Judge: Christian R. Gullon, Case: 23PSCV01427, Date: 2023-09-18 Tentative Ruling

Case Number: 23PSCV01427    Hearing Date: September 28, 2023    Dept: O

Tentative Ruling

Plaintiff BMO HARRIS BANK N.A’s Writ of Possession Re: YURONG LIN is GRANTED/MOOT should Plaintiff seek to continue with default judgment as to both Defendants.

Background

This is a contracts case. Plaintiff BMO HARRIS BANK N.A alleges that Plaintiff and Defendants ZYG WORLD INC, a California corporation; YURONG LIN, an individual, entered into two Loan and Security Agreements, and Defendants have defaulted on both.[1]

On May 11, 2023, Plaintiff filed suit against Defendants for Breach of Written Agreement, Breach of Continuing Guaranty, Claim and Delivery, and Conversion.

On May 26, 2023, Plaintiff filed two applications for writ of possession (one as to each Defendant). (Based upon the ‘Notice of Application[s] for Writ of Possession and Hearing’ filed on 5/26/23, the hearing on ZYG’s application is scheduled for 9/18/23 and hearing on Lin’s application is scheduled for 9/28/23).

On July 21, 2023, default was entered against Defendants.

On August 2, 2023, Plaintiff filed an application for default judgment.

On September 18, 2023, the court denied the default judgment application without prejudice (re: evidence of repossession fees and usurious interest) and based thereon rendered the writ of possession re: ZYG World, Inc. moot (as the default judgment defects could be cured). The court’s ruling did not address the writ of possession re: Defendant Lin, which is the subject of the instant application.

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;[2] (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;[3] (4) The location of the property according to the plaintiff's best knowledge, information, and belief.[4] 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 seeks an order directing Defendant Li to transfer possession of the certain property to Plaintiff (a 2022 Vanguard DryVans  -  Serial #5V8VC5321NT207264 and a 2020 Freightliner Cascadia S  -  Serial #3AKJHPDV4LSLM3731).

Here, as (i) Plaintiff and Defendants entered into a Loan and Security Agreement and Continuing Guaranty whereby Plaintiff agreed to finance certain equipment described herein but the Defendants defaulted in the payment terms of the Loan and Security Agreement, thereby entitling Plaintiff to possession of the equipment (i.e., establishing probable validity of Plaintiff’s claim) and (ii) Plaintiff has complied with the other procedural requirements, the court grants the petition.

Notwithstanding the foregoing, as this petition is only as to the guarantor (Lin), the order will not apply to ZYG World, Inc.

Conclusion

Based on the foregoing, the petition is granted/moot.