Judge Curtis A. Kin, Case 23STCV02908 2023-05-18 Tentative Ruling

Plaintiff Daimler Trust, as serviced by its attorney in fact, Mercedes-Benz Financial Services USA, LLC (“Plaintiff”) moves for a writ of possession against Defendant Hooman Auto Body & Paint, a California corporation (“Defendant” or “Hooman”) over the following property: 2021 Mercedes-Benz C300W, VIN # W1KWF8DB9MR609193 (the “Vehicle”).

On February 9, 2023, Plaintiff filed its complaint for breach of contract, common count, claim & delivery, and conversion against Defendant Jean Samaniego-Aguilar and Hooman Auto Body & Paint.

On February 22, 2023, Plaintiff filed the instant application for writ of possession.

On March 14, 2023, Plaintiff filed proofs of service showing substitute service, on March 8, 2023, of the summons, complaint, application for writ of possession, and notice of hearing on Defendant Hooman Auto Body & Paint.

“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 cause of action for claim and delivery.

Plaintiff submits evidence that it owns, pursuant to an assignment, the Motor Vehicle Lease Agreement executed by Defendant Aguilar with respect to the Vehicle (“Agreement”). (Azubogu Decl. ¶¶ 11-12, Exh. 1 [lease agreement with assignment clause at paragraph 25]; Exh. 2 [certificate of title].)

Plaintiff submits evidence that Defendant Aguilar defaulted on the Agreement on or about December 27, 2022, by failing to make payments then due and also by failing to inform Plaintiff that the Vehicle had been involved in an accident and had sustained substantial damage. (Id. ¶ 22.) Plaintiff submits evidence of its performance of the Agreement and damages. (Id. ¶¶ 14-29.)

Plaintiff submits evidence that Defendant Aguilar transferred the Vehicle to Defendant Hooman, which operates a body shop; that the Vehicle has accrued storage and towing charges; and that Hooman has claimed a lien on the Vehicle in the amount of $938 for towing, $6,400 for accrued storage fees, and $200 per day for ongoing storage of the Vehicle. (Id. ¶ 15, Exh. 3.) Plaintiff’s representative declares that “[a]t no time did HOOMAN seek prior approval from Plaintiff to take possession and store the Vehicle, nor did Plaintiff give any such approval for the storage and any alleged repairs and services done to the Vehicle by HOOMAN.” (Id. ¶ 17.)

Plaintiff’s evidence establishes a probably valid claim that Aguilar transferred the Vehicle to Hooman and that Plaintiff did not give consent to the Vehicle being towed, stored, or repaired by Hooman. Plaintiff shows a probably valid claim that it never authorized or consented to the subject vehicle being towed, stored, or repaired by Hooman, and that any statutory lien would be limited to the total amount stated in Civil Code section 3068, which is $2,750. (See § 3608(c)(1).)

Plaintiff also contends that Hooman’s statutory lien has been extinguished because Hooman did not apply for authorization to conduct a lien sale within 30 days after the lien arose; did not allow Plaintiff to inspect the Vehicle within 72 hours of Plaintiff’s request; and failed to provide copies of work orders, invoices, repair orders, and a signed copy of the work authorization upon Plaintiff’s request. (Mot. 3-4, citing Civil Code §§ 3068(b)(1)(A), (b)(3), and (b)(4).)[1] The court finds these arguments to be persuasive and supported by Plaintiff’s evidence. (Azubogu Decl. ¶¶ 18-21 and Domin Decl. ¶¶ 6-11, Exh. 1, 2.) Defendant has not opposed Plaintiff’s argument that the lien was extinguished as a matter of law. (See 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”].) 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 of extinguishment 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 Defendant Hooman.

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 Agreement, Plaintiff has the right to repossess the Vehicle in the event of default. (Azubogu Decl. ¶ 25 and Exh. 1.) Plaintiff has received an invoice affirming Hooman’s possession of the Vehicle. (Id. ¶ 26.) Plaintiff has demanded that Defendants surrender the Vehicle, including from Hooman. (Id. ¶ 26.) Plaintiff has made a showing that Defendant Hooman has wrongfully detained the Vehicle, as discussed above.

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. (Appl. ¶ 8.)

Plaintiff seeks a writ of possession directing the levying officer to take the Vehicle from real property located at 6740 Crenshaw Blvd., Los Angeles, CA 90043; and 6832 Crenshaw Blvd., Los Angeles, CA 90043. (Azubogu Decl. ¶ 27.) 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.) Such showing may be based on information and belief. (See CCP § 512.010(b)(4) and Editors’ Notes and Legislative Committee Comments.)

Plaintiff submits evidence that Hooman’s body shop does business at both of the stated locations. (Azubogu Decl. ¶ 27, Exh. 3; Domin Decl. ¶ 7, Exh. 1.) Plaintiff has received an invoice affirming Hooman’s possession of the Vehicle. (Azubogu Decl. ¶ 26, Exh. 3.) Accordingly, Plaintiff shows probable cause to believe the Vehicle is located at 6740 Crenshaw Blvd., Los Angeles, CA 90043; and 6832 Crenshaw Blvd., Los Angeles, CA 90043.

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.” 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.” (bold italics added.)

Plaintiff contends that its bond should be limited to $6,000, which is a little more than twice the amount of Hooman’s alleged statutory lien pursuant to Civil Code section 3068. (See Mot. 7 [$2,750 x 2 = $5,500].) However, Plaintiff does not apply the statutory definition of the defendant’s interest in Code of Civil Procedure section 515.010(a), which is generally twice the market value of the property. Plaintiff does not develop an argument that the amount of undertaking should instead be reduced to the amount of any lien or the balance due on the Agreement. The court will require Plaintiff to post an undertaking of twice the market value of the Vehicle, which is $62,772 ($31,386 x 2.) (See Azubogu Decl. ¶ 31.)

Plaintiff requests that the court set Defendant’s counterbond in the amount of $31,386, the market value of the Vehicle. (Mot. 7-8.) CCP section 515.020(a) states in pertinent part: “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….” (bold italics added.) Accordingly, the court will set Defendant’s counterbond in the same amount of Plaintiff’s bond, $62,772.

The application for writ of possession is GRANTED. The court will issue a writ of possession for the Vehicle at 6740 Crenshaw Blvd., Los Angeles, CA 90043; and 6832 Crenshaw Blvd., Los Angeles, CA 90043.

The Court will sign the Proposed Order, electronically received 2/22/23, with the changes to the amount of the undertakings noted herein.

[1] Section 3068(b)(1)(A) states in pertinent part: “Any lien under this section that arises because work or services have been performed on a vehicle with the consent of the registered owner shall be extinguished and no lien sale shall be conducted unless either of the following occurs: (A) The lienholder applies for an authorization to conduct a lien sale within 30 days after the lien has arisen.” Section 3068(b)(3) and (4) similarly state that the lien is “extinguished” if the lienholder does not, within the timeframes stated in the statute, permit inspection of the Vehicle or produce records related to the repair work upon demand by the legal owner.