Judge: Curtis A. Kin, Case: 24STCV00979, Date: 2024-04-11 Tentative Ruling

Case Number: 24STCV00979    Hearing Date: April 11, 2024    Dept: 86

APPLICATION FOR WRIT OF POSSESSION

Date:               4/11/24 (1:30 PM) 

Case:               Americredit Financial Services v. Damien R. Escalante et al. (24STCV00979) 

RECOMMENDED RULING:

On March 5, 2024, the Court tentatively denied petitioner’s application for writ of possession with respect to defendant K.O. Towing and Recovery (“K.O. Towing”) because there was no showing as to why K.O. Towing and Recovery would have possession of the vehicle. The Court continued the matter to allow plaintiff Americredit Financial Services to submit additional information.

Plaintiff was ordered to file and serve supplemental briefing on or before 3/8/24. According to a proof of service, filed on 3/8/24, plaintiff served all defendants notice of the continued hearing and a supplemental declaration of Eric Tran, Esq. on 3/7/24 by mail. However, the Tran declaration was filed on 3/28/24, twenty days past the date ordered by the Court. Nevertheless, because the notice of continuance and Tran declaration were timely served and no oppositions have been filed, the Court rules on the merits of the application. 

With respect to K.O. Towing, the UNOPPOSED Application for Writ of Possession by petitioner Americredit Financial Services is GRANTED.

The Court finds that plaintiff has established the probable validity of its claim to possession of the property, namely, a 2020 Ford Super Duty F-25 (VIN 1FT8W2BT4LEC64673).

The Tran declaration demonstrates that plaintiff received a Notice of Pending Lien Sale for Vehicle, which indicated that K.O. Towing intended to sell the subject vehicle because its towing, storage or repair bill had not been paid. (Tran Decl. ¶ 3 & Ex. 1.) The Notice of Pending Lien Sale indicated that plaintiff was the legal owner of the vehicle. (Tran Decl. ¶ 3 & Ex. 1.) Based on conversations with representatives of K.O. Towing and its agent, California Lien Sales, plaintiff represents that the lien sale has not yet occurred and K.O. Towing remains in possession of the subject vehicle. (Ttran Decl. ¶¶ 6-11.) Accordingly, it appears that the subject vehicle may be located at 542 E. Walnut St., Fullerton, CA 92832, the address where K.O. Towing conducts its business. (Tran Decl. ¶ 3 & Ex. 1.)

Further, on January 9, 2024, plaintiff sent K.O. Towing a letter offering to pay the maximum amount for storage under Civil Code § 3068(c) in exchange for release of the subject vehicle to plaintiff. (Tran Decl. ¶ 5 & Ex. 2.) Plaintiff also asserted that it was not notified before K.O. Towing began storing the vehicle. (Ibid.) This evidence establishes that K.O. Towing came into possession of the vehicle and plaintiff probably did not give consent to the vehicle being towed, stored, or repaired by K.O. Towing. (Ibid.) Plaintiff shows a probably valid claim that any statutory lien would be limited to the amounts stated in Civil Code § 3068(c)(1).

K.O. Towing refused plaintiff’s offer to pay the maximum amounts for release of the subject vehicle. (Tran Decl. ¶ 9.) Consequently, K.O. Towing waived payment of the lien. (See Universal C.I.T. Credit Corp. v. Rater (1963) 214 Cal.App.2d 493, 494-95 [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 undertaking is required. The amount owed ($59,494.93) exceeds the market value of the vehicle ($33,334.00). (CCP § 515.010; Williams Decl. ¶ 9 & Ex. C.)  Plaintiff shall submit a Proposed Order in accordance herewith on the appropriate Judicial Council form.