Taylor Thomson v. Persistence Technologies BVI Pte Ltd.

• Court: District Court, C.D. California
• Decided: December 26, 2024
• Docket: 2:23-cv-04669
• Status: Unknown

Opinion

1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No.: 2:23-cv-04669-MEMF-MAR 11 TAYLOR THOMSON,

12 Plaintiff, ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER 13 v. [ECF No. 82] 14 15 PERSISTENCE TECHNOLOGIES BVI PTE LTD.; TUSHAR AGGARWAL; and ASHLEY 16 RICHARDSON, 17 Defendants.

18 ASHLEY RICHARDSON, 19 Counterclaimant, 20 v. 21 TAYLOR THOMSON, 22 Counter Defendant. 23 24

25 26 27 Before the Court is an Ex Parte Application for a Temporary Restraining Order filed by 28 Plaintiff and Counterclaim Defendant Ashley Richardson. See ECF No. 82. The Court deems this 1 matter appropriate for resolution without oral argument. See C.D. Cal. L.R. 7-15. For the reasons 2 stated herein, the Court DENIES the Ex Parte Application. 3 I. Background 4 The Court addressed the background of this litigation at length in a previous Order. See ECF 5 No. 76. The Court will only address aspects here that are relevant to this Order. 6 A. Factual Background as to this Litigation1 7 Plaintiff and Counterclaim Defendant Taylor Thomson (“Thomson”) is an individual. See 8 ECF No. 25 ¶ 13. Defendant and Counterclaim Plaintiff Ashley Richardson (“Richardson”) is also 9 an individual. See id. ¶ 16. 10 Thomson alleges, in summary, that Richardson and other Defendants conspired to target 11 Thomson and induce Thomson to invest in a certain cryptocurrency, and made a series of false 12 statements to both Thomson and the public in furtherance of this. See id. ¶¶ 37–241. Richardson 13 alleges in turn, via her counterclaims, that she and Thomson were friends, that Thomson demanded 14 that Richardson invest in cryptocurrency on Thomson’s behalf, that Thomson made rude statements 15 to Richardson and called on Richardson at all hours with requests, and that Thomson eventually 16 made defamatory statements about Richardson. See ECF No. 58. 17 B. Procedural History 18 Thomson filed suit in this Court on June 13, 2024, against Richardson, Defendant Persistence 19 Technologies BVI Pte Ltd. (“Persistence”), and Defendant Tushar Aggarwal (“Aggarwal”). See ECF 20 No. 1. Thomson filed her First Amended Complaint (“FAC”) on September 23, 2023. See FAC. The 21 FAC asserts ten causes of action: (1) fraud, against all Defendants; (2) civil conspiracy to commit 22 fraud, against all Defendants; (3) violation of section 10(b) of the Securities Exchange Act of 1934, 23 against all Defendants; (4) selling unregistered securities in violation of California Corporations 24 Code sections 25503 and 25110, against Persistence and Aggarwal; (5) misrepresentation or 25 omission of material fact in the sale of securities in violation of California Corporations Code 26 27 1 This section is derived from the allegations in the parties’ various pleadings—the Court includes these 28 1 sections 25501 and 25401, against all Defendants; (6) false advertising in violation of California 2 Business and Professions Code Section 17500, against all Defendants; (7) violation of California 3 Business and Professions Code Section 17200, against all Defendants; (8) aiding and abetting 4 common law fraud, against all Defendants; (9) violation of California Corporations Code Section 5 25004, against Richardson; and (10) violation of California Corporations Code Section 25009, 6 against Richardson. See FAC ¶¶ 242–320. 7 Richardson filed an Answer and filed Counterclaims against Thomson on December 22, 8 2023. See ECF Nos. 48, 57. Richardson filed First Amended Counterclaims (“FACC”) on February 9 2, 2024. See ECF No. 58. Richardson’s FACC asserts two causes of action against Thomson: (1) 10 defamation and (2) intentional infliction of emotional distress. See id. 11 Persistence and Aggarwal filed a Motion to Dismiss Thomson’s claims, and Thomson filed a 12 Motion to Dismiss Richardson’s Counterclaims. See ECF Nos. 34, 61. The Court issued an Order 13 granting Defendants’ Motion to Dismiss and Denying Thomson’s Motion to Dismiss on July 15, 14 2024. See ECF No. 76. 