 papers and evidence submitted to date, the Court concludes that Enfinity has not made 3 that showing. 4 Enfinity has submitted evidence that its agents visually inspected the solar facility 5 and its site on some four occasions between April and August of 2019. Sontag Decl., ¶ 6 7. It appears the most recent visit occurred on August 14, 2019, less than ten days ago. 7 At that point, Enfinity’s agents allegedly both observed the solar equipment and told a 8 Parlier employee that they “would return in a few weeks to replace or repair some of the 9 equipment.” See August 16, 2019 letter from Neal Costanzo to Bao M. Vu, Ex. BB to the 10 Vu Decl., ECF No. 7-4, p. 8. Despite that apparent opportunity to both observe the 11 equipment and the area around it, Enfinity has offered no concrete evidence that any 12 imminent threat was present, either with regard to the equipment or the condition of any 13 surrounding vegetation. Enfinity has not even refuted the City’s position that its 14 personnel stated at the time of the August 14, 2019 visit that they would simply return “in 15 a few weeks” to make some needed repairs. The need to return in a “few weeks” time 16 does not point to the “imminent threat” needed to justify a TRO, let alone one being 17 sought on an ex parte basis.1 Instead, all Enfinity has presented at this point is 18 speculation that the equipment may need urgent repair, and that vegetation might be 19 overgrown, with no supporting facts whatsoever. That unsubstantiated speculation does 20 not satisfy Enfinity’s burden of showing imminent irreparable harm, let alone the 21 probability of success on the merits. Enfinity’s TRO request therefore fails. 22 //// 23 //// 24 //// 25 ////
26 1 While Enfinity also argues that Parlier may have had “non-authorized individuals out at the Solar Facility to inspect it”, again no evidence has been presented that this poses any imminent threat of 27 irreparable harm, besides surmising that such individuals may not be trained or familiar with the Facility’s specific equipment, and thus “may be unaware of possible risks associated with it”. See Pl.’s Mot, ECF 28 No. 7-1, 16:3-6. Again, this is sheer speculation and does not meet Enfinity’s burden. 1 CONCLUSION 2 3 Based on the foregoing, Enfinity’s Ex Parte Motion for a Temporary Restraining 4 | Order (ECF No. 7) is DENIED.? Enfinity may file a regularly noticed Motion for 5 | Preliminary Injunction should it choose to do so. 6 IT 1S SO ORDERED. 7 | Dated: August 23, 2019 8 AL br_{ AER NE UNITED STATES DISTRICT TOS0e 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 □ 2 Because the Court has concluded that oral argument was not of material assistance in deciding 28 | this Motion, it decides the matter on the briefing in accordance with Eastern District Local Rule 230(g).