1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA PEREZ, Case No.: 21-cv-01977-JLS-MDD
12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S EX PARTE MOTION FOR 14 BANK OF AMERICA, N.A., et al., TEMPORARY RESTRAINING 15 Defendants. ORDER
16 [ECF No. 3] 17 18 Presently before the Court is Plaintiff Maria Perez’s Emergency Ex Parte 19 Application for Temporary Restraining Order and Order to Show Cause Re Preliminary 20 Injunction (“Ex Parte Motion” or “Motion”) (ECF No. 3). Plaintiff seeks a Court order 21 restraining Defendants from instituting eviction proceedings or foreclosing on her property 22 located at 752 Encanto Drive, Calexico, California, 92231. (ECF No. 3-1 at 9.) For the 23 reasons set forth below, the Court DENIES Plaintiff’s Ex Parte Motion without prejudice. 24 LEGAL STANDARD 25 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 26 restraining order (“TRO”). The standard for a TRO is identical to the standard for a 27 preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 28 832, 839 n.7 (9th Cir. 2001). To obtain either a TRO or a preliminary injunction, the 1 moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of 2 irreparable harm to the moving party in the absence of preliminary relief; (3) that the 3 balance of equities tips in favor of the moving party; and (4) that an injunction is in the 4 public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The elements 5 of this test are “balanced, so that a stronger showing of one element may offset a weaker 6 showing of another.” All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 7 Generally, a TRO is considered to be “an extraordinary remedy that may only be awarded 8 upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 9 The moving party has the burden of persuasion. Hill v. McDonough, 547 U.S. 573, 584 10 (2006). 11 When the moving party has not provided notice of its request for a TRO to the 12 adverse party, Federal Rule of Civil Procedure 65(b)(1) imposes specific requirements 13 prior to the issuance of a TRO. 14 The court may issue a [TRO] without written or oral notice to the 15 adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and 16 irreparable injury, loss, or damage will result to the movant 17 before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give 18 notice and the reasons why it should not be required. 19 20 Fed. R. Civ. P. 65(b)(1) (emphasis added). “The stringent restrictions imposed . . . by Rule 21 65[ ] on the availability of ex parte [TROs] reflect the fact that our entire jurisprudence 22 runs counter to the notion of court action taken before reasonable notice and an opportunity 23 to be heard has been granted both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. 24 of Teamsters, 415 U.S. 423, 438–39 (1974) (footnote omitted). Accordingly, “courts have 25 recognized very few circumstances justifying the issuance of an ex parte TRO.” Reno Air 26 Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). “For example, an ex parte 27 TRO may be appropriate ‘where notice to the adverse party is impossible either because 28 the identity of the adverse party is unknown or because a known party cannot be located in 1 time for a hearing.’” Id. (quoting Am. Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 2 1984)). Alternatively, “[i]n cases where notice could have been given to the adverse party, 3 courts have recognized a very narrow band of cases in which ex parte orders are proper 4 because notice to the defendant would render fruitless the further prosecution of the 5 action.’” Id. (quoting Am. Can Co., 742 F.3d at 322). 6 This District has additional requirements that parties must meet to demonstrate they 7 are entitled to ex parte relief. Under Civil Local Rule 83.3: 8 [a] motion for an order must not be made ex parte unless it 9 appears by affidavit or declaration (1) that within a reasonable time before the motion the party informed the opposing party or 10 the opposing party’s attorney when and where the motion would 11 be made; or (2) that the party in good faith attempted to inform the opposing party and the opposing party’s attorney but was 12 unable to do so, specifying the efforts made to inform them; or 13 (3) that for reasons specified the party should not be required to inform the opposing party or the opposing party’s attorney. 14 15 CivLR 83.3(g)(2). 16 DISCUSSION 17 In her Ex Parte Motion, Plaintiff argues that “[i]mmediate injunctive relief is 18 imperative in this case, because without an order from this Court, Defendants will be 19 permitted to complete [their] intended foreclosure of [her] property.” (ECF No. 3-1 at 2.) 20 Plaintiff’s Verified Complaint, dated and filed November 22, 2021, alleges that she 21 received a Notice of Trustee Sale “in the middle of September”1 informing her that her 22 property would be foreclosed upon but is silent as to the date of the foreclosure sale. (ECF 23 No. 1 ¶ 28.) The Notice of Trustee Sale, which Plaintiff attached to her Motion as Exhibit 24 14, reveals that the foreclosure sale was originally scheduled to occur more than a month 25 ago on October 21, 2021. (ECF No. 3-4 at 14.) However, on November 23, 2021, Plaintiff 26
