The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 BIJAN EFTEKARI, Case No.: 24-CV-2274 JLS (KSC)
12 Plaintiff,
ORDER:
13 v.
(1) DENYING WITHOUT
14 SELECT PORTFOLIO SERVICING,
PREJUDICE PLAINTIFF’S EX
INC., et al.,
15 PARTE EMERGENCY MOTION
Defendants. FOR TRO, AND
16
17 (2) ORDERING PLAINTIFF BIJAN
EFTEKARI TO SHOW CAUSE AS
18
TO SUBJECT MATTER
19 JURISDICTION
20
(ECF No. 3)
21
22 Presently before the Court is Plaintiff Bijan Eftekari’s Ex Parte Emergency Motion
23 for TRO to Enjoin January 13, 2025 Trustee Sale (“TRO Mot.,” ECF No. 3). Having
24 carefully considered Plaintiff’s filing and the applicable law, the Court DENIES
25 WITHOUT PREJUDICE Plaintiff’s TRO Motion.
26 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary
27 restraining order (“TRO”). The standard for a TRO is identical to the standard for a
28 preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry Healthcare Worker’s
1 Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). A plaintiff seeking preliminary
2 relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to
3 suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities
4 tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res.
5 Def. Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief is “an extraordinary remedy
6 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief”
7 and is “never awarded as a matter of right.” Id. at 22, 24. “Because it is a threshold inquiry,
8 when a plaintiff has failed to show the likelihood of success on the merits, [the court] need
9 not consider the remaining three [Winter elements].” Garcia v. Google, Inc., 786 F.3d 733,
10 740 (9th Cir. 2015) (en banc) (internal quotation marks omitted) (citing Ass’n des Eleveurs
11 de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013)).
12 When a plaintiff has not provided notice of his application to the defendant, Federal
13 Rule of Civil Procedure 65(b)(1) imposes specific requirements prior to the issuance of a
14 TRO. Namely:
15 The court may issue a temporary restraining order without
16 written or oral notice to the adverse party or its attorney only if:
17 (A) specific facts in an affidavit or a verified complaint clearly
18 show that immediate and irreparable injury, loss, or damage will
19 result to the movant before the adverse party can be heard in
20 opposition; and (B) the movant’s attorney certifies in writing any
21 efforts made to give notice and the reasons why it should not be
22 required.
23 Fed. R. Civ. P. 65(b)(1). “The stringent restrictions imposed . . . by Rule 65[] on the
24 availability of ex parte temporary restraining orders reflect the fact that our entire
25 jurisprudence runs counter to the notion of court action taken before reasonable notice and
26 an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods,
27 Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 438–39 (1974) (footnote omitted).
28 Accordingly, “courts have recognized very few circumstances justifying the
1 issuance of an ex parte TRO.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131
2 (9th Cir. 2006). “For example, an ex parte TRO may be appropriate ‘where notice to the
3 adverse party is impossible either because the identity of the adverse party is unknown or
4 because a known party cannot be located in time for a hearing.’” Id. (quoting Am. Can Co.
5 v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984)). Alternatively, “[i]n cases where notice
6 could have been given to the adverse party, courts have recognized a very narrow band of
7 cases in which ex parte orders are proper because notice to the defendant would render
8 fruitless the further prosecution of the action.’” Id. (quoting Am. Can Co., 742 F.3d at 322).
9 The Court finds several defects in Plaintiff’s TRO Motion. As a threshold matter, it
10 is not entirely clear that the Court has jurisdiction to hear this case. Plaintiff first contends
11 in his Complaint that this Court has subject matter jurisdiction over his claims because the
12 subject property is located in the County of San Diego and because Section 10 of Article
13 VI of the California Constitution grants this Court original jurisdiction. ECF No. 1
14 (“Compl.”) ¶¶ 7, 8. He then pivots in his Motion by arguing that the Court has diversity
15 jurisdiction over his claims under 28 U.S.C. § 1332.1 Mot. at 2.