15 Thomson filed the instant Ex Parte Application on October 30, 2024, along with various 16 supporting documents. See ECF No. 82 (“Application” or “Appl.”); ECF Nos. 82-1–82-7. In her 17 Application, Thomson asserts that Richardson has been harassing Thomson and Thomson’s 18 daughter. See id. Thomson seeks a temporary restraining order that prohibits Richardson from “(1) 19 from directly contacting [Thomson] or her daughter, Madeleine Thomson, and (2) from coming 20 within 100 yards of Taylor Thomson and her daughter, Madeleine Thomson.” See id. at 12. 21 Thomson also seeks an order to show cause as to why a preliminary injunction should not issue, and 22 that the Court set a hearing for a motion for a preliminary injunction. See id. 23 Also on October 30, 2024, Thomson filed a letter from her counsel to the Court, in which 24 Thomson’s counsel asserts that Richardson “has used her status as a pro se litigant to gain the 25 sympathy of the Court when she needs it but in reality, has been consulting with a high-powered 26 attorney from one of the country’s largest law firms for the last two years, throughout the course of 27 this case.” See ECF No. 83. Thomson filed various exhibits in connection with this letter. See ECF 28 Nos. 83-1–83-8. 1 On October 31, 2024, the Court issued an order setting a deadline of November 4, 2024, for 2 Richardson to file an opposition to the Application. Richardson did not file any opposition by this 3 deadline, and still has not filed any opposition. Thomson filed a Notice of Non-Opposition, which 4 stated that Richardson had failed to file any opposition, on November 13, 2024. See ECF No. 86. 5 II. Applicable Law 6 The legal standard for a temporary restraining order is substantially similar to the standard 7 for a preliminary injunction. See Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 8 240 F.3d 832, 839 n.7 (9th Cir. 2001). 9 A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 10 Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction 11 must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm 12 in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an 13 injunction is in the public interest.” Id. at 20 (“Winter Test”). Under the “serious question” approach 14 adopted by the Ninth Circuit, “[a] preliminary injunction is appropriate when a plaintiff 15 demonstrates . . . that serious questions going to the merits were raised and the balance of hardships 16 tips sharply in the plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134– 17 35 (9th Cir. 2011). 18 There is “strong precedent establishing the inherent power of federal courts to regulate the 19 activities of abusive litigants by imposing carefully tailored restrictions under the appropriate 20 circumstances” De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). However, an injunction 21 of this nature is an “extreme remedy,” and courts should exercise “particular caution” before issuing 22 one. See id. 23 III. Discussion 24 The Court finds that Thomson has not shown that a temporary restraining order is warranted 25 based on the evidence in the record. In particular, the Court does not see evidence of sufficiently 26 threatening conduct to justify such an order. For this reason, the Application is DENIED. 27 28 1 An order prohibiting a party from harassing another party is appropriate in at least some 2 circumstances. Courts in this district and elsewhere have recognized that it may be permissible and 3 necessary to enjoin a litigant from harassing another party. See, e.g., Beyond Blond Prods., LLC v. 4 Heldman, Case No. 2:20-cv-05581, 2022 WL 2784404 (C.D. Cal. June 17, 2022) (issuing an 5 injunction against “threatening or harassing emails” and other conduct); United Artists Corp. v. 6 United Artist Studios LLC, Case No. 2:19-cv-00828, 2019 WL 6917918 (C.D. Cal. Oct. 17, 2019) 7 (issuing an