United States District Court, E.D. California
MORRISON C. ENGLAND JR UNITED STATES DISTRICT JUDGE
April 27, 2017, Plaintiff Dioma Burks filed a Complaint in
this Court alleging fourteen causes of action against
Defendant Vince Caso related to conditions of and rental
payments for the home Plaintiff rents, and also related to
the imminent eviction of Plaintiff from that rental property.
ECF No. 1. It appears Plaintiff's primary allegations are
that Defendant increased rent and utilities without providing
notice, charged extra rent, accepted “side payments,
” provided improper notices to pay or quit, retaliated
against Plaintiff, forged the rental agreement, and failed to
correct what were uninhabitable living conditions. ECF No. 1.
Plaintiff's Complaint additionally seeks a preliminary
injunction and/or temporary restraining order, presumably
preventing Defendant from evicting Plaintiff from the home.
ECF No. 1. The Court addresses what it construes as
Plaintiff's request for temporary restraining order in
more detail below and, for the reasons set forth hereafter,
that request is DENIED.
preliminary matter, Eastern District Local Rule 231 governs
Temporary Restraining Orders. Rule 231(a) provides that
“except in the most extraordinary of circumstances, no
temporary restraining order shall be granted in the absence
of actual notice to the affected party and/or counsel, by
telephone or other means, or a sufficient showing of efforts
made to provide notice.” E.D. Cal. Local R. 231(a)
(citing Fed.R.Civ.P. 65(b)). Rule 231(c) additionally
requires the filing of, among other things, “an
affidavit detailing the notice or efforts to effect notice to
the affected parties or counsel or showing good cause why
notice should not be given.” Id. 231(c)(5).
subsection (b) of Rule 231 states that “[i]n
considering a motion for a temporary restraining order, the
Court will consider whether the applicant could have sought
relief by motion for preliminary injunction at an earlier
date without the necessity for seeking last minute relief by
motion for temporary restraining order. Should the Court find
that the application unduly delayed in seeking injunctive
relief, the Court may conclude that the delay constitutes
laches or contradicts the applicant's allegations of
irreparable injury and may deny the motion solely on either
ground.” Id. 231(b).
subsection (c) lists the documents to be filed by a party
seeking a temporary restraining order. Id. 231(c).
Under that rule, “[n]o hearing on a temporary
restraining order will normally be set unless” certain
documents are provided to the Court and to the affected
parties or their counsel. Id. Those documents are:
(1) a complaint; (2) a motion for a temporary restraining
order; (3) a brief on all relevant legal issues presented by
the motion; (4) an affidavit in support of the existence of
an irreparable injury; (5) an affidavit detailing the notice
or efforts to effect notice to the affected parties or
counsel or showing good cause why notice should not be given;
(6) a proposed temporary restraining order with a provision
for a bond; (7) a proposed order with blanks for fixing the
time and date for hearing a motion for preliminary
injunction, the date for the filing of responsive papers, the
amount of the bond, if any, and the date and hour of
issuance; and (8) where the temporary restraining order is
requested ex parte, the proposed order shall further notify
the affected party of the right to apply to the Court for
modification or dissolution on two (2) days' notice or
such shorter notice as the Court may allow. Id.
present case, Plaintiff has failed to meet the requirements
of Rule 231. First, although Plaintiff indicates that she
provided notice of the temporary restraining order to
Defendant, she has not filed the required affidavit
establishing as much. Additionally, though Plaintiff also
indicates in her papers that she will suffer irreparable harm
absent the requested relief, she has not filed this required
affidavit either. Lastly, it appears to the Court that
Plaintiff has delayed in bringing this action, cutting
against any imminency argument. The most recent three-day
notice to pay or quit was served on Plaintiff in February
2017, and the unlawful detainer that appears to have sparked
Plaintiff's present suit was filed in Sacramento County
Superior Court on March 10, 2017. The Court is therefore not
convinced that Plaintiff is justified in now-more than a
month and a half later-seeking emergency relief.
Plaintiff's argument that she was unaware that the
unlawful detainer was proceeding forward is not convincing.
For these reasons alone, Plaintiff's request may be
the merits of Plaintiff's motion, the purpose of a
temporary restraining order is to preserve the status quo
pending the complete briefing and thorough consideration
contemplated by full proceedings pursuant to a preliminary
injunction. See Granny Goose Foods, Inc. v.
Teamsters, 415 U.S. 423, 438-39 (1974) (temporary
restraining orders “should be restricted to serving
their underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to
hold a hearing, and no longer”); see also Reno Air
Racing Ass'n., Inc. v. McCord, 452 F.3d 1126, 1131
(9th Cir. 2006); Dunn v. Cate, No. CIV 08-873-NVW,
2010 WL 1558562, at *1 (E.D. Cal. April 19, 2010).
of a temporary restraining order, as a form of preliminary
injunctive relief, is an extraordinary remedy, and Plaintiff
has the burden of proving the propriety of such a remedy.
See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
In general, the showing required for a temporary restraining
order and a preliminary injunction are the same.
Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush
& Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
party requesting preliminary injunctive relief must show that
“he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Winter v. Natural Resources Defense
Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting
Winter). The propriety of a temporary restraining
order hinges on a significant threat of irreparable injury
that must be imminent in nature. Caribbean Marine Serv.
Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
under the so-called sliding scale approach, as long as the
Plaintiff demonstrates the requisite likelihood of
irreparable harm and shows that an injunction is in the
public interest, a preliminary injunction can still issue so
long as serious questions going to the merits are raised and
the balance of hardships tips sharply in Plaintiff's
favor. Alliance for Wild Rockies v. Cottrell, 632
F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the
“serious questions” version of the sliding scale
test for preliminary injunctions remains viable after
indicated above, the Court is not convinced that Plaintiff
has met this standard. Specifically, nothing in
Plaintiff's Complaint indicates that the threat of
Plaintiff losing her home is imminent such that the extreme
remedy of a temporary restraining order is justified.
Moreover, it appears to the Court that Plaintiff has delayed
in bringing this action in the first place, which, again cuts
against any imminence finding. For these additional reasons,
Plaintiff's request may be denied.
the Court finds Plaintiff has not established a likelihood of
success on the merits of her claims, nor has she raised
serious questions going to their merits. To the contrary, the
Court is unclear as to what claims Plaintiff pursues or the
bases for those claims. As best as this Court can tell, it
appears Plaintiff alleges what may amount to affirmative
defenses to Defendant's pending unlawful detainer action,
rather than a potentially successful separate federal suit.
For this additional reason, Plaintiff's request is
the denial of Plaintiffs temporary restraining order request,
the Court going forward will construe Plaintiffs motion at
ECF No. 1 as a motion for preliminary injunction. Due to the
pendency of the unlawful detainer in state court, however,
Plaintiff is ordered to show cause in writing on or before
May 8, 2017 as to why this case should not be dismissed for
lack of jurisdiction. Any response from Defendant shall be
filed on or before May 15, 2017. If the Court desires a
hearing on this matter, such hearing will take place on May