Judge Ashfaq G. Chowdhury, Case Number: 24GDCV00017, Date: 2024-05-24 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24GDCV00017, Date: 2024-05-24 Tentative Ruling

Case Number: 24GDCV00017 Hearing Date: May 24, 2024 Dept: E

Hearing Date: 5/24/2024-8:30am
Case No. 24GDCV00017
Trial Date: UNSET
Case Name: AUDI FINANCIAL SERVICES v. HOVHANNES A. BAGHDASARYAN; an individual; and DOES 1-10 inclusive

WRIT OF POSSESSION

RELIEF REQUESTED
Plaintiff applies for a “Writ of possession after hearing (Code Civ. Proc, (C.C.P.), § 512.010).” (Pl. App. p. 1.)

BACKGROUND
Plaintiff, Audi Financial Services, filed a Complaint on 1/4/2024 alleging two causes of action for (1) Breach of Contract and (2) Claim and Delivery against Defendant, Hovhannes A. Baghdasaryan.

This action surrounds allegations by Plaintiff that Defendant defaulted under the terms of the Retail Installment Sale Contract Simple Interest Finance Charge Agreement (Agreement) that Defendant entered into with Audi Calabasas when Audi Calabasas sold Defendant the subject vehicle. (See Compl. ¶ 6.)

PROCEDURAL

Moving Party: Plaintiff, Audi Financial Services

Responding Party: No Opposition by Defendant Hovhannes A. Baghdasaryan

Moving Papers: Notice of Application for Writ of Possession and Hearing; Application for Writ of Possession After Hearing [Not served according to proof of service]; Perez Declaration; Proof of Service of Summons

Opposition Papers: No Opposition

Reply Papers: No Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a) : Uncertain – On eCourt there is no address for Defendant. Defendant has not appeared yet.

Legal Standard Writ of Possession

A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. (See Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, 1288.)

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (CCP § 512.010(a).)

Pursuant to CCP § 512.010(b), the application shall be executed under oath and shall include 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.

(CCP § 512.010(b)(1)-(5).)

“The requirements of subdivision (b) may be satisfied by one or more affidavits filed with the application.” (CCP § 512.010(c).)

Prior to the hearing required by CCP § 512.020(a), the defendant shall be served with all of the following:

(1) A copy of the summons and complaint.

(2) A Notice of Application and Hearing.

(3) A copy of the application and any affidavit in support thereof.

(CCP § 512.030(a).)

“At the hearing, a writ of possession shall issue if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property. (2) The undertaking requirements of Section 515.010 are satisfied.” (CCP § 512.060(a)(1)-(2).)

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 511.090.)

“No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that the property is located there.” (CCP § 512.060(b).)

“Except as provided in subdivision (b), the court shall not issue a temporary restraining order or a writ of possession until the plaintiff has filed an undertaking with the court . The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. 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. 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.” (CCP § 515.010(a).)

“If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff’s undertaking and shall include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (CCP § 515.010(b).)

ANALYSIS
Service Under § 512.030
Prior to the hearing required by CCP § 512.020(a), the defendant shall be served with all of the following:

(1) A copy of the summons and complaint.

(2) A Notice of Application and Hearing.

(3) A copy of the application and any affidavit in support thereof.

(CCP § 512.030(a).)

Here, Plaintiff filed a “Proof of Service of Summons” on 2/29/2024. This proof of service alleged service on Defendant by substituted service. In relevant part of § 512.030(a), the proof of service indicates that the summons, complaint, and notice of application and hearing was served. Therefore, the requirements of CCP § 512.030(a)(1) and (2) were met.

However, the requirements of CCP § 512.030(a)(3) were not met. Defendant had to have been served prior to the hearing with “[a] copy of the application and any affidavit in support thereof.” Here, while the proof of service indicates service of the declaration in support of the application for writ of possession, the proof of service does not indicate that the application itself was served. Since service of a copy of the application is a requirement under 512.030(a)(3), Plaintiff’s motion should be DENIED on this ground.

