United States District Court, N.D. California
ORDER GRANTING APPLICATION FOR TEMPORARY RESTRAINING
ORDER RE: DKT. NO. 28
ILLSTON UNITED STATES DISTRICT JUDGE.
September 13, 2019, plaintiff Bernardo Alcaraz, who is
representing himself pro se, filed an ex parte application
for a temporary restraining order (“TRO”) and
order to show cause. Dkt. No. 28 (“TRO App.”). At
a case management conference held that same day, the Court
ordered plaintiff to serve and notify the opposing side and
set a hearing for the TRO for October 11, 2019. Dkt. No. 33.
On September 16, 2019, defendant Altezza Condo LLC
(“Altezza”) filed an opposition. Dkt. Nos. 30
(“Def.'s Opp'n”), 31, 32. Alcaraz filed a
reply brief and proposed order on October 9, 2019. Dkt. Nos.
Court held a hearing on October 11, 2019, at which Alcaraz
and Altezza appeared. For the reasons stated below, the Court
GRANTS plaintiff's application for a TRO.
lawsuit arises from Alcaraz's assertion that, on account
of his race, color, and/or national origin, defendants have
refused to sell him the residence that he occupies. Alcaraz
alleges that defendant KMF Oakland LLC (“KMF”)
owned the 33-unit residential complex in Oakland where he and
his family have resided since August 2010. He states that in
mid-2015 tensions arose between himself and a new property
manager on account of Alcaraz's being a Mexican citizen
and that his rent checks began to be refused. Dkt. No. 23
(“SAC”) ¶¶ 38-48. In March 2016, KMF
initiated unlawful detainer proceedings against Alcaraz in
state court. Id. ¶ 49. While those proceedings
were pending, in June 2016, KMF sold the building where
Alcaraz resides to defendant Altezza. Id. ¶ 50.
Plaintiff states that he made his July 2016 rent payment to
the company designated by Altezza. Id. ¶¶
53-55. On August 1, 2016, in the unlawful detainer action,
KMF secured a judgment of possession of the unit where
Alcaraz resides. Id. ¶ 62.
alleges that in late 2016, the units in the building where he
resides began to be sold as condominiums but that “not
one unit of the 33 units was sold to a buyer of Hispanic
and/or Mexican origin.” Id. ¶ 70. Alcaraz
further states that in August and September 2016 he had
communications with a firm representing Altezza in which they
offered Alcaraz the opportunity to buy his unit at the sales
price of $630, 000 and that Alcaraz accepted. Id.
¶¶ 76-78. The sale did not take place, and
ultimately Alcaraz sued Altezza in state court for breach of
contract and promissory estoppel in January 2018.
Id. ¶ 83. In March 2019, Altezza prevailed in
that suit on a motion for summary judgment. Id.
¶ 85; Def.'s Opp'n at 3, Ex. G. Alcaraz is
appealing the dismissal of his case, arguing that Altezza did
not serve him with proper notice of the motion. TRO App. at
11, 2018, Alcaraz filed the present lawsuit in this Court
against defendant KMF, asserting violations of the federal
Fair Housing Act and the Fourteenth Amendment right to Due
Process. Dkt. No. 1. Among the relief requested, Alcaraz
requested that the Court enter “an order of permanent
injunction enjoining KMF . . . from continuing to seek to
employ the Alameda County Sheriff's Office through the
use of its various individual Deputy Sheriffs from dislodging
Plaintiff from the Premises” where Alcaraz resides.
Id. at 12. At a case management conference in
November 2018, Alcaraz informed the Court that KMF “is
a cancelled foreign limited liability company” and thus
he served them with the summons and complaint through the
California Secretary of State. Dkt. No. 6 at 1. KMF has not
made an appearance in this case.
November 21, 2018, Alcaraz filed a first amended complaint,
adding claims against KMF for intentional interference with
prospective economic relations, negligence, and injunctive
relief. Dkt. No. 9. On July 22, 2019, with the Court's
permission, Alcaraz filed a second amended complaint, adding
Altezza as a defendant, and removing the claims for
intentional interference with prospective economic relations
and negligence. Dkt. No. 23. The remaining claims are for
violation of the federal Fair Housing Act, violation of the
Fourteenth Amendment right to Due Process, and injunctive
relief. Altezza filed an answer to the second amended
complaint on October 4, 2019. Dkt. No. 35.
September 13, 2019, Alcaraz filed the application for a
temporary restraining order and for an order to show cause
that is now before the Court for decision. Dkt. No. 28.
Temporary Restraining Order
relief [is] an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such
relief.” Winter v. Nat. Res. Def. Council, 555
U.S. 7, 22 (2008). In order to obtain a temporary restraining
order or a preliminary injunction, the plaintiff “must
establish 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, 555 U.S. at 20 (citations
omitted); see also Jones v. H.S.B.C. (USA), 844
F.Supp.2d 1099, 1099 (S.D. Cal. 2012) (standard for granting
a temporary restraining order is similar to standard for
granting a preliminary injunction). “Alternatively, the
plaintiff may demonstrate that the likelihood of success is
such that ‘serious questions going to the merits were
raised and that the balance of hardships tips sharply in the
plaintiff's favor,' so long as the other two elements
of the Winter test are met.” Fid.
Brokerage Servs. LLC v. Rocine, No. 17-CV-4993-PJH, 2017
WL 3917216, at *3 (N.D. Cal. Sept. 7, 2017) (quoting All.
for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131-32, 1135 (9th Cir. 2011)).
Federal Fair Housing Act
certain limited exceptions, the federal Fair Housing Act
makes it unlawful--
(a) To refuse to sell or rent after the
making of a bona fide offer, or to refuse to negotiate for
the sale or rental of, or otherwise make unavailable or deny,
a dwelling to any person because of race, color, ...