Judge Ralph C. Hofer, Case 21GDCV00200 2023-04-14 Tentative Ruling

Plaintiff TD Bank, NA (TD Bank) is an assignee of a Contract with defendant Rafik Shaumyan for the sale of a motor vehicle. (Ex. 1). Under this Contract, upon a default of any provision, plaintiff has the right to immediate possession of the vehicle. [Dumas Decl., ¶ 6, Ex. 1, ¶ 3d]. Defendant has defaulted in payment on the agreement. [Dumas Decl., ¶ 10].

Plaintiff is aware that defendant Shaumyan is no longer in possession of the vehicle, and that defendant Gad Auto Body Shop Inc. (Gad Auto) is currently in possession of the vehicle and claiming a lien on the vehicle for allegedly performing repairs and storing the vehicle. [Decl. ¶ 11]. Plaintiff received a Notice of Pending Lien Sale from defendant Department of Motor Vehicles (DMV), in which defendant Gad Auto was named as the lienholder. [Decl. ¶ 12, Ex. 3]. Defendant Gad Auto has confirmed that it is in possession of the vehicle, and is demanding $15,000 for storage. [Decl. ¶13]. Plaintiff has attempted to contact defendant Gad Auto to tender the applicable allowable statutory amount, but Gad Auto has been unresponsive to plaintiff, and is a wrongful third party possession of the vehicle. [Decl. ¶¶ 14, 16].

The application is irregular here, as it does not show that moving party, plaintiff TD Bank, NA, has in fact been assigned the rights in the subject Contract. The moving papers show that the Retail Installment Sale Contract was between defendant Rafik Shaumyan and Autonation Ford Tustin. [Ex. 1, p. 1]. The Contract states: “Seller assigns its interest in this contract to TD AUTO FINANCE.” [Ex. 1, p. 7 of 7]. The moving papers also include a TD AUTO FINANCE Lien and Title Information document, which lists as a “Lienholder” on the subject vehicle “TD AUTO FIN LLC.” [Ex. 2]. The DMV Notice of Pending Lien Sale also names as Legal Owner “TD AUTO FIN LLC.” [Dumas Decl., Ex. 3]. It is not clear how TD Bank, NA is relying on these documents to show an assignment of the right to enforce the subject Contract to plaintiff TD Bank, NA. The showing accordingly does not establish that plaintiff, TD Bank, NA, rather than the named assignee, “TD AUTO FINANCE,” or the lienholder, “TD AUTO FIN LLC,” is more likely than not to obtain judgment in this matter.

Due to the extraordinary nature of pretrial statutory writ remedies, their requirements are ordinarily subject to strict construction. See Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106. The application is denied here for failure to establish the standing of plaintiff, “TD Bank, NA,” to pursue the enforcement of the subject Contract.

As to defendant DMV, it appears from the file that plaintiff and defendant DMV have entered into a stipulation that plaintiff is not seeking any monetary recovery of any kind against DMV, and that defendant will abide by the determination of this court respecting transfer of registration or title to the vehicle. On March 28, 2023, the Court signed and entered an order that DMV is excused from attending further proceedings in this matter unless specifically otherwise directed by the Court or an amended complaint is filed. The court accordingly makes no orders with respect to defendant DMV in connection with possession of the subject vehicle.

However, there appears to be an issue raised by the terms of the stipulation with the DMV, pursuant to which the DMV agrees to “abide by the determination of this Court, respecting transfer of registration or title to the vehicle in question herein so long as all parties having an interest are properly given notice of this action.” [Stipulation, filed 3/20/2023, para. 2, emphasis added].

Defendant Shaumyan is the buyer of the vehicle, and the person named on the Lien and Title information submitted with the moving papers as the “Owner” of the vehicle. [Exs. 1, 2]. Shaumyan is also named on the Notice of Pending Lien Sale as “Registered Owner” of the subject vehicle. [Dumas Decl., Ex. 3]. Defendant Shaumyan is clearly an interested party. The file shows that this defendant has not been served with the complaint or the moving papers, so has not been properly given notice of this action. The file includes a Non-Service Report by a registered process server, indicating that a service attempt was made on Shaumyan at an address in Northridge, where the server was informed by the current occupant that Shaumyan had moved out a month earlier. [Non Service Report, filed 2/22/2023].

In addition, the moving papers themselves suggest that it has not been demonstrated that plaintiff is likely to establish the probable validity of plaintiff’s claim to possession of the vehicle as against defendant Gad Auto. The declaration submitted in support of the application indicates that “Defendant Gad Auto is claiming that it holds a lien on the Vehicle for allegedly performing repairs and for storage of the Vehicle.” [Decl. ¶ 11]. The declaration reports that Gad Auto has confirmed to plaintiff it is demanding $15,000 for storage. [Decl. ¶ 13].

“(a) Every person has a lien dependent upon possession for the compensation to which the person is legally entitled for making repairs or performing labor upon, and furnishing supplies or materials for, and for the storage, repair, or safekeeping of, and for the rental of parking space for, any vehicle of a type subject to registration under the Vehicle Code, subject to the limitations set forth in this chapter. The lien shall be deemed to arise at the time a written statement of charges for completed work or services is presented to the registered owner or 15 days after the work or services are completed, whichever occurs first. Upon completion of the work or services, the lienholder shall not dismantle, disengage, remove, or strip from the vehicle the parts used to complete the work or services.”

