Judge: Christian R. Gullon, Case: 25PSCV01519, Date: 2025-06-16 Tentative Ruling

Case Number: 25PSCV01519    Hearing Date: June 16, 2025    Dept: O

Tentative Ruling

Plaintiff’s APPLICATION FOR WRIT OF POSSESSION is TBD; according to Defendant Jan’s Towing’s answer, Plaintiff may have possession of vehicle three. (A proposed order has been filed.)

Background

This claim arises from the financing of three cars. Plaintiff BANK OF AMERICA, N.A. alleges the following against Defendants JAN’S TOWING, INC. (“Jan’s Towing” or “Defendant”) and THE CALIFORNIA DEPARTMENT OF MOTOR VEHICLES (“DMV”): Plaintiff and three parties on three different dates entered into different contracts.  As security for each party’s obligations under their respective contracts, they granted Plaintiff a security interest the vehicles. Plaintiff alleges all three breached their respective contracts by Jan’s Towing taking possession of the vehicles. Plaintiff has demanded that Defendant deliver possession of the vehicles, but Jan’s Towing fails to accept the tender and refuses to deliver the vehicles.

On April 28, 2025, Plaintiff filed suit for:

1.     Declaratory Relief

2.     Claim and Delivery

3.     Injunctive Relief

4.     Conversion and

5.     Violation of CCP section 3068

On April 30, 2025, Plaintiff filed the instant application.

On May 1, 2025, Plaintiff filed a POS indicating that the DMV was served with the summons and complaint on 4/29/25 by serving “Juan Jarrett, legal, Authorized to Accept Service of Process.”

On May 16, 2025, Plaintiff filed a POS indicating that Jan’s Towing was served on 5/13/25 by serving Suan Dunken, agent for service.

On May 19, 2025, Plaintiff filed a POS indicating that it served Jan’s Towing on 5/13/25.

On May 29, 2025, Defendant Jan’s Towing filed its answer.

Legal Standard

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.”  (CCP § 484.010.) 

The application shall be executed under oath and must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and (5) a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment.  (CCP § 484.020.)  

“The application [for a writ of attachment] shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”  (CCP § 484.030.) 

The Court shall issue a right to attach order if the Court finds all of the following: 

(1) The claim upon which the attachment is based is one upon which an attachment may be issued. 

(2) The plaintiff has established the probable validity of the claim upon which the attachment is based. 

(3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. 

(4) The amount to be secured by the attachment is greater than zero. 

CCP § 484.090. 

“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.”  (CCP § 481.190.) In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”  (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.) 

At the times prescribed by CCP section 1005(b), the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence.  (CCP § 484.040.)[1]   

“The Attachment Law statutes are subject to strict construction.”¿(Epstein v. Abrams¿(1997) 57 Cal.App.4th 1159, 1168.)¿ 

Discussion

Plaintiff seeks a court order directing the Sheriff of Los Angeles County to recover the three (3) Vehicles from JAN’S TOWING and to deliver them to Plaintiff. (Motion p. 2.)

Plaintiff has provided evidence that it is the “legal owner” of vehicles pursuant to Vehicle Code § 370 which defines “legal owner” as “a person holding a security interest in a vehicle which is subject to the provisions of the Uniform Commercial Code, or the lessor of a vehicle to the State or to any county, city, district, or political subdivision of the State, or to the United States, under a lease, lease-sale, or rental-purchase agreement which grants possession of the vehicle to the lessee for a period of 30 consecutive days or more.”

Plaintiff has also provided evidence that each of the parties who entered into the agreements had obligations “to do whatever [Plaintiff] require[s] to perfect [Plaintiff’s] interest and keep [Plaintiff’s] priority. [Promisee] will not do anything to harm [Plaintiff’s] position. [Promisee] will keep the Collateral in [promisee’s] possession (except if pledged and delivered to [Plaintiff])….

Under the terms of the contracts, Plaintiff is entitled to immediate possession of the vehicles.  

Therefore, Plaintiff has met its burden to show that their claims have probable validity.

Notwithstanding, the court has reviewed Jan Towing’s answer. The Fourth Affirmative Defense for ‘Release’ states the following:

This Answering Defendant alleges that Plaintiffs actions constituted a full release and waiver by Plaintiff of any and all claims which Plaintiff may have against this Defendant, specifically as to the 2021 BMW M340, VIN 3MW5U7JOXM8B52538, identified as Vehicle Three in Plaintiff's Complaint, which Defendant is informed and believes and on such information and belief alleges that said Vehicle Three has been recovered by and is in the possession of Plaintiff.

Thus, as to the one of the vehicles, the application may be moot. The court will inquire as to the foregoing during the hearing.

Conclusion

Based on the foregoing, the application is TBD.