Judge: James C. Chalfant, Case: 23STCP00104, Date: 2023-12-07 Tentative Ruling

Case Number: 23STCP00104    Hearing Date: February 6, 2024    Dept: 85

Notwithstanding any other requirements of CCP section 473, the court shall vacate any default or dismissal resulting from attorney’s mistake, inadvertence, surprise, or excusable neglect whenever application for relief is made no more than six months after entry of judgment and accompanied by attorney’s sworn affidavit of fault.  CCP § 473(b); Bernasconi Comm’l Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082.  To obtain mandatory relief under section 473(b), plaintiff’s counsel need not show that the mistake, inadvertence, surprise or neglect was excusable; no reason need be given for the existence of these circumstances, mere attestation that such circumstances did exist is sufficient to obtain relief.  Graham v. Beers (1994) 30 CalApp.4th 1656, 1660.

If relief is granted on discretionary mistake, surprise, or excusable neglect, the court may, in its discretion, order the moving party to pay costs and attorney fees in granting relief where no attorney affidavit of fault is filed.  Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823.  The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct attorney to pay reasonable compensatory legal fees and costs to opposing counsel (CCP §473(b)), and the court may direct an offending attorney to pay an amount no greater than $1,000.00 to the State Bar Client Fund (CCP §473(c)(1)(B)).

            3. Writ of Possession

            A writ of possession is available in any pending action.  It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief.  See CCP §1281.7.

            a. Procedure

            Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession.  Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding.  (Judicial Council Forms CD-100 et seq.).

            A plaintiff must make a written application for a writ of possession.  CCP §512.010(a), (b); (Mandatory Form CD-100); CCP §512.010(a).  A verified complaint alone is insufficient.  6 Witkin, California Procedure, (5th ed. 2008) §255, p.203.  The application may be supported by declarations and/or a verified complaint.  CCP §516.030.  The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief.  Id.

            The application must be executed under oath and include: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed.  If the plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief.  If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property.  Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure.  CCP §512.010(b).

            b. The Hearing

            Before noticing a hearing, the plaintiff must serve the defendant with all of the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration.  CCP §512.030(a).  If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint.  CCP §512.030(b).

            Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing.  CCP §512.050.  At the hearing, the court decides the merits of the application based on the pleadings and declarations.   Id.  Upon a showing of good cause, the court may receive and consider additional evidence and authority presented at the hearing, or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities.  Id. 

            The court may order issuance of a writ of possession if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) The undertaking requirements of CCP section 515.010 are satisfied.  CCP §512.060(a).  “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”  CCP §511.090.  This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action.  Witkin, California Procedure, (5th ed. 2008) §261, p.208.  A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it.  RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.

            No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there.  CCP §512.060(b). 

            The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer.[1]  CCP §513.010(c). 

            The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120).  The order must notify the defendant that failure to comply may subject him or her to contempt of court.  CCP §512.070.  The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession.  See Edwards v Superior Court, (“Edwards”) (1991) 230 Cal.App.3d 173, 178.

            c. The Plaintiff’s Undertaking

            Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties).  CCP §515.010(a).  The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff.  Id.  The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount.  Id.  The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property.  Id.

            However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP section 515.020(b).  CCP §515.010(b).

            4. Lien Sale

            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 (A) the lienholder either applies to the DMV for an authorization to conduct the sale or (B) a court action is filed before then.  Civil Code §3068(b)(1). 

            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).

            C. Statement of Facts

            1. Merits

            On November 30, 2022, Silverlake Manager A.C. Abegian (“Abegian”) provided Alvarez with Repair Order 10212 as she dropped the Vehicle off for repairs.  Abegian Decl., ¶2.  The repair order listed the cost as $3,251.03.  Abegian Decl., ¶2.  Abegian never wrote on the repair order that Alvarez owed no balance for the repair work.  Abegian Decl., ¶2. 

            On December 27, 2022, Silverlake finished repair of the Vehicle.  Abegian Decl., ¶3.  Abegian called AAA, which said that it already paid $1,239.21 to Alvarez for the damage and would pay only the balance to Silverlake.  Abegian Decl., ¶3.  Abegian contacted Alvarez and asked her to pay $1,239.21 for the repair work.  Abegian Decl., ¶4.

            On December 30, 2022, Abegian texted Alvarez an offer to reduce the daily storage fee if she paid in cash.  Abegian Decl., ¶5.  She said she would pay in cash but never did.  Abegian Decl., ¶5. 

            On January 19, 2023, Alvarez arrived at the Silverlake premises screaming, cursing, and refusing to leave until Silverlake released the Vehicle.  Abegian Decl., ¶6.  She insulted Abegian and screamed at customers.  Abegian Decl., ¶6.  Silverlake could not conduct business until police arrived and escorted Alvarez off the premises about two hours later.  Abegian Decl., ¶6. 

            2. Lack of Notice

            Counsel for Silverlake Noah Green, Esq. (“Green”) never received service of Alvarez’s application for a writ of possession.  Green Decl., ¶2.  On November 29, 2023, Wells Fargo informed Green’s co-counsel, Abraham Niman, Esq. (“Niman”), about the application and asked what Silverlake would do about it.  Niman Decl., ¶2.  Niman reviewed the court’s online access to confirm the existence of the application.  Niman Decl., ¶2. 

