Castle Peak 10-00001 Loan Trust v. Arturo Chavarria et al
Filing
8
MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: DENYING TEMPORARY RESTRAINING ORDER: Before the Court is document titled EMERGENCY EX-PARTE APPLICATION TO TURNOVER PROPERTY 7 TheCourt finds the matter appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 7-15. To the extent that Defendants' filing constitutes a motion for a temporary restraining order, the Court DENIES the motion. (rla)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 12-0787 DOC (ANx)
Date: May 22, 2012
Title: CASTLE PEAK 2010-1 LOAN TRUST -V- ARTURO CHAVARRIA ET AL.
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
Not Present
Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT
NONE PRESENT
PROCEEDING (IN CHAMBERS): ORDER DENYING TEMPORARY RESTRAINING ORDER
Before the Court is document titled “EMERGENCY EX-PARTE APPLICATION TO
TURNOVER PROPERTY” filed by Defendants Arturo and Maria Chavarria (“Defendants”). The
Court finds the matter appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 715. To the extent that Defendants’ filing constitutes a motion for a temporary restraining order, the
Court DENIES the motion.
II.
Legal Standard for Temporary Restraining Order
In the Ninth Circuit, a party is entitled to a preliminary injunction if she satisfies either of
two tests: (1) the Winter factor test; or (2) the “sliding scale” test, also referred to as the “serious
questions” test.1 See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
The sliding scale test requires a slightly weaker showing of success on the merits to be outweighed by
strong equitable considerations. See id. 632 F.3d at 1134-35.
1
A party may also obtain a preliminary injunction without satisfying either of these
two tests if a statute provides for a lesser showing. See e.g., Tennessee Valley Authority
v. Hill, 437 US 153, 194 (1978); United States v. Estate Pres. Services, 202 F.3d 1093,
1098 (9th Cir. 2000) (“The traditional requirements for equitable relief need not be
satisfied since Section 7408 expressly authorizes the issuance of an injunction.”)
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Under the Winter factor test, a party is entitled to a preliminary injunction if she
establishes that: (1) she is “likely to succeed on the merits”; (2) the “balance of equities tips in [the
party’s] favor”; (3) she is “likely to suffer irreparable harm in the absence of preliminary relief”; and (4)
a preliminary injunction is in the public interest. Winter, 555 U.S. at 20; Save Our Sonoran, Inc. v.
Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005).
Under the sliding scale test, a party is entitled to a preliminary injunction if she
establishes: (1) “serious questions going to the merits”; (2) “a balance of hardships that tips sharply
towards the [the party]”; (3) “a likelihood of irreparable injury”; and (2) a preliminary injunction is in
the public interest. Alliance for the Wild Rockies, 632 F.3d 1127, 1135 (9th Cir. 2011) (noting that the
last two factors are identical to two of the factors in Winter). While the test “requires the [party] to
make a showing on all four prongs,” the showing need not be equally strong. See id.
Where, as here, the application for the temporary restraining order is made ex parte, Rule
65 mandates an additional showing that: (1) “immediate and irreparable injury. . . will result to the
movant before the adverse party can be heard in opposition;” and (2) the movant must explain in
writing the reasons why notice should not be required. Fed. R. Civ. P. 65(b)(1); Reno Air Racing Ass’n,
Inc. v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006). The standard for issuing a temporary
restraining order without notice to the adverse party is very stringent, and the burden on the movant to
show why notice is not required is accordingly very high. See Granny Goose Foods, Inc. v. Broth. of
Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974) (“[O]ur
entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an
opportunity to be heard has been granted both sides of a dispute.”); Reno Air Racing Ass’n, 452 F.3d at
1131 (“[C]ircumstances justifying the issuance of an ex parte order are extremely limited.”).
The most common reasons for issuing an ex parte temporary restraining order are “where
notice to the adversary party is impossible either because the identity of the adverse party is unknown
or because a known party cannot be located in time for a hearing” and “a very narrow band of cases in
which ex parte orders are proper because notice to the defendant would render fruitless the further
prosecution of the action.” Am. Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984).
III.
Discussion
Defendants, who are pro se, seek relief “pursuant to 11 U.S.C. Sections 105(a) and 28
USC § 1446(d)” because “[o]n Friday, May 18, 2012, Defendant . . . the Sheriffs show[ed] up at their
property to evict them.” Mot. at 2. Defendants seek an “order to Turnover [sic] possession of
Defendant’s [sic] property back to Defendant[s] and prevent [Plaintiffs] from causing Defendant[s] any
furhter harm, pain and emotional distress.” Id. at 3.
Defendants’ filing cites no law nor makes any argument regarding either of the two tests
that a party must satisfy to obtain a preliminary injunction, nor do they discuss the additional showing
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necessary to obtain ex-parte relief. The two statutes under which Defendants move do not provide the
relief they seek. 11 U.S.C. § 105(a) is inapplicable to this federal district court because it empowers
bankruptcy courts to “issue any order, process, or judgment that is necessary or appropriate to carry out
the provisions of this title. 11 U.S.C. § 105(a). 28 U.S.C. § 1446(d) does not have anything to do with
a temporary restraining order because it merely provides for the removal procedure that Defendants
used to bring this case to this court. 28 U.S.C. § 1446(d).
In addition, Defendants’ filing indicates that the eviction occurred in the past. See Mot. at
2 (“On Friday, May 18, 2012, Defendant . . . the Sheriffs show[ed] up at their property to evict them.”);
3 (“Defendant[s] move the court for an order to Turnover [sic] possession of Defendant’s [sic] property
back to Defendant[s].”). Such a past harm is not an immediate irreparable injury. Because Defendants
do not cite any event other than eviction as a basis for an irreparable injury, Defendants fail to meet
their burden to obtain a temporary restraining order.
Accordingly, to the extent that Defendants’ filing constitutes a motion for a temporary
restraining order, the Court DENIES the motion.
The Clerk shall serve this minute order on Defendants.
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