A. General: Any defendant or any person holding any legal or equitable interest or right of possession in any motor vehicle subject to a vehicular public nuisance action, or any personal property contained within the vehicle, may file a motion to modify, vacate, or stay the execution of the temporary restraining order and/or for the return of the motor vehicle, or property contained within the motor vehicle. The Court must hold a hearing on a motion to modify, vacate, or stay a temporary restraining order unless a stipulated agreement is subsequently filed. Proceedings on these motions shall be as provided in this section. Any order to release the vehicle applies only to a hold upon the vehicle under this article, and does not impact any other evidentiary holds or processes.
B. Limitations: All motions to modify, vacate, or stay a temporary restraining order must be submitted to the Court in writing. Any motion to modify, vacate or stay a temporary restraining order must specifically state the factual and legal grounds upon which it is based, and only the grounds stated in the motion may be considered at the hearing. If a moving party fails to appear at a hearing set on a motion to modify, vacate, or stay a temporary restraining order, without notifying the Court prior to the start time, the Court shall deem the motion abandoned and deny the motion. This failure to appear does not toll or suspend any time frames. If the moving party fails to appear, but notifies the Court prior to the hearing start time, the Court shall construe the moving party's notice as a motion to continue and shall determine whether there is good cause to continue the hearing. If no good cause is shown, the motion shall be deemed abandoned and denied.
C. Rules Of Evidence: In any hearing regarding a motion to modify, vacate, or stay a temporary restraining order, the Court shall temper the rules of evidence and admit hearsay evidence unless the Court finds that such hearsay evidence is not reasonably reliable and trustworthy.
D. Required Method Of Service: The following method of service must be used when filing a motion to modify, vacate, or stay the execution of a temporary restraining order:
1. The moving party to any motion to modify, vacate, or stay a temporary restraining order must file a written motion with the Municipal Court, set a hearing date, and serve a copy of the motion and notice of the hearing date on the Office of the City Attorney, Prosecution Division.
2. The Court shall provide a copy of the notice of hearing to the Office of the City Attorney, Prosecution Division upon the setting of any hearing.
E. Effect Of Motion Filing On Temporary Restraining Order: The filing of a motion to modify, vacate, or stay a temporary restraining order will have the following effects on the temporary restraining order:
1. If a motion to modify, vacate, or stay a temporary restraining order is filed prior to the temporary restraining order becoming effective, the filing of the motion and setting of a hearing date will automatically stay the effective date of the temporary restraining order until the conclusion of the required hearing, when the Court will either grant or deny the temporary restraining order, or issue further orders.
2. If a motion to modify, vacate, or stay a temporary restraining order is filed after the temporary restraining order becomes effective, the filing of the motion will not impact the validity or effectiveness of the temporary restraining order, which will remain in effect during the pendency of the motions hearing unless upon further order of the Court.
F. Scheduling: The following rules will govern the scheduling of hearings on any motions to modify, vacate or stay execution of a temporary restraining order:
1. The proceedings in this article are considered expedited proceedings. As such, the Court and parties shall set hearings on these matters as soon as practicable, and shall prioritize hearings on these matters.
2. Despite the expedited nature of these proceedings, the Court may continue a hearing on any motion to modify, vacate, or stay execution of a temporary restraining order upon stipulation of the parties. In addition, the Court may grant either party a continuance of the hearing for good cause but must continue to set the hearings as soon as practicable, with priority, and on an expedited schedule.
G. Motion To Stay Execution Of Temporary Restraining Order:
1. At any time prior to the execution of the temporary restraining order (specifically, the closure/detention of the vehicle), a defendant may file a motion to stay execution of the temporary restraining order pursuant to the requirements listed in this subsection.
2. At the hearing, the moving party shall have the burden of proving by a preponderance of the evidence the following:
a. A legal or equitable interest in or right of possession to the vehicle at issue;
b. That the moving party defendant is using all reasonable efforts to abate any vehicular public nuisance activities;
c. That these efforts are likely to abate the activities giving rise to the vehicular public nuisance; and
d. That the public health, safety, and welfare will not be impaired by granting a stay of execution of the temporary restraining order.