            Niman then asked his staff to download Alvarez’s application.  Niman Decl., ¶2.  Because of some “mix-up,” Niman received and reviewed only a one-page notice of the application on Judicial Form CD-110.  Niman Decl., ¶2.  Alvarez is pro per in this action and has made erroneous filings in the past.  Niman Decl., ¶3.  Niman assumed that Alvarez had made another mistake and only filed one page.  Niman Decl., ¶3.  He believed there was nothing he needed to oppose.  Niman Decl., ¶3.  Neman was not aware that Alvarez had submitted evidence and argument until he read this court’s tentative decision on the application the morning of the hearing.  Niman Decl., ¶4. 

            D. Analysis

            Defendant Silverlake moves for reconsideration of, or alternatively to vacate, the court’s decision to grant Alvarez’s application for a writ of possession against Silverlake to recover the Vehicle.

            1. Motion to Reconsider

            a. Timeliness

            A motion to reconsider must be filed within ten days of service of written notice of the original order.  Kalivas, supra, 49 Cal.App.4th at 1160.  The court granted the writ of possession on December 7, 2023.  Because December 17, 2023 was a Sunday, the deadline was extended to the next court day, December 18.  CRC 1.10.  Because Silverlake filed this motion on that date, the motion is timely.

            b. Request to Reconsider

            To be entitled to reconsideration, a party must show (1) new or different facts, circumstances, or law and (2) a satisfactory explanation for failing to produce such evidence earlier.  Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence.  Garcia, supra, 58 Cal.App.4th at 690.   

            Silverlake argues that the new fact is that Alvarez preserved Silverlake’s mechanic’s lien when she filed this Complaint within 30 days after the lien arose under Civil Code section 3068(b)(1).  Mem. at 5.  Alternatively, the new fact is that, even if the mechanic’s lien has not been preserved Alvarez would still owe $2,925 for the first 15 days of storage fees under Vehicle Code section 10652.5(a).  Mem. at 6. 

Silverlake’s first contention about the proper interpretation of Civil Code section 3068(b)(1) is not a new fact or circumstance that was not before the court during the hearing on the application.  It is an argument based on the interpretation of a law that was before the court.  Silverlake’s second contention about Alvarez’s obligation to pay storage fees has no bearing on the issue of possession.  Silverlake is free to pursue that contention during the lawsuit without possession of the Vehicle.  The motion to reconsider is denied.

            2. Motion to Vacate

            Silverlake moves under CCP section 473(b) for the court to set aside the order granting Alvarez’s application for a writ of possession.  Mem. at 7.  Silverlake relies on the discretionary prong of CCP section 473(b),[2] whereby a party may move for discretionary relief from a default, dismissal, or other order on the ground that it was entered because of the party’s mistake, inadvertence, surprise, or excusable neglect.  Silverlake cites Hover v. MacKenzie (1954) 122 Cal.App.2d 852, 857, which defines “excusable neglect” to include neglect which might have been the act of a reasonably prudent person under the same circumstances.  Mem. at 7-8. 

Silverlake’s neglect was not excusable.   Niman learned there was an opposition, had staff download it, received only one page, and wrongly assumed that Alvarez did not submit any supporting evidence without asking his staff or checking the online filing himself.  Niman Decl., ¶¶ 2-3.  Instead of appearing at the noticed hearing and asking for a continuance, or filing an opposition based on untimely notice, he then chose not to oppose the application until he learned of this mistake on the morning of the hearing.  Niman Decl., ¶4.  A reasonably prudent person would not have responded in the same way.  Silverlake is not entitled to discretionary relief under CCP section 473(b).

However, Silverlake also asserts that Alvarez never properly served the application, despite the proof of service on file.  Green Decl., ¶2.  Green only learned about the application on November 29, 2023, when Wells Fargo informed Green’s co-counsel, Niman, about it.  Niman Decl., ¶2.  Niman reviewed the court’s online access to confirm the existence of the application.  Niman Decl., ¶2.  He then directed staff to download the application from the online copy of court filings, received only the first page from staff, and assumed it was the only page of the filing.  Niman Decl., ¶¶ 2-3.

            The filing of proof of service creates a rebuttable presumption that the service was proper if it complies with applicable statutory requirements.  Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 795.  The proof of service supporting Alvarez’s application filed on November 9, 2023 states that Ted Sorrano served Green personally on November 9, 2023 at 4:18 p.m.  Mr. Sorrano states that he is not a registered process server but fails to provide any identifying information that would enable him to be subpoenaed.  This proof of service may comply with CCP section 1011, but it is non-compliant with the Judicial Council form POS-020.  In any event, it is rebutted by Green’s declaration.  Thus, Silverlake only had notice of the December 7 hearing when its counsel learned of it on November 29, six court days before the hearing.

            Service of moving and supporting papers in any law and motion matter shall occur at least 16 days before the hearing.  CCP §1005(b).  Silverlake has demonstrated that it did not receive adequate notice and the writ of possession order is vacated.

            E. Conclusion

            The motion for reconsideration is denied.  The motion to vacate is granted.