1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHERYL LYNN DOUGLAS, et al., No. 2:24-cv-0331-KJM-CKD (PS) 12 Plaintiffs, 13 v. ORDER AND 14 THE EZRALOW COMPANY LLC, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16
17 18 Plaintiffs Cheryl Lynn Douglas and Andrew Grant Haymore proceed without counsel on a 19 fee-paid complaint seeking damages and injunctive relief. (ECF No. 1.) Plaintiffs’ ex parte 20 motion for a preliminary injunction is before the court. (ECF No. 26.) This matter is suitable for 21 decision without oral argument under Local Rule 230(g). For the reasons set forth below, the 22 motion should be denied. Accordingly, the court vacates the hearing set to take place on 23 December 11, 2024. In addition, on the court’s own motion, the court grants plaintiffs an 24 extension of time to respond to defendants’ amended motion to quash service filed on September 25 25, 2024. 26 I. Background 27 Plaintiffs filed the complaint on January 29, 2024, naming as defendants The Ezralow 28 Company LLC, First Pointe Management Group LLC, and five individuals alleged to be 1 employees of those defendants. (ECF No. 1.) Plaintiffs allege they entered into a rental lease 2 agreement for a unit at the Montebello Apartments in May 2022 for a 2-bedroom 2-bathroom unit 3 for $2398. (Id., ¶¶ 3, 4.) 4 After move-in, multiple terrifying and distressing events occurred and both plaintiffs lived 5 in terror. (ECF No. 1, ¶¶ 4-11, 14.) Plaintiffs hear disturbances in other units through thin walls. 6 (Id., ¶¶ 6-7.) In addition, their vehicles have been ransacked, homeless people cause disturbances 7 outside, violent outbursts occur almost weekly, and plaintiff Haymore witnessed a shooting while 8 at the pool. (Id., ¶¶ 8-14.) 9 As time neared to renew the lease agreement in March of 2023, due to the frightening 10 living conditions, and to enable plaintiffs to save money to leave, plaintiffs requested to alter their 11 lease to the market value price advertised on Montebello’s website, $1800-1900 a month. (ECF 12 No. 1, ¶ 12.) The property manager, Chris Robellow, told plaintiffs they could not have their 13 pricing changed unless they moved all their belongings from one unit to another, even though 14 plaintiff Douglass is a senior citizen and plaintiff Haymore is a disabled Veteran who suffers from 15 congestive heart failure. (Id.) Needing to have shelter, plaintiffs renewed the lease agreement. 16 (Id., ¶ 13.) 17 Plaintiffs allege the defendants’ actions constitute disability discrimination and that the 18 lease constitutes “a form of age discrimination, financial exploitation of an elder, and elder abuse, 19 among other predatory elements.” (ECF No. 1 ¶¶ 13, 15.) Plaintiffs allege they are being 20 exploited because of their inability to alter their living situation and because the new, advertised 21 price for “move ins” for same type of unit occupied by plaintiffs is more than $500 less per 22 month. (Id., ¶¶ 15 & 17.) 23 Due to the Breach of the Covenant of Quiet Enjoyment they have suffered, plaintiffs tried 24 to negotiate a 6-month credit towards their rent due and were denied by Leslie Huffman and 25 Stacy White. (ECF No. 1, ¶¶ 18-19.) Plaintiffs tried to negotiate three times, but Stacy White told 26 plaintiff Haymore nothing could be done except to allow plaintiffs to quit the lease unpenalized, 27 or plaintiffs could seek a legal remedy through the courts. (Id., ¶ 20.) 28 //// 1 Plaintiffs bring claims for housing discrimination (first cause of action); gross negligence 2 (second cause of action); unlawful, unfair, and fraudulent business practices (third cause of 3 action); and intentional infliction of emotional distress (fourth cause of action). (ECF No. 1, ¶¶ 4 23-47.) Plaintiffs seek damages and injunctive relief. 5 A return of service was filed on June 26, 2024. (ECF No. 7.) Upon plaintiffs’ request for 6 entry of default as to all defendants, the Clerk of the Court entered default against two defendants: 7 First Pointe Management Group LLC and Stacy White. (ECF No. 9.) The Clerk declined 8 plaintiffs’ request for entry of default as to Bryan Ezralow, Marc Ezralow, Leslie Huffman, Chris 9 Robello, and the Ezralow Company LLC. 10 On September 24, 2024, defendants Stacey White and First Pointe Management Group 11 LLC filed an amended motion to set aside the Clerk’s entry of default. (ECF No. 14.) By the same 12 amended motion, all defendants seek to quash summons. (Id.) Defendants served the amended 13 motion to plaintiffs on November 6, 2024, and filed an amended proof of service on that day. 14 (ECF No. 28.) Under the amended briefing schedule set by the court (ECF No. 25), plaintiffs’ 15 opposition or statement of non-opposition was due within 21 days after proper service of the 16 motion or the filing of the amended proof of service, whichever was later. (ECF No. 25.) 