(1) Application for Right to Attach Order/Writ of Attachment (2)?OSC?
Ruling:? (1-3)?Off Calendar?? no hearing will be held.??Writ of Possession and Writ of Attachment are taken off calendar for lack of proper service.
The TRO is dissolved.
Friendly Wholesalers of California dba Seemo Cars has not appeared here; and thus, electronic service to an unknown attorney does not appear proper. Service should have been to Friendly Wholesalers of California dba Seemo Cars at the same location as the Notice of Default was served.??As with any proceeding, the court cannot proceed unless the complaint, moving papers, and all the supporting documents are timely served (Code Civ. Proc., ? 1005). Any TRO already issued will be?dissolved?if the hearing is thwarted due to lack of service.? (Code Civ. Proc., ? 527(d)(3).)
Accordingly, Writ of Attachment and Writ of Possession is taken off calendar for lack of proper service and the TRO is dissolved.
Additionally, the problem remains that the party against whom attachment is sought, Friendly Wholesalers of California dba Seemo Cars, is in default.? The Court notes that although Plaintiff argues that Shreim and Abdo were personal guarantors of the debt, there is no writ of attachment sought against them.? Default was entered on 11-1-17. Provisional remedies of attachment and possession are inequitable as that Defendant cannot now defend itself. [Entry of defendant’s default instantaneously cuts off its right to appear in the action. The defendant is ?out of court.? It has no right to participate in the proceedings until either (a) its default is set aside (in which event, it may respond to the complaint), or (b) a default judgment is entered (in which event, it may appeal).? (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc.(1984) 155 Cal.App.3d 381, 385-386.)? Although Plaintiff suggests the default is irrelevant to enforcement of a provisional remedy, Plaintiff cites no authority.
Finally, although Plaintiff submits Exh. K, an invoice showing Defendant owes $463,566.96, and there is some evidence that the credit line was extended to $350K, it is unclear how the credit line got up to $463,566.96. Although there is some evidence that a request was made to up the line of credit further (See Exhs. G, H), there is no evidence any new line of credit above $350K was agreed upon or allowed. Furthermore, it is not clear how Plaintiff would be entitled to both the full amount of the claimed line of credit, $463,566.96 and all eighteen (18) vehicles.