Opinion
NO. CIV. S-10-1523 LKK/DAD.
January 11, 2011
ORDER
This case concerns the pending foreclosure of plaintiff's home. Plaintiff has filed an ex parte motion for a temporary restraining order ("TRO") to restrain the trustee sale of plaintiff's home, currently scheduled for January 13, 2011. Plaintiff filed his TRO application on Friday, January 7, 2011 at 9:44 pm. Local Rule 231 instructs the court to "consider whether the applicant could have sought relief by motion for preliminary injunction at an earlier date without the necessity for seeking last-minute relief by motion for a temporary restraining order." A court may deny a motion for a TRO solely on the ground that the last-minute nature of a filing constitutes laches, or contradicts an allegation of irreparable injury. Local Rule 231(b).
In this case, plaintiff could have sought relief earlier, and has offered no explanation for not doing so. A Notice of Trustees's Sale of plaintiff's home was recorded on April 27, 2010. Dec. T. Dumas in Supp. of TRO ¶ 7. That Notice informed plaintiff that a trustee's sale was scheduled in May, 2010. The sale was postponed at least three times. Id. at ¶ 37. By way of explanation for not bringing the application earlier, plaintiff points to the prior postponements of the trustee's sale, and also states that "in the interim," the case was removed to federal court by the defendants. The court notes that this case was removed to this court on June 17, 2010. Removal of the case in June does not explain plaintiff's failure to file an application for a TRO as soon as plaintiff learned of the January 13, 2011 trustee sale. Plaintiff has not alleged that defendants failed to comply with Cal. Civ. Code 2924f, which requires twenty-days notice before a trustee's sale can take place. The court finds that plaintiff's application for a temporary restraining order is barred by laches.
Accordingly, plaintiff's motion for a temporary restraining order, ECF No. 41, is DENIED.
IT IS SO ORDERED.
DATED: January 11, 2011.