1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHISHOLM S. WIGHT, Case No.: 23-cv-00540-AJB-NLS Plaintiff, 12 ORDER DENYING WITHOUT v. PREJUDICE DEFENDANTS’ EX 13 PARTE APPLICATION CITY OF OCEANSIDE, a public entity; 14 OCEANSIDE POLICE DEPARTMENT, 15 a public entity; FRED ARMIJO, an individual; DANIEL POST, an individual; 16 RYAN HEINZE, an individual; K9 17 OFFICER CISNEROS, an individual; and DOES 1 through 50 inclusive, 18 Defendants. 19 20 Presently pending before the Court is Defendants City of Oceanside, Oceanside 21 Police Department, Fred Armijo, Daniel Post, Ryan Heinze, and K9 Officer Cisneros’s 22 (collectively, “Defendants”) ex parte application to stay the action, or in the alternative, 23 continue the time to file a responsive pleading. (Doc. No. 4.) Defendants argue that 24 pursuant to Younger v. Harris,

(1971), the Court should stay the instant action 25 pending the outcome of the underlying state court case. (Id. at 4.) 26 Plaintiff opposes Defendants’ ex parte application, arguing there is no emergency 27 here to warrant ex parte relief and that Plaintiff should be accorded the usual amount of 28 notice to write an opposition, and that Plaintiff is not accorded an opportunity to fairly 1 || pursue his constitutional claims in the ongoing state proceedings. (Doc. No. 5.) 2 Ex parte relief is rarely justified. Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 3 || F. Supp. 488, 490 (C.D. Cal. 1995). To warrant ex parte relief, the moving party must show 4 || that it will suffer irreparable harm if the motion is not heard on an expedited schedule and 5 ||that it either did not create the circumstances warranting ex parte relief or that the 6 || circumstances occurred as a result of excusable neglect. Jd. at 492; see also Hammett v. 7 || Sherman, No. 19-CV-605 JLS (LL),

, at *1 (S.D. Cal. Sept. 23, 2019). 8 || Defendants have failed to make either showing in their Application. Moreover, ex parte 9 || motions do not allow the nonmoving party to be heard either orally or in writing, defeating 10 ||the purpose of the adversary system, and thus are nearly always improper, and available 11 || only in unusual circumstances. Mission Power, 883 F. Supp. at 489. 12 The Court finds this is not a matter such as a simple extension request that may be 13 || properly decided on an ex parte application. To decide this matter fairly, the Court requires 14 || full briefing on the issue. Thus, Defendants’ ex parte application to stay the action 1s 15 ||} DENIED WITHOUT PREJUDICE. Moreover, in light of Defendants’ motion to 16 dismiss, filed on April 17, 2023, (see Doc. No. 6), the Court DENIES AS MOOT 17 || Defendants’ ex parte application to continue time to file a responsive pleading. To the 18 |/extent Defendants continue to seek the relief requested, they must file the motion in 19 || accordance with the rules of this Court and provide notice of it to Plaintiff. 20 21 IT IS SO ORDERED. 22 ||Dated: April 20, 2023 © 23 Hon. Anthony J.Battaglia 24 United States District Judge 25 26 27 28