The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER DENYING PLAINTIFFS'
ORDER AND PRELIMINARY
EMERGENCY MOTION FOR
TEMPORARY RESTRAINING [ECF No. 3]
Pending before the Court is Plaintiffs' Emergency Motion for Temporary Restraining Order and Preliminary Injunction Pursuant to California Civil Code Section 2924.12(a)(1) seeking to enjoin the trustee's sale of Plaintiffs' real property scheduled for Monday, February 4, 2013. Plaintiffs bring this action against Defendant Wells Fargo Bank, N.A, successor by merger to Wells Fargo Bank Southwest, N.A. f/k/a Wachovia Mortgage FSB f/k/a World Savings Bank FSB ("Wells Fargo"). (ECF No. 3.) They contend that Wells Fargo has no ownership interest in the property, and thus no right to foreclose. For the reasons set forth below, the Court DENIES Plaintiffs' emergency motion.
This case involves property located at 1215 Pinehurst Road, Chula Vista, California (the "Property"). (Compl. ¶ 6.) Plaintiffs allege that in October 2005, they obtained title by grant deed. (Id. ¶ 26.) They allege that they executed a Note and Deed of trust in favor of World Savings Bank ("World Savings Bank"), but about December of that year, World Savings Bank sold and transferred the Note and Deed of Trust. (Id. ¶ 19, 27, 29.) Although the beneficiary is "presently unknown," Plaintiffs assert that it was not Wells Fargo (Id. ¶ 19, 29, 40.) Wells Fargo later merged with the successors of World Savings Bank. (Id. ¶ 43.) Plaintiffs anticipate that Wells Fargo will submit a "blatantly fraudulent and fabricated 'assignment'" to the Court in an attempt to show, improperly, that it is the true holder of Plaintiffs' financial obligation. (Id. ¶ 21.)
In September 2012, a "Notice of Default and Election to Sell Under Deed of Trust" was recorded on the property by an agent for Wells Fargo, whereby Wells Fargo sought payment of $33,584.30. (Id. ¶ 57.) On December 26, 2012, Wells Fargo caused its agent to send Plaintiffs a "Notice of Trustee Sale." (Id. ¶ 58.)
Plaintiffs responded on January 16, 2013, by filing this lawsuit. The Complaint asserts six causes of action: (1) Declaratory Relief pursuant to 28 U.S.C. §§ 2201 and 2202; (2) Quasi Contract; (3) Negligence; (4) Violation of 15 U.S.C. § 1692 et seq.; (5) Violation of California Business and Professions Code § 17200 et seq.; and (6) Accounting. Among other things, Plaintiffs seek a declaration that Wells Fargo has "no legally cognizable rights" as to the property, note, or deed of trust.
The trustee's sale, originally scheduled for January 24, 2013, was rescheduled at some point for February 4, 2013. (Decl. of Joseph La Costa ¶¶ 2c, 2g, ECF No. 4.) On January 29, Plaintiffs filed this "emergency motion" for a TRO and preliminary injunction. (Mot., ECF No. 3.) Judge Thomas Whelen recused himself from the case on January 31, 2013, and the matter was reassigned to this Court. (ECF No. 5.)
A temporary restraining order ("TRO") is a form of preliminary injunctive relief limited to "preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Bd. of Teamsters, 415 U.S. 423, 439 (1974). It is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 24 (2008).
Federal Rule of Civil Procedure 65 outlines the procedure the Court must follow in deciding whether to grant a TRO. "The stringent restrictions imposed . . . by Rule  on the availability of ex parte temporary restraining orders reflect the fact that our 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." Granny Goose Foods, 415 U.S. at 438-39 (footnote omitted). Issuance of a TRO without written or oral notice to the adverse party or its attorney is only permitted if: "(A) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." FED. R. CIV. P. 65(b)(1).
The Court's substantive analysis on a motion for a TRO is substantially identical to that on a motion for a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). Plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a risk of irreparable harm absent injunctive relief; (3) the balance of equities tips in favor of injunctive relief; and (4) injunctive relief is in the public interest. Winter, 555 U.S. at 20. In the Ninth Circuit, "serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011) (internal quotation marks omitted).
Even though Plaintiffs files a proof of service for this motion, its contents raise serious questions about the adequacy of notice. The proof of service was filed on January 29, 2013. (ECF No. 3-1.) Plaintiffs' counsel indicates that he filed the motion electronically using the CM/ECF system, mailed it to Wells Fargo in South Dakota, and mailed/faxed it to a California law firm that"appeared to be handling part of the non-judicial foreclosure sale process," all apparently on the January 29. (ECF Nos. 3-1, 4.) Defendants have yet to appear in this case, so they would not have received notice via electronic case filing. In addition, because Plaintiffs chose to mail the application to South Dakota, the Court is uncertain whether ...