Judge Melvin D. Sandvig, Case Number: 22CHCV00549, Date: 2023-09-20 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00549, Date: 2023-09-20 Tentative Ruling

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Case Number: 22CHCV00549 Hearing Date: September 20, 2023 Dept: F47

Dept. F47

Date: 9/20/23

Case #22CHCV00549

EX PARTE APPLICATION FOR WRIT OF POSSESSION

Ex Parte Application filed on 9/15/23.

MOVING PARTY: Referee Michael S. Pecherer

RESPONDING PARTY: all other parties

RELIEF REQUESTED: The issuance of a writ of execution for the property commonly known as 10716 Telfair Avenue, Pacoima, California 91331 pursuant to paragraphs 6, 8.f. and 13 of the Judgment.

RULING:

The application is denied.

On 7/22/23, Plaintiff Maria Isela Orozco aka Maria I. Avalos (Plaintiff) filed this action against Defendant Juan F. Nuno (Defendant) for: (1) Accounting, (2) Partition of Real Property and (3) Declaratory Relief. On 1/30/23, this Court entered default judgment in favor of Plaintiff and against Defendant. Pursuant to the Judgment, Michael S. Pecherer (Referee) was appointed as referee to complete the partition sale of the property commonly known as 10716 Telfair Avenue, Pacoima, California 91331which is the subject of this action. (1/30/23 Judgment, Attachment 5a ¶6).

On 9/15/23, the Referee filed the instant ex parte application seeking the issuance of a writ of execution for the property commonly known as 10716 Telfair Avenue, Pacoima, California 91331 (the Property) pursuant to paragraphs 6, 8.f. and 13 of the Judgment. (See Ex Parte Application, p.2:2-7).

The application fails for several reasons.

First, the application is not accompanied by a memorandum as required. California Rules of Court, Rule 3.1201(4).

Second, the application fails to “state the name, address, e-mail address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, e-mail address, and telephone number of the party if known to the applicant” as required. California Rules of Court, Rule 3.1202(a).

Third, the applicant/Referee has not made “an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte” as required. California Rules of Court, Rule 3.1202(c).

Fourth, there is no declaration of notice accompanying the application as required. See California Rules of Court, Rule 3.1204. Rather, on 9/18/23, Plaintiff filed a Proof of Service indicating that the ex parte application and supporting documents were mailed to Defendant on 9/15/23 at the Property address.

Even if it could be determined that Defendant is not entitled to notice of the ex parte application due to his default in this action and Plaintiff waives any defect in notice, the Referee has still failed to establish that the requested relief is appropriate.

It is not clear what relief is being sought. While the application is titled as one for writ of possession and the proposed Order indicates that it is for writ of possession, the body of the application refers to a “Writ of Execution” as does the declaration of the Referee. (See Ex Parte Application, p.2:5; Pecherer Decl. ¶6).

The only authority cited in the “Application for Writ of Possession” is Code of Civil Procedure Section 873.070 which provides “[t]he referee or any party may, on noticed motion, petition the court for instructions concerning the referee's duties under this title. (emphasis added). (See Ex Parte Application, p.2:5). Therefore, a noticed motion, rather than an ex parte application, must be made for the subject relief. Additionally, such a motion would require authority to support the issuance of a writ of possession and/or writ of execution under the facts of this case.

As noted above, the Referee relies on paragraphs 6, 8.f. and 13 of the Judgment to support the request for the issuance of a writ of possession and/or writ of execution. Paragraph 6 of the Judgment appoints the Referee to complete the partition sale. Paragraph 13 provides that the Court retains “jurisdiction of this matter to confirm the sale of the Property, to consider the issuance of such orders as requested by the Referee or either of the parties, to review the reports of the Referee, to issue whatever additional orders as may be required to carry out the partition of the Property, and to consider whether equitable adjustments to the distribution of the net proceeds to the parties are just and appropriate.”

More importantly, paragraph 8.f. of the Judgment provides that “[t]he Referee is specifically authorized to evict any person or entity residing at the Property pursuant to California law and as necessary to effectuate the partition sale of the Property.” (emphasis added). The Referee has failed to provide any authority which allows the eviction of Defendant from the Property through an ex parte application for writ of possession and/or writ of execution, or even a noticed application for such relief, rather than filing an unlawful detainer action. Any subsequent noticed motion/application must provide such authority.