17 Acting sua sponte, the court now grants an extension of time for plaintiffs’ opposition to 18 defendants’ amended motion to quash filed on September 24, 2024. Plaintiffs’ opposition or 19 statement of opposition is due within 14 days after service of this order. 20 On November 1, 2024, plaintiffs filed the ex parte motion for a preliminary injunction 21 presently before the court. (ECF No. 26.) 22 II. Legal Standard 23 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 24 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 25 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 26 Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Under another formulation of the test used 27 in the Ninth Circuit, a likelihood of success is not an absolute requirement. Wild Rockies v. 28 Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Rather, the plaintiff shows serious questions are 1 raised and the balance of hardships tips in plaintiff’s favor. Drakes Bay Oyster Co. v. Jewell, 747 2 F.3d 1073, 1085 (9th Cir. 2014). “Under any formulation of the test, plaintiff must demonstrate 3 that there exists a significant threat of irreparable injury.” Oakland Tribune, Inc., v. Chronicle 4 Pub. Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985). “A preliminary injunction is an extraordinary 5 remedy [that] may be awarded only upon a clear showing that the movant is entitled to relief. 6 Winter, 555 U.S. at 24. 7 Under the court’s local rules, 8 All motions for preliminary injunction shall be accompanied by (i) briefs on all relevant legal issues to be presented by the motion, (ii) 9 affidavits in support of the motion, including affidavits on the question of irreparable injury, and (iii) a proposed order with a 10 provision for a bond. See L.R. 230, 151. 11 Local Rule 231(d). 12 III. Discussion 13 Plaintiffs’ motion for a preliminary injunction seeks a variety of relief including an order 14 allowing them to withhold rent payments without accruing any debt and an order for the 15 defendants not to retaliate. (ECF No. 26 at 14.) The motion is supported by a declaration of 16 plaintiff Douglas who describes adverse effects from living at the Montebello apartments suffered 17 by both plaintiffs, including financial, emotional, and mental pressure, and secondary trauma 18 from acts of violence. (Id. at 8-9.) Plaintiffs have not shown entitlement to preliminary injunctive 19 relief. 20 First, plaintiffs’ motion for a preliminary injunction is premature because there is 21 presently a dispute over whether the court has personal jurisdiction over any defendant.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHERYL LYNN DOUGLAS, et al., No. 2:24-cv-0331-KJM-CKD (PS) 12 Plaintiffs, 13 v. ORDER AND 14 THE EZRALOW COMPANY LLC, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16
17 18 Plaintiffs Cheryl Lynn Douglas and Andrew Grant Haymore proceed without counsel on a 19 fee-paid complaint seeking damages and injunctive relief. (ECF No. 1.) Plaintiffs’ ex parte 20 motion for a preliminary injunction is before the court. (ECF No. 26.) This matter is suitable for 21 decision without oral argument under Local Rule 230(g). For the reasons set forth below, the 22 motion should be denied. Accordingly, the court vacates the hearing set to take place on 23 December 11, 2024. In addition, on the court’s own motion, the court grants plaintiffs an 24 extension of time to respond to defendants’ amended motion to quash service filed on September 25 25, 2024. 26 I. Background 27 Plaintiffs filed the complaint on January 29, 2024, naming as defendants The Ezralow 28 Company LLC, First Pointe Management Group LLC, and five individuals alleged to be 1 employees of those defendants. (ECF No. 1.) Plaintiffs allege they entered into a rental lease 2 agreement for a unit at the Montebello Apartments in May 2022 for a 2-bedroom 2-bathroom unit 3 for $2398. (Id., ¶¶ 3, 4.) 4 After move-in, multiple terrifying and distressing events occurred and both plaintiffs lived 5 in terror. (ECF No. 1, ¶¶ 4-11, 14.) Plaintiffs hear disturbances in other units through thin walls. 6 (Id., ¶¶ 6-7.) In addition, their vehicles have been ransacked, homeless people cause disturbances 7 outside, violent outbursts occur almost weekly, and plaintiff Haymore witnessed a shooting while 8 at the pool. (Id., ¶¶ 8-14.) 9 As time neared to renew the lease agreement in March of 2023, due to the frightening 10 living conditions, and to enable plaintiffs to save money to leave, plaintiffs requested to alter their 11 lease to the market value price advertised on Montebello’s website, $1800-1900 a month. (ECF 12 No. 1, ¶ 12.) The property manager, Chris Robellow, told plaintiffs they could not have their 13 pricing changed unless they moved all their belongings from one unit to another, even though 14 plaintiff Douglass is a senior citizen and plaintiff Haymore is a disabled Veteran who suffers from 15 congestive heart failure. (Id.) Needing to have shelter, plaintiffs renewed the lease agreement. 