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1 Robert Cortez, SBN 321521
Central California Legal Services, Inc.
2 2115 Kern St., Suite 200 E-FILED
(559) 570-1200 10/27/2020 1:20 PM
3 (559) 570-1254 Superior Court of California
County of Fresno
4 Attorney for Defendant, Miles Souza By: C. York, Deputy
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF FRESNO
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~ Case No.: 20CECL03821
10 SAN MAR PROPERTJES, INC.,
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Plaintiff,
~ DEFENDANT'S EX PARTE
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APPLICATION FOR STAY OF
12 EXECUTION AND RECALL OF WRIT
v. OF POSSESSION; MEMORANDUM OF
13 POINTS & AUTHORITIES IN SUPPORT
THEREOF; DECLARATIONS OF MILES
14 MILES EARL SOUZA aka MILES SOUZA; SOUZA, ESMERALDA SOUZA, and
ESMERALDA RUIZ-SOUZA aka ROBERT CORTEZ; [PROPOSED]
15 ESMERALDA SOUZA, ORDER
16 Defendant. Hearing Date: October, 28, 2020
Hearing Time: 8:30 a.m.
17 Courtroom: 404
18 l-1---- - -- -- ---- ----
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20 To the Court and to Plaintiff and their attorney of record:
21 Defendant MILES SOUZA makes this application under Code of Civil Procedure section
22 918 for an order from this Court, directed to the Sheriff's office of FRESNO County, to Plaintiff,
23 and to any other persons acting on behalf of or in concert with Plaintiff, staying execution of
24 judgment entered in this action on the grounds that MILES SOUZA would suffer hardship if the
25 judgment were to be executed on October 29, 2020.
26 Defendant Miles Souza also asserts that neither he, nor anyone else in the apartment unit,
27 defaulted on the first amended stipulation agreement ordered by this Court on October 10, 2020
28 and that execution of the judgment, without the Plaintiff first establishing the cause of
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EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821
1 methamphetamine residue presence, and the authenticity and reliability of Plaintiffs purported
2 residue testing procedure, would violate Defendant's due process rights.
3 Defendant asks that execution of the judgment and writ of possession be recalled or in the
4 alternative stayed until at least December 31, 2020.
5 This application is based on the Declarations of MILES SOUZA and ESMERALDA
6 SOUZA, all pleadings and records on file in the action; matters of which this Court takes judicial
7 notice; oral testimony which may be presented; and the accompanying memorandum of points
8 and authorities.
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10 Dated: October 26, 2020 Respectfully submitted,
Central California Legal Services, Inc.
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By·
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RobertCortez,Attoey for Defendant
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EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 STATEMENT OF FACTS
3 Defendant MILES SOUZA lives at 5575 E. Tulare Ave., Apt 133, Fresno, CA 93727.
4 Mr. Souza has been diagnosed with end stage renal failure. His kidneys no longer function. Mr.
5 Souza is required to undergo in-clinic dialysis treatments three days a week, for several hours
6 each time. Without these treatments, Mr. Souza will die. Yet, Plaintiff insists on a Sheriff
7 lockout based on its allegation that Mr. Souza defaulted on the first amended stipulation
8 agreement.
9 a. Methamphetamine Residue.
10 On October 8, 2020, in accordance with the first amended stipulation agreement,
11 Plaintiffs agent collected surface wipe samples for methamphetamine residue presence inside
12 Defendant's apartment unit. On October 13, 2020, lab employees at A.LS Environmental
13 prepared a report based on those collected wipe samples. Based on the report, Plaintiff alleges
14 that Defendant is in default of the first amended stipulation agreement. Plaintiff now seeks a
15 Sheriff lockout based on that alleged default.
16 However, studies have shown that methamphetamine residue remains on surfaces for
17 more than five years without any significant deterioration or diminished intensity:
18 "Although the time since the cooking [of the methamphetamine] had taken place
was significant (over five years), the levels of contamination were extremely high in both
19 household items that were part of the house when cooking was taking place (blinds,
20 carpets, walls, etc.) and also in articles brought to the house post-cooking (rugs, toys,
beds, etc.). Both wipe sampling and analysis of bulk samples indicate that the
21 methamphetamine is not breaking down or being removed and is transferred from
contaminated to non"contaminated objects. These results raise questions about the
22 adequacy of characterising contamination and of making decisions about the extent of
remediation required based solely on surface wipe samples." (Contamination of Homes
23 with Methamphetamine: Is Wipe Sampling Adequate to Determine Risk? (September 24,
24 2019).)
