Judge: Elaine W. Mandel, Case: 24SMCV00144, Date: 2024-02-09 Tentative Ruling

Case Number: 24SMCV00144    Hearing Date: February 9, 2024    Dept: P

Tentative Ruling

Ferrazzi Greenlight, Inc. v. Whitfield et al., Case No. 24SMCV00144

Hearing Date February 9, 2024

Plaintiff’s Ex Parte Application for TRO

Plaintiff Ferrazzi alleges former employee defendants Whitfield and Wakefield wrongfully used Ferrazzi’s confidential and proprietary information to operate a competing business. Ferrazzi seeks an ex parte TRO preventing defendants from using confidential, proprietary and/or trade secret information and requiring them to return any such items in their possession.

Ex parte relief will only be granted upon a “factual showing in a declaration containing competent testimony of irreparable harm, immediate danger, or any other statutory basis for grating relief ex parte,” and only “in the plainest and most certain of cases.” Newsom v. Superior Court (2020) 51 Cal.App.5th 1093, 1097. A temporary restraining order may be issued ex parte to preserve the status quo pending a full evidentiary hearing on a motion for preliminary injunction. See Landmark Holding Group, Inc. v. Superior Court (1987) 193 Cal.App.3d. 525, 527. Entry of any type of injunctive relief is “a delicate judicial power, to be exercised with great caution . . . [t]his 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, supra, at 1097.

The proposed injunction, as requested and drafted, is sweeping, overbroad and likely to have a profound effect on defendants’ business. While the Hannon declaration identifies specific proprietary documents and information defendants allegedly misappropriated, the proposed order does not limit itself to those items, including all potentially confidential information in defendants’ possession while not clearly identifying it.

A TRO as requested would likely force defendants to halt business while they determine which documents, information or clients might fall within the scope of the order. Issuing the proposed order creates a strong risk of irreparable harm to defendants, which outweighs the potential harm to Ferrazzi if the order is not issued. Although Ferrazzi may suffer injury to business interests if defendants are not precluded from using propriety information, it will not be required to stop doing business entirely. The balance of harms weighs in favor of defendants. The risk of irreparable harm to defendants is magnified by the fact that, since this request was brought ex parte, defendants have not had the opportunity to present substantive opposition to Ferrazzi’s allegations and request.

The proposed TRO would upend the status quo, not preserve it. The court cannot issue such a sweeping and profoundly disruptive order on an ex parte basis, without the opportunity to respond to the allegations or oppose the requested relief. The issuance of an injunction, especially one requested ex parte, must be exercised with “great caution.” Newsom, supra, at 1097. The court will set an OSC re: preliminary injunction in ten court days, on February 28, 2024, with Ferrazzi’s ex parte application treated as the moving papers. Defendants may oppose/reply within five court days, on or before February 20, 2023. DENIED.