16 (Id., ¶ 13.) 17 Plaintiffs allege the defendants’ actions constitute disability discrimination and that the 18 lease constitutes “a form of age discrimination, financial exploitation of an elder, and elder abuse, 19 among other predatory elements.” (ECF No. 1 ¶¶ 13, 15.) Plaintiffs allege they are being 20 exploited because of their inability to alter their living situation and because the new, advertised 21 price for “move ins” for same type of unit occupied by plaintiffs is more than $500 less per 22 month. (Id., ¶¶ 15 & 17.) 23 Due to the Breach of the Covenant of Quiet Enjoyment they have suffered, plaintiffs tried 24 to negotiate a 6-month credit towards their rent due and were denied by Leslie Huffman and 25 Stacy White. (ECF No. 1, ¶¶ 18-19.) Plaintiffs tried to negotiate three times, but Stacy White told 26 plaintiff Haymore nothing could be done except to allow plaintiffs to quit the lease unpenalized, 27 or plaintiffs could seek a legal remedy through the courts. (Id., ¶ 20.) 28 //// 1 Plaintiffs bring claims for housing discrimination (first cause of action); gross negligence 2 (second cause of action); unlawful, unfair, and fraudulent business practices (third cause of 3 action); and intentional infliction of emotional distress (fourth cause of action). (ECF No. 1, ¶¶ 4 23-47.) Plaintiffs seek damages and injunctive relief. 5 A return of service was filed on June 26, 2024. (ECF No. 7.) Upon plaintiffs’ request for 6 entry of default as to all defendants, the Clerk of the Court entered default against two defendants: 7 First Pointe Management Group LLC and Stacy White. (ECF No. 9.) The Clerk declined 8 plaintiffs’ request for entry of default as to Bryan Ezralow, Marc Ezralow, Leslie Huffman, Chris 9 Robello, and the Ezralow Company LLC. 10 On September 24, 2024, defendants Stacey White and First Pointe Management Group 11 LLC filed an amended motion to set aside the Clerk’s entry of default. (ECF No. 14.) By the same 12 amended motion, all defendants seek to quash summons. (Id.) Defendants served the amended 13 motion to plaintiffs on November 6, 2024, and filed an amended proof of service on that day. 14 (ECF No. 28.) Under the amended briefing schedule set by the court (ECF No. 25), plaintiffs’ 15 opposition or statement of non-opposition was due within 21 days after proper service of the 16 motion or the filing of the amended proof of service, whichever was later. (ECF No. 25.) 17 Acting sua sponte, the court now grants an extension of time for plaintiffs’ opposition to 18 defendants’ amended motion to quash filed on September 24, 2024. Plaintiffs’ opposition or 19 statement of opposition is due within 14 days after service of this order. 20 On November 1, 2024, plaintiffs filed the ex parte motion for a preliminary injunction 21 presently before the court. (ECF No. 26.) 22 II. Legal Standard 23 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 24 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 25 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 26 Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Under another formulation of the test used 27 in the Ninth Circuit, a likelihood of success is not an absolute requirement. Wild Rockies v. 28 Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Rather, the plaintiff shows serious questions are 1 raised and the balance of hardships tips in plaintiff’s favor. Drakes Bay Oyster Co. v. Jewell, 747 2 F.3d 1073, 1085 (9th Cir. 2014). “Under any formulation of the test, plaintiff must demonstrate 3 that there exists a significant threat of irreparable injury.” Oakland Tribune, Inc., v. Chronicle 4 Pub. Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985). “A preliminary injunction is an extraordinary 5 remedy [that] may be awarded only upon a clear showing that the movant is entitled to relief. 6 Winter, 555 U.S. at 24. 7 Under the court’s local rules, 8 All motions for preliminary injunction shall be accompanied by (i) briefs on all relevant legal issues to be presented by the motion, (ii) 9 affidavits in support of the motion, including affidavits on the question of irreparable injury, and (iii) a proposed order with a 10 provision for a bond. See L.R. 230, 151. 11 Local Rule 231(d). 12 III. Discussion 13 Plaintiffs’ motion for a preliminary injunction seeks a variety of relief including an order 14 allowing them to withhold rent payments without accruing any debt and an order for the 15 defendants not to retaliate. (ECF No. 26 at 14.) The motion is supported by a declaration of 16 plaintiff Douglas who describes adverse effects from living at the Montebello apartments suffered 17 by both plaintiffs, including financial, emotional, and mental pressure, and secondary trauma 18 from acts of violence. (Id. at 8-9.) Plaintiffs have not shown entitlement to preliminary injunctive 19 relief. 