Judge: Curtis A. Kin, Case: 24STCP02476, Date: 2025-01-14 Tentative Ruling

Case Number: 24STCP02476    Hearing Date: January 14, 2025    Dept: 86

APPLICATION FOR ORDER RECONSIDERING MATTER AND MODIFYING, AMENDING, OR REVOKING PRIOR ORDER

Date:               1/14/25 (1:30 PM)

Case:                           Whisenton Waldo Alvin, Sr et al. v. BMW Financial Services NA LLC et al. (24STCP02476)

TENTATIVE RULING:

Petitioners/Plaintiffs Whisenton Waldo Alvin, Sr and Andrea Renee Osborn II et al.’s Application for Order Reconsidering Matter and Modifying, Amending or Revoking Prior Order is DENIED.

On 8/16/24, the Court (Hon. Stephen I. Goorvitch) denied an ex parte application wherein petitioners sought an order requiring Los Angeles Sheriff’s Department to return their vehicle and a temporary restraining order preventing “Defendants and ALL their agents from taking any actions that would conceal, remove from the state, impair, or otherwise alter the condition of the Subject Property.” (8/15/24 Ex Parte App. at 11.) Petitioners also sought “any other relief deemed just and suitable by the Court, including corrective measures, to ensure the fair and just resolution of this matter, preserving the Petitioners’ rights and interest in the Subject Property.” (8/15/24 Ex Parte App. AT 11.)  In denying such requests, the Court concluded: “Petitioners do not provide sufficient evidence that the vehicle will become unavailable to levy by reason of being transferred, concealed, or removed from the state, or will become substantially impaired in value by acts of destruction of by failure to take care of the vehicle in a reasonable manner. Petitioner cites no authority that the court may order the other relief requested, especially on an ex parte basis.” (8/16/24 Minute Order.)

On 8/20/24, the Court (Judge Goorvitch) denied petitioners’ ex parte application seeking the same relief as the ex parte application denied on 8/16/24. (8/19/24 Ex Parte App. at 15.) In so doing, the Court explained: “Again, Petitioners do not provide sufficient evidence that the vehicle will become unavailable to levy by reason of being transferred, concealed, or removed from the state, or will become substantially impaired in value by acts of destruction of by failure to take care of the vehicle in a reasonable manner, per Code of Civil Procedure section 512.020. This is required to proceed by way of an ex parte application for a writ of possession.” (8/20/24 Minute Order.) The Court also denied the application for additional independent reasons, stating: “Nor do Petitioners satisfy the other requirements for issuance of a writ of possession, as required by section 512.010. Petitioners allege that BMW Financial Services seized the vehicle and issued a notice of intent to sell the vehicle, but do not establish that BMW Financial Services was unlawful in doing so (e.g., Petitioners do not demonstrate that they owed no money on the vehicle or were current on their payments and thus BMW Financial Services re-possessed the vehicle unlawfully). Petitioners do not proffer sufficient evidence of the vehicle’s probable location, which is required under section 512.010(b)(4). Nor do Petitioners provide any basis to issue a writ against the Los Angeles County Sheriff’s Department. To the extent law enforcement seized the vehicle, which is suggested by Petitioners, there is no basis to issue a writ of possession, per section 512.010(b)(5). The court does not have authority to issue writs of possession for vehicles seized by law enforcement pursuant to statute.” (8/20/24 Minute Order.)

On 8/23/24, the Court denied petitioners’ ex parte application seeking the same relief as the ex parte applications denied on 8/16/24 and 8/20/24. (8/21/24 Ex Parte App. at 20-21.) In so doing, the Court acknowledged that the Court (Hon. Stephen I. Goorvitch) had twice denied petitioner’s request for the same relief already. (8/23/24 Minute Order.) The Court thus concluded that “[t]he instant application is a request for reconsideration of the Court’s prior Orders that fails to satisfy the requirements of CCP 1008” and accordingly must be denied for that reason alone. (8/23/24 Minute Order, citing CCP 1008(e).) Further still, the Court again addressed the request on the merits and denied it, stating: “Moreover, even if this Court were to address the request on the merits, it must be DENIED. The Court does not find that the requirements for a writ of possession are met. (See CCP 512.010, 512.060.) . . . Nor do petitioners/plaintiffs demonstrate entitlement to issuance of a writ of mandamus (see CCP 1085, 1094.5) . . .” (8/23/24 Minute Order.)

