(PS) Niravanh v. Durham ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEUANG LOTAKOON NIRAVANH, et No. 2:23-cv-00713-DAD-DMC al., 12 Plaintiffs, 13 ORDER DENYING PLAINTIFFS’ EX PARTE v. APPLICATION FOR A TEMPORARY 14 RESTRAINING ORDER ADRIANA DURHAM, et al., 15 (Doc. No. 7) Defendants. 16 17 18 Plaintiffs Leuang Lotakoon Niravanh and Somsack Niravanh, proceeding pro se, initiated 19 this civil action on April 18, 2023. (Doc. No. 1.) The matter is now before the court on the ex 20 parte application for a temporary restraining order filed by plaintiffs on April 20, 2023. (Doc. 21 No. 7.) For the reasons explained below, plaintiffs’ ex parte application will be denied. 22 BACKGROUND 23 According to the allegations in the complaint, plaintiffs filed this lawsuit alleging that 24 their property located at 7906 Churn Creek Road, Redding, California (the “property”) was 25 wrongly foreclosed upon. (Doc. No. 1 at 1.) Plaintiffs allege, among other things, that the 26 foreclosure of the property is void because it was initiated by “an agent without standing” and 27 because the notice of default letter was not properly signed by “the Trustee.” (Id. at 1, 4–5.) The 28 remaining allegations in the complaint are largely quotes of various legal authorities that appear 1 mixed together with some factual allegations that are predominately cast as legal conclusions. 2 (See id. at 2–13.) However, there is a general dearth of factual allegations explaining the nature 3 of the underlying dispute except that a foreclosure on the subject property appears to have 4 occurred. 5 Plaintiffs also attached two exhibits to their complaint that are each a collection of 6 documents related to the foreclosure of the property including a notice of default and election to 7 sell dated April 26, 2019, a corporate assignment of deed of trust dated December 16, 2019, a 8 notice of trustee’s sale dated January 10, 2023, and a deed of trust dated May 19, 2006, among 9 other related correspondence and documents.1 (Id. at 14–44.) According to the notice of trustee 10 sale, it appears that the property was to be sold at a public auction on February 6, 2023 at 11:00 11 a.m. by one of the named defendants in this action, The Mortgage Law Firm, PLC, the duly 12 appointed trustee of the deed of trust for the property. (Id. at 23.) Both notices are signed by 13 another named defendant in this action, Adriana Durham of The Mortgage Law Firm, PLC. (Id. 14 at 17, 23.) However, there are no allegations in plaintiffs’ complaint that the property at issue 15 was in fact sold on February 6, 2023 or at any other time. Defendant PHH Mortgage Corporation 16 appears to have been the mortgage servicer for the property in 2019 while defendant California 17 Reconveyance Company is listed as the “Trustee” on the original deed of trust issued in 2006. 18 (Id. at 17, 26.) However, aside from these scant references to the named defendants that the court 19 has drawn from the attachments to the complaint, plaintiffs do not clearly articulate each 20 defendant’s particular role in the underlying (yet unexplained) dispute. 21 In their complaint, plaintiffs appear to assert eight claims: (1) violation of the Fair Debt 22 Collection Practices Act; (2) violation of the Truth in Lending Act; (3) breach of contract; (4) 23 violation of federal trust and lien laws; (5) wrongful foreclosure; (6) slander of title; (7) slander of 24 credit; and (8) intentional infliction of emotional distress. (Id. at 13.) On April 20, 2023, 25 1 The documents attached to the complaint concerning the property all state that the borrowers 26 for the mortgage are plaintiff Leuang Lotakoon Niravanh and non-party Sommak Niravanh— 27 plaintiff Somsack Niravanh is not a signatory or borrower to any of the mortgage documents. (Doc. No. 1 at 14–44.) In the pending application, plaintiff Somsack Niravanh states in a signed 28 declaration that he is “the heir to the Estate of Sommak Niravanh.” (Doc. No. 7 at 14.) 1 plaintiffs filed the pending ex parte application for a temporary restraining order “to force the 2 Banks attorneys, the realtors, and/or the Property Management Companies to cease and decease 3 [sic] all foreclosure and eviction efforts until the title dispute pending in this court can be 4 settled.”2 (Doc. No. 7 at 1.) 