Requirements of § 512.010(b)
Pursuant to CCP § 512.010(b), the application shall be executed under oath and shall include the following:

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

(CCP § 512.010(b)(1)-(5).)

Here, to support each requirement of § 512.010(b), Plaintiff submitted the declaration of Lucy Perez.

Perez is employed as an Agent for Plaintiff, Audi Financial Services. (Perez Decl. ¶ 2.) She states that she reviewed Plaintiff’s records as they related to Hovhannes A. Baghdasaryan and that all exhibits attached to her declaration are true and correct copies of Plaintiff’s records as they are kept in the ordinary course of business. (Id.)

§ 512.010(b)(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.” (CCP § 512.010(b)(1).)

Here, Plaintiff appears to have met this requirement based on the Perez declaration and the attached exhibits to the Perez declaration.

As stated in Perez’s declaration:

On or about November 22, 2022, Defendant Hovhannes A. Baghdasaryan (hereinafter "Defendant"), entered into a Retail Installment Sale Contract Simple Interest Finance Charge Agreement (hereinafter referred to as the "Agreement") with Audi Calabasas, as Seller, and Defendant as Buyer. Audi Calabasas sold to Defendant and Defendant received possession of, a Vehicle described as a 2023 Audi Q7, Vehicle Identification Number WA1LXBF79PD003310 (hereinafter "Vehicle"). A true and correct copy of the Agreement is attached hereto and marked as Exhibit "1". As part of the Agreement Audi Calabasas assigned all of its rights, title, and interest under the Agreement to Plaintiff. (See Exhibit "1").

(Perez Decl. ¶ 6.)

Further, Perez states:

Plaintiff is the lien holder of record on the subject Vehicle with such lien being duly registered with the California Department of Motor Vehicles. A true and correct copy of the electronic title is attached hereto and marked as Exhibit "2".

Pursuant to the terms and conditions of the Agreement, Defendant agreed to pay seventy-one (71) consecutive monthly installment payments to Plaintiff in the amount of $ 1,361.18, commencing on January 6, 2023 and one final payment of $ 1,361.18 on December 6, 2028.

Plaintiff has fully performed all promises, covenants and conditions owed to Defendant under the Agreement. However, from and since May 6, 2023, Defendant defaulted on their payment obligation to Plaintiff by failing to make payments when due under the Agreement.

(Perez Decl. ¶¶ 7-9.)

Further, ¶¶ 13-14 appear to support this requirement:

As a proximate cause of the default of Defendant in performing under the Agreement by refusing to return the Vehicle, Plaintiff was entitled to, and did accelerate, the total amount due under the Agreement. The amount presently due and owing from said Defendant to Plaintiff is $77,206.08 plus attorney's fees and costs. The account statement reflecting such accelerated balance due is attached hereto as Exhibit "4". Said calculations were prepared in the ordinary course of business and reflect transactions on the subject account which were entered by me or those under my supervision at, or near, the time of each transaction.

As a result of the default and Defendant's lack of equity in the subject Vehicle, Defendant has no interest in the subject Vehicle. Accordingly, Plaintiff should not be required to post an undertaking as set forth in Code of Civil Procedures § 515.010. Furthermore, pursuant to Code of Civil Procedures § 515.010, Plaintiff requests that Defendant be required to post an undertaking of $71,647.00 to stay the redelivery of the Vehicle.

(Perez Decl. ¶¶ 13-14.)

§ 512.010(b)(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.” (CCP § 512.010(b)(2).)

Here, Plaintiff appears to have met this requirement.

See Perez Declaration ¶¶ 6-9.

Further, Perez stated:

Thereafter, Plaintiff demanded that Defendant return the Vehicle to Plaintiff. Defendant refused and failed to turnover possession of the Vehicle to Plaintiff.

Plaintiff has been attempting to repossess the Vehicle. However, Plaintiff has been unsuccessful recovering the Vehicle.

(Perez Decl. ¶¶ 10-11.)

§ 512.010(b)(3)
“A particular description of the property and a statement of its value.”

Here, the description of the property can be seen in ¶ 6 of the Perez declaration.

