Ford Motor Credit Company v. Sebastopol Ford, Inc.

Filing 23

ORDER Denying Plaintiff's Ex Parte Application for Writ of Possession. The case shall proceed upon Plaintiff's request for a TRO pending a noticed claim and delivery hearing. The claim and delivery hearing shall be held on April 27, 2007, at 2:30 p.m. The hearing on the TRO request shall be held on April 18, 2007, at 2:30 p.m. Signed by Judge Edward M. Chen on 4/13/2007. (emclc1, COURT STAFF) (Filed on 4/13/2007)

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Ford Motor Credit Company v. Sebastopol Ford, Inc. Doc. 23 Case 3:07-cv-01783-JSW Document 23 Filed 04/13/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 v. SEBASTOPOL FORD, INC., Defendant. ___________________________________/ FORD MOTOR CREDIT COMPANY, Plaintiff, ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR WRIT OF POSSESSION No. C-07-1783 JSW (EMC) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Ford Motor Credit Co. has filed an ex parte application for writ of possession and for injunctive relief, which Judge White has referred to the undersigned for a report and recommendation. As noted above, Plaintiff seeks an ex parte writ of possession. However, that is a drastic remedy generally disfavored, in part because a TRO pursuant to California Code of Civil Procedure 513.010 is more readily available. See Sea Rail Truckloads, Inc. v. Pullman, Inc., 131 Cal. App. 3d 511, 515 (1982) (noting that an ex parte writ of possession is appropriate "only when less intrusive remedies would be ineffective"; concluding that plaintiff was not entitled to an ex parte writ of possession because plaintiff failed to show an immediate danger that the property would be transferred, concealed or removed from the state or become substantially impaired in value by acts of destruction or by failure to take care of the property in a reasonable manner). Accordingly, the Court denies Plaintiffs' request for an ex parte writ of possession and shall proceed with Plaintiff's request for a TRO pending a noticed claim and delivery hearing. Dockets.Justia.com Case 3:07-cv-01783-JSW Document 23 Filed 04/13/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 Consistent with the Court's order of April 12, 2007, a claim and delivery hearing shall be held on April 27, 2007, at 2:30 p.m. Any opposition to the application for writ of possession shall be filed and served by April 20, 2007, and any reply by April 25, 2007. All papers and the hearing shall also address Plaintiff's alternative request for a preliminary injunction.1 See App. at 16. In addition, prior to the claim and delivery hearing, the Court shall hold a hearing on Plaintiff's request for a TRO pending the claim and delivery hearing. The hearing on the TRO request shall be held on April 18, 2007, at 2:30 p.m. Any opposition to the request for a TRO shall be filed and served by 3:00 p.m. on April 17, 2007. Finally, Plaintiff is ordered to file a copy of the proof of service for the summons and complaint by April 16, 2007. Upon receipt of this order, Plaintiff shall immediately serve a copy of this order on Defendant as well as a copy of the notice form (CD-110) adopted by the California Judicial Counsel. See Cal. Code Civ. Proc. 512.040 (notice of application and hearing for writ of possession). Plaintiff shall effect service so that the documents are received by Defendant today. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: April 13, 2007 _________________________ EDWARD M. CHEN United States Magistrate Judge The Court acknowledges that Plaintiff also seeks a preliminary injunction directing Defendant to protect and preserve the property at issue pending turnover or seizure. See Cal. Code Civ. Proc. 513.010(c). 1 2

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