Cupp v. Smith
- Phyllis Hamilton
- 4:20-cv-03456
- U.S. District Court · Northern District of California
- 3
In Cupp v. Smith, Judge Hamilton denied ex parte treatment of a temporary-restraining-order request and set a briefing schedule.
Ronald Cupp and the defendants—Andrew Smith, Tyra Harrington, County of Sonoma, and an unspecified Doe defendant—were affected. The order also temporarily restricted defendants from directing PG&E to shut off Cupp’s electricity.
What happened
In Cupp v. Smith, Ronald Cupp sought an emergency court order against Andrew Smith, Tyra Harrington, Sonoma County, and an unidentified defendant. The dispute involved alleged searches of Cupp’s property and other alleged violations of his rights concerning property citations.
Cupp asked the court to consider his request without first giving the defendants a chance to respond. The court found that he had not shown immediate, irreparable harm requiring that procedure, and noted that he had already notified defense counsel about the filing.
The court denied Cupp’s request to proceed without notice, but ordered the defendants not to direct PG&E to shut off his electricity while the court considered the request. Judge Hamilton allowed the defendants to file a joint response by noon on August 2, 2020.
The detailed version
- Cupp v. Smith · No. 4:20-cv-03456
- Phyllis Hamilton
- July 31, 2020
Background
Ronald Cupp filed an emergency request for a temporary restraining order and a preliminary injunction against Andrew Smith, Tyra Harrington, County of Sonoma, and an unspecified Doe defendant. A temporary restraining order is a short-term order intended to prevent specified conduct while the court considers further relief. A preliminary injunction is an order that can remain in effect during the case.
The action concerned Cupp’s allegations that defendants and other county officials unlawfully entered his property on February 15, 2019, and deprived him of procedural rights to challenge certain property citations. The motion concerned a search of his property on July 30, 2020. Cupp also referred to the possibility that defendants might direct PG&E to shut off his electricity.
Ex Parte Request
Cupp asked the court to consider the temporary-restraining-order request ex parte—that is, without written or oral notice to the opposing parties or their attorney. Under Federal Rule of Civil Procedure 65(b)(1), that procedure requires specific facts showing that immediate and irreparable injury will occur before the opposing party can be heard, along with a written certification about efforts to provide notice and why notice should not be required.
The court explained that ex parte injunctive relief is granted sparingly. It generally applies when notice is impossible or, in a limited set of circumstances, when notice would make further prosecution of the case fruitless. The court found that Cupp did not provide an argument supporting the ex parte procedure or identify facts showing that he would suffer immediate and irreparable injury during the brief period in which defendants could respond. The court also observed that the allegedly unlawful search had already occurred and that Cupp acknowledged notifying defense counsel of his intent to file the motion.
Order
The court denied Cupp’s request to proceed ex parte. It also ordered defendants to refrain from directing PG&E to shut off Cupp’s electricity until the court resolved the temporary-restraining-order motion. Defendants could file a joint response by 12:00 p.m. on Tuesday, August 2, 2020. The court stated that, unless it informed the parties otherwise, it would decide Cupp’s motion based on the papers. This order did not decide whether Cupp was entitled to the temporary restraining order or preliminary injunction.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.