Judge: Christopher K. Lui, Case: 23STCP04275, Date: 2024-11-20 Tentative Ruling

Case Number: 23STCP04275    Hearing Date: November 20, 2024    Dept: 76

MOVING PARTY:               Petitioner Robynn Samuel                                                                                                                       

RESPONDING PARTY(S): Respondent Marlin D. Samuel 

The instant ex parte application seeks the issuance of a temporary restraining order  (“TRO”) against Defendant Marlin D. Samuel, preventing Respondent from accessing a Bank of America joint business account.  

This is the second time that Petitioner has sought a TRO in this case.  On August 28, 2024, the Court issued an order denying Petitioner’s ex parte application for an order advancing the hearing date on a request for a temporary restraining order.  For the reasons stated in the August 28, 2024 ruling, the previous ex parte application was miscaptioned, and sought the actual issuance of a temporary restraining order on the date of hearing.  Since a request for the same relief was previously made and denied, the instant ex parte application does not comply with California Rule of Court 3.1550(e), which requires a moving party to state whether there has been a previous application for similar relief, and if so, the result of the application. 

Having reviewed the application and supporting documents, the Court finds this matter suitable for decision in chambers without argument.

ANALYSIS

A.    Preliminary Injunctions and Temporary Restraining Orders

            Ex parte requests for temporary restraining orders are subject to the Rules of Court governing ex parte applications generally.  In this regard, the ex parte application does not appear to comply with the declaration of notice requirement of Rule of Court 3.1204(b), because the declaration of notice indicates that Louis Francis did the following:  “called the phone number 626-677-1898 and asked to speak with Marlin Samuel.  I thereafter stated Robynn Samuel will be filing an Ex Parte Application . . . Hearing no response I ended the call.”  (Decl. of Notice (11/19/2024) at ¶ 2.)  The declaration conspicuously does not indicate that a person answered the phone, or that the statement by Louis Francis was made to an answering machine/voice mail system.  The declaration is equally consistent with simply dialing a number and speaking to a ring tone.  Even if the Court were to overlook this deficiency, the other problems with the application require denial, as discussed below.

            The ex parte application also fails to comply with the procedural requirements of Rule of Court 3.1201, in that Petitioner has not provided a proposed order setting forth the relief requested.  (Cal. R. Ct. 3.1201(5).)  This deficiency is a basis to deny the application, as the Court should not be responsible for drafting a TRO for Petitioner. 

            Rule of Court 3.1150 provides the procedure for requesting temporary restraining orders and preliminary injunctions.  A party seeking a preliminary injunction may proceed by a noticed motion or by obtaining and serving an order to show cause (OSC).  (Cal. R. Ct. 3.1150(a).)  An OSC must be used when a temporary restraining order is sought, or if the party to be enjoined has not yet made an appearance in the case.  (Id.)

            Where an OSC and TRO are sought, the OSC and TRO must be stated separately, with the OSC stated first.  (Cal. R. Ct. 3.1150(c).)  The restraining language must be separately stated in the OSC and TRO, and cannot be incorporated by reference.  (Id.)  The OSC must describe the injunction to be sought at the hearing, while the TRO must describe the activities to be enjoined pending the hearing.  (Id.)

In the instant case, Petitioner has not requested the setting of an OSC hearing, and has not complied with the format requirements of Rule of Court 3.1150 by separately setting forth the language of an OSC and TRO in the moving papers.  This procedural defect (which also occurred in the August 28, 2024 application) requires denial of the application. 

Putting aside the foregoing procedural defects in this ex parte application, Plaintiff has not established a substantive basis for a TRO.  As the Court of Appeal has stated: 

Various court rules govern ex parte proceedings, which are designed to afford relief on an essentially emergency basis. “A court will not grant ex parte relief ‘in any but the plainest and most certain of cases.’ ” (People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257, 249 Cal.Rptr.3d 500 (People ex rel. Allstate Ins. Co.).) Substantively, “[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” (Cal. Rules of Court, rule 3.1202(c) [further undesignated rule references are to the California Rules of Court]; see also Code Civ. Proc., § 527.) “A trial court should deny an ex parte application absent the requisite showing.” (People ex rel. Allstate Ins. Co., at p. 257, 249 Cal.Rptr.3d 500.) Further, entry of any type of injunctive relief has been described as a delicate judicial power, to be exercised with great caution. (Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 148, 115 Cal.Rptr. 879.) This is doubly true when granting relief on an expedited basis using an ex parte request for a temporary restraining order rather than a properly noticed preliminary injunction.

(Newsom v Superior Court of Sutter County (2020) 51 Cal.App.5th 1093, 1097 (bold emphasis added).)

Petitioner argues that injunctive relief is appropriate pursuant to Business & Professions Code section 17200 (which is not pled as a claim in the Petition) and the breach of the covenant of good faith and fair dealing (which, as pled in the third cause of action in the Petition, does not identify any bank accounts as the subject of that cause of action).  Thus, the legal theories that Petitioner cites are beyond the scope of the pleadings.  As such, Petitioner cannot establish that a likelihood of success on the merits of her claims justifies the requested TRO.

The requested TRO also runs headfirst into the principle that injunctive relief is generally unavailable where a suit for damages provides an adequate remedy.  As stated by the Court of Appeal, “[g]enerally, where damages afford an adequate remedy by way of compensation for breach of contract, equitable relief will be denied.”  (Thayer Plymouth Center, inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306.) 

The Court notes that Petitioner argues that Respondent’s misuse of the subject bank account exposes her to unspecified potential loss of customers and future business opportunities, loss of confidential information, disruption of business operations due to constrained cash flow, increasing legal costs, and stress and anxiety.  But these are generalized, nonspecific issues.  In the absence of a specific evidentiary showing that Respondent’s use of the subject account will result in actual lost opportunities, actual threat of exposure of confidential information, or actual operational issues, the high standard for issuance of a TRO is not met.

For the foregoing reasons, the ex parte application is DENIED.