Case 5:13-cv-02163-DSF-RZ Document 7 Filed 11/27/13 Page 1 of 2 Page ID #:213

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM

Case No. Title

CV 1302163 DSF (RZx)

Date

11/27/13

Efren Montiel Jimenez v. County of San Bernardino DALE S. FISCHER, United States District Judge Not Present Court Reporter Attorneys Present for Defendants: Not Present

Present: The Honorable

Debra Plato Deputy Clerk Attorneys Present for Plaintiffs: Not Present Proceedings:

(In Chambers) Order DENYING Plaintiffs Application for Temporary Restraining Order (Docket No. 6)

The Hispanic Heritage Month Art Exhibit hosted by the Inland Empire Latino Art Association and located in the second floor gallery of the San Bernardino Government Center opened on September 16, 2013. (Decl. of Rudy Ramirez 2.) Plaintiffs paintings were removed from the Exhibit on September 17 or 18. (Id. 8.) Although it is not entirely clear what person or entity required the removal, (see Decl. of Lisa Kohn 13), San Bernardino Deputy County Counsel Teresa McGowan when contacted on November 26 advised Plaintiffs counsel that Plaintiffs paintings can be restored and displayed. McGowan also indicated that the County was open to the possibility of extending the Exhibit. (Id., Ex. JJ.) This Complaint was filed on November 22, more than two months after the paintings were removed. The application for a temporary restraining order, comprised of 176 pages, was electronically filed at 6:10 p.m. on November 26. Although Plaintiffs counsel apparently advised County Counsel some time on November 25 that the application would be filed, (id. 14),1 and advised McGowan on November 26 that the County would have 24 hours to file an opposition, (id.), there is no evidence that the

It is not clear from the hearsay statement in Kohns declaration whether Plaintiffs counsel actually spoke to County Counsel Basle or merely left a message.
MEMORANDUM Page 1 of 2

CV-90 (12/02)

Case 5:13-cv-02163-DSF-RZ Document 7 Filed 11/27/13 Page 2 of 2 Page ID #:214

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM application and supporting papers have yet been served on the County.2 Therefore, the Countys time to respond to this extensive filing may not yet have begun. In any event, as counsel for the County may not even have seen the actual application until November 27, the day before the Thanksgiving holiday, and because of the extensive nature of the application itself, the Court finds 24 hours is an insufficient amount of time within which to require a response. Even if County Counsel had received the application at 6:10 p.m. on November 26 and was able to respond within 24 hours, the response would not be due until after the close of business on November 27, Thanksgiving eve. Yet Plaintiff requests that the Court order relief to take effect by November 29. Plaintiff states that the relief will be more valuable and effective if granted before the Exhibit is scheduled to be dismantled, (Ex Parte Appl. 1:11-13), but there is no evidence to support this contention.3 In any event, as Plaintiffs paintings were removed from the Exhibit on September 17 or 18, Plaintiffs delay in filing this application indicates there is no urgency to the requested relief. See Berjikian v. Franchise Tax Bd., No. CV 13-06301 DDP JCGX, 2013 WL 4677772, at * 1 (C.D. Cal. Aug. 30, 2013) ([C]ourts should take into account whether a movant proceeded as quickly as it could have in seeking a TRO. . . . At the TRO stage, courts consider whether the movant would have been able to file a noticed preliminary injunction motion had it acted diligently.) (quoting Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 1314, 1325 (Fed. Cir. 2012)); Rosal v. First Fed. Bank of California, No. C 09-1276 PJH, 2009 WL 837570, at *1 (N.D. Cal. Mar. 26, 2009) ([T]he court finds that plaintiffs delay in requesting a TRO militates against its issuance.). Plaintiff here had sufficient time to file two consecutive noticed motions, but waited until one business day before the Exhibit is to close to seek emergency relief. The temporary restraining order is DENIED. Assuming the County is properly served, the parties are ordered to meet and confer and file a joint briefing schedule for a hearing on a preliminary injunction if the matter cannot be resolved. IT IS SO ORDERED.

Because the County has not yet made an appearance, the filing was not automatically served by the CM/ECF system. In his memorandum, Plaintiff argues that the paintings should be displayed for the same period of time during which they were removed, (Mem. in Support of Appl. for TRO 23-25), but offers no reason why this period of time must begin before the Exhibit is dismantled.
MEMORANDUM Page 2 of 2

CV-90 (12/02)