Judge: Christian R. Gullon, Case: 23PSCV00964, Date: 2023-08-14 Tentative Ruling

Case Number: 23PSCV00964    Hearing Date: August 14, 2023    Dept: O

Tentative Ruling

Plaintiff’s APPLICATION FOR WRIT OF POSSESSION is GRANTED.

Background

This is a contracts case. Plaintiff Audi Financial Services alleges the following against Defendants Huarong Dong and Shuteng Du: On May 23, 2022, the parties entered into an agreement for the purchase of a vehicle. Defendants, however, have defaulted on the payments, resulting in an amount owed of $74,915.40. Pursuant to the provisions of the agreement, in the event of default, Plaintiff is entitled to retake possession of the Vehicle from Defendants.

On April 3, 2023, Plaintiff filed suit for (1) Breach of Contract and (2) Claim and Delivery.

On April 13, 2023, Plaintiff filed the instant application for writ of possession (claim and delivery).

On July 20, 2023, default was entered against both Defendants.

Legal Standard

A writ of possession is available in any pending action. 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.) As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment. 

Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession. Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding. (Judicial Council Forms CD-100 et seq.). 

A plaintiff must make a written application for a writ of possession. (Code Civ. Proc., § 512.010, subds. (a) & (b).) The application may be supported by declarations and/or a verified complaint. (Code Civ. Proc., § 516.030.) The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. (Ibid.) The declaration supporting a writ possession application must set forth facts with particularity. (Ibid.) This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings. A recitation of conclusions without a foundation of evidentiary facts is insufficient. (See Rodes v. Shannon (1961) 194 Cai.App.2d 743, 749 [declaration containing conclusions inadequate for summary judgment]; Schessler v. Keck (1956) 138 Cal.App.2d 663, 669.) 

The application must be executed under oath and include: (1) A showing of the basis of the plaintiffs claim and that the plaintiff is entitled to possession of the property claimed. If the plaintiffs claim is based on a written instrument, a copy of it must be attached;[1] (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiffs best knowledge, information, and belief; (3) A specific description of the property and statement of its value;[2] (4) The location of the property according to the plaintiff's best knowledge, information, and belief.[3] If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff's property.

The court may order issuance of a writ of possession 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; and

(2) The undertaking requirements of Section 515.010 are satisfied. (Code Civ. Proc., § 512.060, subd. (a).)

“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.) This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. (Witkin, California Procedure, (5th ed. 2008) § 261, p.208.) A defendant's claim of defect in the property is not a defense to the plaintiffs right to possess it. (RCA Service Co. v. Sup. Ct. (1982) 137 Cal.App.3d 1, 3.)  

Discussion

Plaintiff’s declaration explains that pursuant to the terms and conditions of the agreement, Defendants agreed to pay an initial down payment in the amount of $4,000.00, plus seventy-one (71) consecutive monthly installment payments to Plaintiff in the amount of $1, 270.19, commencing on July 7, 2022 and one final payment of $1, 270.19 on June 7, 2028 (i.e., the promise to pay). However, from and since November 7, 2022, Defendants defaulted and have refused to return the vehicle, despite demands by Plaintiff to do so (i.e., the breach).

Therefore, Plaintiff has established a probable validity of prevailing on a breach of contract claim.

As for the bond, CCP section 515.010 provides an exception: “(b) 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.”

Here, as Defendants’ lack equity in the subject Vehicle and thus have no interest in the subject Vehicle, Plaintiff should not be required to post an undertaking as set forth in Code of Civil Procedures section 515.010. It is Defendants who are required to post an undertaking of $51,365.00 to stay the redelivery of the Vehicle.

Therefore, this second prong is met.

Conclusion

Based on the foregoing, the application is granted.