injunction against certain conduct that “constitute[s] harassment and would be performed 8 with the intention of intimidation”); see also Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 9 580 (5th Cir. 2005) (upholding a portion of the district court's injunction prohibiting Defendant 10 “from threatening or harassing” plaintiff, plaintiff’s counsel, or other associated individuals). These 11 courts generally recognize that injunctions against harassing conduct are, to some extent, in tension 12 with the First Amendment’s protections on free speech, but nevertheless hold that such injunctions 13 are constitutional in some circumstances, as “courts have rejected arguments that the First 14 Amendment allows a person to make harassing or threatening communications.” Beyond Blond, 15 2022 WL 2784404 at *5; see also United Artists, 2019 WL 6917918 at *6 (“even under the First 16 Amendment, courts do have the power to enjoin harassing communication”); Test Masters, 428 F.3d 17 at 580 (“Courts have made a distinction between communication and harassment . . . The difference 18 is one between free speech and conduct that may be proscribed.”). Although these opinions are not 19 binding, the Court is aware of no precedent pointing the other way on the general question of 20 whether orders of the nature Thomson requested are at times permissible. The Court finds that if 21 Thomson could show sufficient harassment, then it would be appropriate for the Court to grant the 22 Application. But given the Ninth Circuit’s guidance cautioning courts regarding injunctions that 23 control litigants’ behavior, see De Long, 912 F.2d at 1147, and given the First Amendment concerns 24 that such injunctions implicate, the Court will not grant such an injunction absent a strong showing. 25 Here, Thomson has failed to make a sufficient showing to justify the order she seeks. In 26 support of her Application, Thomson points to a number of text messages sent by Richardson on one 27 28 1 day—October 13, 2024.2 In her text messages, Richardson threatened to “speak to the press,” with 2 “receipts,”3 which would be a “major liability.” See ECF No. 82-2. Richardson further wrote “tell 3 your[] lawyers to respond to my requests” and “Please settle this [explicative], or kill me or have me 4 arrested, I’m [explicative] done.” See id. The messages continued along similar lines. Richardson 5 also sent similar messages to Thomson’s daughter. See ECF No. 82-3. Thomson notes that these are 6 particularly concerning because from previous conversations, Thomson is aware that Richardson 7 possesses a firearm. See ECF No. 82-4. 8 But Thomson has already obtained a Temporary Restraining Order from the Monterey 9 Superior Court based upon the same October 13 conduct. See ECF No. 82-6. That order (once 10 properly served) prohibits Richardson from harassing Thomson, contacting her, or attempting to 11 determine her location. See id. at 2–5. In addition, the order prohibits Richardson from owning or 12 possessing a firearm and requires her to sell, store, or turn into law enforcement any firearms she 13 possesses. See id. at 5. Thomson’s Application does not explain why this TRO is insufficient and 14 certainly does not explain how she can meet the requirement of irreparable harm in light of this 15 TRO.4 16 Furthermore, it appears that in her request to the Monterey Superior Court, Thomson 17 requested that the TRO also prohibit contact with her daughter, see ECF No. 82-5 at 2, and that 18 request was denied by the court. See ECF No. 82-6 at 2. According to the Application, Thomson’s 19 daughter now has her own request pending. See ECF No. 82 at 6. This Court is reluctant to grant 20 Thomson a form of relief that she can seek from the Superior Court, has sought from the Superior 21 Court, and has not yet been granted. As discussed above, TROs against litigants in federal court are 22 permissible but uncommon. In contrast, the state courts of California are familiar with handling these 23

