2011-00095474-CU-BC

James Smith vs. Anthony Lewis

Nature of Proceeding: Motion for Temporary Restraining Order

Filed By: Smith, James

Plaintiff’s “Renewed” Motion for Temporary Restraining Order is construed as a motion
for preliminary injunction and is denied.

The request for a TRO is denied. TROs are sought only ex parte in conjunction with
obtaining an OSC. No such request was made.

Plaintiff applies for a TRO and injunction restraining the defendants from using certain
website names and the emails associated with the websites. Plaintiff contends that
there is “new evidence” to support this latest renewal motion. The Court denied
plaintiff’s request for injunctive relief on September 6, 2011 and has denied numerous
other similar motions made since that time. Plaintiff now contends that he is entitled to
injunctive relief based on the absence of evidence received by defendants in discovery
requests. The absence of evidence produced by defendants might entitle plaintiff to
move for summary judgment, but it does not provide evidence that he is affirmatively
entitled to the requested injunctive relief.

A party may move a court for an order reconsidering a motion that was denied. (CCP §
1008(a)). There are strict requirements for a motion for reconsideration. First, the
motion for reconsideration must be filed within 10 days of the order denying the
motion. (CCP § 1008(b)). Second, the motion for reconsideration must be supported
by “new or different facts, circumstances or law.” Id. The legislative intent was to
restrict motions for reconsideration to circumstances where a party offers the court
some fact or circumstance not previously considered and some valid reason for not
offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500). Plaintiff has presented neither new facts nor a reason that the fact he presents was not
presented to the court previously. The fact that defendant’s discovery responses are
purportedly deficient is not “new evidence” that would support the granting of the
requested injunctive relief.

Plaintiffs motion is untimely. The instant motion was filed on September 19, 2013. The
previous motions were denied on the merits on September 6, 2011, November 29,
2011, and March 1, 2013 and June 14, 2013. Plaintiff waited well over a year to
present the instant motion between 2011 and 2013 and then waited another 2 months
to re-file this motion after this Court denied the motion on June 14, 2013.

The motion is denied for failure to comply with CCP § 1008(a).

Even if this was a proper renewal motion it would be denied. In deciding whether to
issue a preliminary injunction, a court must weigh two “interrelated” factors: (1) the
likelihood that the moving party will ultimately prevail on the merits and (2) the relative
interim harm to the parties from issuance of the injunction. The greater the plaintiff’s
showing on one, the less must be shown on the other to support an injunction. Butt v.
th
State of California (1992) 4 Cal.4 668, 677-678. A preliminary injunction may not be
granted, regardless of the balance of interim harm, unless it is reasonably probable
that the moving party will prevail on the merits. San Francisco Newspaper Printing Co.
v. Superior Court (1985) 170 Cal. App. 3d 438, 442.

The movant’s burden is not lightly borne. “A preliminary injunction is an extraordinary
and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” (Churchill Village, LLC v General Elec. Co.
(N.D. Cal. 2000) 169 F.Supp.2d 1119, 1125.) Plaintiff has not met that burden
because he has not submitted any admissible evidence to support his claims.

Sanctions are denied. Defendants refer to a CCP 128.7 motion that was filed before
the moving papers were filed and therefore cannot apply to this motion.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.