Judge Curtis A. Kin, Case 22STCV41069 2023-05-16 Tentative Ruling

Plaintiff VW Credit, Inc., a corporation (“Plaintiff”) moves for writs of possession against Defendants Vanessa Camarena (“Camarena”), Yulli Garcia (“Garcia”), Artak Grigoryan individually and dba Fast and Friendly Tow and Storage (“Grigoryan”), Fast and Friendly Tow and Storage, LLC (“Fast and Friendly”), and California Department of Motor Vehicles (“DMV”) over the following property: 2018 Audi A5, VIN # WAUPNAF57JA036981 (the “Vehicle”).

On December 30, 2022, Plaintiff filed its complaint for recovery of possession of personal property and other claims against Defendants.

On February 16, 2023, Plaintiff filed the instant applications for writ of possession.

On March 6, 2023, Plaintiff filed proofs of service showing substitute service, on February 24 and 20, 2023, of the summons, complaint, applications for writ of possession, and notices of hearing on Defendants Camarena and Garcia.

On April 4, 2023, Plaintiff filed proofs of service showing substitute service, on March 16, 2023, of the summons, complaint, applications for writ of possession, and notices of hearing on Defendants Grigoryan and Fast and Friendly.

The DMV has been served and has filed a Stipulation, Acceptance of Service, and Order, signed by the court, re: waiver of appearance by and of monetary recovery against DMV.

“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 Code of Civil Procedure section 512.010(b), the application must be submitted under oath and include:

(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.

(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.

Before the hearing on the Writ of Possession, the Defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. (CCP § 512.030.)

“The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.” (CCP § 512.040(b).) “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 § 511.090.)

Prior to the issuance of a writ of possession, the Plaintiff must file an undertaking “in an amount not less than twice the value of the defendant's interest in the property or in a greater amount.” (CCP § 515.010(a).)

Plaintiff seeks a writ of possession based on its first cause of action for claim and delivery.

Plaintiff submits sufficient evidence that it owns the Retail Installment Sale Contract (“Contract”) pursuant to an assignment. Melchor declares that Plaintiff owns the Contract pursuant to an assignment and authenticates evidence of a Certificate of Title showing Plaintiff as a lienholder. (Melchor Decl. ¶ 7, Exh. A, B.) A payment history letter addressed to Defendant Camarena shows payments to Audi Financial Services, which appears to be a “dba” for Plaintiff. (Id. ¶ 8, Exh. C.)[1] Defendant Fast and Friendly’s Notice of Pending Lien Sale names Audi Financial Services as the lienholder. (Id. ¶ 11, Exh. D.) Finally, Melchor authenticates a demand letter from its attorney to Defendant Grigoryan, which identifies Plaintiff as the finance company and lienholder. (Id. ¶ 13, Exh. E.) Defendants have not objected to this evidence, opposed the applications, or disputed Plaintiff’s ownership of the Contract. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Plaintiff submits evidence that Defendants Camarena and Garcia defaulted on the Contract starting March 20, 2022; that Plaintiff performed its obligations; and that Plaintiff suffered damages. (Melchor Decl. ¶¶ 1-18.)

Plaintiff submits evidence that Defendants Camarena and Garcia transferred the Vehicle to Defendant Grigoryan, who operates Fast and Friendly, a body shop; that the Vehicle has accrued labor, tow, and storage fees in excess of $8,175.00; and that Fast and Friendly applied to the DMV for approval to conduct a lien sale, but Plaintiff opposed the sale. (Id. ¶¶ 9-13, Exh. D, E.) On January 4, 2023, Plaintiff sent a letter to Grigoryan and Fast and Friendly offering to pay certain charges pursuant to Civil Code section 3068.1 in exchange for release of the Vehicle to Plaintiff. Grigoryan and Fast and Friendly rejected the offer. (Id. ¶ 13, Exh. E.)

This evidence, including reasonable inferences from it, establishes a probably valid claim that Camarena and Garcia transferred the Vehicle to Defendants Grigoryan and Fast and Friendly and that Plaintiff did not give consent to the Vehicle being towed, stored, or repaired by Grigoryan and Fast and Friendly. (Id. ¶¶ 6-15 and Exh. D, E.) Plaintiff shows a probably valid claim that it never authorized or consented to the subject vehicle being towed, stored, or repaired by Grigoryan and Fast and Friendly, and that any statutory lien would be limited to the amounts stated in Civil Code sections 3068 and 3068.1. (See Mot. 2-3.)

Plaintiff contends that because it offered to pay the statutory lien, and Grigoryan and Fast and Friendly refused the offer, Grigoryan and Fast and Friendly waived payment of the lien. (See Mot. 4.) The court finds this argument to be persuasive, and Defendants have not opposed it. (See Universal C.I.T. Credit Corp. v. Rater (1963) 214 Cal.App.2d 493, 494-495 [defendant who made repairs to vehicle waived statutory lien pursuant to Civil Code section 3068 when he rejected plaintiff’s tender of the lien amount].) To the extent necessary for issuance of a pre-judgment writ of possession, the court also concludes that Plaintiff has shown a probably valid claim for waiver of the statutory lien.