3. If the moving party meets their burden of proof, the Court shall enter a single stay of execution of the effective date of the temporary restraining order for a total of forty-five (45) days. At the conclusion of the forty-five (45) day stay of execution, the temporary restraining order will become active, effective, and subject to execution unless upon further order of the Court.
4. The Court may only grant one stay of execution.
5. The purpose of any stay of execution is to grant a defendant additional time to obtain legal counsel, conduct investigation, prepare for a trial on the merits, or engage in negotiation with the City Attorney for a potential voluntary abatement agreement.
H. Motion To Modify Or Vacate Temporary Restraining Order Prior To Closure/Detention Of Vehicle:
1. At any time prior to the execution of the temporary restraining order (specifically, the closure/detention of the vehicle), a defendant may file a motion to modify or vacate the temporary restraining order pursuant to the requirements listed in this subsection.
2. At the hearing, after the moving party shows a legal or equitable interest or right of possession to the vehicle at issue, the City shall have the burden of proving that there is probable cause to believe that a vehicular public nuisance exists as alleged with the motor vehicle at issue.
3. If the Court finds that there is not probable cause to believe that a vehicular public nuisance exists as alleged, the Court shall revoke and vacate the temporary restraining order.
4 The Court shall not vacate the temporary restraining order unless it finds that there is no probable cause to believe that a vehicular public nuisance exists, or that the order is manifestly unreasonable or unjust. Modifications to the terms within the temporary restraining order shall only occur in the discretion of the Court, and shall not change the closure/detention order.
5. The only relevant issues at hearing on the motion to vacate or modify the temporary restraining order are the existence of a legal or equitable interest in the vehicle, and whether probable cause exists that a vehicular public nuisance exists as alleged. Therefore, any other defenses or issues are deemed irrelevant and shall not be considered.
I. Motion To Modify Or Vacate Temporary Restraining Order After Closure/Detention Of Vehicle:
1. At any time after the execution of the temporary restraining order (specifically, the closure/detention of the vehicle), a defendant may file a motion to modify or vacate the temporary restraining order pursuant to the requirements listed in this subsection.
2. At the hearing, after the moving party shows a legal or equitable interest or right of possession to the vehicle at issue, the City shall have the burden of proving that there is probable cause to believe that a vehicular public nuisance exists as alleged with the motor vehicle at issue.
3. If the Court finds that there is no probable cause to believe that a vehicular public nuisance exists as alleged, the Court shall vacate and revoke the temporary restraining order. Additionally, the Court shall order release of the vehicle with no fees or costs imposed. However, the Court shall order release of the vehicle to occur only within standard business hours for the relevant impound lot. The Court shall also close the action at this time.
4. The Court shall not vacate the temporary restraining order or release the vehicle unless it finds that there is no probable cause to believe that a vehicular public nuisance occurred on or in the relevant vehicle, or that the order is manifestly unreasonable or unjust. The Court may modify other terms of the temporary restraining order in its discretion.
5. The only relevant issues at hearing are the existence of a legal or equitable interest in the vehicle, and whether probable cause exists that a vehicular public nuisance exists as alleged. Therefore, any other defenses or issues are deemed irrelevant and shall not be considered.
6. The Court, under this subsection, may also hear and rule on a motion to release personal property from inside the vehicle that has been closed/detained. The Court may order release of personal property in its discretion after proof of actual ownership of the item at issue. The Court shall also order the moving party to comply with the policies for release of property from the relevant impound lot. Any order to release property shall be a written order, with copies provided to all known parties. The exception to this requirement is detailed in City Code subsection 10.29.107E1 which allows the impound lot to release emergency items of personal property consistent with their internal policies and procedures. These emergency items include as an example, but are not limited to: identification documents, medications, car seats, or items like a laptop needed for school or employment.
J. Consolidated Hearing On Motion To Modify, Vacate, Or Stay Temporary Restraining Order And Trial On The Merits: Where all parties so stipulate, the Court may order the trial on the merits to be consolidated and tried with a hearing on any or all of these motions. Where the trial on the merits is not consolidated, any evidence received at the hearing on these motion(s) need not be repeated at trial but shall be treated as part of the record at trial. (Ord. 21-33; Ord. 23-01)