Motion for Emergency Ex Parte Order – Misti Matlock v. Rebecca Hernandez

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In pro per

XXXXX

NOW COMES Person 3, Plaintiff, and brings this Motion for Emergency Ex-Parte Order to Return Property and Application for Temporary Restraining Order, Preliminary Injunction and Possible Writ of Sequestration against Rebecca Hernandez, Defendant, and hereby avers as follows:

1. MEMORANDUM IN SUPPORT OF MOTION FOR EMERGENCY EX-PARTE ORDER TO RETURN PROPERTY

1. Plaintiff requests that Notice to Defendant should not be given for the reason that Defendant has refused to be served with Plaintiff’s Complaint filed in this Court on XXX. Defendant has been evading service since the first attempt to serve her. Defendant called the police and accused Plaintiff of harassment when Plaintiff went to serve her directly. Plaintiff filed a Motion to Request Alternative Service on XXX. Even if Defendant is given Notice of this Motion, it will not be served because she has demonstrated that she is not willing to accept service of any pleading filed before this Court.
2. Plaintiff has the right to ownership of her dog, Lucy. Defendant has no right to ownership of Lucy. Defendant refusing to return Lucy to Plaintiff despite multiple requests to do so amounts to conversion.
3. Restatement (Second) of Torts § 222A (1) provides as follows: “Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.”
4. Restatement (Second) of Torts § 222A (2) further provides as follows: “In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: a) The extent and duration of the actor’s exercise of dominion or control; b) The actor’s intent to assert a right in fact inconsistent with the other’s right of control; c) The actor’s good faith; d) The extent and duration of the resulting interference with the other’s right of control; e) The harm done to the chattel; and f) The inconvenience and expense caused to the other.”
5. On 04/08/2021, Plaintiff gave Lucy to Defendant for an agreed period of 1-2 weeks to see how Defendant’s 4 cats would react to the presence of a dog in her house. Defendant was supposed to return Lucy to Plaintiff by XXXX. On XXX, Plaintiff sent Defendant a polite reminder to return Lucy. 
6. Plaintiff sent Defendant text messages asking her to return XXX. Plaintiff later discovered that Defendant had moved with the dog to California. Defendant later informed Plaintiff that she and her family had already formed an attachment to her, therefore she would not return Lucy. Plaintiff even sent Defendant a demand letter.
7. In Sterling Boat Co. v. Arizona Marine Inc., 134 Ariz. 55, 58, 653 P.2d 703, 706 (App. 1982), it was held as follows: “Conversion also requires conduct intended to affect property of another. The intent required is an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff’s rights.” Defendant has demonstrated malicious intent in blatantly refusing to return Plaintiff’s dog, XXX, and wanting to keep her permanently. Plaintiff gave Defendant the dog in good faith that Defendant would give PERSON 1 back to her. PERSON 1 belongs to Plaintiff. Plaintiff has proof of ownership of XXX. 
8. Defendant stopped responding to requests from Plaintiff and blocked her. She even changed her number.
9. Plaintiff and her family took Person 1 in when she was just 10 weeks old. Prior to giving PERSON 1 to Defendant, Plaintiff had stayed with her for more than a year. Plaintiff and her family formed a huge attachment to PERSON 1 and have missed her since the day she was taken by Defendant.
10. As a result of deprivation of PERSON 1 by Defendant, Plaintiff and her family have experienced untold agony due to not having PERSON 1, an integrated member of the family, around.
11. Plaintiff would like this Court to grant her an Emergency Ex-Parte Order compelling Defendant to return PERSON 1 to Plaintiff’s address, XXX  within 5 days, failure to which Defendant shall pay $1,000.00 for every day past the due date until Defendant finally delivers Lucy to Plaintiff.
12. If this Court fails to grant the requested Emergency Ex-Parte Order, Plaintiff and her family shall continue to be emotionally distressed and experience agony due to missing Lucy, an integrated member of Plaintiff’s family.

1. APPLICATION FOR TEMPORARY RESTRAINING ORDER

1. Plaintiff hereby incorporates the facts stated in Paragraphs 1-12 of this Motion.
2. Plaintiff seeks a Temporary Restraining Order prohibiting Defendant from placing Lucy with a third party, selling Lucy, disposing off of Lucy.
3. Plaintiff is likely to succeed in the action for conversion against Defendant for refusing to return Lucy. As demonstrated in Paragraphs 1-12 of this Motion, Plaintiff has proved all elements of conversion and is therefore likely to succeed in an action for conversion. 
4. If this Application is not granted, Plaintiff will suffer irreparable harm. Currently, Plaintiff is suffering emotional distress and agony from the actions of Defendant, even though she has hope that PERSON 1 will eventually return to her. Plaintiff will be completely devastated and heartbroken if Defendant sells or disposes off of PERSON 1 because then, there will be very minimal to no hope of ever recovering PERSON 1 again. PERSON 1 has not been vaccinated against Parvo virus which thrives in unhygienic conditions. Placing PERSON 1 with third parties puts her at risk of contracting Parvo virus. It will be detrimental to PERSON 1 health as well as Plaintiff’s mental health. This kind of harm is irreparable.

1. REQUEST FOR PRELIMINARY INJUNCTION

1. Plaintiff asks this Court to set her Application for Temporary Restraining Order for hearing, and after hearing the Application, issue a preliminary injunction against Defendant.

1. REQUEST FOR POSSIBLE WRIT OF SEQUESTRATION

1. Plaintiff hereby incorporates the facts stated in Paragraphs 1-12 of this Motion.
2. Plaintiff fears that Defendant may sell, dispose of off, or place PERSON 1 with a third party during the pendency of this suit because Defendant refused to surrender possession of Lucy when specifically, and rightfully requested by Plaintiff to do so. This refusal by Defendant is an intention to deprive Plaintiff of PERSON 1. Selling, disposing off of, or placing Lucy with a third party will put PERSON 1 at risk of contracting Parvo virus.
3. In the event that Defendant sells, disposes off of or places PERSON 1 with a third party, Plaintiff prays that this Court issue a writ of sequestration and that Plaintiff receive all further relief to which Plaintiff may be entitled.

1. PRAYER FOR RELIEF

Plaintiff respectfully requests this Honorable Court to grant her the following reliefs:

1. Grant this Motion in favor of Plaintiff;
2. Grant an Emergency Ex-Parte Order Compelling Defendant to return PERSON  1  to Plaintiff within 5 days, failure to which Defendant shall pay Plaintiff $1,000.00 every day upon the lapse of the due date until Defendant returns PERSON 1 to Plaintiff;
3. Grant a Temporary Restraining Order prohibiting Defendant from placing PERSON 1with a third party, selling PERSON 1, or disposing off of PERSON 1;
4. Grant a subsequent Preliminary Injunction against Defendant;
5. Grant a Possible Writ of Sequestration against Defendant in the event that Defendant acts contrary to the Temporary Restraining Order and Preliminary Injunction;
6. Grant Plaintiff such equitable relief as may be appropriate under the circumstances; and
7. Grant Plaintiff such further relief as this Honorable Court deems necessary and proper.

Dated this day of Month, year.

VERIFICATION

I, Misti Matlock, being duly sworn depose and say that I am the Plaintiff in the above entitled action, that I have read the foregoing Motion for Emergency Ex-Parte Order to Return Property and Application for Temporary Restraining Order, Preliminary Injunction and Possible Writ of Sequestration, and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this _____ day of ____________________, XXX

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

(Name and Address of Attorney or Defendant)

Dated this day of Month, year.

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