Judge: Ashfaq G. Chowdhury, Case: 24NNCV01884, Date: 2024-11-20 Tentative Ruling
Case Number: 24NNCV01884 Hearing Date: November 20, 2024 Dept: E
Hearing Date: 11/20/2024 – 8:30am
Case No. 24NNCV01884
Trial Date: UNSET
Case Name: ALLY BANK, a corporation; v.
DANIELLE M. BALLINGER aka DANIELLE BALLINGER, an individual; DOES 1 through 10,
inclusive
Application and Hearing for Claim and
Delivery- Res ID 3966
RELIEF REQUESTED
Plaintiff, Ally Bank, a corporation, applies for a writ of possession after
hearing (Code Civ. Proc. (CCP), § 512.010).
BACKGROUND
Plaintiff, Ally Bank, a
corporation, filed a Complaint on 5/28/2024 against Defendant Danielle M.
Ballinger aka Danielle Ballinger, an individual.
The caption of the
Complaint lists the causes of action as “COMPLAINT FOR (1) CLAIM AND DELIVERY
OF PERSONAL PROPERTY, FOR PRE-TRIAL WRIT OF POSSESSION, AND ORDER DIRECTING
TRANSFER OF PERSONAL PROPERTY AND RESTRAINING ORDER, AND (2) MONEY DUE ON A
CONTRACT.”
Plaintiff alleges that
prior to the commencement of this action, pursuant to an assignment in writing,
Plaintiff became and now is the owner of a written contract (“Contract”),
pursuant to which Danielle M. Ballinger aka Danielle Ballinger purchased from
Plaintiff’s assignor the subject 2021 Nissan Titan motor vehicle. (See Compl. ¶
6.) Plaintiff
alleges that it has been, and now is, the holder of a first priority security
interest in the motor vehicle. (Id. at ¶ 7.) Plaintiff alleges that the
Contract is in default because Ballinger failed to make the payment due and
owing on 6/16/2023 or any of the regular monthly payments thereafter. (Id.
at ¶ 8.)
PROCEDURAL
Moving
Party: Plaintiff,
Ally Bank, a corporation
Responding
Party: No opposition by Defendant, Danielle M. Ballinger aka Danielle Ballinger
Moving Papers: Notice of Application for Writ
of Possession and Hearing; Application for Writ of Possession after Hearing;
Memorandum
Opposition Papers: No Opposition
Reply Papers: No Reply
ANALYSIS
Proof of
Service Timely Filed (CRC, Rule 3.1300(c))
“Proof of service of the moving papers must be filed no later than five court
days before the time appointed for the hearing.” (Cal Rules of Court, Rule 3.1300(c).)
The moving papers for
this motion appear to be the Notice of Application for Writ of Possession and
Hearing, the Application for Writ of Possession after Hearing, and the
Memorandum. The instant hearing is set for Wednesday, 11/20/2024. Five court
days before the 11/20/2024 hearing would be 11/13/2024. Here, as of 11/18/2024
when the Court is drafting this tentative ruling, no proofs of service have
been filed for any of the moving papers. Therefore, not only are there no
proofs of service, even if a proof of service is filed before the hearing, the
proof of service would be untimely.
16/21 Court Days Lapsed (CCP § 1005(b))
In relevant part of CCP § 1005(b), “Unless otherwise
ordered or specifically provided by law, all moving and supporting papers shall
be served and filed at least 16 court days before the hearing.” (Ibid.)
Here, the Court is unable to tell if the
moving papers were timely served because no proof of service was filed
to indicate when, or if, the moving papers were served upon Defendant. The
moving papers were timely filed. However, the Court cannot tell if the
moving papers were timely served due to the fact that no proof of
service has been filed for any of the moving papers.
Proper Address (CCP § 1013, § 1013a, § 1013b)
First, Plaintiff has not filed a proof of service for the moving papers for the
Court to be able to determine what address Plaintiff served Defendant at.
Second, the Court notes that it is unclear what the proper service address is
for Defendant. Defendant has not appeared in the action. There is an Order to
Show Cause Re: Failure to File Proof of Service currently set for 11/20/2024.
Service Related to Writ of Possession
“Upon the filing of the
complaint or at any time thereafter, the plaintiff may apply pursuant to this
chapter for a writ of possession by filing a written application for the writ
with the court in which the action is brought.” (CCP § 512.010(a).)
(1) A copy of the
summons and complaint.
(2) A Notice of
Application and Hearing.
(3) A copy of the
application and any affidavit in support thereof.
(CCP § 512.030(a).)
As previously explained, Plaintiff has not
provided proof for meeting the requirements of CCP § 512.030(a)(2) and (a)(3)
because Plaintiff has not provided a proof of service with its moving papers to
indicate that the notice and application have been served.
Further, Plaintiff has not shown that the
requirements of CCP § 512.030(a)(1) have been met. Not only has a proof of
service not been filed to show service for the summons and complaint, but an
order to show cause re: failure to file proof of service is currently set for
11/20/2024. Additionally, in the Case Management Statement filed on 11/6/2024
by Plaintiff, Plaintiff’s counsel appears to concede that the parties named in
the complaint have not been served. (See CMC filed 11/6/2024, Section 3 titled
“Service.”)
TENTATIVE RULING
Plaintiff has not provided proofs of service for any of
the moving papers. Therefore, it is not clear if Defendant has received notice
of this motion. Further, Plaintiff’s CMC Statement filed on 11/6/2024 appears
to concede that Defendant has not been served the complaint.
Therefore, as a preliminary matter, Plaintiff has not met
the requirements of CCP § 512.030.
The Court will hear argument as to if it should continue
this hearing; however, as it stands right now, this motion must be denied.