United States District Court, C.D. California
ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION
FOR A TEMPORARY RESTRAINING ORDER [17]
OTIS
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
On July
6, 2016, Plaintiffs Manuel and Sharon Womandress applied ex
parte for a temporary restraining order enjoining Defendant
Specialized Loan Servicing LLC from proceeding with a
foreclosure sale on July 8, 2016. (ECF No. 17.) Defendant
opposed. (ECF Nos. 20, 21.) For the reasons discussed below,
the Court DENIES Plaintiffs' application. (ECF No. 17.)
II.
FACTUAL BACKGROUND
Plaintiffs
are the owners of a house located in Temecula, California.
(First Am. Compl. ("FAC") ¶1.) On March 20,
2007, Plaintiffs received a loan from Residential Mortgage
Capital in the amount of $799, 950 to purchase this house.
(Req. for Judicial Notice ("RJN"), Ex. 1, ECF No.
21.)[1]
It is unclear what relationship Defendant has, if any, to the
original lender, but at any rate, Defendant is now servicing
this loan. (See FAC ¶ 7; RNJ, Exs. 2-3.)
Plaintiffs allege that Defendant "intentionally
overstated Plaintiffs' income on the loan application,
" failed to make numerous disclosures required under the
Truth in Lending Act, failed to provide meaningful loan
modification assistance, and dual-tracked the mortgage in
violation of the California Homeowner Bill of Rights Act.
(Id. ¶¶ 12, 14-15, 24, 34-35.) The FAC
lacks any specific factual details surrounding these
allegations.
On
November 12, 2015, Defendant recorded a Notice of Default at
the Riverside County Recorder's Office, which stated that
Plaintiffs owed $169, 908.49 on the mortgage. (RJN, Ex. 2.)
On March 17, 2016, Defendant recorded a Notice of
Trustee's Sale, giving notice that it intended to hold a
trustee's sale on April 14, 2016. (Id. Ex. 3.)
It appears that the trustee's sale was rescheduled for
July 8, 2016.
On
April 11, 2016, Plaintiffs filed this action in the Riverside
Superior Court. (ECF No. 1.) On May 13, 2016, Defendant
removed the case to federal court. (Id.) On July 3,
2016, Plaintiffs filed a FAC, in which they assert the
following causes of action: (1) violation of California
Business and Professions Code section 17200
("UCL"); (2) breach of the implied covenant of good
faith and fair dealing; and (3) violation of the California
Homeowners Bill of Rights Act. (ECF No. 15.) On July 6, 2016,
Plaintiffs filed this ex parte application for a temporary
restraining order, seeking to enjoin the impending
foreclosure sale. (ECF No. 17.) The following day, Defendant
filed a timely opposition. (ECF Nos. 20-21.) That ex parte
application is now before the Court for consideration.
III.
LEGAL STANDARD
"A
preliminary injunction is 'an extraordinary and drastic
remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of
persuasion.'" Lopez v. Brewer, 680 F.3d
1068, 1072 (9th Cir. 2012) (emphasis in original) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam)). To prevail, the moving party must show: (1) a
likelihood of success on the merits; (2) a likelihood that
the moving party will suffer irreparable harm absent
preliminary injunctive relief; (3) that the balance of
equities tips in the moving party's favor; and (4) that
preliminary injunctive relief is in the public interest (the
'Winter factors"). Winter v. Nat'l
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);
Lockheed Missile & Space Co. v. Hughes Aircraft Co.,
887 F.Supp. 1320, 1323 (N.D. Cal. 1995) ("The standard
for issuing a temporary restraining order is identical to the
standard for issuing a preliminary injunction.").
"Under Winter, plaintiffs must establish that
irreparable harm is likely, not just possible, in
order to obtain a preliminary injunction." Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132
(9th Cir. 2011) (original emphasis). In the Ninth Circuit,
"'serious questions going to the merits' and a
hardship balance that tips sharply toward the plaintiff can
[also] support issuance of an injunction, assuming the other
two elements of the Winter test are also met."
Id. at 1132, 1135 (holding that the "sliding
scale" test remains viable "so long as the
plaintiff also shows that there is a likelihood of
irreparable injury and that the injunction is in the public
interest").
IV.
DISCUSSION
The
Court concludes that Plaintiffs do not clearly show that that
they have met the Winter factors. Thus, the Court
declines to issue the requested TRO.
A.
Likelihood of Prevailing on Merits
1.
UCL Claim
"The
UCL does not proscribe specific activities, " but
instead "'borrows' violations of other laws and
treats them as unlawful practices that the unfair competition
law makes independently actionable." Puentes v.
Wells Fargo Home Mortgage, Inc.,160 Cal.App.4th 638,
643-44 (2008) (citations omitted); Cel-Tech Commc'ns,
Inc. v. L.A. Cellular Tel. Co.,20 Cal.4th 163, 180
(1999). Here, Plaintiffs allege that the predicate violation
was the failure to make various ...