Wells Fargo Commercial Distribution Finance, LLC v. 6th Gear Holdings, Inc.

Filing 13

ORDER RE: PLAINTIFF'S APPLICATION FOR WRIT OF POSSESSION AND INJUNCTIVE RELIEF. Signed by Magistrate Judge Jacqueline Scott Corley on 10/8/2019. (ahm, COURT STAFF) (Filed on 10/8/2019)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 WELLS FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC, 5 6 Case No.19-cv-04617-JSC Plaintiff, 7 ORDER RE: PLAINTIFF’S APPLICATION FOR WRIT OF POSSESSION AND INJUNCTIVE RELIEF v. 8 6TH GEAR HOLDINGS, INC., 9 Re: Dkt. No. 9 Defendant. 10 Plaintiff Wells Fargo sues 6th Gear Holdings, Inc. (“6th Gear”) under California state law United States District Court Northern District of California 11 12 arising out of 6th Gear’s default of an inventory financing agreement wherein Plaintiff extended 13 credit to 6th Gear to allow it to acquire inventory for public sale. (Dkt. No. 1.)1 Now before the 14 Court is Plaintiff’s application for a writ of possession seeking the return of inventory obtained by 15 6th Gear pursuant to the financing agreement (“inventory collateral”) and a Court order enjoining 16 6th Gear from disposing of that inventory collateral pending its seizure, pursuant to Federal Rule 17 of Civil Procedure 64 and California Code of Civil Procedure § 512.010, et seq.2 (Dkt. No. 9.) 18 The matter is scheduled for oral argument on October 10, 2019; however, because the application 19 is deficient on its face, the Court vacates the hearing, see N.D. Cal. Civ. L.R. 7-1(b), and DENIES 20 Plaintiff’s application without prejudice. BACKGROUND 21 Plaintiff filed the underlying complaint on August 9, 2019, seeking the same relief sought 22 23 by the instant application. (See Dkt. No. 1 at ¶¶ 25-41.) Plaintiff served 6th Gear with the 24 summons and complaint on August 15, 2019. (Dkt. No. 8.) Plaintiff then filed the instant 25 26 27 28 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 2 Plaintiff consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (See Dkt. No. 7.) However, 6th Gear has not consented or otherwise appeared in this case, and the Clerk of Court entered default as to 6th Gear on September 27, 2019. (See Dkt. Nos. 11 & 12.) 1 1 application for writ of possession two weeks later. On September 10, 2019, Plaintiff filed a 2 certificate of service indicating that Plaintiff served 6th Gear with the instant notice of application 3 and supporting papers. (Dkt. No. 10 at 2.) 4 After 6th Gear failed to respond to the complaint or otherwise appear in this action, 5 Plaintiff filed a motion for entry of default with the Clerk of Court, (see Dkt. No. 11), which the 6 Clerk granted on September 27, 2019, (see Dkt. No. 12). 6th Gear has not subsequently appeared 7 or filed an opposition to the instant application. DISCUSSION 8 9 Federal Rule of Civil Procedure 64 provides, in pertinent part: “At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court 11 United States District Court Northern District of California 10 is located, provides for seizing a person or property to secure satisfaction of the potential 12 judgment.” Fed. R. Civ. P. 64. Here, Plaintiff seeks a writ of possession pursuant to California 13 Code of Civil Procedure § 512.010, which provides that “[u]pon the filing of the complaint or at 14 any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by 15 filing a written application for the writ with the court in which the action is brought.” Cal. Code 16 Civ. Proc. § 512.010(a). Plaintiff’s application is fatally flawed, however, because it fails to “fully 17 and strictly comply with the writ of possession notice of application requirements” under section 18 512.040. See Xerox Corp. v. House of Portraits, Inc., EDCV 16-2545-MFW-KKx, 2017 WL 19 3081693 (C.D. Cal. Feb. 21, 2017) (denying without prejudice application for writ of possession 20 where plaintiff failed to comply with the “very specific” statutory notice requirements under 21 Section 512.040). 22 23 24 25 26 27 28 Pursuant to section 512.040: The “Notice of Application and Hearing” shall inform the defendant of all of the following: (a) A hearing will be held at a place and at a time, to be specified in the notice, on plaintiff’s application for a writ of possession. (b) The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established. The hearing is not for the purpose of determining whether the claim is actually valid. The determination of the actual validity of the claim will be made in subsequent proceedings in the action and 2 1 2 3 4 5 6 7 will not be affected by the decision at the hearing on the application for the writ. (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. (d) The notice shall contain the following statement: “If you believe the plaintiff may not be entitled to possession of the property claimed, you may wish to seek the advice of an attorney. Such attorney should be consulted promptly so that he may assist you before the time set for the hearing.” 8 Cal. Civ. Proc. § 512.040 (emphasis added). Here, Plaintiff’s notice of application does not 9 contain the statements required under section 512.040, subsections (b) through (d), (see Dkt. No. 9 at 2), and Plaintiff presents no argument that full compliance with section 512.040 is excused by 11 United States District Court Northern District of California 10 6th Gear’s failure to appear in this action. Accordingly, Plaintiff’s application must be denied. 12 CONCLUSION 13 For the reasons stated above, the Court DENIES Plaintiff’s Application for Writ of 14 Possession and Injunctive Relief without prejudice. 15 This Order disposes of Docket No. 9. 16 IT IS SO ORDERED. 17 Dated: October 8, 2019 18 19 JACQUELINE SCOTT CORLEY United States Magistrate Judge 20 21 22 23 24 25 26 27 28 3

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