Harrosh v. Tahoe Regional Planning Agency ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Michael Harrosh, No. 2:21-cv-01969-KJM-JDP 12 Plaintiff, TEMPORARY B RESTRAINING v. ORDER 14 Tahoe Regional Planning Agency; George and 15 Virginia Johannessen, 16 Defendants. 17 18 Plaintiff Michael Harrosh applies ex parte for a temporary restraining order barring any 19 | further construction of a pier off 5568 North Lake Boulevard in Placer County, California. ECF 20 | No. 34. Harrosh’s counsel has certified in writing that he gave defendants’ counsel notice of his 21 | client’s intent to seek a temporary restraining order. See Prows Decl. 3, ECF No. 34-3. 22 | Defendants’ counsel also received service of the ex parte application through the court’s CM/ECF 23 | system. 24 A temporary restraining order may be issued upon a showing “that immediate and 25 | irreparable injury, loss, or damage will result to the movant before the adverse party can be heard 26 | in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the 27 | status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no 28 | longer.” Granny Goose Foods, Inc. vy. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). A eee OS OO NE ESI IID III ED 1 | temporary restraining order is an extraordinary remedy, and a plaintiff who requests one must 2 | prove that remedy is proper. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). 3 When courts determine whether to issue a temporary restraining order, they rely on the 4 | same factors that guide the evaluation of a request for a preliminary injunction: whether the 5 | moving party “is likely to succeed on the merits,” is “likely to suffer irreparable harm in the 6 | absence of preliminary relief,” whether “the balance of equities tips in [its] favor,” and whether 7 | “an injunction is in the public interest.” Winter v. Nat. Res. Def: Council, Inc., 555 U.S. 7, 20 8 | (2008); see Stuhibarg Int’l. Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Ci. 9 | 2001) (stating that the analysis for temporary restraining orders and preliminary injunctions is 10 | “substantially identical’). 11 The court has reviewed the ex parte application, the supporting declarations, the 12 | complaint, and the parties’ briefs in support of and in opposition to the pending motion to dismiss 13 | (ECF Nos. 1, 14, 15, 23, 25, 26, 32). Harrosh has shown he is likely to succeed on the merits of 14 | his first claim. He also has shown irreparable environmental harms are likely in the absence of a 15 | temporary restraining order, and the prospect of those harms outweighs the likely harms caused 16 | by pausing the construction of a pier while the court considers whether to impose a preliminary 17 | myunction. See People of State of Cal. ex rel. Van De Kamp v. Tahoe Reg’] Plan. Agency, 18 | 766 F.2d 1319, 1324 (9th Cir.) (“[T]he Compact, which has been adopted as law by the California 19 | and Nevada legislatures and by Congress, expresses a legislative judgment that development and 20 | urbanization of the Lake Tahoe region pose a threat to the ‘irreplaceable’ environmental and 21 | ecological values of the region.”), amended on other grounds, 775 F.2d 998 (9th Cir. 1985). In 22 | addition, because the construction of a pier has an effect on the broader public interests, rather 23 | than only private interests, this court “has greater power to fashion equitable relief.” Jd. 24 Under Rule 65, “[t]he court may issue a . . . temporary restraining order only if the movant 25 | gives security in an amount the court considers proper to pay the costs and damages sustained by 26 | any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The 27 | purpose of this requirement is to safeguard a defendant if the court later determines a defendant 28 | has been wrongfully enjomed. See Moroccanoil, Inc. v. Zotos Intl., Inc., 230 F. Supp. 3d 1161, 1 1179 (C.D. Cal. 2017) (setting bond at $250,000 based on “tangible costs” defendant would incur 2 due to injunction but not costs it could later recoup or speculative lost profits). The amount of the 3 security required is within the district court’s discretion. Johnson v. Couturier, 572 F.3d 1067, 4 1086 (9th Cir. 2009). In this case, the term of the proposed temporary restraining order is short, 5 and the likely harms to defendants are relatively minor; the Johannessens may face higher fees or 6 costs if construction is delayed. A $500 bond suffices in these circumstances. 7 For these reasons, the court orders as follows: 8 (1) The Tahoe Regional Planning Agency and George and Virginia Johannessen, and 9 their agents, servants, contractors, employees, and attorneys, and those in active 10 concert or participation with them, are temporarily restrained and enjoined from 11 engaging in any further construction of a pier off 5568 North Lake Boulevard in 12 Placer County, California. 13 (2) The Tahoe Regional Planning Agency and George and Virginia Johannessen are 14 ordered to show cause in writing by November 1, 2022 why they and their 15 agents, servants, contractors, employees, and attorneys, and those in active concert 16 or participation with them, should not be preliminarily enjoined pending final 17 judgment in this action from any further construction of a pier off 5568 North 18 Lake Boulevard in Placer County, California. 19 (3) A hearing on a preliminary injunction is set at 3:00 p.m. on November 8, 2022. 20 (4) The above Temporary Restraining Order is effective on plaintiff’s filing an 21 undertaking in the sum of $500. 22 (5) Any party affected by this order has the right to apply to the court for modification 23 or dissolution on two days’ notice or such shorter notice as the court may allow. 24 IT IS SO ORDERED. 25 DATED: October 25, 2022.