Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 1 of 6 Page ID #:1681
1 2 3 4 5 6 7 10 11 GOLDWATER BANK, N.A., Case No. 5:21−cv−00616−JWH−SPx
12 Plaintiff, PRELIMINARY INJUNCTION 13 v. ORDER
14 ARTUR ELIZAROV; UNISON AGREEMENT CORP.; and
16 Defendants.
17 AND RELATED COUNTERCLAIMS
19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 2 of 6 Page ID #:1682
1 Before the Court is its order to show cause why a preliminary injunction 2 should not issue. The Court conducted a hearing on this matter on March 4, 3 2022.1 After considering the arguments of all parties at the hearing and 4 reviewing their recent written responses2 and previous filings,3 the Court orders 5 that a preliminary injunction is GRANTED, as set forth herein. 7 The parties are familiar with the facts and procedural history of this case. 8 A succinct summary of the relevant allegations follows: 9 The central dispute in this case concerns a parcel of real property in Palm 10 Springs, California (the “Subject Property”), for which Plaintiff Goldwater 11 Bank, N.A. provided a mortgage loan to Defendant Artur Elizarov.4 Goldwater 12 failed, however, to record its Deed of Trust with the Riverside County Register 13 of Deed’s Office.5 Elizarov subsequently defaulted on that loan and then sold 14 the Subject Property to Defendant Scott Howlett without informing Goldwater.6 15 Howlett was unaware of Goldwater’s loan or interest in the property.7 Elizarov 16 ultimately received $785,741.36 in cash proceeds from the sale of the Subject 17 18 19 1 See Min. Order of Video H’rg [ECF No. 151]. 20 2 The Court considered: (1) Pl.’s Suppl. Br. on Prelim. Inj. (the 21 “Goldwater Brief”) [ECF No. 158]; and (2) Def.’s Mem. in Opp’n to Prelim. Inj. (the “Elizarov Brief”) [ECF No. 157]. 22 3 The Court also considered the following: (1) Pl.’s Ex Parte Appl. for TRO (the “Application”) [ECF No. 19]; (2) Def.’s Opp’n to the Application [ECF 23 No. 30]; (3) Pl.’s Reply in Supp. of the Application [ECF No. 31]; (4) Def.’s Suppl. Opp’n to Prelim. Inj. [ECF No. 38]; (5) Pl.’s Suppl. Br. in Supp. of 24 Prelim. Inj. [ECF No. 39]; (6) Def.’s Reply in Opp’n to Prelim. Inj. [ECF No. 40]; and (7) Pl.’s Suppl. Resp. Br. [ECF No. 41]. 25 4 See, e.g., Am. Compl. (the “Amended Complaint”) [ECF No. 44] ¶ 12. 26 5 Id. at ¶ 49. 27 6 Id. at ¶¶ 36, 54, & 55. 7 See e.g., Howlett’s First Am. Crosscompl. (the “Amended 28 Crosscomplaint”) [ECF No. 97] ¶¶ 13-18. -2- Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 3 of 6 Page ID #:1683
1 Property,8 which Elizarov used to purchase real property in Florida instead of 2 paying his debt to Goldwater.9 3 In April 2021, the Court issued a temporary restraining order that 4 enjoined Elizarov and all persons acting in concert with him “from transferring, 5 alienating, or expending the proceeds that Elizarov received from the sale of the 6 Subject Property.”10 The TRO also ordered the parties to show cause why a 7 preliminary injunction should not issue.11 8 After receiving briefing from the parties and conducting a hearing on the 9 matter, the Court issued an amended and extended temporary restraining 10 order.12 The Amended TRO restrained and enjoined Elizarov and all persons 11 acting in concert with him “from transferring, alienating, encumbering 12 (including by a mechanics lien), or disposing of the Florida ‘homestead’ and real 13 property located in Broward County (or any legal right or beneficial interest 14 therein)” and “from transferring, alienating, encumbering, or disposing of the 15 remaining proceeds from the sale of the Subject Property in the amount of 16 $70,000.”13 Through the Amended TRO, the Court directed parties to file 17 supplementary briefing regarding the propriety of a preliminary injunction.14 At 18 the March 4, 2022, hearing, the Court directed the parties to file one more 19 round of supplemental briefing. 20 21 22 8 Amended Complaint ¶ 61. 23 9 Id. at ¶¶ 76-78. 24 10 TRO and Order to Show Cause Regarding Prelim. Inj. (the “TRO”) [ECF No. 23] 9:12-20. 25 11 Id. at 9:25-26. 26 12 Am. and Extended TRO and Order to Show Cause (the “Amended TRO”) [ECF No. 32]. 27 13 Id. at 7:12-20. 28 14 Id. at 7:21-8:2. -3- Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 4 of 6 Page ID #:1684
