Kirk Erichsen v. County of Orange

FILED
NOT FOR PUBLICATION
FEB 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIRK R. ERICHSEN, an individual; et al., No. 16-55763

Plaintiffs-Appellants, D.C. No.
2:14-cv-02357-JAK-SS
v.

COUNTY OF ORANGE; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding

Submitted February 14, 2017**
Pasadena, California

Before: D.W. NELSON, TALLMAN, and N.R. SMITH, Circuit Judges.

Appellants challenge the district court’s denial of their ex parte application

for a temporary restraining order (“TRO”) in which they sought to (1) enjoin state

court child dependency proceedings and the enforcement of related protective

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
custody and arrest warrants, and (2) stay all discovery in federal court. We have

jurisdiction under 28 U.S.C. § 1292(a)(1), and we AFFIRM.

First, we note that the district court properly determined Appellants failed to

meet the threshold requirement for ex parte relief because they did not establish

they were “without fault in creating the crisis that requires ex parte relief.”

Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal.

1995). The district court also correctly concluded that Appellants’ requested relief

was procedurally improper because Appellants were essentially using their

application for a TRO to challenge the magistrate judge’s ruling that Kirk and

Krystal Erichsen (the “Erichsens”) were required to appear for their depositions.

Second, the district court did not err in denying the application for a TRO on

the basis of the Rooker-Feldman doctrine and Younger abstention. There is some

question as to whether all of the state court proceedings had concluded when

Appellants filed this action in federal court. To the extent that the state court

proceedings were ongoing, the district court properly held that Younger abstention

required denial of the TRO application. See San Jose Silicon Valley Chamber of

Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th

Cir. 2008). However, to the extent that the state court proceedings had concluded,

then the Rooker-Feldman doctrine precluded district court review because

2
Appellants were “state-court losers complaining of injuries caused by state-court

judgments rendered before the [federal] district court proceedings commenced,”

and were “inviting district court review and rejection of those judgments.” Exxon-

Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see

Lacy-Curry v. Alameda Cty. Soc. Servs. Agency, 262 F. App’x 9, 10 (9th Cir.

2007).

Finally, we decline to exercise pendant jurisdiction over the separate

question of whether the district court abused its discretion in ordering the

Erichsens to appear in person for their depositions. The district court’s denial of

the TRO application is not inextricably intertwined with its order regarding the

Erichsens’ appearance at their depositions. Melendres v. Arpaio, 695 F.3d 990,

996 (9th Cir. 2012). Nor does the issue of whether the Erichsens were required to

appear at their depositions “call[] into question the district court’s authority to

rule” on the Erichsens’ application for a TRO. Id. at 996–97 (citation and internal

quotation marks omitted).

AFFIRMED.