It would appear that Gad Auto is claiming such a lien dependent on possession, giving rise to a competing entitlement to possession of the vehicle. This issue suggests that plaintiff is not entitled to possession of the vehicle until the lien issue is resolved.

Plaintiff represents in the declaration that an offer of tender has been made, which has been refused by Gad Auto. [Dumas Decl. ¶¶ 13, 14, 16]. There is no documentary evidence offered of any such tender having been made or refused. There is also no legal discussion included in the moving papers regarding the right to possession being transferred once such a tender has been made and refused. Plaintiff appears to rely on Civil Code section 3068 subdivision (c), which provides:

(1) That portion of the lien in excess of one thousand five hundred dollars ($1,500) for any work or services, or that amount, subject to the limitations contained in Section 10652.5 of the Vehicle Code, in excess of one thousand twenty-five dollars ($1,025) for any storage, safekeeping, or rental of parking space or, if an application for an authorization to conduct a lien sale has been filed pursuant to Section 3071 within 30 days after the commencement of the storage or safekeeping, in excess of one thousand two hundred fifty dollars ($1,250) for any storage or safekeeping, rendered or performed at the request of any person other than the legal owner or lessor, is invalid, unless prior to commencing any work, services, storage, safekeeping, or rental of parking space, the person claiming the lien gives actual notice in writing either by personal service or by registered letter addressed to the legal owner named in the registration certificate, and the written consent of that legal owner is obtained before any work, services, storage, safekeeping, or rental of parking space are performed.”

There is no legal authority cited explaining how plaintiff is to be treated as the legal owner under this statute, required to consent before certain services in excess of the statutory maximum are performed, or that the party, which is apparently the registered owner, defendant Shaumyan, did not provide written consent.

The moving papers simply state in the declaration that plaintiff has offered to pay the maximum statutory amount for repairs and storage, which offer has been refused. [Decl. ¶¶ 13, 14, 16]. There is no statement indicating that plaintiff was not given notice to which it was entitled and did not give consent. There is no documentary evidence offered of the purported offer, of which declarant evidently has no personal knowledge. This situation makes it difficult for the court to find that plaintiff has a superior claim to possession with respect to defendant Gad Auto claiming a service lien against the vehicle. The application accordingly is denied.

A writ of possession shall issue only if the plaintiff’s claim “is probably valid and the other requirements for issuing the writ are established. CCP § 512.040(b). Indeed, due to the extraordinary nature of pretrial statutory writ remedies, their requirements are ordinarily subject to strict construction. See Pacific Design Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106.

Plaintiff TD Bank, NA has failed to establish to the satisfaction of the court the probable validity of its claim to possession of the property, as it is not clear from the subject Contract before the Court that the Contract has been assigned to plaintiff, as the assignment is expressly to “TD AUTO FINANCE,” not plaintiff. [Ex. 1]. Indeed, the Lien and Title Information document submitted in support of the application lists as a “Lienholder” on the subject vehicle “TD AUTO FIN LLC.” [Ex. 2]. The DMV Notice of Pending Lien Sale also names as Legal Owner “TD AUTO FIN LLC.” [Dumas Decl., Ex. 3]. Plaintiff, TD Bank, NA, accordingly appears to lack standing to enforce the subject Contract.

In addition, the Court is concerned that as a condition to the nonparticipation of defendant DMV in this action, the parties have expressly stipulated that the DMV will abide by the court’s determinations and orders in this matter “so long as all parties having an interest are properly given notice of this action.” [Stipulation, filed 3/20/2023, para. 2]. The file in this matter reflects that defendant Rafik Shaumyan, a party having an interest in this matter, has not been served with the summons, complaint, or the application and supporting papers. [Non Service Report, filed 2/22/2023].

The application is also denied on the ground it is not clear plaintiff has established a probable validity of its claim to possession of the vehicle with respect to any rights to possession that defendant Gad Auto Body Shop Inc. may have. That defendant may have a lien on the subject vehicle due to purported repairs and storage it has provided. [See Dumas Decl., paras. 11-13]. To the extent the declaration appears to indicate that plaintiff has tendered the applicable statutory amount, it is not clear that the declarant has personal knowledge of such a tender, and there is no documentation or legal argument supporting an argument that the lien is not enforceable.

The Court cannot find that plaintiff has established the probable validity of its claim to possession of the property without further legal argument and documentary and other evidence showing plaintiff is entitled to invoke Civil Code § 3068 (c), was entitled to but did not receive actual notice or consent to the subject repairs, that the owner did not consent to the repairs, that plaintiff formally contested defendant’s claim, or that plaintiff made an offer to defendant in the statutory maximum, which was rejected, such that the lien should be deemed extinguished. Plaintiff’s current showing fails to establish extinguishment of the lien claimed by defendant under the statutory framework relied upon, or that statutory limitations have been satisfied to limit the right to possession by defendant pending the determination of the lien.

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