1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTON EWING, Case No. 22-cv-00919-BAS-WVG

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR PRELIMINARY INJUNCTION (ECF No. 8) 14 IZHAK HALBANI; ALL CREDIT

FUNDING, LLC, 15 Defendants. 16 17 18 Pending before the Court is Plaintiff’s motion for a preliminary injunction against 19 Defendant Izhak Halbani. (ECF No. 8.) For the following reasons, the Court DENIES 20 Plaintiff’s motion. 21 I. BACKGROUND 22 On June 23, 2022, Plaintiff Anton Ewing filed this action against Defendant Izhak 23 Halbani alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 24 § 227, California’s Consumer Information Privacy Act,

, 637.2, 25 and California’s Consumer Legal Remedies Act,

(a)(22)(A). (ECF 26 No. 1.) Plaintiff alleges that just over one month later, on July 28, 2022, he received a 27 phone call from Defendant’s business in violation of the TCPA. (ECF No. 8.) Plaintiff then 28 filed this motion for a preliminary injunction. (Id.) 1 II. ANALYSIS 2 “A plaintiff seeking a preliminary injunction must establish that [it] is likely to 3 succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of 4 preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in 5 the public interest.” Winter v. Nat. Res. Defense Council, Inc.,

(2008). The 6 party seeking the injunction bears the burden of proving these elements. Klein v. City of 7 San Clemente,

(9th Cir. 2009). “A preliminary injunction is ‘an 8 extraordinary and drastic remedy, one that should not be granted unless the movant, by a 9 clear showing, carries the burden of persuasion.’” Lopez v. Brewer,

, 1072 10 (9th Cir. 2012) (quoting Mazurek v. Armstrong,

(1997)). 11 Failure to establish a likelihood of irreparable harm sinks a movant’s request for 12 pretrial injunctive relief. See Oakland Tribune, Inc. v. Chron. Publ’g Co.,

, 13 1376 (9th Cir. 1985) (opining “[u]nder any formulation of the test, plaintiff must 14 demonstrate that there exists a threat of irreparable injury” and concluding that without 15 such a showing a court need not reach the other Winter Test factors). 16 “Speculative injury does not constitute irreparable injury sufficient to warrant granting a 17 preliminary injunction. . . . [A] plaintiff must demonstrate immediate threatened injury as 18 a prerequisite to preliminary injunctive relief.” Caribbean Marine Servs. Co. v. Baldrige, 19

, 674 (9th Cir. 1988). 20 In this case, Plaintiff fails to carry his burden. Even if Plaintiff could establish that 21 the potential harm is irreparable, he has not demonstrated immediate threatened injury 22 absent a preliminary injunction. Plaintiff alleges only one contact after filing his 23 Complaint: a phone call on July 28, 2022. (ECF No. 8, at 4.) Defendant admits to the 24 “regrettable oversight” and claims to have taken additional steps including retraining 25 26 27 28 1 ||employees on scrubbing internal call lists. (ECF No. 10, at 1.) Plaintiff has not alleged any 2 subsequent calls.' 3 Plaintiff relies on Mever v. Portfolio Recovery Associates, LLC, in which the Ninth 4 || Circuit affirmed a preliminary injunction based on TCPA claims.

, 1045 5 ||(2012). But there, the defendant neither “acknowledge[d] the wrongful nature of its 6 || conduct” nor made “any assurance” that it would stop contacting non-named members of 7 || the class action. /d. at 1045. By contrast, in this case, Defendant admits to its “oversight” 8 claims to have taken measures to prevent future contacts. (ECF No. 10, at 1.) Given 9 || Defendant’s assurances and the singular post-filing contact, Plaintiff fails to persuade the 10 || Court of an “immediate threatened injury.” See Caribbean Marine Servs. Co., 844 F.2d at 11 Thus, Plaintiff has not established a likelihood of irreparable harm. 12 Hl. CONCLUSION 13 For the foregoing reasons, the Court DENIES Plaintiff's motion for a preliminary 14 || injunction (ECF No. 8). 15 IT IS SO ORDERED. 16 17 || DATED: September 27, 2022 ( yi uA (Liphan 6 ig United States District Judge 19 20 21 22 23 24 25 26 27 | In his Reply, Plaintiff generally alleges that Defendant continued to send solicitations after being || “put on notice.” (ECF No. 11, at 2.) But Plaintiff specifically alleges only a LinkedIn message on May 3, 2022, which predates the commencement of this action. (Id.) _~ 2.