Singh v. Pooni et al

Filing 21

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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