5 LEGAL STANDARD 6 The standard for issuing a temporary restraining order is “substantially identical” to the 7 standard for issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & 8 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “The proper legal standard for preliminary injunctive 9 relief requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to 10 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 11 favor, and that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 12 1127 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see 13 also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, 14 ‘plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a 15 preliminary injunction.”). The Ninth Circuit has also held that “[a] preliminary injunction is 16 appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were 17 raised and the balance of hardships tips sharply in the plaintiff’s favor.” All. for Wild Rockies v. 18 Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 19 981, 97 (9th Cir. 2008) (en banc)).3 The party seeking the injunction bears the burden of proving 20 these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009). Finally, an 21 injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the 22 plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 23 2 It is unclear if the “title dispute” that plaintiffs refer to in their pending application is the subject 24 of this civil action or some other action filed by plaintiffs. 25 3 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale approach survives “when applied as part of the four-element Winter test.” All. for Wild Rockies, 26 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of hardships that 27 tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 28 public interest.” Id. at 1135. 1 A temporary restraining order may be issued without notice to the adverse party or its 2 attorney only if 3 (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will 4 result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any 5 efforts made to give notice and the reasons why it should not be required. 6 7 Fed. R. Civ. P. 65(b)(1); see also Local Rule 231(a) (“Except in the most extraordinary of 8 circumstances, no temporary restraining order shall be granted in the absence of actual notice to 9 the affected party and/or counsel, by telephone or other means, or a sufficient showing of efforts 10 made to provide notice.”) (emphasis added). As the Supreme Court has noted, an ex parte 11 temporary restraining order is justified in very limited circumstances: 12 The stringent restrictions imposed . . . by Rule 65 on the availability of ex parte temporary restraining orders reflect the fact that our 13 entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been 14 granted both sides of a dispute. Ex parte temporary restraining orders are no doubt necessary in certain circumstances, but under 15 federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable 16 harm just so long as is necessary to hold a hearing, and no longer. 17 Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438–39 (1974) (internal citation omitted). 18 ANALYSIS 19 Here, plaintiffs have failed to meet their burden under Federal Rule of Civil Procedure 20 65(b)(1) and therefore have not established that they are entitled to the extraordinary relief 21 requested. In a joint declaration signed by both plaintiffs and dated April 20, 2023, plaintiff 22 Somsack Niravanh declares that he “telephoned defendant [The Mortgage Law Firm] at her [sic] 23 place of business to inform them of this application, but could not personally contact them.” 24 (Doc. No. 7 at 15.) Plaintiff Somsack Niravanh also states in the declaration that he “left a 25 message with their answering service” and has not received a call from them. (Id.) Plaintiff 26 Somsack Niravanh further declares that he has “attempted to locate the defendant’s residence and 27 present whereabouts without success”—without any reference to which of the four defendants he 28 is referring to—and that he has “no knowledge of any attorney who may presently represent the 1 defendants, and ha[s] attempted to learn this without success.” (Id.) Plaintiffs, however, have not 2 indicated whether they have properly served their complaint on any defendant, and this court is 3 unable to conclude whether any defendant is aware of this lawsuit at all. See Reno Air Racing 4 Ass’n., Inc. v. McCord, 452 F.3d 1126, 1130–32 (9th Cir. 2006) (“[C]ourts have recognized very 5 few circumstances justifying the issuance of an ex parte TRO.”); Silas v. Select Portfolio 6 Servicing, Inc., No. 1:17-cv-00012-DAD-JLT, 2017 WL 117889, at *2 (E.D. Cal. Jan. 11, 2017) 7 (denying an ex parte application to halt a public sale of property scheduled the following day 8 because the plaintiff did not meet his burden under Rule 65(b)(1) by merely informing defendant 9 of his intent to file an ex parte application and faxing a copy of it to defendant’s ombudsman). 