20 First, plaintiffs’ motion for a preliminary injunction is premature because there is 21 presently a dispute over whether the court has personal jurisdiction over any defendant. The Clerk 22 of the Court has entered default against First Pointe Management Group LLC and Stacy White, 23 but both defendants have moved to set aside the entry of default for improper service. All 24 defendants have moved to quash service. Plaintiffs have not yet filed their opposition or statement 25 of non-opposition to the amended motion to quash service. The dispute regarding whether any 26 defendant has been properly served with process under Rule 4 of the Federal Rules of Civil 27 Procedure prevents the court from issuing preliminary injunctive relief. See Direct Mail 28 Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (“A federal 1 court does not have jurisdiction over a defendant unless the defendant has been served properly”); 2 Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court may issue an 3 injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the 4 claim; it may not attempt to determine the rights of persons not before the court.”). The court can 5 only enjoin parties over which it has power. Id. 6 Second, plaintiffs have not shown they are likely to suffer the type of irreparable harm 7 necessary for a preliminary injunction. See FDIC v. Garner, 125 F.3d 1272, 1279 (9th Cir. 1997) 8 (the threat of injury “must be imminent, not remote or speculative”), cert. denied, 523 U.S. 1020 9 (1998). Plaintiffs’ vague allegations that they will continue to suffer harm and trauma from 10 distressing events related to their living situation does not demonstrate irreparable harm sufficient 11 for a preliminary injunction to issue. See id.; Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 12 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable injury sufficient to 13 warrant granting a preliminary injunction.”). A plaintiff must do more than merely allege 14 imminent harm; a plaintiff must demonstrate immediate threatened injury as a prerequisite to 15 preliminary injunctive relief. Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 16 634 F.2d 1197, 1201 (9th Cir. 1980). 17 Plaintiffs also do not argue they are likely to succeed on the merits of their claims. Their 18 argument in the motion for a preliminary injunction appears directed, instead, toward the 19 defendants’ delay in proper service of the amended motion to quash service and a court order 20 which stated plaintiffs had failed to timely oppose the motion.1 Plaintiffs fail to furnish the court 21 with legal authority showing any claim presented in the complaint is likely to succeed on the 22 merits. Likelihood of success on the merits is the most important Winter factor, and it is relevant 23 to the court’s evaluation of the other factors See Baird v. Bonta, 81 F.4th 1036, 1044 (9th Cir. 24 2023). In light of plaintiffs’ failure to establish a likelihood of success on the merits of any claim, 25 the court also does not find the balance of equities tips in plaintiffs’ favor or that an injunction is 26 in the public interest. 27
28 1 The court has vacated this order. (See ECF No. 29.) 1 IV. Conclusion, Order and Recommendation 2 The relevant factors weigh against issuing a preliminary injunction and there is presently a 3 || dispute over whether the court has personal jurisdiction over any defendant. Thus, the motion for 4 || apreliminary injunction should be denied. 5 For the reasons set forth above, IT IS ORDERED as follows: 6 1. Sua sponte, the court GRANTS an extension of time for plaintiffs to file their 7 opposition or statement of non-opposition to defendants’ amended motion to quash 8 service filed on September 24, 2024, and served to plaintiffs on November 6, 2024. 9 Plaintiffs’ opposition or statement of opposition is due within 14 days after service of 10 this order. 11 2. The court VACATES the hearing on plaintiffs’ motion for a preliminary injunction set 12 to take place on December 11, 2024. 13 In addition, IT IS RECOMMENDED that plaintiffs’ ex parte motion for a preliminary 14 || injunction (ECF No. 26) be denied. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after 17 || being served with these findings and recommendations, plaintiff may file written objections with 18 || the court and serve a copy on all parties. Such a document should be captioned “Objections to 19 | Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 20 || specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 21 | F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 22 || Dated: December 3, 2024 ( 20 } it | Ld □ sia 23 CAROLYN DELANEY 4 UNITED STATES MAGISTRATE JUDGE 23 doug24cv003 | mpi. ft 26 27 28