16 None of Plaintiff’s arguments are persuasive. First, the California Constitution is
17 the wrong place to look for this Court’s sources of jurisdiction. Rather, Article III, § 2, of
18 the United States Constitution “delineates the absolute limits on the federal courts’
19 jurisdiction.” Ankenbrandt v. Richards, 504 U.S. 689, 695 (1992). The only potential
20 source of jurisdiction Plaintiff cites that is provided for by “the Laws of the United States,”
21 U.S. CONST. art. III, § 2, is diversity jurisdiction as defined by 28 U.S.C. § 1332. Even
22 there, however, jurisdiction is uncertain.
23 “Jurisdiction founded on 28 U.S.C. § 1332 requires that the parties be in complete
24 diversity and the amount in controversy exceed $75,000.” Matheson v. Progressive
25
26
1 Plaintiff alleges only state-based causes of action in his Complaint: (1) violation of California
27
Homeowner Bill of Rights, (2) unfair competition, (3) breach of covenant of good faith and fair dealing,
28 and (4) negligence. See generally Compl. Federal question jurisdiction under 28 U.S.C. § 1331, therefore,
1 Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). For the parties to be in complete
2 diversity, “each defendant must be a citizen of a different state from each plaintiff.” In re
3 Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008). “[A] corporation
4 is typically a citizen of two states for determining the existence of diversity jurisdiction:
5 the state of incorporation and the state in which it has its principal place of business.”
6 Breitman v. May Co. Cal., 37 F.3d 562, 564 (9th Cir. 1994) (citing 28 U.S.C. § 1332(c)).
7 Here, Plaintiff alleges he resides in San Diego County, making him a resident of the
8 state of California. Compl. ¶ 1. Plaintiff fails to allege the state of citizenship for
9 Defendant Clear Recon Corp. (“CRC”), see id. ¶ 5, but the Court ascertains from public
10 records maintained by the California Secretary of State that CRC was incorporated in
11 California, thereby making it, like Plaintiff, a resident of California.2 California Secretary
12 of State, Clear Recon Corp (3521772), Business Search,
13 https://bizfileonline.sos.ca.gov/search/business (last visited January 13, 2025). Thus,
14 Plaintiff’s only possible source of jurisdiction fails, and he has not met his burden of
15 pleading the requirements of any of the “numerous theories” upon which he claims this
16 Court has federal subject matter jurisdiction. The Court is, therefore, unable to proceed
17 assured of its jurisdiction. See Flint v. Krause, No. 11cv0480 AJB (WMC),
18 2011 WL 4626149, at *2 (S.D. Cal. Oct. 5, 2011).
19 The Court is aware of the concept of a nominal party and “acknowledges that the
20 trustee on a deed of trust is often a nominal party,” thereby removing the trustee from the
21 Court’s jurisdictional analysis. Silva v. Wells Fargo Bank NA, 2011 WL 2437514, at *5
22 (C.D. Cal. June 16, 2011) (first citing Reynoso v. Paul Fin., LLC, No. 09-3225,
23 2009 WL 3833494, at *1 (N.D. Cal. Nov. 16, 2009); then citing Hafiz v. Greenpoint
24 Mortg. Funding, Inc., 652 F. Supp. 2d 1050, 1052 (N.D. Cal. 2009); and then citing
25 Lawrence v. Aurora Loan Servs. LLC, No. 09-1598, 2010 WL 449734, at *4 (E.D. Cal.
26
27 2 The Court may take judicial notice of records from the California Secretary of State’s website pursuant
28 to Federal Rule of Evidence 201. See, e.g., GCIU-Emp. Ret. Fund v. Shelton-TurnbuII Printers, Inc.,
1 Feb. 8, 2010)). However, “an exception is made where the complaint contains substantive
2 allegations against the trustee or seeks to recover money damages from the trustee.” Osorio
3 v. Wells Fargo Bank, No. C 12-02645 RS, 2012 WL 2054997, at *2 (N.D. Cal. June 5,
4 2012) (citing Latino v. Wells Fargo Bank, No. 2:11-cv-02037-MCE-DAD,
5 2011 WL 4928880, at *3 (E.D. Cal. Oct. 17, 2011)).