Further, a statement of its value is described as:

The current estimated wholesale value of the Vehicle is $61,841.00 and the current estimated retail value of the Vehicle is $71,647.00, according to present market values and "J.D. Power" authority. A true and correct copy of "J.D. Power" authority is attached hereto and marked as Exhibit "3".

(Perez Decl. ¶12.)

§ 512.010(b)(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.” (CCP § 512.010(b)(4).)

Here, Perez states, “Plaintiff is informed and believes and thereon alleges that the Vehicle is located at the last known address of Defendant, which is 340 Riverdale Drive, Unit C, Glendale, CA 91204, including any and all garages and storage facilities adjacent thereto.” (Perez Decl. ¶ 15.)

Here this requirement is

§ 512.010(b)(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.” (CCP § 512.010(b)(5).)

Here, the Perez declaration did not address this requirement. However, the application states, “The claimed property has not been taken for a tax, assessment, or fine, pursuant to statute, and (check one):” and a box is checked for “has not been seized under an execution against the plaintiff’s property.” (See Application ¶ 8.)

Further, the application is signed by “James Lynch for Audi Financial Services.”

This requirement appears to have been met if Plaintiff demonstrates service of the application.

Issues at Hearing – §§ 512.060 and 515.10

Probable Validity

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 511.090.)

Here Plaintiff appears as if it did establish the probable validity of Plaintiff’s claim to possession of the property.

Undertaking
“At the hearing, a writ of possession shall issue if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property. (2) The undertaking requirements of Section 515.010 are satisfied.” (CCP § 512.060(a)(1)-(2).)

Here the Court will hear argument as to the undertaking requirements.

Paragraph 14 of the Perez declaration stated:

(Perez Decl. ¶ 14.)

The Court notes that it would like Plaintiff to explain why Defendant has no interest in the subject vehicle based on how the value is determined in § 515.010(a). The Court points this out because Perez stated in ¶ 8 that payments commenced on January 6, 2023 and that from and since May 6, 2023 Defendant defaulted on their payment obligations. Therefore, the Court is curious to know precisely why Defendant has no interest in the property.

The Court also cites the portions below from the Perez declaration that may be helpful in determining the undertaking requirements:

(Perez Decl. ¶ 13.)

(Perez Decl. ¶12.)

No Opposition
While there is currently no Opposition, if Defendant argues that Plaintiff should not take possession, the Court cites the following:

(a) The defendant may prevent the plaintiff from taking possession of property pursuant to a writ of possession or regain possession of property so taken by filing with the court in which the action was brought an undertaking in an amount equal to the amount of the plaintiff’s undertaking pursuant to subdivision (a) of Section 515.010 or in the amount determined by the court pursuant to subdivision (b) of Section 515.010.

(b) The undertaking shall state that, if the plaintiff recovers judgment on the action, the defendant shall pay all costs awarded to the plaintiff and all damages that the plaintiff may sustain by reason of the loss of possession of the property. The damages recoverable by the plaintiff pursuant to this section shall include all damages proximately caused by the plaintiff’s failure to gain or retain possession.

(c) The defendant’s undertaking may be filed at any time before or after levy of the writ of possession. A copy of the undertaking shall be mailed to the levying officer.

(d) If an undertaking for redelivery is filed and the defendant’s undertaking is not objected to, the levying officer shall deliver the property to the defendant, or, if the plaintiff has previously been given possession of the property, the plaintiff shall deliver the property to the defendant. If an undertaking for redelivery is filed and the defendant’s undertaking is objected to, the provisions of Section 515.030 apply.

(CCP § 515.020(a)-(d).)

TENTATIVE RULING
The Court tentatively plans to deny this application for writ of possession based on Plaintiff failing to serve a copy of the application under CCP § 512.030(a)(3). Plaintiff’s proof of service did not indicate that the application was served. It indicated that the Notice of Application and the Declaration was served, but it did not indicate that the application itself was served. If Plaintiff comes forward with a proof of service of the application itself, it would need to comply with the notice requirements of 1005(b).

The Court will hear argument.