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Neither Mr. Souza, nor anyone else in the apartment unit, has ever used, produced, or
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stored methamphetamine in the apartment unit during his entire tenancy of nearly five years.
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(Declaration of Miles Souza ,m 8-9.) (Declaration of Esmeralda Souza 11113"4.)
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EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821
1 b. COVID-19's Dangerous Effect on Persons With P1·e-Existing Health Conditions.
2 On March 4, 2020 Governor Newsom declared a statewide state of emergency due to the
3 COVID-19 outbreak. Governor Gavin Newsom also declared in an Executive Order that
4 individuals with underlying health conditions need to "self-quarantine, self-isolate, or otherwise
5 remain in their homes to reduce the transmission of COVID-19." (Governor's Exec. Order No.
6 N-28-20 (March 16, 2020).) Governor Newsom specifically identified individuals with
7 underlying health issues as those "who are most vulnerable to COVID-19." (Id.) Governor
8 Newsom also stated that "homelessness can exacerbate vulnerability to COVID-19.''
9 (Governor's Exec. Order No. N-28-20 (March 16, 2020).) Governor Newsom prioritizes
10 "tak[ing] measures to preserve and increase housing security for Californians to protect public
11 health." (Id.)
12 Mr. Souza has been diagnosed with a serious underlying health condition that makes him
13 especially vulnerable to the COVID-19 virus pandemic. (Deel. of Miles Souza 11114-7.) He has
14 not found new housing and does not have any family in the area. There is no one he can move in
15 with or stay with if he is locked of his home on October 29, 2020. ff Mr. Souza does not receive
16 additional time to secure alternative housing and to move, or to prepare to challenge the
17 admissibility of Plaintiff's methamphetamine residue report, he will be homeless, and that would
18 be an extremely stressful and dangerous situation for him. (Deel. of Miles Souza ,r,r 13-15.)
19 Because of the hardships he faces if he is locked out on October 28, 2020, and because .
20 Plaintiff has not established that Defendant defaulted on the first amended stipulation agreement,
21 Defendant requests the judgment and writ of possession be recalled or stayed until at least
22 December 31, 2020.
23 ARGUMENT
I. DEFENDANT WOULD SUFFER IRREPARABLE HARM IF THIS MOTION
24 WAS NOT HEARD EX PARTE.
25 A moving party making an application for ex parte relief needs to show the party would
26 suffer irreparable harm if the motion were not heard. (Cal. Rules of Court, rule 3.1202(c).) Here,
27 Plaintiff is attempting to enforce a Sherifrs lockout due to an alleged stipulation default on the
28 part of the Defendant. A Sheriffs lockout is scheduled for of October 29, 2020. If this motion is
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EX pARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821
1 not heard before October 29, 2020, Mr. Souza will be locked out of his home and face severe
2 physical harm due to his age, significant pre-existing health condition, and the COVID-19 public
3 health crisis.
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II. CODE OF CIVIL PROCEDURE SECTION 918(b) ALLOWS THE COURT
5 DISCRETION TO STAY THE EXECUTION OF AN UNLAWFUL
DETAINER JUDGMENT.
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Where justice requires a stay of execution, the Court may do so without the consent of the
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adverse party for a period of up to 40 days. (Code Civ. Proc., § 918, subd. (b); California
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Residential Landlord-Tenant Practice, California Continuing Education of the Bar (1986),
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section 7.208, p.674.) This 40 day figure is derived from the provision that the Court may stay
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execution for a period which extends for 10 days beyond the last date on which a notice of
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appeal could be filed. (Code Civ. Proc.,§ 918, subd. (b).) The last date on which a notice of
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appeal can be filed from an unlawful detainer judgment is 30 days after the notice of entry of
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judgment is mailed by the clerk or opposing party or 90 days after the entry of judgment,
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whichever is earlier. (Cal. Rules of Court, Rule 122(a).) Therefore, the judge can stay the
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execution of an unlawful detainer judgment for 40 days after the notice of entry of judgment is
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served. Here, Defendants request the stay of execution for 100 days after the entry of judgment,
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which occurred on - - - - -
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III. DEFENDANT WILL SUFFER HARDSHIP WITHOUT A STAY.
