Enna Berjikian et al v. Franchise Tax Board et al
Filing
10
ORDER DENYING PLAINTIFFS EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER 5 by Judge Dean D. Pregerson. (lc). Modified on 8/30/2013 (lc).
<![CDATA[
1
2
O
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
VICKEN O. BERJIKIAN and ENNA
BERJIKIAN,
12
Plaintiffs,
13
v.
14
15
FRANCHISE TAX BOARD;
DEPARTMENT OF MOTOR
VEHICLES; BOARD OF PHARMACY,
16
17
Defendants.
___________________________
18
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CV 13-06301 DDP (JCGx)
ORDER DENYING PLAINTIFFS’ EX
PARTE APPLICATION FOR A TEMPORARY
RESTRAINING ORDER
Presently before the court is Plaintiffs’ Ex Parte Application
19
for a Temporary Restraining Order.
20
application and the exhibits in support thereof, the court denies
21
the motion.
22
I.
Having considered Plaintiffs’
Background
23
Plaintiffs Vicken and Enna Berjikian are listed on the
24
California Franchise Tax Board’s list of 500 largest state income
25
tax delinquencies.
26
Order (“App.”) at 4-5).
27
early 1990s,” and may owe “about $450,000.”
28
California Business and Professions Code Section 494.5, certain
(Ex Parte Application for Temporary Restraining
Plaintiffs have been delinquent since “the
(App. at 5.)
Under
1
state licensing entities must suspend the licenses of individuals
2
appearing on the delinquency list.
3
494.5.
4
and both Plaintiffs have California driver licenses.1
Cal. Bus. & Profs. Code §
Plaintiff Enna Berjickian is a state-licensed pharmacist,
5
On May 23, 2013, the California Department of Motor Vehicles
6
sent each Plaintiff a Notice of Intent to Suspend driver license.
7
(App. Exs. A, B.)
8
licenses will be suspended as of September 20, 2013.
9
unspecified date, Plaintiff Enna Berjikian received a “90 Day
The notices state that Plaintiffs’ driver
At some
10
Notice of Intent to Suspend License” from the California Department
11
of Consumer Affairs, informing Plaintiff that her pharmacist’s
12
license will be suspended as of August 30, 2013.
13
(App. Ex. B).2
On August 28, 2013, Plaintiffs filed a Complaint against the
14
state agencies alleging that Section 494.5 is preempted by federal
15
law and is unconstitutional.
16
represented by counsel, filed the instant application for a
17
Temporary Restraining Order (“TRO”), seeking to enjoin the state
18
agencies from suspending Plaintiffs’ licenses.
19
II.
20
On August 30, 2013, Plaintiffs,
Legal Standard
A temporary restraining order is meant to be used only in
21
extraordinary circumstances.
22
the requesting party must show (1) that she is likely to succeed on
To establish entitlement to a TRO,
23
1
24
25
26
27
28
Plaintiff Vicken Berjickian is a licensed attorney. Section
494.5 states that the State Bar of California “may” suspend a
delinquent licensee, while other entities “shall” suspend
licensees. Cal. Bus. & Profs. Code § 194.5(a)(3).
2
Though the Declaration of Enna Berjikian refers to her DMV
and Consumer affairs letters as Exhibits C and D, there are no such
exhibits in the record before the court. The exhibits submitted to
the court are not sequentially labeled, and skip from Exhibit B to
Exhibit F.
2
1
the merits, (2) that she is likely to suffer irreparable harm in
2
the absence of preliminary relief, (3) that the balance of equities
3
tips in her favor, and (4) that an injunction is in the public
4
interest.
5
(2008).
6
combination of probable success on the merits and the possibility
7
of irreparable harm, or (2) raises serious questions and the
8
balance of hardships tips in favor of a TRO.
9
Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987).
Winter v. Natural Res. Defense Counsel, 555 U.S. 7, 20
A TRO may be warranted where a party (1) shows a
See Arcamuzi v.
10
“These two formulations represent two points on a sliding scale in
11
which the required degree of irreparable harm increases as the
12
probability of success decreases.”
13
however, the party must demonstrate a “fair chance of success on
14
the merits” and a “significant threat of irreparable injury.”3
15
III. Discussion
16
Id.
Under both formulations,
Id.
As an initial matter, Plaintiffs’ one-page recitation of the
17
relevant factors and conclusory assertions that each of the factors
18
is met is insufficient to satisfy their burden.
19
court is particularly unpersuaded that Plaintiffs have established,
20
or could establish, a possibility of irreparable harm.
21
analyzing this factor, courts should take into account whether a
22
movant “proceeded as quickly as it could have” in seeking a TRO.
23
See Apple, Inc. v. Samsung Electronics Co., Ltd., 678 F.3d 1314,
24
1325 (Fed. Cir. 2012) (analyzing a preliminary injunction).
Furthermore, the
In
At the
25
3
26
27
28
Even under the “serious interests” sliding scale test, a
plaintiff must satisfy the four Winter factors and demonstrate
“that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
3
1
TRO stage, courts consider whether the movant would have been able
2
to file a noticed preliminary injunction motion had it acted
3
diligently.
4
2:11–CV–02873–MCE, 2011 WL 5374748, at *4 (E.D. Cal. Nov.4, 2011)
5
(denying application for TRO for twenty-five day delay); Mammoth
6
Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, CIVS10-0864
7
LKK/JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010).;
8
v. First Fed. Bank of California, No. C 09-1276 PJH, 2009 WL
9
837570, at *2 (N.D. Cal. Mar. 26, 2009).
10
See, e.g., Occupy Sacramento v. City of Sacramento,
Rosal
Here, Plaintiffs have been on notice of the licensing
11
authorities’ intentions for at least three months.
12
case of the drivers’ license suspensions, Plaintiffs received
13
notice of the DMV’s intent almost four months before the threatened
14
sanction, which will not take effect for another twenty one days.
15
While the Department of Consumer Affairs sanction may soon take
16
effect, Plaintiffs provide no explanation why they waited until the
17
eleventh hour to seek ex parte relief.
18
v. Cont'l Cas. Co., 883 F.Supp. 488, 492 (C.D. Cal. 1995).
19
Plaintiffs’ undue delay undermines their assertion of pending
20
irreparable harm.
21
IV.
22
Indeed, in the
See Mission Power Eng'g Co.
Conclusion
For the reasons stated above, Plaintiffs’ Ex Parte Application
23
for a TRO is DENIED.
24
IT IS SO ORDERED.
25
26
Dated: August 30, 2013
27
DEAN D. PREGERSON
28
United States District Judge
4
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
