Judge James C. Chalfant, Case 23STCP00104 2023-03-21 Tentative Ruling

Ajah Alvarez v. Silverlake Auto Body and Paint, 23STCP00104

Tentative decision on application for preliminary injunction: granted

Plaintiff Ajah Alvarez (“Alvarez”) seeks a preliminary injunction enjoining Defendant Silverlake Auto Body and Paint (“Silverlake”) from selling, auctioning, leasing or assigning possession of a Black 2021 Subaru Crosstrek, VIN JF2GTAACXM9357581, license plate number 8XTA450 (“Vehicle”). When ordered to file supplemental papers, Alvarez filed a writ of possession to recover the Vehicle.

The court has read and considered the moving papers, opposition, and supplemental papers, and renders the following tentative decision.

Plaintiff Alvarez commenced this proceeding on January 12, 2023 against Defendant Silverlake for an order releasing the Vehicle from a mechanics lien. The verified Complaint alleges in pertinent part as follows.

Alvarez is the Vehicle’s owner. Silverlake claims to have repaired the Vehicle. Silverlake has not recorded a claim of mechanics lien against it. Alvarez never granted an extension of credit under Civil Code §8460(b) or filed for relief in federal bankruptcy court.

On December 28, 2022, Alvarez gave Silverlake written notice under Civil Code section 8482 demanding that Silverlake execute and record a release of the lien claim. Silverlake is unwilling to do so and has not filed an action to enforce the claim of lien.

Alvarez seeks a judgment that Silverlakke’s lien has expired and is unenforceable under Civil Code section 8460(a), and releases the Vehicle from the lien.

On January 23, 2023, the court denied Alvarez’s ex parte application for a writ of possession to recover the Vehicle.

On February 9 and 10, 2023, the court denied Alvarez’s second and third ex parte application for a writ of possession to recover the Vehicle.

On February 28, 2023, the court granted Alvarez’s temporary restraining order (“TRO”) and order to show cause (“OSC”) re: preliminary injunction enjoining Silverlake for selling, auctioning, leasing or assigning possession of the Vehicle. The court ordered Alvarez to file supplemental moving papers with both a declaration under penalty of perjury and memorandum of points and authorities. Alvarez failed to file a memorandum of points and authorities but did file a supplemental declaration. She also filed an application for writ of possession that was not set on 16 court days’ notice under CCP section 1005 or properly scheduled through the court clerk.

The court ordered Alvarez to personally serve Silverlake with the Summons, Complaint, and all moving papers by March 8, 2023 and file a proof of service by March 10, 2023. Alvarez has filed a proof of service showing service of the TRO/OSC on March 1, 2023 and a proof of service showing service of an application for a writ of possession on March 7, 2023 but there is no proof of service for the Summons and Complaint or her initial moving papers.

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

A person has a lien on a vehicle for repair services and storage, subject to limitations. Civil Code §3068(a). The lien arises after a written statement for charges for completed work or services is given to the vehicle’s registered owner or 15 days after the work or services are completed, whichever occurs first. Ibid. The lien is extinguished 30 days after it arises unless the lienholder either applies to the DMV for an authorization to conduct the sale or files a court action before then. Civil Code §3068(b)(1)(A).

A lien in excess of $1500 for work performed, and in excess of $1025 for any storage of the vehicle, is invalid unless written consent of the vehicle’s legal owner or lessor was obtained before the work was performed or the storage occurred. Civil Code §3068(c)(1). The “legal owner” is defined as a person holding a security interest in a vehicle which is subject to UCC. Civil Code §3067; Vehicle Code §370. The lien shall be extinguished if the vehicle’s legal owner or lessor tenders, by cashier’s check or cash, the amount for storage, safekeeping, or parking space rental to which the lienholder is entitled under Civil Code section 3068(c).

The lienholder shall apply to the DMV for authorization to conduct a liens sale for any vehicle with a value more than $4000. Civil Code §3071(a). For a vehicle valued at $4000 or less, the lienholder shall apply to the DMV for the names and addresses of the registered and legal owners and notify them of a pending lien sale. Civil Code §3071(a), (b). If the DMV receives a timely Declaration of Opposition form, it shall notify the lienholder within 16 days of receipt of the form that a lien sale shall not be conducted unless the lienholder files an action in court within 30 days of the DMV’s notice. Civil Code §3071(d). Any lien sale shall be void if the lienholder does not comply with this requirement. Civil Code §3071(l).

