Singh v. Pooni et al
Filing
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ORDER signed by Judge John A. Mendez on 1/6/2015 DENYING 13 Motion to Quash the Writ of Possession. (Michel, G)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BUTA SINGH,
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2:14-cv-02146 JAM DAD
Plaintiff,
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No.
v.
ORDER DENYING DEFENDANTS’ MOTION
TO QUASH THE WRIT OF POSSESSION
HARMINDER S. POONI, RAVINDER
KAUR, and PAN-AM TRANSPORT,
INC., a Kansas Corporation,
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Defendants.
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Defendants Harminder Pooni, Ravinder Kaur, and Pan-Am
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Transport, Inc.’s (“Defendants”) move to quash (Doc. #13) the
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writ of possession issued by this Court on October 8, 2014 (Doc.
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#8).
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#15).
Plaintiff Buta Singh (“Plaintiff”) opposes the motion (Doc.
For the following reasons, Defendants’ motion is DENIED.
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I.
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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
This matter arises out of the disputed ownership of a 2005
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for December 17, 2014.
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Hummer H2.
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the vehicle from Plaintiff for $17,000.
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claims that he entrusted the vehicle to Defendant Pooni, who
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promised to broker a sale on Plaintiff’s behalf.
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Plaintiff argues that Defendant Pooni reneged on the deal, and is
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now improperly claiming ownership of the vehicle.
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Compl. ¶ 2.
Defendant Pooni claims that he bought
Mot. at 1.
Plaintiff
Compl. ¶ 5.
Compl. ¶ 7.
Plaintiff filed a complaint with this Court, alleging
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conversion, theft by false pretenses, breach of contract, and
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unfair business practices.
Along with the complaint, Plaintiff
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filed an ex parte application for a writ of possession.
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Court granted Plaintiff’s application, finding that the necessary
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criteria for an ex parte writ of possession had been satisfied.
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In response, Defendants filed the motion to quash presently
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before the Court.
This
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II.
OPINION
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A.
Evidentiary Objections
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Defendants make a number of evidentiary objections (Doc.
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#16-3) to the declarations of Plaintiff and Plaintiff’s counsel.
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In a preliminary matter such as this, such objections are
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premature and are better saved for argument within the briefs.
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See Burch v. Regents of Univ. of California, 433 F. Supp. 2d
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1110, 1119 (E.D. Cal. 2006).
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preliminary matters, the Court engages in self-policing, and does
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not rely on irrelevant or improper evidence.
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discussed below, the lion’s share of the objected-to testimony
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does not address issues relevant to the Court’s decision.
In addition, in ruling on
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Moreover, as
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B.
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Defendants argue that the writ of possession should be
Discussion
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quashed for a number of reasons.
First, Defendants argue that
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“Plaintiff’s counsel overreache[d] in his letter to Mr. Pooni” by
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threatening criminal sanctions in relation to this lawsuit.
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at 4.
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in the regular course of business or for commercial purposes,”
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such that the requirements of CCP § 512.020 are not satisfied.
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Mot. at 4.
Mot.
Next, Defendants argue that the vehicle was “not obtained
Finally, Defendants argue that Defendants Ravinder
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Kaur and Pan Am Transport were deprived of “due process and
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notice of their rights” because Plaintiff failed to serve them,
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or their attorney, with a copy of the ex parte application for a
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writ of possession, or a copy of the Court’s order granting the
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same.
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Mot. at 5.
Plaintiff responds with two arguments.
First, he contends
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that “the court’s determination in issuing the writ must not be
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disturbed under the exclusionary rule.”
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v. Delaware, 438 U.S. 154 (1978)).
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Defendants “sat on their rights” by failing to oppose Plaintiff’s
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ex parte application for the writ, and should therefore be barred
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from “relitigating” the issues under the doctrines of laches and
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collateral estoppel.
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credibility of Defendant Pooni and argues that his version of
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events does not make sense.
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Opp. at 3 (citing Franks
Opp. at 3, 6.
Second, he argues that
Plaintiff also attacks the
Opp. at 5, 7.
Legal Framework
California Code of Civil Procedure (“CCP”) § 512 governs the
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issuance of a writ of possession.
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issued upon a plaintiff’s showing that (1) “the plaintiff is
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A writ of possession may be
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entitled to possession of the property claimed;” and (2) “the
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property is wrongfully detained by the defendant.”
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Proc. Code § 512.010(b).
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only be issued after a hearing on a noticed motion.
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Proc. Code § 512.020(a).
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issued ex parte . . . if probable cause appears that . . . (1)
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“the defendant acquired possession of the property in the
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ordinary course of his trade or business for commercial
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purposes;” (2)”the property is not necessary for the support of
Cal. Civ.
Generally, a writ of possession may
Cal. Civ.
However, “a writ of possession may be
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the defendant or his family;” (3) there is an “immediate danger”
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that the property will become unavailable to levy; and (4) “the
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ex parte issuance of the writ is necessary to protect the
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property.”
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October 8, 2014 Order found that Plaintiff had complied with
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these additional requirements for an ex parte issuance of the
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writ.
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context of an ex parte issuance of the writ, and – given the
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statutory scheme – the additional requirements are moot once the
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defendant has been given an opportunity to respond.