6 Plaintiff has made no attempt to argue that CRC is a nominal party, and it appears
7 unlikely for that to be the case with the Complaint as currently pled. Plaintiff has asserted
8 all four causes of action in his Complaint against all named Defendants and seeks
9 “disgorgement of Defendants’ illegal profits and gain . . . .” See generally Compl. Plaintiff
10 alleges each of the Defendants “failed to abide by their own guidelines in qualifying or
11 reviewing Plaintiff for a loan modification in violation of Civil Code § 2923.6” and “failed
12 to provide the required statutory notifications and undertake the required courses of action
13 as mandated under California Civil Code.” Compl. at 19–20. Where the complaint
14 includes substantive allegations against and seeks damages from the trustee, courts
15 consistently find that the trustee’s “citizenship must be considered in ascertaining whether
16 diversity jurisdiction exists.” Jenkins v. Bank of Am., N.A.,
17 No. CV 14-04545 MMM (JCx), 2015 WL 331114, at *11 (C.D. Cal. Jan. 26, 2015)
18 (collecting cases). Accordingly, CRC’s presence as a named Defendant in this action
19 destroys diversity jurisdiction.
20 Where a “court lacks subject matter jurisdiction over [an] action, it necessarily is
21 powerless to grant [a] TRO,” so the Court must defer ruling on Plaintiff’s Motion for the
22 time being. See Diaz v. Gaura, No. 16-00036 JMS-BMK, 2016 WL 447446, at *4
23 (D. Haw. Feb. 3, 2016). Accordingly, the Court DENIES WITHOUT PREJUDICE
24 Plaintiff’s TRO Motion.
25 Just as problematic for Plaintiff is the fact that “there is absolutely no showing in the
26 TRO request that explains why Plaintiff waited until—quite literally—the eve of the
27 foreclosure sale to file” his TRO Motion. Avila v. Citi Mortg. Inc.,
28 No. 1:17-cv-1581-LJO-BAM, 2017 WL 5871473, at *1 (E.D. Cal. Nov. 29, 2017).
1 || Plaintiff filed this action on December 5, 2024, over one month ago. See Compl. At that
2 || time, Plaintiff alleged a trustee sale was to occur on December 9, 2024. Id. 9 5. Said trustee
3 || sale was apparently postponed until today, January 13, 2025, Mot. at 6, yet Plaintiff waited
4 ||to file the instant Motion until yesterday, January 12, 2025, see id. Under California Civil
5 || Code § 2924.8, notice of a trustee’s sale must be given at least twenty-one days in advance
6 || of the sale, and Plaintiff does not claim notice of today’s trustee’s sale was faulty nor does
7 || he provide any other justification for his delay in filing the instant TRO Motion. Plaintiff
8 only entitled to ex parte relief to the extent he “is without fault in creating the”
9 ||emergency, so his TRO Motion is independently denied on that ground as well. See □□□□□□
10 || v. Wash. Mut. Bank FA, 2011 WL 13218030, at *1 (C.D. Cal. Feb. 7, 2011) (citing Mission
11 || Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995)).
12 CONCLUSION
13 In light of the foregoing, the Cour. DENIES WITHOUT PREJUDICE Plaintiffs
14 || TRO Motion (ECF No. 3). Further, the Court ORDERS Plaintiff to show cause as to why
15 || federal subject matter jurisdiction exists over this matter. Plaintiff SHALL file a response
16 |/to this Order on or before January 27, 2025. Defendants MAY file a reply to Plaintiff's
17 ||response on or before February 3, 2025.
18 IT IS SO ORDERED.
19 || Dated: January 13, 2025 (een
20 on. Janis L. Sammartino
United States District Judge
21
22
23
24
25
26
27
28