The Vehicle is worth $30,000 because it has less than 6,000 miles and is a stick shift Subaru, which is rare. Alvarez Decl., p. 4. Alvarez has $20,000 in payments to make on it. Alvarez Decl., p. 4.

In November 2022, Alvarez called Silverlake to ask for a supplemental repair estimate for the Vehicle. Alvarez Decl., p. 3.[3] Silverlake had not performed repairs for the first estimate, and she had received an insurance payment on this claim by November 2, 2022. Alvarez Decl., p. 3, Ex. 7. She needed to submit additional repairs as a supplemental estimate. Alvarez Decl., p. 3. Because her additional expenses would be out-of-pocket, Alvarez explained to Silverlake that she needed to know their cost before she could approve them. Alvarez Decl., p. 3.

On November 7, 2022, Silverlake sent AAA a repair estimate of $3,374.20. Alvarez Decl., p. 4, 7, Ex. 8. On November 8, 2022, Silverlake sent AAA a Supplement of Record 1 that adjusted the estimate to $3,251.03. Alvarez Decl., pp. 4, 7, Ex. 8. The supplement was an adjustment that lowered the original estimate by $123.17. Alvarez Decl., pp. 4, 7, Ex. 8. Silverlake submitted the supplemental estimate so that he could show Alvarez that nothing was due from her. Alvarez Decl., p. 4, Ex. 8.

When Silverlake informed Alvarez that her insurance, AAA, had approved the entire supplemental estimate, Alvarez was surprised. Alvarez Decl., p. 3. However, she had no reason to question it because AAA had sent her a text on November 22 that AAA’s Northern California office had approved the supplemental claim. Alvarez Decl., p. 3, Ex. 7.

On November 30, 2022, Alvarez dropped off the car at Silverlake and signed a repair order form. Alvarez Decl., p. 6, Ex. 4. The only entry on the description of repairs was that AAA had estimated that the repairs would cost $3,251. Ex. 4. The form lists Silverlake’s address as 2849 Rowena Avenue, Los Angeles, California 90039. Ex. 4. Silverlake’s manager Aspet Abegian (“Abegian”) told Alvarez that this form just showed that she had left the car with them. Alvarez Decl., p. 6. He showed Alvarez the list of repairs to the Vehicle. Alvarez Decl., p. 6. Alvarez made him write down on the November 2022 repair order form that this was a supplemental repair estimate, but that note does not show on her carbon copy. Alvarez Decl., p. 6, Ex. 4. She demanded to see a copy of the original form, but Silverlake would not provide it. Alvarez Decl., p. 6.

On the way to drop off the Vehicle at Silverlake, Alvarez was sideswiped and suffered a few additional scratches on the hubcap. Alvarez Decl., p. 7, Ex. 9. Because it was the area that Abegian told Alvarez Silverlake was already allowed to replace, Alvarez did not need an estimate. Alvarez Decl., p. 7. Because Silverlake had tried to make Alvarez overpay once before, she made it clear to Abegian that she only needed photos from the first accident so the claims adjuster could compare the damages with those in new photos. Alvarez Decl., p. 7. She emphasized that she did not want a new repair estimate, and Abegian said he understood. Alvarez Decl., p. 7.

On December 2, 2022, AAA informed Alvarez that it had received an estimate for the damage from Silverlake and paid it $1,468.83 after deductible. Alvarez Decl., p. 7, Exs. 9-10. Alvarez called AA and stopped the payment. Alvarez Decl., p. 7, Ex. 9. When she visited Silverlake and dropped off the Vehicle, she asked why Abegian tried to intercept the payment when the first claim included replacement of the same area. Alvarez Decl., pp. 7-8. Abergian said he should have been paid on the second claim as well. She told him that did not make sense because she had not asked him to make repairs on this claim, she only needed pictures, and he had approval to replace that same area for the first claim. Alvarez Decl., pp. 7-8. She asked Abegian to confirm that AAA had covered the first claim in full, and he said that it did. Alvarez Decl., p. 8. Alvarez felt uneasy, which is why she asked him to write that the repair was a fully approved supplement on the intake form (Alvarez Decl., Ex. 4). Alvarez Decl., p. 8.