On 8/28/24, the Court denied petitioners’ ex parte application seeking the same relief as the ex parte applications denied on 8/16/24, 8/20/24, and 8/23/24. (8/26/24 Ex Parte App. at 22.) The Court denied the application on the ground that it was yet another request for reconsideration that failed to satisfy the requirements of CCP 1008. (8/28/24 Minute Order.) The Court explained: “It is not sufficient for petitioners/plaintiffs simply to declare new facts are presented to justify seeking the same relief that has thrice been denied. Presenting purportedly ‘new’ facts or evidence that were in the possession of and/or available to petitioners/plaintiffs previously, without a satisfactory explanation for not presenting them earlier, is insufficient to satisfy the requirements of CCP 1008. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)” (8/28/24 Minute Order.) While the Court did not need to reach the merits, it nonetheless did so and denied relief on that ground as well, stating: “Further, on the merits, this fourth application for the same relief would be denied for the same reasons its three predecessor applications were denied. (See 8/23/24 Minute Order; 8/20/24 Minute Order; 8/16/24 Minute Order.)” (8/28/24 Minute Order.)

Yet again, on 9/3/24, the Court denied petitioners’ ex parte application seeking the same relief as the ex parte applications denied on 8/16/24, 8/20/24, 8/23/24, and 8/28/24. (8/30/24 Ex Parte App. at 23-24.) In so doing, the Court simply noted: “This is the fifth application for identical relief upon largely the same legal and factual showing each time. Accordingly, it is DENIED for the reasons previously stated. (See 8/28/24 Minute Order; 8/23/24 Minute Order; 8/20/24 Minute Order; 8/16/24 Minute Order.)” (9/3/24 Minute Order.)

On 10/21/24, the Court denied four applications for writs of possession against respondents/defendants BMW Financial Services, Los Angeles Police Department, et al., Location Services USA, et al., and Valley Auto Recovery & Transport, et al. In the applications, petitioners relied on the declarations that Whisenton Alvin Waldo Sr. filed on 8/7/24, 8/19/24, 8/21/24, 8/26/24, and 8/30/24 in connection with aforementioned ex parte applications. (See Application for Interim Relief filed 9/16/14 at 6:15-20.) The Court noted that the declarations were already before the Court in the then-most recent application heard on 9/3/24. The Court then concluded: “Thus, the declarations are not ‘new’ or ‘different,’ as required under CCP § 1008(a). Moreover, the Court first denied petitioners’ requested relief on 8/16/24. With respect to the declarations subsequently filed on 8/19/24, 8/21/24, 8/26/24, and 8/30/24, petitioners merely assert that they have satisfied the requirements for reconsideration under CCP § 1008 without justifying the failure to present the purportedly new facts set forth in these declarations in connection with the first ex parte application that was denied on 8/16/24. (See Application for Interim Relief filed 9/16/14 at 18:21-28.)” (10/21/24  Minute Order at 4.)

Petitioners now move for reconsideration of the Court’s 10/21/24 ruling based on a “Presentment of Notice of Claim Under Notary Seal” (“Notice of Claim”), to which respondents, including BMW Financial Services NA LLC, purportedly failed to respond. Petitioners contend that respondents’ purported failure to respond to the Notice of Claim constitutes a default under Uniform Commercial Code § 9-210. (Pet. Decl. ¶ 2; Application for Reconsideration at 2:15-21, 4:14-16, 4:25-5:3.)

As a preliminary matter, petitioners merely cite UCC § 9-210 without explaining how the failure of respondents to respond to the Notice of Claim constitutes a default under the statute. UCC § 9-210 provides that a secured party must respond to a request for accounting, list of collateral, or statement of account, but the statute does not state the effect of a failure to respond to the request. (See also Comm. Code § 9210.)

Even if petitioners’ assertion regarding default were correct, a party seeking reconsideration of a prior ruling must set forth what “new or different facts, circumstances, or law” justify reconsideration of the prior ruling, which is required to establish the Court’s jurisdiction to reconsider a prior ruling under CCP § 1008(a). (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) A party moving for reconsideration “must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

Although the Notice of Claim was notarized on 10/23/24 (Ex. A to Application for Reconsideration), petitioners have not explained why such a Notice of Claim was not served on respondents prior to the applications denied by the Court on 10/21/24. Petitioners contend that the “notarial process was ongoing at the time of the original application, and the ‘Presentment of Notice and Claim Under Notary Seal’ was only finalized after the court’s ruling.” (Pet. Decl. ¶ 2; see also Application for Reconsideration at 4:4-6, see also Application for Reconsideration at 5:2-4.) Petitioners also declare that “the failure of Respondents to respond was only discovered after the deadline for their legal obligation to reply had passed.” (Pet. Decl. ¶ 2; Application for Reconsideration at 4:7-9.)