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A stay of execution of judgment shall be granted when the Court finds the moving party will
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suffer hardship in the absence of a stay and that the nomnoving party will not be
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irreparably injured by its issuance. (Code Civ. Proc.,§ 1176, subd. (a).)
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Here, justice requires a stay of execution because:
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1.) Plaintiff has not yet established that Mr. Souza defaulted on the first amended
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stipulation. The report that Plaintiff relies on is double hearsay as it is an out-of-court
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statement, made in court, to prove the truth of the matter asserted. Moreover, the
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content of the report is of such a technical nature such that to establish the
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EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CBCL03821
1 truthfulness of the report, the analyst(s) who prepared it must testify in-court as to the
2 veracity of the report's findings.
3 2.) Even if this Court later finds the report admissible, the report does not establish the
4 cause of the methamphetamine's presence.
5 3.) Mr. Souza is especially vulnerable to the COVID-19 outbreak. In order to minimize
6 dangerous health risks, Mr. Souza needs additional time to properly defend against
7 the methamphetamine residue report. If forced to move by October 26, 2020, Mr.
8 Souza will certainly be homeless, which is dangerous for any person with end stage
9 renal failure especially during the current COVID-outbreak.
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11 IV. CONCLUSION
12 Based on the facts and good cause for its exercise in this matter, Defendant requests that the
13 writ of possession be recalled or in the alternative that that a stay of execution be granted until
14 December 31, 2020.
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Dated: October 26, 2020 Respectfully submitted,
16 Central California Legal Services, Inc.
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18 By· \~
Robert ~ Ttomejioibefundant
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EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821
Preview
1 Robert Cortez, SBN 321521 Central California Legal Services, Inc. 2 2115 Kern St., Suite 200 E-FILED (559) 570-1200 10/27/2020 1:20 PM 3 (559) 570-1254 Superior Court of California County of Fresno 4 Attorney for Defendant, Miles Souza By: C. York, Deputy 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 IN AND FOR THE COUNTY OF FRESNO 8 9 ~ Case No.: 20CECL03821 10 SAN MAR PROPERTJES, INC., 11 Plaintiff, ~ DEFENDANT'S EX PARTE l~ APPLICATION FOR STAY OF 12 EXECUTION AND RECALL OF WRIT v. OF POSSESSION; MEMORANDUM OF 13 POINTS & AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF MILES 14 MILES EARL SOUZA aka MILES SOUZA; SOUZA, ESMERALDA SOUZA, and ESMERALDA RUIZ-SOUZA aka ROBERT CORTEZ; [PROPOSED] 15 ESMERALDA SOUZA, ORDER 16 Defendant. Hearing Date: October, 28, 2020 Hearing Time: 8:30 a.m. 17 Courtroom: 404 18 l-1---- - -- -- ---- ---- 19 20 To the Court and to Plaintiff and their attorney of record: 21 Defendant MILES SOUZA makes this application under Code of Civil Procedure section 22 918 for an order from this Court, directed to the Sheriff's office of FRESNO County, to Plaintiff, 23 and to any other persons acting on behalf of or in concert with Plaintiff, staying execution of 24 judgment entered in this action on the grounds that MILES SOUZA would suffer hardship if the 25 judgment were to be executed on October 29, 2020. 26 Defendant Miles Souza also asserts that neither he, nor anyone else in the apartment unit, 27 defaulted on the first amended stipulation agreement ordered by this Court on October 10, 2020 28 and that execution of the judgment, without the Plaintiff first establishing the cause of -1- EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821 1 methamphetamine residue presence, and the authenticity and reliability of Plaintiffs purported 2 residue testing procedure, would violate Defendant's due process rights. 