Judge: Ralph C. Hofer, Case: 23GDCV01104, Date: 2023-09-15 Tentative Ruling
Case Number: 23GDCV01104 Hearing Date: September 15, 2023 Dept: D
TENTATIVE RULING
Calendar: 14
Date: 9/15/2023
Case No: 23 GDCV01104 Trial Date: None Set
Case Name: PNC Equipment Finance, LLC v. Khodzhumyan
WRIT OF POSSESSION
Moving Party: Plaintiff PNC Equipment Finance, LLC
Responding Party: Defendant Artuyun Khodzhumyan
RELIEF REQUESTED:
Writ of possession after hearing of claimed property, 2021 Bobcat S76 Skid Steer Loader
ANALYSIS:
Procedural
Default Entered
The file shows that since the filing of the application for writ of possession, on September 5, 2023, plaintiff filed a Request for Entry of Default as to defendant Artuyun Khodzhumya , an individual, dba Arutyun Khodzhumya. The default was entered as requested on September 5, 2023, and this default has not been set aside.
This deprives defendant of the opportunity to oppose the application, and plaintiff should be proceeding to default prove-up hearing, at which final judgment can be entered.
“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.”
In fact, Weil & Brown advise practitioners:
“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.
The application accordingly is not considered by the Court, but a default prove-up schedule will be set.
RULING:
[No opposition].
Application for writ of possession is DENIED WITHOUT PREJUDICE. The defendant against whom the relief is sought is in default, default having been entered against defendant Artuyun Khodzhumya on September 5, 2023.
Default prove-up to be set for October 31, 2023 at 9:00 a.m.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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