The Court is not persuaded that “the new facts were unavailable at the time of the original hearing due to circumstances outside of Petitioners’ control.” (Application for Reconsideration at 4:10-12.) Petitioners claim that respondents took possession of the subject vehicle despite their account having no outstanding balance. (Pet. Decl. ¶ 4.) That claim existed prior to the filing of any of the applications set forth above. (See 8/7/24 Alvin Decl. Ex. L at ¶ 7 [Answer filed by Lenders Recovery in BAIFA, LLC et al. v. BMW Financial Services NA, LLC, LASC Case No. 24STCV06069 alleges “Defendant denies that Plaintiffs have paid the account in full”], Ex. O [Order to Repossess showing Amount Past Due of $3,304.86].)

“The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) Petitioners do not explain why they did not serve a Notice of Claim prior to filing any of the applications set forth above. Had petitioners previously served the Notice of Claim, they could have presented their argument regarding default in their first ex parte application filed on 8/7/24. Instead, after having failed to obtain a writ of possession of the subject vehicle, petitioners continue to seek the same relief without presenting new facts, circumstances, or law.

The purpose of CCP § 1008 is “to conserve judicial resources by constraining litigants who

would endlessly bring the same motions over and over, or move for reconsideration of every

adverse order and then appeal the denial of the motion to reconsider.” (Even Zohar Construction

& Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839-40, internal

quotations omitted.) This is the seventh application for identical relief. Petitioners were required to present their best arguments and evidence in connection with the first ex parte application that

was denied on 8/16/24. Petitioners’ obstinance in seeking the same relief without complying with

statutory rules continues to be a strain on judicial resources.

For the foregoing reasons, the application for reconsideration is DENIED.

In its ruling dated 10/21/24, the Court warned petitioners that future attempts to seek the same relief proposed in the instant applications may subject petitioners to an order to show cause under CCP § 128.7(c)(2) as to why they have not violated CCP § 128.7(b)(2) by presenting claims and legal contentions that are not warranted by existing law.  (10/21/24 Minute Order at 5 [“The Court warns petitioners that future attempts to seek the same relief proposed in the instant applications may subject petitioners to an order to show cause under CCP § 128.7(c)(2) as to why they have not violated CCP § 128.7(b)(2) by presenting claims and legal contentions that are not warranted by existing law”].) Petitioners appear to preemptively argue why they should not be sanctioned. (See Application for Reconsideration at 6-7.)

Petitioners emphasize that respondents have not opposed the motion. That argument would appear unavailing and unpersuastive. Petitioners have not demonstrated that respondents were served with either the Petition filed on 8/7/24 or the operative First Amended Petition filed on 8/12/24. Although petitioners fled a “Declaration of Due Diligence and Request for Substituted Service” on 12/12/24, petitioners were required to demonstrate service by filing a proof of service for each respondent using Judicial Council form POS-010 or a document containing the title and text of form POS-010. (See Rule of Court 2.150.)

As to petitioners’ arguments that their claims are not frivolous and that reconsideration is justified, the Court is inclined to disagree for the reasons stated above.

With respect to whether petitioners’ “repeated filings have been made in good faith” (Application for Reconsideration at 7:5), the Court is not persuaded. Petitioners contend that the repossession of the subject vehicle was unlawful because there was no balance on the account. However, petitioners have not demonstrated that this was actually the case. (See 8/20/24 Minute Order [“Petitioners allege that BMW Financial Services seized the vehicle and issued a notice of intent to sell the vehicle, but do not establish that BMW Financial Services was unlawful in doing so (e.g., Petitioners do not demonstrate that they owed no money on the vehicle or were current on their payments and thus BMW Financial Services re-possessed the vehicle unlawfully)”].) Petitioners appear to be repeatedly filing applications without any basis for possession of the subject vehicle, as well as lacking in any basis to seek repeated reconsideration of past orders denying petitioners’ requests for possession of the vehicle.

Notwithstanding the apparent lack of merit of petitioners’ arguments as to why they should not be sanctioned, CCP § 128.7 requires the Court to issue an order to show cause before sanctioning petitioners. (CCP § 128.7(c)(2).) Accordingly, the Court orders petitioners Whisenton Waldo Alvin, Sr and Andrea Renee Osborn II to show cause why they should not be sanctioned for filing a seventh application seeking possession of a 2022 BMW M440i on 10/23/24 without complying with the requirements for reconsideration under Code of Civil Procedure § 1008(b). Because petitioners have not demonstrated new facts, circumstances, or law warranting reconsideration of the ruling issued on 10/21/24, it appears that petitioners have violated CCP § 128.7(b)(2) by failing to demonstrate that their claim for possession of the subject vehicle is warranted by existing law.

Petitioners may file a response to this order to show cause no later than 2/6/25. The Order to Show Cause re: Why Petitioners Should Not be Sanctioned for Filing the Application for Reconsideration on 10/23/24 is set for hearing on 2/18/25 at 1:30 PM in Department 86 (Stanley Mosk Courthouse).