Paula Thomas v. Thomas Wylde, LLC ( 2022 )

FILED
NOT FOR PUBLICATION
JAN 13 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAULA THOMAS, et al., No. 21-55069
Plaintiffs-Appellants, D.C. Nos.
2:17-cv-04158-JAK-PJW
v. 2:20-cv-01740-JAK-PJW
2:20-cv-11599-JAK-AS
THOMAS WYLDE, LLC, et al.,
Defendants-Appellees. MEMORANDUM*
PAULA THOMAS, et al., No. 21-55124
Plaintiffs-Appellants, D.C. Nos.
2:17-cv-04158-JAK-PJW
v. 2:20-cv-01740-JAK-PJW
2:20-cv-11599-JAK-AS
STEPHEN CHOI, AKA Hillshore
Investment, S.A. (Dummy Corporation), et
al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted December 6, 2021**
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
Plaintiffs-Appellants Paula Thomas, PDTW, LLC, and Thomas Wylde, LLC
(Appellants), appeal from the district court’s order denying Appellants’ ex parte
application for a temporary restraining order (Appeal No. 21-55124). Appellants
also challenge the orders granting a stay under Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800 (1976)1; denying Appellants’ ex parte
application to prohibit Richard Peddie, Esq. from representing Thomas Wylde,
LLC; and denying Appellants’ motion to disqualify Judge Kronstadt (Appeal No.
21-55069).
As discussed below, we lack jurisdiction over the denials of Appellants’ ex
parte applications. We have jurisdiction under 28 U.S.C. § 1291 to decide the two
remaining issues.
“Whether the facts of a particular case conform to the requirements for a
Colorado River stay or dismissal is a question of law which we review de novo.”
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
A Colorado River stay is usually granted when a parallel state court
proceeding is pending. See R.R. St. & Co. Inc. v. Transport Ins. Co., 656 F.3d 966,
978-79 (9th Cir. 2011).
2
United States v. State Water Res. Control Bd., 988 F.3d 1194, 1202 (9th Cir. 2021)
(citation omitted). “If we conclude that the Colorado River requirements have
been met, we then review for abuse of discretion the district court’s decision to
stay or dismiss the action. . . .” Id. (citation omitted). We also review for abuse of
discretion a “decision not to disqualify a judge.” Thomassen v. United States, 835
F.2d 727, 732 (9th Cir. 1987) (citation omitted). Applying these standards of
review, we DISMISS Appellants’ appeals in part and AFFIRM the district court’s
order in part.
Appeal No. 21-55124
We lack jurisdiction to consider the appeal of the district court’s denial of
Appellants’ ex parte application for a temporary restraining order. The denial of
an application for a temporary restraining order may only be appealed if the denial
is “tantamount to the denial of a preliminary injunction.” Religious Techn. Center,
Church of Scientology Int., Inc. v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989)
(citations omitted). The district court’s denial of the temporary restraining order in
this case did not amount to the denial of a preliminary injunction because: (1) the
denial did not follow a full adversarial hearing, and; (2) the denial did not
“effectively foreclose[]” Appellants “from pursuing further interlocutory relief.”
3
Environmental Defense Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir. 1980)
(order). This appeal is DISMISSED for lack of jurisdiction.
Appeal No. 21-55069
1. We lack jurisdiction to review the district court’s decision denying
Appellants’ ex parte application to remove Richard Peddie as attorney for
Appellee-Defendant Thomas Wylde, LLC. See Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 379 (1981) (so holding); see also Aguon-Schulte v. Guam
Election Comm’n, 469 F.3d 1236, 1239 (9th Cir. 2006) (same). Appeal of this
decision is DISMISSED for lack of jurisdiction.
2. The district court conducted a thorough analysis of each of the eight
Colorado River factors before imposing the stay. See R.R. St., 656 F.3d at 978-79(articulating the factors). Having properly considered the factors, the district court
acted within its discretion and we AFFIRM the imposition of the stay. See
Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir. 1989).
3. Appellants maintain that Judge Kronstadt “engaged in behavior that is
harassing, abusive, prejudiced, or biased.” This argument completely lacks merit.
No “reasonable person with knowledge of all the facts would conclude that [Judge
Kronstadt’s] impartiality might reasonably be questioned.” Yagman v. Republic
Ins., 987 F.2d 622, 626 (9th Cir. 1993) (citations omitted). An “adverse ruling is
4
not sufficient cause for” disqualification. United States v. Studley, 783 F.2d 934,
939 (9th Cir. 1986) (citation omitted). We AFFIRM the denial of Appellants’
motion to disqualify Judge Kronstadt.
Appeal No. 21-55124 is DISMISSED; Appeal No. 21-55069 is
DISMISSED in part and AFFIRMED in part.
5