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may, therefore, only grant Defendants’ motion to quash if “it
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determines that the plaintiff is not entitled to a writ of
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possession.”
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2.
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Cal. Civ. Proc. Code § 512.020(b)(3).
This Court’s
These additional requirements do not apply outside the
The Court
Cal. Civ. Proc. Code § 512.020.
Analysis
In light of the foregoing statutory framework, the parties’
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focus on the issue of whether Defendant Pooni acquired the
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vehicle in the ordinary course of business for commercial
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purposes is misplaced.
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Although that issue was certainly relevant in the ex parte
Mot. at 4; Opp. at 5; Reply at 1.
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issuance of the writ, it is no longer relevant, as Defendants
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have now had an opportunity to respond and be heard on the
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matter, through their motion to quash.
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before the Court on Defendants’ motion is whether Plaintiff is
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“entitled to a writ of possession:” i.e. whether Plaintiff is
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entitled to possession of the vehicle, and whether the vehicle
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has been wrongfully detained by Defendants.
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§ 512.020; Cal. Civ. Proc. Code § 512.010(b).
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that Defendants’ argument that Defendant Pooni had bought the
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vehicle for personal, non-commercial use is immaterial to the
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Court’s decision on this motion to quash.
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Rather, the only issue
Cal. Civ. Proc. Code
The Court finds
The Court also does not find persuasive Defendants’ argument
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that “neither Defendants Ravinder Kaur, Pan Am Transport, Inc.
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nor counsel were served the application [for the writ of
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possession] or order granting the application.”
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true that, when a writ of possession has been issued ex parte,
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CCP § 512.020 directs that “a copy of the summons and complaint,
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a copy of the application and any affidavit in support thereof,
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and a notice . . . inform[ing] the defendant of his rights . . .
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shall be served on the defendant.”
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was properly served with the summons, complaint, and all ex parte
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filings.
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Defendants claim that Defendant Kaur and Defendant Pan Am
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Transport were never served with the ex parte filings.
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5.
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the writ of possession – Mr. Hanecak informed Plaintiff’s counsel
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that he represented all three Defendants in this case, and that
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Defendant Kaur and Defendant Pan Am Transport were willing to
Mot. at 5. It is
In this case, Defendant Pooni
Bolanos Declaration Re: Service of Process (Doc. #7).
Mot. at
On October 3, 2014 – 5 days prior to the Court’s issuance of
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waive service of the summons and complaint.
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¶ 3.
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service of the ex parte filings, mandatory under CCP § 512.020.
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Given the circumstances and Defendants’ failure to cite any legal
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authority on the issue, quashing the writ due to Plaintiff’s
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technical failure to comply with the service requirements of CCP
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§ 512.020 elevates form over function.
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service requirement is to provide all parties with notice and the
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opportunity to respond to an order granting the writ of
Hanecak Declaration
Defendants contend that such waiver did not encompass the
The purpose of the
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possession.
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and all Defendants have had the opportunity to respond, through
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their motion to quash.
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Pan Am Transport had constructive access to the ex parte filings,
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through Mr. Hanecak (who had access to the CM/ECF filing system)
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and Defendant Pooni (who was properly served with the ex parte
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filings).
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technical failure, and declines to grant Defendants’ motion to
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quash on this ground alone.
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Here, all Defendants are represented by Mr. Hanecak,
Moreover, Defendant Kaur and Defendant
The Court can discern no prejudice from Plaintiff’s
Finally, Defendants’ argument that Plaintiff’s counsel
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ethically “overreached” does not address the issue at bar:
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whether Plaintiff is “entitled” to the writ of possession.
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at 4; Reply at 5.
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vehicle for Defendants’ complaints, and Plaintiff’s counsel’s
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conduct is not germane to the issue at hand.
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Mot.
A motion to quash is not the proper procedural
The Court notes that it did not find persuasive and did not
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rely on Plaintiff’s arguments concerning Franks and the
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exclusionary rule, the doctrine of laches, or the doctrine of
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collateral estoppel.
For reasons that should be clear, Franks v.
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Delaware – a case concerning constitutional criminal law and the
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Fourth Amendment - has no applicability in the present civil
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matter.
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Plaintiff’s contention that Defendants “sat on their rights” by
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failing to oppose the ex parte application for a writ of
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possession belies a misunderstanding of the nature of an ex parte
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proceeding.
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invite a response from the opposing party.
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be said, whether through the doctrine of laches or collateral
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estoppel, that Defendants have forfeited their opportunity to
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respond.
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to quash is the proper response to a writ of possession issued ex
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parte.
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Franks v. Delaware, 438 U.S. 154 (1978).
Moreover,
By definition, an ex parte application does not
Therefore, it cannot
Indeed, CCP § 512.020 expressly provides that a motion
While the parties continue to hotly dispute the issue of the
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vehicle’s proper ownership, Defendants have quite simply failed
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to make direct and germane arguments which persuade this Court at
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this early stage of the proceedings that Plaintiff is not
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entitled to the writ of possession, under CCP § 512.010(b).
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Accordingly, the Court declines to disturb its previous findings
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in its October 8, 2014 Order and Defendants’ motion to quash is
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DENIED.
III.
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ORDER
For the reasons set forth above, the Court DENIES
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Defendants’ Motion to Quash:
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IT IS SO ORDERED.
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Dated: January 6, 2015
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