TENTATIVE RULING

Calendar: 9

Date: 1/26/2024

Case No.: 23 GDCV02051 Trial Date: None Set 

Case Name: Pawnee Leasing Corporation v. Saken Transportation Inc., et al.

WRITS OF POSSESSION (2)

Moving Party: Plaintiff Pawnee Leasing Corporation     

Responding Party: Defendant Hamlet Avanesian 

RELIEF REQUESTED:

Writ of possession after hearing of claimed property, two 2019 Vanguard Dry Van vehicles   

ANALYSIS:

Procedural

Default Entered  

The file shows that since the filing of the application for writs of possession, the defaults of each of the defendants against which relief is sought have been entered. 

Specifically, on January 3, 2024, plaintiff filed a Request for Entry of Default of both defendants.  The default was entered as requested the same date as to defendant Saken Transportation Inc. only.  

The default was not entered as requested as to Hamlet Avanesian, on the ground the service by substituted service showed only two attempts to effectuate service.  

On January 4, 2024, plaintiff filed a Request for Entry of Default as to defendant Hamlet Avenesian, based on an amended proof of service showing additional attempts at service.  Default was entered as requested the same date. 

“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. 

RULING:

[No opposition].

Application for writ of possession as to defendant Saken Transportation Inc. is DENIED WITHOUT PREJUDICE.    The defendant against whom the relief is sought is in default, default having been entered against defendant Saken Transportation, Inc. on January 3, 2024.    

Default prove-up to be set for April 24, 20224 at 8:30 a.m.

Application for writ of possession as to defendant Hamlet Avanesian is DENIED WITHOUT PREJUDICE.    The defendant against whom the relief is sought is in default, default having been entered against defendant Hamlet Avanesian on January 4, 2024.    

Default prove-up to be set for April 24, 2024 at 8:30 a.m.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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