On December 27, 2022, Abegian called Alvarez and said the car was ready but that he ran into trouble with AAA. Alvarez Decl., pp. 3, 6, Ex. 5. Alvarez called AAA several times that day. Alvarez Decl., p. 6, Ex. 5. She then called Silverlake, but someone said Abegian had left and that Alvarez should call tomorrow. Alvarez Decl., pp. 3, 6, Ex. 5.

When Alvarez called on December 28, 2022, Abegian denied that he ever had any conversations that this estimate was for a supplemental claim. Alvarez Decl., pp. 3, 6, Ex. 5. He asserted that Alvarez owed $1,232 for the repairs. Alvarez Decl., p. 3. Silverlake would also charge $250 per day for storage, including December 27, plus $175 for the lien it had already filed. Alvarez Decl., p. 3. Abegian added that she must pay in cash and that he would not discuss the charges in detail until she texted that she would pay. Alvarez Decl., p. 4. She texted those words because she felt she had no choice. Alvarez Decl., p. 4.

Notwithstanding, Silverlake refused to speak to Alvarez or release the Vehicle to her. Alvarez Decl., p. 4. When Alvarez tried to prepare a court petition to release the lien, there was no lien on file or other paperwork that showed Silverlake could keep the Vehicle. Alvarez Decl., p. 4.

On January 20, 2023, Alvarez spoke to the local police department, which advised her to go to the shop and call LAPD’s non-emergency line so that peace officers would arrive to help her safely retrieve her car. Alvarez Decl., p. 4. While she waited for the officers, Alvarez went inside Silverlake and requested a copy of the original intake form. Alvarez Decl., p. 4. The staff refused, locked her in the office, and set the alarm. Alvarez Decl., p. 4.

When officers arrived, Silverlake told them the car was miles away. Alvarez Decl., p. 4. Alvarez again asked for the original intake form, and Abegian only agreed after the police promised to make Alvarez immediately leave. Alvarez Decl., p. 4. The copy of the original intake form that Abegian gave the police is an altered document. Alvarez Decl., pp. 4, 6, Ex. 3. While it has Alvarez’s signature dated November 30, 2022, it now lists the $145 lien filing fee, a $1,239.21 partial AAA payment sent to Alvarez as the insured, and $250 in daily storage fees accruing from December 27, 2022. Alvarez Decl., pp. 4, 6, Ex. 3. None of these were on the November 2022 form. Alvarez Decl., pp. 4, 6, Exs. 3-4.

On February 8, 2023, the Lien Sale Service on Silverlake’s behalf sent Alvarez an invoice for the lien on the Vehicle. Alvarez Decl., p. 7, Ex. 6. It alleges outstanding repair costs of $1,239.21 and storage fees of $3,750, to further accrue at $250 per day. Alvarez Decl., p. 7, Ex. 6. It does not include any information about a lien sale or a date for one, but does say to review the lien sale papers carefully. Alvarez Decl., p. 5, Ex. 6.[4]

Vehicle Registration Information from February 8 and March 6, 2023 do not show any lien on the Vehicle except from Alvarez’s lender, Wells Fargo. Alvarez Decl., p. 8, Ex. 11.

Alvarez cannot drive to work without her Vehicle, and her bank account is in the negative. Alvarez Decl., p. 6. She is willing to discuss the amount owed, but she needs her Vehicle to survive until then. Alvarez Decl., p. 6.

On November 4, 2022, Alvarez brought the Vehicle in for repair after an accident. Chilgevorskyan Decl., ¶1. On November 7, 2022, Silverlake uploaded an estimate to AAA’s CCC platform with pictures under the claim number 1004-81-6228.2. Chilgevorskyan Decl., ¶2. Abegian confirmed with Alvarez that there were no other prepared estimates for the Vehicle. Chilgevorskyan Decl., ¶2.

On November 8, 2022, AAA returned the estimate for changes and updates. Chilgevorskyan Decl., ¶3. Silverlake accepted the changes and reuploaded the assignment, which AAA approved for a total of $3,251.03. Chilgevorskyan Decl., ¶3. At this point, Alvarez still had the Vehicle. Chilgevorskyan Decl., ¶3.

On November 29, 2022, Alvarez returned to the shop with a different AAA claim number, 015529270-I-8547. Chilgevorskyan Decl., ¶4. She submitted pictures for the new claim and provided the claim number and name of her adjuster, William Hayes (“Hayes”). Chilgevorskyan Decl., ¶4. Alvarez made it clear that she did not want any repairs for this claim, so Silverlake never made any repairs or received any payment for it. Chilgevorskyan Decl., ¶4.