3 Defendant asks that execution of the judgment and writ of possession be recalled or in the 4 alternative stayed until at least December 31, 2020. 5 This application is based on the Declarations of MILES SOUZA and ESMERALDA 6 SOUZA, all pleadings and records on file in the action; matters of which this Court takes judicial 7 notice; oral testimony which may be presented; and the accompanying memorandum of points 8 and authorities. 9 10 Dated: October 26, 2020 Respectfully submitted, Central California Legal Services, Inc. 11 12 13 14 15 By· ~ ) RobertCortez,Attoey for Defendant 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 STATEMENT OF FACTS 3 Defendant MILES SOUZA lives at 5575 E. Tulare Ave., Apt 133, Fresno, CA 93727. 4 Mr. Souza has been diagnosed with end stage renal failure. His kidneys no longer function. Mr. 5 Souza is required to undergo in-clinic dialysis treatments three days a week, for several hours 6 each time. Without these treatments, Mr. Souza will die. Yet, Plaintiff insists on a Sheriff 7 lockout based on its allegation that Mr. Souza defaulted on the first amended stipulation 8 agreement. 9 a. Methamphetamine Residue. 10 On October 8, 2020, in accordance with the first amended stipulation agreement, 11 Plaintiffs agent collected surface wipe samples for methamphetamine residue presence inside 12 Defendant's apartment unit. On October 13, 2020, lab employees at A.LS Environmental 13 prepared a report based on those collected wipe samples. Based on the report, Plaintiff alleges 14 that Defendant is in default of the first amended stipulation agreement. Plaintiff now seeks a 15 Sheriff lockout based on that alleged default. 16 However, studies have shown that methamphetamine residue remains on surfaces for 17 more than five years without any significant deterioration or diminished intensity: 18 "Although the time since the cooking [of the methamphetamine] had taken place was significant (over five years), the levels of contamination were extremely high in both 19 household items that were part of the house when cooking was taking place (blinds, 20 carpets, walls, etc.) and also in articles brought to the house post-cooking (rugs, toys, beds, etc.). Both wipe sampling and analysis of bulk samples indicate that the 21 methamphetamine is not breaking down or being removed and is transferred from contaminated to non"contaminated objects. These results raise questions about the 22 adequacy of characterising contamination and of making decisions about the extent of remediation required based solely on surface wipe samples." (Contamination of Homes 23 with Methamphetamine: Is Wipe Sampling Adequate to Determine Risk? (September 24, 24 2019).) 25 Neither Mr. Souza, nor anyone else in the apartment unit, has ever used, produced, or 26 stored methamphetamine in the apartment unit during his entire tenancy of nearly five years. 27 (Declaration of Miles Souza ,m 8-9.) (Declaration of Esmeralda Souza 11113"4.) 28 -3- EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821 1 b. COVID-19's Dangerous Effect on Persons With P1·e-Existing Health Conditions. 2 On March 4, 2020 Governor Newsom declared a statewide state of emergency due to the 3 COVID-19 outbreak. Governor Gavin Newsom also declared in an Executive Order that 4 individuals with underlying health conditions need to "self-quarantine, self-isolate, or otherwise 5 remain in their homes to reduce the transmission of COVID-19." (Governor's Exec. Order No. 6 N-28-20 (March 16, 2020).) Governor Newsom specifically identified individuals with 7 underlying health issues as those "who are most vulnerable to COVID-19." (Id.) Governor 8 Newsom also stated that "homelessness can exacerbate vulnerability to COVID-19.'' 9 (Governor's Exec. Order No. N-28-20 (March 16, 2020).) Governor Newsom prioritizes 10 "tak[ing] measures to preserve and increase housing security for Californians to protect public 11 health." (Id.) 12 Mr. Souza has been diagnosed with a serious underlying health condition that makes him 13 especially vulnerable to the COVID-19 virus pandemic. (Deel. of Miles Souza 11114-7.) He has 14 not found new housing and does not have any family in the area. There is no one he can move in 15 with or stay with if he is locked of his home on October 29, 2020. ff Mr. Souza does not receive 16 additional time to secure alternative housing and to move, or to prepare to challenge the 17 admissibility of Plaintiff's methamphetamine residue report, he will be homeless, and that would 18 be an extremely stressful and dangerous situation for him. (Deel. of Miles Souza ,r,r 13-15.) 