United States District Court, C.D. California
AWI Builders, Inc.
thyssenkrupp Elevator Corporation, et al.
Present: The Honorable Philip S. Gutierrez, United States
CIVIL MINUTES - GENERAL
(In Chambers): The Court DENIES Plaintiff's ex parte
the Court is an ex parte application for a permanent
injunction filed by Plaintiff AWI Builders, Inc.
(“Plaintiff”). See Dkt. # 8
(“App.”). Defendant thyssenkrupp
Elevator Corporation (“Defendant”) opposes the
application. See Dkt. # 11
(“Opp.”). The Court finds the matter
appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; L.R. 7-15. Having considered the moving
and opposing papers, the Court DENIES
Plaintiff's ex parte application.
15, 2019, Plaintiff filed a complaint in Los Angeles Superior
Court against Defendant for breach of contract and
enforcement of license bond. Complaint, Dkt. # 1-5
(“Compl.”). Plaintiff, a contractor,
alleges that Defendant failed to comply with the subcontract
that the parties entered for Defendant's elevator
installation and related work at the Huntington Orthopedics
Institute, LLC at 39 Congress Street in Pasadena.
Id. ¶¶ 6-11.
August 29, 2019, Plaintiff filed an ex parte application for
a permanent injunction ordering Defendant to release and
render operational elevator number 4 at the Huntington
Specialty Surgery construction project. App.
1:27-2:3. Plaintiff states that Defendant “locked down
elevator number 4, which it refuses to release unless all of
its payment demands are met in full, ” and that
Defendant's decision “creates a significant threat
to the health and safety of patients under anesthesia.”
Id. 3:3-12; Dkt # 8-1, Ex. D. Plaintiff states that
“TKE locked the elevator after the elevator inspector
allowed the operation of the surgery center based on having
an appropriate number of operational elevators, ” and
that Defendant refused to unlock the elevator after several
emails and phone calls between the parties over the course of
two weeks. App. 3:20-25.
on ex parte applications is well settled in this Circuit. In
order to justify ex parte relief, the moving party must
establish (1) that its cause will be irreparably prejudiced
if the underlying motion is heard according to regular
noticed procedures; and (2) that it is without fault in
creating the crisis that requires ex parte relief, or that
the crisis occurred as a result of excusable neglect. See
Mission Power Eng'g Co. v. Continental Cas. Co., 883
F.Supp. 488, 492 (C.D. Cal. 1995). As the Court's
standing order indicates, ex parte requests will only be
entertained by the Court for extraordinary situations and
should be used with discretion. See Standing Order
requests a permanent injunction. As permanent injunctions are
issued at the conclusion of a case after an adjudication on
the merits and not before, the Court finds it inappropriate
to consider it at this stage. See Amoco Prod. Co. v.
Village of Gambell, 480 U.S. 531, 546 n.12 (1987).
the Court construes Plaintiff's request as one for a
preliminary injunction or a temporary restraining order. An
application for a temporary restraining order must satisfy
the same legal standard governing the issuance of a
preliminary injunction. See Cal. Indep. Sys. Operator
Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d
1111, 1126 (E.D. Cal. 2001). Plaintiff must demonstrate (1) a
likelihood of success on the merits, (2) a likelihood of
irreparable injury to the plaintiff if injunctive relief is
not granted, (3) a balance of hardships favoring the
plaintiff, and (4) an advancement of the public interest.
See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20
the ex parte application in no way attempts to establish that
Plaintiff will succeed on the merits of the case. Further,
while Plaintiff has alleged that the health of patients is
endangered by the inaccessibility of elevator number 4,
Plaintiff has not explained why the other three elevators do
not sufficiently service the floors in question, such that
there is an immediate threat of irreparable harm without
injunctive relief. See Opp. 5:10-18, 9:9-10:7;
Winter, 555 U.S. at 22-23 (holding that a mere
“possibility” of irreparable harm is not
sufficient to justify the issuance of a preliminary
injunction, instead a “clear showing” that
plaintiff is entitled to such relief is required). Plaintiff
has also failed to address Defendant's argument that
Plaintiff is not the real party in interest. See
foregoing reasons, Plaintiff's ex parte ...