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Title: Castle Peak 2010-1 Loan Trust v. Arturo Chavarria et al.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 22, 2012

TITLE: CASTLE PEAK 2010-1 LOAN TRUST
v.
ARTURO CHAVARRIA ET AL.

The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Julie Barrera Not Present Courtroom Clerk 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. 7-15. 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*fn1 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.

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. , 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,

, 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 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 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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