Judge Alison Mackenzie, Case 23SMCV01140 2023-05-24 Tentative Ruling

Judge: Alison Mackenzie, Case: 23SMCV01140, Date: 2023-05-24 Tentative Ruling

Case Number: 23SMCV01140 Hearing Date: May 24, 2023 Dept: 207

Background

Plaintiff Financial Services Vehicle Trust, by and through its servicer, Rolls-Royce Motor Cars Financial Services, a division of BMW Financial Services NA, LLC ("Plaintiff") filed suit against Defendants Edita Manoukian (“Manoukian”) and Radical Auto Deals, Inc. (“Radical” or, collectively with Manoukian, “Defendants”), alleging Manoukian entered into a written agreement with third party O’Gara Coach Company LLC (“O’Gara”) to lease a 2019 Rolls-Royce automobile. O’Gara subsequently assigned the lease to Plaintiff. Plaintiff alleges Manoukian breached the lease agreement by failing to make required monthly payments and improperly transferring possession of the vehicle to Radical without Plaintiff’s knowledge or consent. Plaintiff filed a Complaint on March 15, 2023, alleging four causes of action for (1) breach of contract, (2) common count, (3) claim and delivery, and (4) conversion. Plaintiff now brings an application for writ of possession to recover possession of the vehicle from Radical. Plaintiff’s application and Complaint were personally served on Radical’s registered agent for service of process on April 13, 2023. Plaintiff’s application is unopposed.

Legal Standard

Code Civ. Proc. § 512.010 requires that the application for writ of possession be executed under oath and include affidavits showing the following:

(1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached.

(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.

(3) A particular description of the property and a statement of its value.

(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.

Code Civ. Proc. § 512.060 permits the Court to issue a writ of possession when the Court finds the following: (1) the plaintiff has established the probable validity of the plaintiff's claim to possession of the property and (2) the undertaking requirements of section 515.010 are satisfied. Code Civ. Proc. § 515.010 provides: “The undertaking shall be in an amount not less than twice the value of¿the¿defendant's interest in the property or in a greater amount.” “Before issuance of a writ of attachment … the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.” (C.C.P. § 489.210.) But when a defendant does not have any interest in the property, Code Civ. Proc. § 515.010(b) permits the Court to waive the requirement of the plaintiff's undertaking and set an undertaking for the defendant to keep possession or regain possession.

Analysis

On review of the moving papers, the Court finds Plaintiff has shown Manoukian acquired possession of the subject vehicle pursuant to a written lease agreement with O’Gara. (Philips Decl. at ¶8.) Pursuant to this agreement, Manoukian was to make 48 monthly payments of $3,730.50, plus taxes. (Id. at ¶9.) O’Gara subsequently assigned its interest in the lease agreement to Plaintiff. (Id. at ¶10.) On or about April 4, 2022, Manoukian defaulted under the lease agreement by failing to make the required monthly payment. (Id. at ¶14.) Plaintiff’s records indicate that Manoukian currently owes the sum of $227,259.08 under the lease agreement. (Id. at ¶15.) Under the terms of the lease, Plaintiff is entitled to take possession of the vehicle in the event of Manoukian’s default. (Id. at ¶16.) The lease also provides Manoukian is not permitted to transfer possession of the vehicle without Plaintiff’s knowledge and consent. (Id.) After Manoukian defaulted on the lease, the vehicle was transferred to Radical’s possession, and is currently on Radical’s premises behind a gate. (Id. at ¶17.) Plaintiff has contacted Radical on multiple occasions to attempt to secure the return of the vehicle but Radical has refused those efforts. (Id. at ¶¶17, 21-24.) The fair market value of the vehicle is $326,680. (Id. at ¶26.) The Court notes Plaintiff’s application is unopposed and thus Plaintiff’s factual claims are undisputed.

The Court finds Plaintiff’s showing satisfies the requirements of Code Civ. Proc. § 512.010. Plaintiff shows (1) the basis of the claim on the vehicle, the assignment of the contract to Plaintiff, and that Plaintiff is entitled to possession of the vehicle; (2) the vehicle is wrongfully detained by Radical; (3) a description of the vehicle as a 2019 Rolls-Royce Dawn motor vehicle with serial number SCA666D55KU117982 and valued at $326,680; (4) the vehicle is currently located at 3721 W. Burbank Blvd., Burbank, California 91505 or some other location in California known only to Defendants. (Id. at ¶25); and (5) the property has not been taken for a tax, assessment, or fine, pursuant to statute, or seized under an execution against property, or if so seized, is exempt from such seizure by statute (Application at ¶8).

As to the undertaking to be posted, Code Civ. Proc. § 515.010(a) requires an undertaking “in an amount not less than twice the value of¿the¿defendant’s interest in the property or in a greater amount.” Section 515.010(a) further provides that “The value of the defendant’s interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property.” Radical does not oppose this application and the Court therefore concludes Radical has waived any interest it might have in the property. But Plaintiff has not yet served Manoukian, and she potentially have a contractual interest in the property that would require Plaintiff to post an undertaking. Thus, in an abundance of caution the Court will require Plaintiff to post an undertaking.

As set forth above, the market value of the property is $326,680, deducting the $227,259.08 currently due and owing under the less agreement results in a valuation of Manoukian’s interest in the property of $99,420.92. Accordingly, Plaintiff must post a bond in the sum of $199,000, which is slightly more than twice the value of Manoukian’s interest in the vehicle. The Court grants Plaintiff’s request to impose a re-delivery bond for Defendants to retake possession under Code Civ. Proc. § 515.20(b). In its discretion, the Court orders a re-delivery bond of $227,259.08, which is the amount owed by Manoukian under the lease agreement.

Conclusion

Plaintiff’s application for a writ of possession is GRANTED. Plaintiff is directed to post a bond in the sum of $199,000, and the Court sets a re-delivery bond in the sum of $227,259.08 pursuant to Code Civ. Proc. § 515.20(b).