Case Number: EC061826    Hearing Date: April 22, 2014    Dept: A

Six Baja LLC v Harris

MOTION FOR STAY OF WRIT OF POSSESSION

Calendar: add-on
Case Number: EC061826
Date: 4/22/14

MP: Defendant, George Harris
RP: Plaintiff, Six Baja LLC

RELIEF REQUESTED:
Order staying execution of writ of possession

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendant is unlawfully detaining the Plaintiff’s property. The parties settled the case and filed an “Unlawful Detainer Stipulation and Judgment on January 21, 2014. The parties agreed that the Defendant could remain on the property through June 30, 2014 provided that he pay rent each month.
An OSC regarding dismissal or entry of judgment is set for July 11, 2014.

On April 19, 2014, the Defendant appeared with an ex parte application to stay the execution of a writ of possession. The Defendant argues that the Plaintiff no longer has standing because the Plaintiff sold the property.

First, any writ of possession that the Plaintiff obtained is void. Under CCP section 712.010. after entry of a judgment for possession, a writ of possession or sale shall be issued by the clerk of the court upon application of the judgment creditor and shall be directed to the levying officer in the county where the judgment is to be enforced.
A review of the Court file reveals that the Plaintiff’s attorney filed an application for issuance of a writ of possession on February 13, 2014. The Plaintiff’s attorney stated, under penalty of perjury, in paragraph 2 of the application that a judgment was entered on January 21, 2014. This is not entirely correct. As noted above, no judgment for possession has been entered in this case. Instead, the Court has set an OSC regarding dismissal or the entry of a judgment for July 11, 2014. Since there is no judgment for possession in this case, the Plaintiff’s writ of possession is void.
Under CCP section 473(b), the Court may correct clerical mistakes in its orders or set aside any void order. Here, a writ of possession was entered based on a clerical mistake, i.e., the Court clerk relied upon the accuracy of the facts provided by the Plaintiff. Since there is no judgment of possession, no writ of possession should have been issued.

Therefore, the Court will quash the writ of possession that was issued because there is no judgment in this case.

Further, the Defendant provides evidence that the Plaintiff sold the property at issue. The Defendant provides a copy of a grant deed that indicates that the Plaintiff granted a 4/5 interest in the premises on December 27, 2013 to V&V International LLC and a 1/5 interest in the premises to Dorcas Mao. The grant deed was recorded on January 17, 2014.
The remedy of unlawful detainer is a summary proceeding provided by statute. De La Vara v. Municipal Court (1979) 98 Cal. App. 3d 638, 640. The unlawful detainer statutes were enacted to provide an adequate expeditious and summary procedure for regaining possession of real property wrongfully withheld by a tenant. Id. Since the remedy of unlawful detainer is purely statutory in nature, the party seeking it must bring himself clearly within the statute. Id. This requires that plaintiff be the real party in interest, i.e., plaintiff must be entitled to possession.
The Defendant’s evidence indicates that the Plaintiff cannot bring itself within the statute because it has transferred its interest in the property to third parties. An OSC regarding dismissal or the entry of judgment remains set for July 11, 2014. The Court indicates that if the Plaintiff is not the real party in interest to bring the unlawful detainer Complaint, then the Court may not enforce the stipulation. Instead, the Court may set the matter for trial so that the Defendant can provide a defense based on the Plaintiff’s lack of standing to bring the unlawful detainer complaint.

RULING:
Quash writ of possession.