Lotze v. Total Lender Solutions, Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MATTHEW LOTZE, an individual; Case No.: 21-CV-598 JLS (WVG) LAURA OHMAN, an individual; and 12 THE FLASH, LLC, a Nevada limited ORDER DENYING EX PARTE 13 liability company, APPLICATION FOR TEMPORARY RESTRAINING ORDER 14 Plaintiffs, 15 v. (ECF No. 2) 16 TOTAL LENDER SOLUTIONS, INC., et al. 17 Defendants. 18 19 20 Presently before the Court is Plaintiffs Matthew Lotze, Laura Ohman, and The Flash 21 LLC’s Ex Parte Application for Temporary Restraining Order (“Appl.,” ECF No. 2). 22 Plaintiffs seeks to restrain Defendants from “scheduling, holding a trustee’s sale in any 23 manner, or foreclosing upon” Plaintiffs’ property located at 3730 Topaz Street, Las Vegas, 24 Nevada, 89121. Appl. at 15. The trustee’s sale is scheduled for April 8, 2021 at 10 a.m. 25 Id. For the reasons set forth below, the Court DENIES Plaintiffs’ Application. 26 LEGAL STANDARD 27 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 28 restraining order (“TRO”). The standard for a temporary restraining order is identical to 1 the standard for a preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry 2 Healthcare Worker’s Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). A plaintiff 3 seeking preliminary relief must establish “[1] that he is likely to succeed on the merits, [2] 4 that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the 5 balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 6 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The elements of this test are 7 “balanced, so that a stronger showing of one element may offset a weaker showing of 8 another.” All. for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049–50 (9th Cir. 2010), rev’d 9 on other grounds, 632 F.3d 1127 (9th Cir. 2011). Generally, a temporary restraining order 10 is considered to be “an extraordinary remedy that may only be awarded upon a clear 11 showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 12 When a plaintiff has not provided notice of her application to the defendant, Federal 13 Rule of Civil Procedure 65(b)(1) imposes specific requirements prior to the issuance of a 14 temporary restraining order. 15 The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: 16 (A) specific facts in an affidavit or a verified complaint clearly 17 show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in 18 opposition; and (B) the movant’s attorney certifies in writing any 19 efforts made to give notice and the reasons why it should not be required. 20 21 22 Fed. R. Civ. P. 65(b)(1). “The stringent restrictions imposed . . . by Rule 65[ ] on the 23 availability of ex parte temporary restraining orders reflect the fact that our entire 24 jurisprudence runs counter to the notion of court action taken before reasonable notice and 25 an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, 26 Inc. v. Bhd. of Teamsters, 415 U.S. 423, 438–39 (1974) (footnote omitted). 27 Accordingly, “courts have recognized very few circumstances justifying the 28 issuance of an ex parte TRO.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 1 (9th Cir. 2006). “For example, an ex parte TRO may be appropriate ‘where notice to the 2 adverse party is impossible either because the identity of the adverse party is unknown or 3 because a known party cannot be located in time for a hearing.’” Id. (quoting Am. Can Co. 4 v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984)). Alternatively, “[i]n cases where notice 5 could have been given to the adverse party, courts have recognized a very narrow band of 6 cases in which ex parte orders are proper because notice to the defendant would render 7 fruitless the further prosecution of the action.’” Id. (quoting Am. Can Co., 742 F.3d at 8 322). 9 ANALYSIS 10 Here, Plaintiffs have met the first requirement for a temporary restraining order 11 without notice by averring immediate and irreparable loss. Plaintiff Matthew Lotze has 12 certified in an affidavit that “Defendants are . . . causing our Home to be foreclosed upon” 13 and “[w]e (Plaintiffs) will suffer irreparable damage, exceeding $1,000,000.00,” without a 14 temporary restraining order. Declaration of Matthew Lotze (“Lotze Decl.”) ¶¶ 5, 10, ECF 15 No. 2-1; see Alcaraz v. Wachovia Mortg. FSB, 592 F. Supp. 2d 1296, 1301 (E.D. Cal. 2009) 16 (“Losing one’s home through foreclosure is an irreparable injury.” (quoting Wrobel v. S.L. 17 Pope & Asscos., 2007 WL 2345036, at * 1 (S.D. Cal. Aug. 15, 2007))). The trustee’s sale 18 is scheduled for April 8, 2021 at 10 a.m., less than two days after Plaintiffs filed their 19 Complaint and Application. Lotze Decl. ¶ 9; see Fed. R. Civ. P. 65(b)(1)(A). 20 However, Plaintiffs have failed to meet the second requirement of Rule 65(b)(1). 21 Although Plaintiffs’ counsel has certified in writing that “[t]here is not ample time for me 22 to have this matter heard in regular course,” Declaration of James L. Clayton, Jr. (“Clayton 23 Decl.”) ¶ 8, ECF No. 2-2, neither Plaintiffs nor Plaintiffs’ counsel has certified in writing 24 any efforts to give notice to Defendants. Plaintiffs also have not demonstrated that notice is 25 impossible or would render further prosecution of the action fruitless, as is required for an 26 ex parte TRO. Reno Air Racing, 452 F.3d at 1131. 27 Because Plaintiffs have not met the second requirement for a TRO without notice, 28 Plaintiffs’ Application is DENIED. 1 CONCLUSION 2 For the reasons stated, Plaintiffs’ ex parte application for a temporary restraining 3 || order is DENIED. 4 IT IS SO ORDERED. 5 ||Dated: April 7, 2021 . tt f Le 6 on. Janis L. Sammartino 4 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28