On November 30, 2022, Alvarez dropped off the Vehicle and agreed to start repairs under the first claim number 1004-81-6228.2. Chilgevorskyan Decl., ¶5. Because she was denied a rental car from Enterprise, she picked up the Vehicle. Chilgevorskyan Decl., ¶5.

On December 6, 2022, Alvarez returned to Silverlake and dropped off the Vehicle. Chilgevorskyan Decl., ¶6. She gave oral authorization to begin repairs per her signed authorization from November 30. Chilgevorskyan Decl., ¶6.

On December 27, 2022, Abegian called AAA for payment status. Chilgevorskyan Decl., ¶7. Silverlake had completed the repairs and wanted proof of payment before it released the Vehicle to Alvarez. Chilgevorskyan Decl., ¶7. AAA then told him that Alvarez had a previous estimate of $1,239.21 for the same claim from her own insurance, AAA Southern California, and had cashed the check. Chilgevorskyan Decl., ¶7. Alvarez never told Silverlake about this. Chilgevorskyan Decl., ¶7. AAA representative Jane Whittaker (“Whittaker”) sent Silverlake payment of $2,011.82, the difference between the $3,251.03 and the $1,239.21 it already had paid Alvarez, and told Abegian to seek the $1,239.21 from her. Chilgevorskyan Decl., ¶7, Ex. 1.

On December 28, 2022, Abegian told Alvarez via telephone that Silverlake had completed repairs on the Vehicle the day before but that AAA had sent her $1,239.21 of the payment for these repairs. Chilgevorskyan Decl., ¶8. Abegian agreed via text to provide Alvarez with the email communications between Silverlake and AAA. Chilgevorskyan Decl., ¶8, Ex. 2. Alvarez replied that she would sue for fraud because Silverlake misled adjusters and gave half-truths and incorrect information. Chilgevorskyan Decl., ¶8, Ex. 2. She demanded a copy of the communications between Silverlake and AAA that showed the estimate breakdown. Chilgevorskyan Decl., ¶8, Ex. 2. Abegian agreed to sent all documents via email, but Alvarez still replied that she will see Silverlake in court. Chilgevorskyan Decl., ¶8, Ex. 2.

Abegian replied by noting the statements from Whittaker about the first payment from AAA Southern California to Alvarez. Chilgevorskyan Decl., ¶8, Ex. 2. Alvarez replied that she did not care how Silverlake spun this because it always understood that the work and payment was for supplemental repairs. Chilgevorskyan Decl., ¶8, Ex. 2. She said that Silverlake had threatened a lien without due process and that she would sue to get her Vehicle back. Chilgevorskyan Decl., ¶8, Ex. 2.

Abegian replied that Alvarez was the one who lied because she came in to ask for a full estimate and did not disclose that she had an existing estimate or had cashed the payment for it. Chilgevorskyan Decl., ¶8, Ex. 2. Alvarez replied that she had spoken with Abegian at length about how her work with Silverlake was for supplemental repairs. Chilgevorskyan Decl., ¶8, Ex. 2.

Abegian asked Whittaker to talk to Alvarez about the payment. Chilgevorskyan Decl., ¶7, Ex. 1. Whittaker tried, but replied that Alvarez did not listen to her either. Chilgevorskyan Decl., ¶7, Ex. 1.

On December 30, 2022, Silverlake offered to reduce the daily storage fees from $250 to $200 and cancel the lein if Alvarez paid $1,239.21 for repairs plus the $145 lien fee. Chilgevorskyan Decl., ¶9, Ex. 2.[5] As storage fees began from December 27, the total Alvarez owed that day would be $2,184, to be paid in cash. Chilgevorskyan Decl., ¶9, Ex. 2. Alvarez agreed. Chilgevorskyan Decl., ¶9, Ex. 2.

On January 19, 2022, Alvarez entered Silverlake’s shop. Chilgevorskyan Decl., ¶10. She had not made any payment but refused to leave without her Vehicle. Chilgevorskyan Decl., ¶10. She began yelling at customers that Silverlake was a fraudulent business and that they should not come in. Chilgevorskyan Decl., ¶10. She began unplugging computers and moving furniture, which further disrupted the business. Chilgevorskyan Decl., ¶10. Someone called the police, and the business shut down until officers arrived after 3:15 p.m. to escort her out and advise her not to return. Chilgevorskyan Decl., ¶10.

