Stanislaus — Ex Parte Motion for Stay of Execution Declaration in Support Thereof Points and Authorities (Download)

Source: https://www.stanislaus.courts.ca.gov/system/files/forms-and-filings/ex-parte-motion-stay-execution-declaration-support-thereof-points-and-authorities.pdf

1 Name, Address & Telephone 2 3 4 5 6 IN PRO PER 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF STANISLAUS 10 Plaintiff: CASE NO. 11 EX PARTE MOTION FOR STAY OF EXECUTION; DECLARATION IN 12 Vs. SUPPORT THEREOF; POINTS AND AUTHORITIES13 14 Defendant: 15 16 17 Defendant, ____________________________________________, hereby move(s) the 18 Court for an ex parte order to stay the judgment rendered herein until ____________________ in 19 order to avoid extreme hardship upon Defendant. 20 This Motion is based upon the supporting Declaration, the attached Points and 21 Authorities, and upon all the papers and records on file herein. 22 23 Dated: __________________ , 20 _______ ___________________________________ Print Name: _________________________ 24 Defendant 25 26 27 28

Ex Parte Motion for Stay of Execution

1 DECLARATION IN SUPPORT OF MOTION 2 I ______________________, declare: 3 I am the defendant in the above-referenced matter, and this declaration is in support of 4 my/our application for a stay of execution of the judgment entered on ___________________ in 5 6 the matter here. 7 I have lived at the subject premises for _____________. The following people reside 8 with me: _____________________________________. My present source of income is 9 _______________ and totals $ ________ month. 10 I have not had an opportunity to secure alternative housing as of this date. I do not have11 12 friends or relatives in the area with whom I can stay while I continue my search for alternate 13 housing. 14 The writ of restitution was posted by the Sheriff on or about ___________________. 15 Since I have not found other housing as yet and do not have friends or relatives with whom I can 16 reside, I will have no place to go if I am evicted on ________________. I must have time to17 18 relocate and make arrangements to move my personal property. 19 In order to avoid irreparable harm to me and to allow additional time to relocate, I request 20 that the judgment entered in this case on __________________ be stayed until at least 21 ___________________________.22 23 Because I do not have the resources to find immediate temporary housing and it would 24 work a severe hardship to be evicted because _________________________________________ 25 ______________________________________________________________________________ 26 ______________________________________________________________________________ 27 ______________________________________________________________________________28

Ex Parte Motion for Stay of Execution

1 ______________________________________________________________________________ 2 ______________________________________________________________________________ 3 _____________________________________________________________________________. 4 For these reasons, I submit that in order to avoid extreme hardship; this Court should 5 6 grant a stay of execution until ___________________________. 7 I tried, but was unable to work out an agreement with the plaintiff/plaintiff’s attorney. I 8 notified the plaintiff/plaintiff’s attorney of this Ex Parte Motion for Stay of Execution by 9 ____________________ (telephone, fax, in person) on __________________________, 10 200 at __________ a.m./p.m. and advised of my intent to request a hearing. 11 The plaintiff/plaintiff’s attorney’s office responded by saying: _____________________ 12 ______________________________________________________________________________ 13 and did/did not indicate any opposition to this motion. 14 I declare under penalty of perjury under the laws of the State of California that the 15 foregoing is true and correct. 16 Dated: __________________ , 20 _______ ___________________________________ 17 Print Name: _________________________ Defendant18 19 MEMORANDUM OF POINTS AND AUTHORITIES 20 1. The Judge of the Court may stay the execution of a judgment or order. Code of Civil 21 Procedure Section 918 (a). 22 2. In situations where justice requires a stay of execution, the Court may do without the 23 consent of the adverse party for a period of up to 40 days. Code of Civil Procedure Section 91824 25 (b). California Residential Landlord Tenant Practice, California Continuing Education of the Bar 26 (1986), § 7.208, p. 674. This 40 day figure is derived from the provision that the court may stay 27 execution for a period which extends for 10 days beyond the last date on which a notice of 28 appeal could be filed. Code of Civil Procedure Section 918 (b). The last date on which a notice

Ex Parte Motion for Stay of Execution

1 of appeal can be filed form Superior Court unlawful detainer judgment is 30 days after the notice 2 of entry of judgment is mailed by the clerk or opposite party, or 90 days after the entry of 3 judgment, whichever earlier. California Rules of Court, Rule 122 (a). Therefore the judge can 4 stay the execution of an unlawful detainer judgment for 40 days after the notice of entry of 5 6 judgment served. 7 3. In Industrial Indemnity Co. v. Levine (1975) Cal. App. 3d 698, 700, 122 Cal Rptr. 8 712, the Court remarked, “The stay of execution granted under Code of Civil Procedure Section 9 681 (a) (now code of Civil (Procedure Section 918 (a) ), is used to allow the judgment debtor 10 time to gather his resources so that the judgment may be satisfied without unnecessary hardship.”11 12 4. In Medford v. Superior Court (1983) 140 Cal. App. 3d 236, 240; 189 Cal. Rptr. 227, 13 230, the Court stated that a stay of execution may be conditioned on the tenant’s payment of rent 14 accruing during the period of the stay, but not on payment of back rent. 15 5. Special circumstances such as hardship, which exist in this case, should be considered 16 in granting a temporary stay of execution in an unlawful detainer case, Kaiser v. Hankcock,17 18 (1914) 25 Cal.App. 323, 328; 143 P. 614. 19 Dated: __________________ , 20 _______ ___________________________________20 Print Name: _________________________ 21 Defendant 22 23 24 25 26 27 28

Ex Parte Motion for Stay of Execution