2 “A preliminary injunction is an extraordinary and drastic remedy; it is 3 never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689 (2008) (citations 4 omitted). An injunction is binding only on parties to the action, their officers, 5 agents, servants, employees, and attorneys and those “in active concert or 6 participation” with them. Fed. R. Civ. P. 65(d)(2). 7 “A plaintiff seeking a preliminary injunction must establish that he is 8 likely to succeed on the merits, that he is likely to suffer irreparable harm in the 9 absence of preliminary relief, that the balance of equities tips in his favor, and 10 that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 11 Inc., 555 U.S. 7, 20 (2008). In the Ninth Circuit, “serious questions going to the 12 merits and a balance of hardships that tips sharply towards the plaintiff can 13 support issuance of a preliminary injunction, so long as the plaintiff also shows 14 that there is a likelihood of irreparable injury and that the injunction is in the 15 public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 16 Cir. 2011) (internal quotations omitted). 18 In the TRO and the Amended TRO, the Court discussed why the Winters 19 factors weighed in Goldwater’s favor.15 The Court need not repeat its analysis 20 here. At issue now are the issues raised in the briefing and hearings regarding 21 the propriety of a preliminary injunction. 22 Elizarov argues that a preliminary injunction should not issue because the 23 Court lacks the power to freeze the sale proceeds.16 Elizarov contends that 24 because Goldwater seeks “a purely legal remedy[,]”the Court must follow the 25 precedent set in Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 26 27 15 See Amended TRO 6:11-16; TRO 6:1-9:7. 28 16 See Elizarov Brief 2:1. -4- Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 5 of 6 Page ID #:1685
Free access — add to your briefcase to read the full text and ask questions with AI
Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 1 of 6 Page ID #:1681
1 2 3 4 5 6 7 10 11 GOLDWATER BANK, N.A., Case No. 5:21−cv−00616−JWH−SPx
12 Plaintiff, PRELIMINARY INJUNCTION 13 v. ORDER
14 ARTUR ELIZAROV; UNISON AGREEMENT CORP.; and
16 Defendants.
17 AND RELATED COUNTERCLAIMS
19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 2 of 6 Page ID #:1682
1 Before the Court is its order to show cause why a preliminary injunction 2 should not issue. The Court conducted a hearing on this matter on March 4, 3 2022.1 After considering the arguments of all parties at the hearing and 4 reviewing their recent written responses2 and previous filings,3 the Court orders 5 that a preliminary injunction is GRANTED, as set forth herein. 7 The parties are familiar with the facts and procedural history of this case. 8 A succinct summary of the relevant allegations follows: 9 The central dispute in this case concerns a parcel of real property in Palm 10 Springs, California (the “Subject Property”), for which Plaintiff Goldwater 11 Bank, N.A. provided a mortgage loan to Defendant Artur Elizarov.4 Goldwater 12 failed, however, to record its Deed of Trust with the Riverside County Register 13 of Deed’s Office.5 Elizarov subsequently defaulted on that loan and then sold 14 the Subject Property to Defendant Scott Howlett without informing Goldwater.6 15 Howlett was unaware of Goldwater’s loan or interest in the property.7 Elizarov 16 ultimately received $785,741.36 in cash proceeds from the sale of the Subject 17 18 19 1 See Min. Order of Video H’rg [ECF No. 151]. 