27 28 1 The Notice of Trustee Sale is dated September 20, 2021. (ECF No. 3-4 at 14.) 1 filed a supplemental declaration from her attorney and attached thereto a Notice of 2 Postponement of Trustee’s Sale (“Notice of Postponement”) dated October 21, 2021. (ECF 3 No. 4 at 3.) Per the Notice of Postponement, the October 21, 2021 foreclosure sale was 4 continued to November 24, 2021. (Id.) 5 It is unclear to the Court why Plaintiff failed to include the postponed date of the 6 foreclosure sale in the Verified Complaint and the instant Motion when she has known 7 about the date since at least October 21, 2021, the date of the Notice of Postponement. 8 Nevertheless, given that Plaintiff has set forth in a declaration that the foreclosure sale is 9 currently scheduled for November 24, 2021, the Court finds that Plaintiff has met the first 10 requirement for a TRO without notice by averring immediate and irreparable injury. Fed. 11 R. Civ. P. 65(b)(1)(A). However, Plaintiff’s Ex Parte Motion fails to comply with the 12 notice requirements of Federal Rule of Civil Procedure 65(b)(1)(B) and Civil Local Rule 13 83.3(g)(2). There is no declaration accompanying Plaintiff’s Motion that certifies 14 Plaintiff’s efforts to give notice to any Defendant or provides reasons why notice should 15 not be required.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA PEREZ, Case No.: 21-cv-01977-JLS-MDD
12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S EX PARTE MOTION FOR 14 BANK OF AMERICA, N.A., et al., TEMPORARY RESTRAINING 15 Defendants. ORDER
16 [ECF No. 3] 17 18 Presently before the Court is Plaintiff Maria Perez’s Emergency Ex Parte 19 Application for Temporary Restraining Order and Order to Show Cause Re Preliminary 20 Injunction (“Ex Parte Motion” or “Motion”) (ECF No. 3). Plaintiff seeks a Court order 21 restraining Defendants from instituting eviction proceedings or foreclosing on her property 22 located at 752 Encanto Drive, Calexico, California, 92231. (ECF No. 3-1 at 9.) For the 23 reasons set forth below, the Court DENIES Plaintiff’s Ex Parte Motion without prejudice. 24 LEGAL STANDARD 25 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 26 restraining order (“TRO”). The standard for a TRO is identical to the standard for a 27 preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 28 832, 839 n.7 (9th Cir. 2001). To obtain either a TRO or a preliminary injunction, the 1 moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of 2 irreparable harm to the moving party in the absence of preliminary relief; (3) that the 3 balance of equities tips in favor of the moving party; and (4) that an injunction is in the 4 public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The elements 5 of this test are “balanced, so that a stronger showing of one element may offset a weaker 6 showing of another.” All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 7 Generally, a TRO is considered to be “an extraordinary remedy that may only be awarded 8 upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 9 The moving party has the burden of persuasion. Hill v. McDonough, 547 U.S. 573, 584 10 (2006). 11 When the moving party has not provided notice of its request for a TRO to the 12 adverse party, Federal Rule of Civil Procedure 65(b)(1) imposes specific requirements 13 prior to the issuance of a TRO. 14 The court may issue a [TRO] without written or oral notice to the 15 adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and 16 irreparable injury, loss, or damage will result to the movant 17 before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give 18 notice and the reasons why it should not be required. 19 20 Fed. R. Civ. P. 65(b)(1) (emphasis added). “The stringent restrictions imposed . . . by Rule 21 65[ ] on the availability of ex parte [TROs] reflect the fact that our entire jurisprudence 22 runs counter to the notion of court action taken before reasonable notice and an opportunity 23 to be heard has been granted both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. 