10 In addition, plaintiffs have not clearly shown in their joint declaration that an immediate 11 and irreparable injury will result before defendants can be heard in opposition to the pending 12 application. Fed. R. Civ. P. 65(b)(1). Although plaintiffs vaguely mention “eviction efforts” in 13 the pending application, plaintiffs do not identify any specific imminent and irreparable harm in 14 the declaration attached to the pending application. Plaintiff Somsack Niravanh only stated in his 15 declaration that “on February 6, 2023 [he] was informed of defendant’s imminent conduct as set 16 forth in the complaint” (Doc. No. 7 at 15), but there is no explanation regarding what “imminent 17 conduct” was expected to occur or when. Moreover, the pending application was not filed until 18 over 10 weeks after plaintiff Somsack Niravanh was, by plaintiffs’ own admission, notified of the 19 “imminent conduct” and plaintiffs have not explained the reason for this 10-week delay. That 20 unexplained delay in seeking immediate injunctive relief also militates against a finding of 21 irreparable harm and against the issuance of a temporary restraining order. Moreover, plaintiffs 22 have not presented any evidence to this court that denial of an ex parte temporary restraining 23 order would result in irreparable injury to them for which legal remedies, such as monetary 24 damages, are inadequate. In fact, plaintiffs’ pending application states that they are seeking $4.5 25 million in damages. (Doc. No. 7 at 2.) Thus, plaintiffs have failed to satisfy their burden under 26 Rule 65(b)(1). 27 Even if the court were to accept that reasonable attempts have been made to provide 28 defendants notice of this case and the pending request for injunctive relief, or that there is 1 evidence that an imminent and irreparable injury will occur to plaintiffs, plaintiffs have still failed 2 to show that the relief they seek is appropriate at this time. The bulk of plaintiffs’ complaint and 3 application are devoted merely to recitations of various legal authorities and conclusory factual 4 contentions that do not clearly describe the dispute or the specific conduct by defendants that 5 plaintiffs contend is unlawful. (See generally Doc. Nos. 1, 7.) As best the court can tell, one of 6 plaintiffs’ main arguments appears to be that the trustee who foreclosed on the property— 7 defendants The Mortgage Law Firm and Adriana Durham—did not have authority to do so. 8 (Doc. No. 7 at 1–2.) However, that argument is contradicted by the documents attached to the 9 complaint, such as the notice of default and election to sell date April 24, 2019 and the notice of 10 trustee sale dated January 10, 2023, indicating that defendant The Mortgage Law Firm was the 11 property’s trustee when the foreclosure occurred. (Doc. No. 1 at 17, 23.) Moreover, although 12 plaintiffs purport to assert that the property was wrongly foreclosed upon, plaintiffs have not 13 alleged in their complaint that the property has in fact been sold yet, which is a necessary 14 predicate to bringing a wrongful foreclosure claim. See Zinnel v. CitiMortgage, Inc., No. 2:10- 15 cv-02406-GEB-DAD, 2010 WL 3715079, at *3 (E.D. Cal. Sept. 16, 2010) (“Wrongful 16 foreclosure is an action in equity, where a plaintiff seeks to set aside a foreclosure sale that has 17 already occurred. Because plaintiff’s house has not yet been sold, a claim for wrongful 18 foreclosure is not yet ripe.”) (citation omitted). At bottom, plaintiffs cannot satisfy their burden 19 under Winter because they have not clearly articulated the factual bases for their claims or offered 20 evidence in support, let alone argued why they are likely to succeed on the merits of those claims. 21 See Tavake v. Chase Bank, No. 1:12-cv-0041 KJM-GGH, 2012 WL 117146, at *2 (E.D. Cal. Jan. 22 13, 2012) (denying a pro se plaintiff’s motion for a temporary restraining order after reviewing 23 plaintiff’s complaint and motion together and concluding that plaintiff “presented no evidence 24 that she is likely to succeed on the merits or that there are serious questions going to the merits”). 25 Thus, the court concludes that plaintiffs have not shown in their ex parte application that they are 26 likely to succeed on the merits of their various claims. 27 ///// 28 ///// 1 CONCLUSION 2 For the reasons explained above, plaintiffs’ ex parte application for a temporary 3 | restraining order (Doc. No. 7) is denied. 4 IT IS SO ORDERED. > | Dated: _ April 21, 2023 Dab A. 2, el 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28