Plaintiff Alvarez seeks a preliminary injunction enjoining Silverlake from selling, auctioning, leasing or assigning possession of the Vehicle.

On February 28, 2023, the court issued a TRO/OSC re: preliminary injunction enjoining Silverlake for selling, auctioning, leasing or assigning possession of the Vehicle. When the court issued the TRO/OSC, it ordered that Alvarez serve the Summons, Complaint, moving papers, supplemental papers, and the TRO/OSC on Silverlake by March 8, 2023, with proof of service filed by March 10, 2023.

Although Alvarez served the TRO/OSC and supplemental papers identified as an applicatioin for writ of possession, the court file does not show a proof of service of the underlying Summons and Complaint and initial moving papers. The court would lack jurisdiction but for the fact that on March 3, 2023, Silverlake filed a declaration in opposition to the TRO/OSC. As a result, the court has jurisdiction over Silverlake. Further, the initial moving papers are identical to the supplemental moving papers that have been served on Silverlake except for a declaration of notice. It is not at all clear that Silverlake has the Complaint and Summons, however.

Therefore, the court has jurisdiction but Silverlake may not have had an adequate opportunity to respond.

On February 28, 2023, the court ordered Alvarez to file supplemental moving papers consisting of both a declaration under penalty of perjury and a memorandum of points and authorities. Alvarez failed to file a memorandum of points and authorities but did file a supplemental declaration with an application for writ of possession to recover the Vehicle. The application for writ of possession was not set on 16 court days’ notice under CCP section 1005 and was not properly scheduled through the court clerk.

The court exercises its discretion to overlook the failure to file a supporting memorandum, but the application for a writ of possession is not properly filed and is denied. The court will consider the evidence attached as a supplemental declaration for the OSC re: preliminary injunction.

There is also an issue whether Silverlake is a corporation or limited liability company that must be represented by an attorney or is a dba for an unnamed individual. The court will inquire on this issue of whomever appears at the OSC hearing on behalf of Silverlake.

Alvarez asserts that the lien Silverlake claims on the Vehicle is no longer valid and that it cannot retain the Vehicle. Alvarez Decl., p. 5.

A person performing repairs has a lien on a vehicle for the services and for storage subject to limitations. Civil Code §3068(a). The lien arises after a written statement for charges for completed work or services is given to the vehicle’s registered owner or 15 days after the work or services are completed, whichever occurs first. Ibid.

Alvarez asserts that the invoice from Lien Sale Service misidentifies Silverlake’s lien as beginning on February 2, 2023. Alvarez Decl., p. 5. Exhibit 6 does not say that, but assuming arguendo that it did, this would be the incorrect date.

On December 27 or 28, 2022, Abegian asserted that Alvarez owed $1,232 for the repairs completed the day before. Alvarez Decl., p. 3; Chilgevorskyan Decl., ¶¶ 7-8, Ex. 2. He also stated that Silverlake would charge $250 per day for storage, including December 27, plus $175 for the lien it had already filed. Alvarez Decl., p. 3. Silverlake does not contend that it provided a written statement for the completed repair work. As a result, the lien began 15 days after the work was finished. With a completion date of December 27, the lien began on January 11, 2023.[6]

The lien is extinguished 30 days after it arises unless the lienholder either applies to the DMV for an authorization to conduct the sale or files a court action before then. Civil Code §3068(b)(1)(A). Silverlake had 30 days from January 11 until February 10, 2023, to either apply to the DMV for authorization to conduct a lien sale or file a court action.

There is no evidence that Silverlake filed suit. The Lien Sale Service sent Alvarez an invoice on February 8, 2023 for a lien on the Vehicle. Alvarez Decl., p. 7, Ex. 6. Alvarez asserts that the invoice does not include any information about a lien sale, but the invoice directs her to review the lien sale papers carefully. Ex. 6. In any event, no lien sale papers have been provided by Silverlake. An invoice from a third party does not prove that Silverlake applied to the DMV for permission to conduct the sale.

Based on the evidence presented for the TRO/OSC, Silverlake had a lien against the Vehicle, but it did not take any action to preserve this lien by February 10, 2023. As a result, the lien is extinguished, and Silverlake has no claim to the Vehicle.

It may be that Silverlake will be able to show that it applied to the DMV for a lien sale. The court therefore will address the value of the lien.

