1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4

PCH FARMS, LP,

5 Case No. 5:20-cv-01122-EJD Plaintiff, 6 ORDER DENYING EX PARTE v. APPLICATION FOR TEMPORARY 7 RESTRAINING ORDER AMERICA BERRY FARMS, INC., et al., 8 Re: Dkt. No. 7 Defendants. 9

10 On February 13, 2020, Plaintiff PCH Farms, LP filed an ex parte application for a 11 temporary restraining order against Defendants American Berry Farms, Inc., Adrian Mendez, and 12 Bertha Fernandez. Dkt. No 7. On February 14, 2020 the case was reassigned to the undersigned. 13 Dkt. No. 9. For the reasons discussed below, the Court denies the application. 14 This case arises under the Perishable Agricultural Commodities Act (“PACA”). Plaintiff, 15 a dealer of fresh produce, contends that it is a beneficiary of a statutory trust established under 16 PACA. Defendants, dealers of perishable agricultural produce, are trustees under the PACA 17 statutory trust. Plaintiff contends that Defendants have a duty to hold in trust for Plaintiff all 18 produce, produce-related inventory, and assets acquired through the sale of produce—including 19 any receivables or proceeds from the sale thereof until Plaintiff’s trust claim is fully paid. Plaintiff 20 alleges that it grew and sold several shipments of produce to Defendants for $58,968 in August 21 and September of 2018. Plaintiff alleges that balance remains outstanding. Plaintiff further 22 alleges Defendants are in dire financial straits, which jeopardizes Plaintiff’s outstanding trust 23 claim. Plaintiff bases this contention on a representation from February 2019 that Defendants had 24 begun contemplating Chapter 11 Bankruptcy. Lewis Dec. ¶ 5, Ex. 3. Plaintiff also raises other 25 allegations based on events that took place on May 2019. Dkt. No. 7-4 at 13. Plaintiff now seeks 26 a temporary restraining order compelling Defendants to deposit the outstanding $58,968 (in 27 addition to interest and attorneys’ fees) in a separate trust, and enjoining Defendants from ] dissipating their assets. 2 “The same legal standard applies to a motion for a temporary restraining order and a 3 motion for a preliminary injunction.” Henry Schein, Inc. v. Cook, 191 F. Supp. 3d 1072, 1076 4 |} (ND. Cal. 2016). “A plaintiff seeking either remedy must establish that he is likely to succeed on 5 || the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 6 || balance of equities tips in his favor, and that an injunction is in the public interest.” Jd. (internal 7 || citation and quotation omitted). On a TRO, a plaintiff must demonstrate that there exists a 8 || significant threat of irreparable injury. See, e.g., Baker DC v. NLRB, 102 F. Supp. 3d 194, 198 9 || (D.D.C. 2015). Where a plaintiff delays in seeking a TRO, courts have held that such a delay to 10 indicate that no immediate threat exists. See Rovio Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F. 11 Supp. 2d 1086 (N.D. Cal. 2012); see also Bieros v. Nicola, 857 F. Supp. 445 (E.D. Pa. 1994) 12 || (denying TRO where threat had been made 10 months before the plaintiff filed the application). 13 Here, Plaintiff has not shown that any immediate threat of harm exists. While Plaintiff 14 || contends that Defendants considered bankruptcy 12 months ago and that the IRS recorded liens 3 15 against Defendants as recently as May 2019, that does not show why a TRO is necessary now. 16 || Plaintiff makes no attempt to explain its delay in seeking this relief. Accordingly, the Court finds 17 || that Plaintiff has not satisfied the irreparable harm factor and the Court denies the application on Z 18 || that basis. 19 The application is denied. 20 IT ISSO ORDERED. 21 Dated: February 14, 2020 22

EDWARD J. DAVILA

23 United States District Judge 24 25 26 27 28 Case No.: 5:20-cv-01122-EJD

ORDER DENYING EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER