TENTATIVE RULING

Calendar: 4

Date: 1/5/2024

Case No.: 23 GDCV00200 Trial Date: None Set 

Case Name: TD Bank, NA v. Shaumyan, et al.  

WRIT OF POSSESSION

Moving Party: Plaintiff TD Bank NA     

Responding Party: Defendant Gad Auto Body Shop, Inc. (No Opposition)

GROUNDS FOR MOTION

Showing of the basis of the plaintiff’s claim and that entitled to possession?

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.  [Wilber Decl., ¶ 6, Ex. 1, ¶ 3d].  Defendant has defaulted in payment on the agreement. [Wilber Decl., ¶¶10, 11]. 

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. ¶ 12].  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. ¶ 13, Ex. 4].  Defendant Gad Auto has confirmed that it is in possession of the vehicle, and is demanding $15,000 for storage.  [Decl. ¶14].  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. ¶¶ 15, 17].  

If based on written instrument, copy attached?

Yes, Exhibit 1  

Showing that property wrongfully detained by defendant, manner in which came into possession and reason for detention?

Vehicle purchased, certificate of title showing lienholder [Decl. ¶ 8, Ex. 3].

Particular description of property and statement of its value?

Description and VIN [Decl. ¶ 6, Application ¶ 4]

J.D. Power listing value $24,655.00 [Decl. ¶ 16; Ex. 5].

Statement of location of the property

Yes [Decl. ¶ 18, Application, para. 6]

Property not taken for a tax, assessment, fine or seizure?

Application ¶ 8

             

OPPOSITION:

NO OPPOSITION 

ANALYSIS:

Default Entered  

The file shows that prior to the filing of the application for writ of possession, on May 23, 2023, plaintiff filed a Request for Entry of Default as to defendant Gad Auto Body Shop Inc., a California Corporation.  The default was entered as requested the same date, on May 23, 2023, and the default has not been set aside.    

“The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. ( Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 262-263 [147 Cal.Rptr. 766]; 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 148, p. 2809; see Luz v. Lopes (1960) 55 Cal.2d 54, 59, fn. 2 [10 Cal.Rptr. 161, 358 P.2d 289].) "A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right  of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings." ( Brooks v. Nelson (1928) 95 Cal.App. 144, 147-148 [272 P. 610].)”

Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 386-387. 

CCP § 512.040 expressly permits defendant to oppose an application for writ of possession:

“(c) If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff's right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with Section 515.020.”

“The usual method of obtaining the W/P is by order following noticed hearing.  [CCP § 512.020(a)]. The substantive prerequisites for issuance of the W/P must be shown at the hearing, and defendant must be given an opportunity to oppose its issuance.”  

California Practice Guide, Civil Procedure Before Trial (The Rutter Group, 2023 Rev.)  §9:794. 

In fact, the file shows that in the latest Case Management Conference Statement filed by plaintiff, plaintiff appears to recognize that this application cannot proceed under the circumstances, as plaintiff has indicated that it filed a motion to vacate default of defendants.    [Case Management Statement, filed 12/21/2023, para. 5].  Such a motion has not yet been filed, and until the default is set aside, the court will not consider the writ application. 

RULING:

[No opposition].

Application for Writ of Possession is NOT CONSIDERED BY THE COURT.   The defendant against whom the relief is sought is in default, default having been entered against defendant Gad Auto Body Shop Inc., a California Corporation, on May 23, 2023. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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