Judge: Stephen P. Pfahler, Case: 24STCV14337, Date: 2025-04-15 Tentative Ruling

Case Number: 24STCV14337    Hearing Date: April 15, 2025    Dept: 68

Dept. 68                             

Date: 4-15-25 (a/f 7-28-25 via 2-10-25 ex parte order)

Case: 24STCV14337

Trial Date: N/A

RECALL WRIT OF POSSESSION

MOVING PARTY: Defendant, Glen Edmund

RESPONDING PARTY: Unopposed/Plaintiff, Shlomo Botach

RELIEF REQUESTED

Motion to Recall Writ of Possession and to Restore Possession

SUMMARY OF ACTION

On June 7, 2024, Plaintiff Shlomo Botach filed an unlawful detainer complaint against Defendant Glen Edmund. Defendant, in pro per, answered the complaint on June 27, 2024. On July 17, 2024, the court conducted a non-jury trial, and found in favor of Plaintiff. The court found unpaid rent in the amount of $43,600 and holdover damages of $5,953.49. The court granted Plaintiff possession of the (commercial) premises, and found the lease forfeited. On August 1, 2024, the court entered judgment for $43,600 in rent, $5,953.49 in damages, and forfeiture of the lease, and restoration of possession to Plaintiff. On October 28, 2024, the clerk issued a writ of execution for possession. On January 23, 2025, the Sheriff returned the Writ of Execution for possession. On February 20, 2025, the clerk issued an abstract of judgment showing the $49,553.49

RULING: Granted.

Defendant/Judgment Debtor Glen Edmund moves to recall the writ of execution for possession and allow for restoration of possession. Defendant moves based on representation of payment of $45,000 in payments on January 14 and 24, 2025. The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.

On February 10, 2025, the court specially advanced the hearing from the prior reserved of July 28, 2025. The clerk notified all parties.

Defendant/Judgment Debtor seeks restoration based on payment of almost the entire outstanding amount of the judgment—judgment was entered for $49,553.49 ($43,600 in rent, $5,953.49 in holdover damages)—yet only $45,000 was purportedly paid thereby leaving a $4,553.49 outstanding judgment balance. Defendant/Judgment Debtor represents seeking possession in order to resume business and “avoid further hardship” after being “caught by surprise” by the lockout given the payments on January 14 and 24, 2025. (Lockout occurred on January 23, 2025.)

A commercial tenant may seek relief from a forfeiture under statutory authority.

“The court may relieve a tenant against a forfeiture of a lease or rental agreement, whether written or oral, and whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174. The court has the discretion to relieve any person against forfeiture on its own motion.” [¶] “An application for relief against forfeiture may be made at any time prior to restoration of the premises to the landlord. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served at least five days prior to the hearing on the plaintiff in the judgment, who may appear and contest the application. Alternatively, a person appearing without an attorney may make the application orally, if the plaintiff either is present and has an opportunity to contest the application, or has been given ex parte notice of the hearing and the purpose of the oral application. In no case shall the application or motion be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made.” (Code Civ. Proc., § 1179.)

“Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.” (Civ. Code, § 3275.)

“A writ of execution may be recalled and quashed where the issuance was improperly or inadvertently made.” (Meyer v. Meyer (1952) 115 Cal.App.2d 48, 49.) “Section 1179 ... vests the court with discretion to relieve a tenant from forfeiture and restore him or her to his or her former estate or tenancy. So long as the court imposes the statutory conditions, the full payment of rent due or full performance of conditions or covenants so far as practicable, the court has broad equitable discretion to determine the conditions upon which relief will be granted. (Citation.)” (Gill Petrolium, Inc. v. Hayer (2006) 137 Cal.App.4th 826, 832–833 “[T]he primary beneficiary of these statutes is a tenant in a real property lease, and not the general public, and the primary purpose of these statutes is to mitigate the private harm to a real property tenant upon forfeiture of a lease upon termination.” (In re Art and Architecture Books of the 21st Century (Bankr. C.D. Cal. 2014) 518 B.R. 43, 48.)

The court finds no basis of inadvertent or improperly issued writ given the trial and judgment both finding of damages and forfeiture of the lease. The court in equity however finds justification for restoration of possession conditioned on payment of the remaining outstanding judgment balance of $4,553.49 in order to allow Defendant/Judgment Debtor to resume business operations, or at a minimum retrieve business property. Nothing in restoration in any way relieves Defendant/Judgment Debtor of future rent obligations and subjecting Defendant/Judgment to a second writ for lockout upon default.

The unopposed motion is therefore granted contingent on full payment.

Defendant/Judgment Debtor to give notice.