24 of Teamsters, 415 U.S. 423, 438–39 (1974) (footnote omitted). Accordingly, “courts have 25 recognized very few circumstances justifying the issuance of an ex parte TRO.” Reno Air 26 Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). “For example, an ex parte 27 TRO may be appropriate ‘where notice to the adverse party is impossible either because 28 the identity of the adverse party is unknown or because a known party cannot be located in 1 time for a hearing.’” Id. (quoting Am. Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 2 1984)). Alternatively, “[i]n cases where notice could have been given to the adverse party, 3 courts have recognized a very narrow band of cases in which ex parte orders are proper 4 because notice to the defendant would render fruitless the further prosecution of the 5 action.’” Id. (quoting Am. Can Co., 742 F.3d at 322). 6 This District has additional requirements that parties must meet to demonstrate they 7 are entitled to ex parte relief. Under Civil Local Rule 83.3: 8 [a] motion for an order must not be made ex parte unless it 9 appears by affidavit or declaration (1) that within a reasonable time before the motion the party informed the opposing party or 10 the opposing party’s attorney when and where the motion would 11 be made; or (2) that the party in good faith attempted to inform the opposing party and the opposing party’s attorney but was 12 unable to do so, specifying the efforts made to inform them; or 13 (3) that for reasons specified the party should not be required to inform the opposing party or the opposing party’s attorney. 14 15 CivLR 83.3(g)(2). 16 DISCUSSION 17 In her Ex Parte Motion, Plaintiff argues that “[i]mmediate injunctive relief is 18 imperative in this case, because without an order from this Court, Defendants will be 19 permitted to complete [their] intended foreclosure of [her] property.” (ECF No. 3-1 at 2.) 20 Plaintiff’s Verified Complaint, dated and filed November 22, 2021, alleges that she 21 received a Notice of Trustee Sale “in the middle of September”1 informing her that her 22 property would be foreclosed upon but is silent as to the date of the foreclosure sale. (ECF 23 No. 1 ¶ 28.) The Notice of Trustee Sale, which Plaintiff attached to her Motion as Exhibit 24 14, reveals that the foreclosure sale was originally scheduled to occur more than a month 25 ago on October 21, 2021. (ECF No. 3-4 at 14.) However, on November 23, 2021, Plaintiff 26
27 28 1 The Notice of Trustee Sale is dated September 20, 2021. (ECF No. 3-4 at 14.) 1 filed a supplemental declaration from her attorney and attached thereto a Notice of 2 Postponement of Trustee’s Sale (“Notice of Postponement”) dated October 21, 2021. (ECF 3 No. 4 at 3.) Per the Notice of Postponement, the October 21, 2021 foreclosure sale was 4 continued to November 24, 2021. (Id.) 5 It is unclear to the Court why Plaintiff failed to include the postponed date of the 6 foreclosure sale in the Verified Complaint and the instant Motion when she has known 7 about the date since at least October 21, 2021, the date of the Notice of Postponement. 8 Nevertheless, given that Plaintiff has set forth in a declaration that the foreclosure sale is 9 currently scheduled for November 24, 2021, the Court finds that Plaintiff has met the first 10 requirement for a TRO without notice by averring immediate and irreparable injury. Fed. 11 R. Civ. P. 65(b)(1)(A). However, Plaintiff’s Ex Parte Motion fails to comply with the 12 notice requirements of Federal Rule of Civil Procedure 65(b)(1)(B) and Civil Local Rule 13 83.3(g)(2). There is no declaration accompanying Plaintiff’s Motion that certifies 14 Plaintiff’s efforts to give notice to any Defendant or provides reasons why notice should 15 not be required. Additionally, Plaintiff has not demonstrated or argued that notice to 16 Defendants is impossible or would render further prosecution of the action fruitless. See 17 Reno Air Racing, 452 F.3d at 1131. Accordingly, the Court DENIES Plaintiff’s request 18 for a TRO without prejudice for failure to comply with Rule 65(b)(1)(B) and Civil Local 19 Rule 83.3(g)(2). 20 Additionally, in her Ex Parte Motion, Plaintiff requests that the Court issue an order 21 to show cause as to why a preliminary injunction should not issue enjoining Defendants 22 from engaging in or performing any act to deprive Plaintiff of her property. (See ECF No. 23 3-1 at 9.) Given that Federal Rule of Civil Procedure 65(a)(1) prohibits a court from issuing 24 a preliminary injunction without notice to the adverse party, the Court finds Plaintiff’s 25 request for an order to show cause premature and DENIES it without prejudice. 26 /// 27 /// 28 /// 1 CONCLUSION 2 For the reasons stated, Plaintiff’s Ex Parte Motion (ECF No. 3) is DENIED without 3 || prejudice. 4 IT IS SO ORDERED. 5 ||Dated: November 24, 2021 tt 6 pee Janis L. Sammartino 4 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28