Silverlake cannot charge Alvarez more than $1500 for repairs without prior written consent. See Civil Code §3068(c)(1). Silverlake’s January 2023 form asserts cost of repair of $3,251.03 and an outstanding repair balance of $1,239.21. Alvarez Decl., pp. 4, 6, Ex. 3. This matches the $1,239 that the Lien Sale Service’s February 8, 2023 invoice lists as outstanding repair costs. Alvarez Decl., p. 7, Ex. 6.

The $1,239.21 on the January 2023 form is not a new charge. Rather, it is the balance after payment by AAA. The $1,239.21 balance is the portion of the insurance payment sent to, and cashed by, Alvarez. Alvarez Decl., pp 4, 6, Ex. 3. Silverlake received only $2,011.82 of AAA’s payment, and the sum of $1,239.21 and $2,011.82 is $3,251, the repair cost listed as AAA’s estimate on the November 2022 form. Alvarez Decl., pp 4, 6, Exs. 3-4.

Silverlake alleges that it thought it would receive the full $3,251.03 from AAA because Alvarez asserted that there were no other prepared estimates for the Vehicle. Chilgevorskyan Decl., ¶2. After Silverlake finished repairs, Whittaker informed Abegian that Alvarez had AAA Southern California perform an initial estimate and kept the $1,239.21 for herself. Chilgevorskyan Decl., ¶7. AAA Northern California sent Silverlake payment for the difference, or $2,011.82, and told Abegian to seek the $1,239.21 from Alvarez. Chilgevorskyan Decl., ¶7, Ex. 1.

Alvarez contends that she called Silverlake in November 2022 to ask for a supplemental repair estimate for the Vehicle. Alvarez Decl., p. 3. Silverlake had not performed repairs for the first estimate, and she had received an insurance payment on this claim by November 2, 2022. Alvarez Decl., p. 3, Ex. 7. She needed to submit additional repairs as a supplemental estimate. Alvarez Decl., p. 3. Because her additional expenses would be out-of-pocket, Alvarez explained to Silverlake that she needed to know their cost before she could approve them. Alvarez Decl., p. 3.

On November 7, 2022, Silverlake sent AAA a repair estimate of $3,374.20 and the next day sent AAA a Supplement of Record 1 that adjusted the estimate to $3,251.03. Alvarez Decl., pp. 4, 7, Ex. 8. Silverlake submitted the supplemental estimate so that he could show Alvarez that nothing was due from her. Alvarez Decl., p. 4, Ex. 8. The supplement does show nothing would be due from customer. When Silverlake informed Alvarez that her insurance, AAA, had approved the entire supplemental estimate, Alvarez was surprised but had no reason to question it because AAA had sent her a text on November 22 that AAA’s Northern California office had approved the supplemental claim. Alvarez Decl., p. 3, Ex. 7.

Alvarez provides her carbon copy of the November 2022 form, which states only that AAA estimated the work to cost $3,251. Alvarez Decl., p. 6, Ex. 4. She asserts that the additional handwriting on the January 2023 form was fraudulently added afterwards. Alvarez Decl., p. 4, 6.

The evidence shows that the repair estimate of $3,374.20 was both reasonable and approved by Alvarez. She gave her consent under the mistaken impression that AAA Northern California would pay the entire amount, even though she already had cashed its check for an initial $1,239.21. She may have been misled by both AAA (Ex. 7) and Silverlake that her insurance would cover the entire supplemental cost, but the court need not address her fraud claim for purposes of this application. It is sufficient that the repair cost was written and consented to by her. It also is worth noting that on December 30, 2022, Alvarez agreed to pay the $1239 repair cost as part of a compromise. Chilgevoryan Decl., ¶9.

A lien in excess of $1500 for work performed, and in excess of $1025 for any storage of the vehicle (or $1,250 if an application for lien sale was timely filed), is invalid unless written consent of the vehicle’s legal owner or lessor was obtained before the work was performed or the storage occurred. Civil Code §3068(c)(1).

The January 2023 form says that storage costs accrue at a daily rate of $250 per day from December 27, 2022. Alvarez Decl., pp. 4, 6, Ex. 3. However, Alvarez’s copy of the intake form does not list any storage fees. Alvarez Decl., pp. 4, 6, Ex. 4. She shows that the January 2023 form has been altered to lista a $145 lien filing fee, the $1,239.21 partial payment AAA sent to Alvarez, and $250 in daily storage fees accruing from December 27, 2022. Alvarez Decl., pp. 4, 6, Ex. 3. None of these were on the November 2022 form. Alvarez Decl., pp. 4, 6, Exs. 3-4.