19 Because of the hardships he faces if he is locked out on October 28, 2020, and because . 20 Plaintiff has not established that Defendant defaulted on the first amended stipulation agreement, 21 Defendant requests the judgment and writ of possession be recalled or stayed until at least 22 December 31, 2020. 23 ARGUMENT I. DEFENDANT WOULD SUFFER IRREPARABLE HARM IF THIS MOTION 24 WAS NOT HEARD EX PARTE. 25 A moving party making an application for ex parte relief needs to show the party would 26 suffer irreparable harm if the motion were not heard. (Cal. Rules of Court, rule 3.1202(c).) Here, 27 Plaintiff is attempting to enforce a Sherifrs lockout due to an alleged stipulation default on the 28 part of the Defendant. A Sheriffs lockout is scheduled for of October 29, 2020. If this motion is ..4 .. EX pARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821 1 not heard before October 29, 2020, Mr. Souza will be locked out of his home and face severe 2 physical harm due to his age, significant pre-existing health condition, and the COVID-19 public 3 health crisis. 4 II. CODE OF CIVIL PROCEDURE SECTION 918(b) ALLOWS THE COURT 5 DISCRETION TO STAY THE EXECUTION OF AN UNLAWFUL DETAINER JUDGMENT. 6 Where justice requires a stay of execution, the Court may do so without the consent of the 7 adverse party for a period of up to 40 days. (Code Civ. Proc., § 918, subd. (b); California 8 Residential Landlord-Tenant Practice, California Continuing Education of the Bar (1986), 9 section 7.208, p.674.) This 40 day figure is derived from the provision that the Court may stay 10 execution for a period which extends for 10 days beyond the last date on which a notice of 11 appeal could be filed. (Code Civ. Proc.,§ 918, subd. (b).) The last date on which a notice of 12 appeal can be filed from an unlawful detainer judgment is 30 days after the notice of entry of 13 judgment is mailed by the clerk or opposing party or 90 days after the entry of judgment, 14 whichever is earlier. (Cal. Rules of Court, Rule 122(a).) Therefore, the judge can stay the 15 execution of an unlawful detainer judgment for 40 days after the notice of entry of judgment is 16 served. Here, Defendants request the stay of execution for 100 days after the entry of judgment, 17 which occurred on - - - - - 18 19 III. DEFENDANT WILL SUFFER HARDSHIP WITHOUT A STAY. 20 A stay of execution of judgment shall be granted when the Court finds the moving party will 21 suffer hardship in the absence of a stay and that the nomnoving party will not be 22 irreparably injured by its issuance. (Code Civ. Proc.,§ 1176, subd. (a).) 23 Here, justice requires a stay of execution because: 24 1.) Plaintiff has not yet established that Mr. Souza defaulted on the first amended 25 stipulation. The report that Plaintiff relies on is double hearsay as it is an out-of-court 26 statement, made in court, to prove the truth of the matter asserted. Moreover, the 27 content of the report is of such a technical nature such that to establish the 28 -5- EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CBCL03821 1 truthfulness of the report, the analyst(s) who prepared it must testify in-court as to the 2 veracity of the report's findings. 3 2.) Even if this Court later finds the report admissible, the report does not establish the 4 cause of the methamphetamine's presence. 5 3.) Mr. Souza is especially vulnerable to the COVID-19 outbreak. In order to minimize 6 dangerous health risks, Mr. Souza needs additional time to properly defend against 7 the methamphetamine residue report. If forced to move by October 26, 2020, Mr. 8 Souza will certainly be homeless, which is dangerous for any person with end stage 9 renal failure especially during the current COVID-outbreak. 10 11 IV. CONCLUSION 12 Based on the facts and good cause for its exercise in this matter, Defendant requests that the 13 writ of possession be recalled or in the alternative that that a stay of execution be granted until 14 December 31, 2020. 15 Dated: October 26, 2020 Respectfully submitted, 16 Central California Legal Services, Inc. 17 18 By· \~ Robert ~ Ttomejioibefundant 19 20 21 22 23 24 25 26 27 28 -6- EX PARTE MOTION FOR STAY OF EXECUTION AND RECALL OF WRIT - 20CECL03821