24 2 For the purposes of this Order, the Court will assume that Thomson’s descriptions of Thomson’s behavior 25 are true. The Court makes no definitive finding on whether the descriptions are actually true. 26 3 The Court understands this to be a slang reference to having evidence to back up one’s claims, not a literal reference to receipts. The distinction makes no difference as to this Order. 27 4 The Court notes that it appears that the Superior Court TRO may have expired as of the date of this Order. The Court’s determination is based on the posture of the Application at the time it was filed (when the TRO 28 1 matters and there is a robust body of substantive law and procedural protections in the Superior 2 Court which this Court is reluctant to disturb without good cause. Thomson has failed to show that 3 good cause. Denying this Application is unlikely to cause harm, much less irreparable harm, given 4 the remedies she has available to her in the Superior Court. 5 Even if the Court was inclined to ignore the Superior Court’s TRO and issue its own, these 6 text messages, although not civil, are not threats or harassment that this Court finds sufficient to 7 justify the order Thomson seeks. Richardson has not threatened Thomson with physical violence. 8 Although Richardson threatened to go to the press with evidence, this is significantly distinct, 9 Thomson has provided no authority suggesting a court may enjoin a litigant against making threats 10 to speak to the press, which would likely implicate greater First Amendment concerns than an 11 injunction against threats of physical violence. Richardson’s statements that Thomson should settle 12 the case or kill Richardson are disturbing, but they are not threats of violence against Thomson. 13 Furthermore, the record suggests that this conduct was limited to one specific day, and that it is not 14 an ongoing pattern of harassing behavior. 15 This conduct is significantly distinct from the conduct in the cases discussed above where 16 courts issued injunctions. In Beyond Blond, the party seeking the injunction presented evidence that 17 the other party’s counsel had sent a series of emails over the course of a month, including insults 18 based on race and other offensive statements, and including statements that there will be a “lifetime 19 war between us” and “I can’t wait to meet you in person.” See Beyond Blond, 2022 WL 2784404 at 20 *2. In United Artists, the party seeking the injunction presented evidence that one defendant had 21 engaged in a long pattern of harassing conduct, including an incident at the courthouse, a phone call, 22 a series of emails, and then posts on the internet. See United Artists, 2019 WL 6917918 at *3–*4. 23 These incidents—which the defendant did not deny occurred but argued were not harassment— 24 included references to counsel’s children and statements like “you’ve been warned.” See id. In Test 25 Masters, the district court found that defendants had “had called [Plaintiff’s office] dozens of times a 26 day, including seventy-one times on one day.” Test Masters, 428 F.3d at 579. All of these courses of 27 conduct are significantly distinct from the conduct alleged here. Thomson has provided no authority 28 1 || suggesting that the conduct she alleges—a series of non-civil but not physically threatening text 2 || messages, sent on one specific day—is sufficient for an injunction. 3 In sum, the Court finds that the evidence submitted is not sufficient to grant the Application. 4 || Thomson has, at minimum, failed to make a strong showing that she is likely to succeed on the 5 || merits as to a permanent injunction, or even raised serious questions, because she has not shown that 6 || Richardson’s conduct is sufficient to justify the Court enjoining Richardson’s speech. See Winter, 7 | 555 USS. at 24. Although a temporary restraining order as to harassment by litigants is warranted in 8 || some circumstances, the Court will not issue one here. 9 Finally, the Court notes that although Richardson failed to oppose the Application, and the 10 | Court could find that Richardson consented to the Court granting the Application on this basis, the 11 || Court is not required to grant the Application simply because it is unopposed. See C.D. Cal. L.R. 7- 12 | 12 (“The failure to file any required document, or the failure to file it within the deadline, may be 13 || deemed consent to the granting or denial of the motion”). The Court declines to do so. 14 The Court admonishes all parties, including Richardson and Thomson, to be civil in their 15 || dealings with one another and the Court. If the Court becomes aware of inappropriate behavior, the 16 || Court may sanction a party, or may issue other orders as appropriate. 17 IV. Conclusion 18 Thomson’s Application sought not only a Temporary Restraining Order, but also an Order to 19 || Show Cause as to why a Preliminary Injunction Should Not Issue. See ECF No. 82. In light of the 20 || Court’s denial of Thomson’s request for a Temporary Restraining Order, an Order to Show Cause 21 || shall not issue. 22 For the reasons stated herein, Thomson’s Application for a Temporary Restraining Order is 23 || DENIED. 24 IT IS SO ORDERED. 25 □□ 26 Dated: December 26, 2024 27 MAAME EWUSI-MENSAH FRIMPONG 28 United States District Judge