No opposition to this evidence has been received. Plaintiff has shown the probable validity of its claim for possession of the Vehicle against Grigoryan and Fast and Friendly.

Since Grigoryan and Fast and Friendly have retained possession of the Vehicle (see Melchor Decl. ¶ 12 [body shop defendants “confirmed that they still had possession”], Plaintiff does not show a probably valid claim for possession of the Vehicle against Camarena and Garcia.

Plaintiff does not show that DMV has possession of the Vehicle or has wrongfully detained the Vehicle. Plaintiff has stipulated that DMV is excused from attending any proceedings in this action. Accordingly, Plaintiff does not show a probably valid claim against DMV.

Pursuant to Code of Civil Procedure section 512.010(b)(2), the application must include “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.”

Under the Contract, Plaintiff has the right to repossess the Vehicle in the event of default. (Melchor Decl. Exh. A.) Plaintiff has demanded that Defendants surrender the Vehicle, including from Grigoryan and Fast and Friendly. (Id. ¶¶ 12-13, 15, Exh. E.) Plaintiff has made a showing that Defendants Grigoryan and Fast and Friendly have wrongfully detained the Vehicle, as discussed above.

Since Plaintiff’s evidence shows that Grigoryan and Fast and Friendly have retained possession of the Vehicle, Plaintiff does not show that Camarena and Garcia have wrongfully detained the Vehicle.

Plaintiff also does not show that DMV has possession of the Vehicle or has wrongfully detained the Vehicle. Plaintiff has stipulated that DMV is excused from attending any proceedings in this action.

Pursuant to Code of Civil Procedure section 512.010(b)(3), the application must include a particular description of the property and a statement of its value.

Plaintiff has provided a particular description of the property, by make, and VIN number. Plaintiff has also given a statement as to value. Plaintiff therefore satisfies section 512.010(b)(3).

Pursuant to Code of Civil Procedure section 512.010(b)(4)-(5), the application must include:

Plaintiff has provided a statement that the property has not been taken for a tax, assessment, or fine, pursuant to statute and has not been seized under an execution against the Plaintiff’s property. (Melchor Decl. ¶ 16.)

Plaintiff seeks a writ of possession directing the levying officer to take the Vehicle from real property located at 10954 Whitegate Ave., Sunland, CA 91040; 827 W 41st St., Los Angeles, CA 90037; and 36052 Sierra Highway #1 B, Palmdale, CA 93550. (Appl. ¶ 6.) Plaintiff must establish “probable cause” to believe that the Vehicle is located at the property specified in the application. (See CCP §§ 512.010(b)(4), 512.080.)

The Whitegate and W 41^st addresses are Camarena’s and Garcia’s residences, respectively. Plaintiff’s evidence shows that Grigoryan and Fast and Friendly have retained possession at the body shop. (Melchor Decl. ¶¶ 11-18.) Melchor specifically declares that “Plaintiff contacted defendants Body Shop, and each of them, who confirmed that they still had possession of the subject vehicle.” (Id. ¶ 12.) Accordingly, Plaintiff does not show probable cause to believe the Vehicle is at Camarena’s and Garcia’s residences.

Plaintiff submits evidence that Grigoryan’s and Fast and Friendly’s body shop is located at 36052 Sierra Highway #1 B, Palmdale, CA 93550, and that they have detained the Vehicle at that location. (Melchor Decl. ¶¶ 11-18, Exh. E.) Accordingly, Plaintiff shows probable cause to believe the Vehicle is located at 36052 Sierra Highway #1 B, Palmdale, CA 93550.

Code of Civil Procedure section 515.010(a) requires an undertaking to be filed before the writ issues in the amount of “not less than twice the value of the defendant’s interest in the property or in a greater amount.”[2] Plaintiff concedes that an undertaking of $52,544 (twice the Vehicle’s value) should be required of Plaintiff. (See Mot. 4:3-11; see also Melchor Decl. Exh. F.)

The court does not rule on Plaintiff’s claim for attorney’s fees at this time. (See Mot. 4.) Plaintiff should bring a separate motion for fees should Plaintiff contend that it has prevailed in this action against any Defendant.

Plaintiff does not show good cause for the court to take oral evidence at the hearing. (See Mot. 5.) The request for oral testimony is denied.

Plaintiff does not show that a TRO should be issued, in addition to a writ of possession. (See Mot. 4:7-11.) The request for a TRO is denied.

The applications for writ of possession against Grigoryan and Fast and Friendly are GRANTED. The court will issue a writ of possession for the Vehicle at 36052 Sierra Highway #1 B, Palmdale, CA 93550. The court does not issue a writ of possession with respect to 10954 Whitegate Ave., Sunland, CA 91040 and 827 W 41st St., Los Angeles, CA 90037.

[1] The payment history letter states, at the bottom of the page, that VW Credit, Inc. does business as Volkswagen Credit and Audi Financial Services. (Id. Exh. C.)

[2] Section 515.010(a) states that the value of the defendant’s interest “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.”