Silverlake did not obtain Alvarez’s written consent for any storage fees before doing so. As a result, it may not charge any storage fee above $1,025 (or $1,250 if an application for lien sale was timely filed).

Silverlake reduced the daily rate to $200 in the December 30, 2022 compromise that was never completed. Chilgevorskyan Decl., ¶9, Ex. 2.

In a text conversation on agreed to a total charge of $2184 with daily storage fees reduced to $200. Alvarez Decl., pp. 3-4. Chilgevorskyan Decl., ¶9, Ex. 2. Alvarez asserts that she felt coerced to agree because Silverlake would not detail her expenses until she did. Alvarez Decl., p. 4. It is unclear from the parties’ agreement whether the storage fees would continue after December 30 or were capped for payment. See Chilgevorskyan Decl., Ex. 2. In any event, it is not clear that the text conversation could constitute the written consent for storage fees required by Civil Code section 3068(c)(1).

The storage fees are capped at $1025 or $1,250 if a line sale application was timely filed.

If the lien is still valid, the facts demonstrate that it can be no greater than $1,239.21 in repair costs and $1025 or $1,250 in storage fees.

Silverlake had a valid lien in early 2023, but the evidence before the court does not show that Silverlake preserved it. Based on the current evidence, Silverlake has no interest in the Vehicle, and Alvarez is likely to succeed on her request for an order releasing the Vehicle from any lien. Alvarez has demonstrated a probability of success on the merits.

Alvarez is warned, however, that if Silverlake can show that it timely sought a lien sale, the current evidence also shows that she will be responsible for the $1,239 in repair costs that the lien asserts and storage costs up to $1250.

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

Silverlake does not allege harm from being prevented from selling the Vehicle. Because Silverlake has no valid interest in the Vehicle, it would not suffer harm from an order restraining it from selling the Vehicle. Its harm is also modest because Alvarez is amenable to address how much she owes Silverlake. Alvarez Decl., p. 5.

Alvarez wants her Vehicle and cannot continue her livelihood without it, alleging that her financial resources are low. Alvarez Decl., p. 5. While a preliminary injunction would only prevent its sale, this is the first step to a writ of possession for its return.

The application for a preliminary injunction is granted. Silverlake is enjoined from selling, auctioning, leasing or assigning possession of the Vehicle.

The court must require a bond supporting the preliminary injunction.¿ The purpose of a bond is to cover the defendant’s damages from an improvidently issued injunction.¿ CCP §529(a).¿ In setting the bond, the court must assume that the preliminary injunction was wrongly issued.¿ Abba Rubber Co. v. Seaquist, (“Abba”) (1991) 235 Cal.App.3d 1, 15.¿ The damages include any lost profits resulting from the injunction. See Allen v. Pitchess, (1973) 36 Cal.App.3d 321, 327-28. The attorney’s fees necessary to successfully procure a final decision dissolving the injunction also are damages that should be included in setting the bond. Abba, supra, 235 Cal.App.3d at 15-16. While Abba reasoned that the plaintiff’s likelihood of prevailing is irrelevant to setting the bond, a more recent case disagreed, stating that the greater the likelihood of the plaintiff prevailing, the less likely the preliminary injunction will have been wrongly issued, and that is a relevant factor for setting the bond. Oiye v. Fox, (2012) 211 Cal.App.4^th 1036, 1062. In lieu of a bond, the judge may permit a deposit into court. CCP §995.710. The court will set the bond at $100.

[1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

[3] Alvarez fails to number the paragraphs to her declaration.

[4] Alvarez asserts that this invoice idenitifies the beginning of the Lease as February 2, 2023; it does not. Alvarez Decl., p. 5, Ex. 6.

[5] The opposition misstates the agreement because it says Silverlake would pay the lien fee. Chilgevorskyan Decl., ¶9.

[6] Although Abegian also told Alvarez that it had filed a lien earlier that day and incurred a fee (Alvarez Decl., p. 3), this does not comply with Civil Code section 3068(a)’s requirements. Alvarez also asserts that she looked for evidence of such a lien so that she could contest it in court, and she did not find one. Alvarez Decl., p. 4.