Case 8:10-cv-01299-AG -JCG Document 8 Filed 08/26/10 Page 1 of 3 Page ID #:1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 10-1299 AG (JCGx) Date August 26, 2010
Title KEXUAN YAO v. CRISNIC FUND, S.A.; ANTHONY GENTILE; and
ED FURMAN

Present: The ANDREW J. GUILFORD

Honorable
Lisa Bredahl Not Present
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Proceedings: [IN CHAMBERS] ORDER DENYING APPLICATION FOR

TEMPORARY RESTRAINING ORDER

Plaintiff Kexuan Yao (“Plaintiff”) filed an application for temporary restraining order
(“Application”). In the Application, Plaintiff asks that Defendant Anthony Gentile
(“Defendant Gentile”) and Defendant Crisnic Fund SA (“Defendant Crisnic”)
(collectively, “Defendants”) be enjoined from, among other things, selling shares of stock
that Plaintiff transferred to Defendants as collateral for a loan. After considering the
papers submitted, the Application is DENIED.

Ex parte relief should be granted only if: (1) the evidence shows “that the moving party’s cause
will be irreparably prejudiced if the underlying motion is heard according to regular noticed
motion procedures” and (2) “the moving party is without fault in creating the crisis that requires
ex parte relief.” Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488, 492 (C.D.
Cal. 1995). Such relief has serious due process implications. Fuentes v. Shevin, 407 U.S. 67,
80-82 (1972) (due process requires that affected parties “are entitled to be heard” following
“meaningful” notice, except in “extraordinary situations”); Sniadach v. Family Finance Corp. of
Bay View, 395 U.S. 337, 339-40 (1969) (“the right to be heard ‘has little reality or worth unless
one is informed that the matter is pending and can choose for himself whether to appear or
default, acquiesce or contest’”). This is especially true when the ex parte matter is a request for a
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Case 8:10-cv-01299-AG -JCG Document 8 Filed 08/26/10 Page 2 of 3 Page ID #:2

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 10-1299 AG (JCGx) Date August 26, 2010
Title KEXUAN YAO v. CRISNIC FUND, S.A.; ANTHONY GENTILE; and
ED FURMAN

temporary retraining order. See Klein v. City of Laguna Beach, 594 F. Supp. 2d 1142, 1144 (C.D.
Cal. 2009).
(“A temporary restraining order is an extraordinary and drastic remedy and should not be granted
unless the movant, by a clear showing, carries the burden of persuasion.”).

After reviewing the papers submitted, the Court finds that Plaintiff has not carried the
burden of persuading the Court that he will be “irreparably prejudiced if the underlying
motion is heard according to regular noticed procedures.” Id. at 492. The Court bases
this finding in part on Plaintiff’s statement that Defendants’ brokerage firm has already
frozen Defendants’ account, at least temporarily. (Application 2:23-25.)

Further, the Court finds that Plaintiff is not “without fault in creating the crisis” that
necessitates bypassing regular motion procedures. Id. at 493 (“To show that the moving
party is without fault . . . requires more than a showing that the other party is the sole
wrongdoer. It is the creation of the crisis – the necessity for bypassing regular motion
procedures – that requires explanation.”). Specifically, the evidence submitted by
Plaintiff shows that Plaintiff, through counsel, communicated with Defendants from July
13, 2010, to July 26, 2010 about the issues raised in the Application. (Morris Decl., Exs.
1, 2, & 3.) In the last letter from Plaintiff’s counsel to Defendants, Plaintiff’s counsel
gave a deadline of July 28, 2010 for the return of the stock. (Morris Decl., Ex. 3.)
Plaintiff does not explain in the Application or supporting brief why he waited until
August 23, 2010, over three weeks after the deadline, to file the Application.

Thus, the Court DENIES the Application. But the Court also finds that an expedited
hearing and briefing schedule is warranted on the motion for preliminary injunction.
Accordingly, the Court GRANTS the request for an Order to Show Cause why a
preliminary injunction should not issue.

The Court will hear this matter on September 8, 2010 at 8:00 a.m. Defendants may
submit a brief by noon on August 31, 2010. Plaintiffs may file a reply by noon on
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Case 8:10-cv-01299-AG -JCG Document 8 Filed 08/26/10 Page 3 of 3 Page ID #:3

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 10-1299 AG (JCGx) Date August 26, 2010
Title KEXUAN YAO v. CRISNIC FUND, S.A.; ANTHONY GENTILE; and
ED FURMAN

September 3, 2010.

The Court notes that Plaintiff submitted evidence with his Application, including three
declarations and a total of 50 exhibits (although many of the exhibits are duplicates of
other exhibits). But Plaintiff’s brief fails to cite any of that evidence. A failure to cite the
record creates unnecessary work for opposing parties and the Court. The Court expects
all parties to properly cite the record from this point forward.

Plaintiff is ORDERED to serve this Order by personal service on Defendant Gentile by

noon on August 27, 2010. Plaintiff is also ORDERED to serve this Order by email or
facsimile on Defendant Crisnic by August 27, 2010. If Plaintiff fails to provide proofs of
such service to the Court by August 27, 2010, the September 8, 2010 hearing will be
VACATED and the Order to Show Cause will be DISCHARGED without prejudice.

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