20 2 The Court considered: (1) Pl.’s Suppl. Br. on Prelim. Inj. (the 21 “Goldwater Brief”) [ECF No. 158]; and (2) Def.’s Mem. in Opp’n to Prelim. Inj. (the “Elizarov Brief”) [ECF No. 157]. 22 3 The Court also considered the following: (1) Pl.’s Ex Parte Appl. for TRO (the “Application”) [ECF No. 19]; (2) Def.’s Opp’n to the Application [ECF 23 No. 30]; (3) Pl.’s Reply in Supp. of the Application [ECF No. 31]; (4) Def.’s Suppl. Opp’n to Prelim. Inj. [ECF No. 38]; (5) Pl.’s Suppl. Br. in Supp. of 24 Prelim. Inj. [ECF No. 39]; (6) Def.’s Reply in Opp’n to Prelim. Inj. [ECF No. 40]; and (7) Pl.’s Suppl. Resp. Br. [ECF No. 41]. 25 4 See, e.g., Am. Compl. (the “Amended Complaint”) [ECF No. 44] ¶ 12. 26 5 Id. at ¶ 49. 27 6 Id. at ¶¶ 36, 54, & 55. 7 See e.g., Howlett’s First Am. Crosscompl. (the “Amended 28 Crosscomplaint”) [ECF No. 97] ¶¶ 13-18. -2- Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 3 of 6 Page ID #:1683
1 Property,8 which Elizarov used to purchase real property in Florida instead of 2 paying his debt to Goldwater.9 3 In April 2021, the Court issued a temporary restraining order that 4 enjoined Elizarov and all persons acting in concert with him “from transferring, 5 alienating, or expending the proceeds that Elizarov received from the sale of the 6 Subject Property.”10 The TRO also ordered the parties to show cause why a 7 preliminary injunction should not issue.11 8 After receiving briefing from the parties and conducting a hearing on the 9 matter, the Court issued an amended and extended temporary restraining 10 order.12 The Amended TRO restrained and enjoined Elizarov and all persons 11 acting in concert with him “from transferring, alienating, encumbering 12 (including by a mechanics lien), or disposing of the Florida ‘homestead’ and real 13 property located in Broward County (or any legal right or beneficial interest 14 therein)” and “from transferring, alienating, encumbering, or disposing of the 15 remaining proceeds from the sale of the Subject Property in the amount of 16 $70,000.”13 Through the Amended TRO, the Court directed parties to file 17 supplementary briefing regarding the propriety of a preliminary injunction.14 At 18 the March 4, 2022, hearing, the Court directed the parties to file one more 19 round of supplemental briefing. 20 21 22 8 Amended Complaint ¶ 61. 23 9 Id. at ¶¶ 76-78. 24 10 TRO and Order to Show Cause Regarding Prelim. Inj. (the “TRO”) [ECF No. 23] 9:12-20. 25 11 Id. at 9:25-26. 26 12 Am. and Extended TRO and Order to Show Cause (the “Amended TRO”) [ECF No. 32]. 27 13 Id. at 7:12-20. 28 14 Id. at 7:21-8:2. -3- Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 4 of 6 Page ID #:1684
2 “A preliminary injunction is an extraordinary and drastic remedy; it is 3 never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689 (2008) (citations 4 omitted). An injunction is binding only on parties to the action, their officers, 5 agents, servants, employees, and attorneys and those “in active concert or 6 participation” with them. Fed. R. Civ. P. 65(d)(2). 7 “A plaintiff seeking a preliminary injunction must establish that he is 8 likely to succeed on the merits, that he is likely to suffer irreparable harm in the 9 absence of preliminary relief, that the balance of equities tips in his favor, and 10 that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 11 Inc., 555 U.S. 7, 20 (2008). In the Ninth Circuit, “serious questions going to the 12 merits and a balance of hardships that tips sharply towards the plaintiff can 13 support issuance of a preliminary injunction, so long as the plaintiff also shows 14 that there is a likelihood of irreparable injury and that the injunction is in the 15 public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 16 Cir. 2011) (internal quotations omitted). 18 In the TRO and the Amended TRO, the Court discussed why the Winters 19 factors weighed in Goldwater’s favor.15 The Court need not repeat its analysis 20 here. At issue now are the issues raised in the briefing and hearings regarding 21 the propriety of a preliminary injunction. 22 Elizarov argues that a preliminary injunction should not issue because the 23 Court lacks the power to freeze the sale proceeds.16 Elizarov contends that 24 because Goldwater seeks “a purely legal remedy[,]”the Court must follow the 25 precedent set in Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 26 27 15 See Amended TRO 6:11-16; TRO 6:1-9:7. 28 16 See Elizarov Brief 2:1. -4- Case 5:21-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page 5 of 6 Page ID #:1685
1 U.S. 308, 310 (1999).17 In Grupo Mexicano, the Supreme Court held that a 2 district court has “no authority to issue a preliminary injunction preventing 3 [defendants] from disposing of their assets pending adjudication of [plaintiff’s] 4 contract claim for money damages.” Id. at 527 U.S. at 333. 5 The problem with Elizarov’s argument is two-fold. First, he is wrong in 6 averring that Goldwater seeks a purely legal remedy. Goldwater’s second claim 7 for relief is for unjust enrichment,18 which is an “equitable principle that 8 underlies various legal doctrines and remedies.” Cty. of San Bernardino v. 9 Walsh, 158 Cal. App. 4th 533, 542 (2007), as modified on denial of reh’g (Jan. 25, 10 2008), as modified (Jan. 28, 2008) (emphasis added). Second, Grupo Mexicano 11 “applies only to cases seeking exclusively legal damages.” Sec. & Exch. Comm’n 12 v. Liu, 851 F. App’x 665, 668 (9th Cir. 2021) (emphasis in original) (citing 13 Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009); In re Focus Media Inc., 14 387 F.3d 1077, 1084-85 (9th Cir. 2004)). 15 After considering the arguments that the parties raised in their papers and 16 at the hearing, the Court finds that a preliminary injunction is warranted. See 17 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (holding that a “district 18 court need not consider arguments raised for the first time in a reply brief” and 19 therefore a district court need not consider arguments not raised at all). Because 20 the Winters factors weigh heavily in Goldwater’s favor, and because Grupo 21 Mexicano does not prohibit the issuance of a preliminary injunction when the 22 plaintiff seeks equitable relief, the Court will issue a preliminary injunction. 23 Neither party addresses whether Goldwater should be compelled to 24 provide a larger (or smaller) bond. Accordingly, the Court finds it appropriate 25 to keep in place the $2,500 bond that Goldwater previously posted.19 26 17 Id. at 1:21-2:9. 27 18 See Amended Complaint ¶¶ 93-95. 28 19 See TRO 9:20-22. -5- Case 5'P1-cv-00616-JWH-SP Document 162 Filed 04/19/22 Page6Gof6 Page ID #:1686
2 For the foregoing reasons, the Court hereby ORDERS as follows: 3 1. Defendant Artur Elizarov and his agents, representatives, and all 4 persons acting in concert with him are RESTRAINED AND ENJOINED from 5 transferring, alienating, encumbering (including by a mechanics lien), or 6 disposing of the Florida “homestead” and real property located at 2735 NE 10th 7\| Ave., Wilton Manors, Florida 33334, or any legal right or beneficial interest □ □ therein. 9 2. Defendant Elizarov and his agents, representatives, and all persons 10 acting in concert with him are RESTRAINED AND ENJOINED from 11 transferring, alienating, encumbering, or disposing of the remaining proceeds 12) from the sale of the Subject Property in the amount of $70,000. 13 3. This Order shall remain in effect until further order of the Court. 14 4. The bond of $2,500 previously posted by Goldwater shall remain in 15 place to satisfy the standard set forth in Rule 65(c) of the Federal Rules of Civil 16 Procedure.
19 Dated: April 19, 2022 °
20 GRITED STARS DISTRICT JUDGE 21 22 23 24 25 26 27 28 -6-