Judge Curtis A. Kin, Case Number: 24STCV01837, Date: 2024-08-27 Tentative Ruling

APPLICATION FOR WRIT OF POSSESSION

Date: 8/27/24 (1:30 PM)¿

Case: Supra National Express Inc. v. Penske Truck Leasing Co., L.P., et al. (24STCV01837)¿

TENTATIVE RULING:

Cross-Complainant/defendant Penske Truck Leason Co., L.P.’s Application for Writ of Possession is DENIED.

BACKGROUND

Cross-defendant/plaintiff Supra National Express, Inc. (“Supra”) is the lessee of ten commercial trucks that are owned and leased by cross-complainant/defendant Penske Truck Leasing Co., L.P. (“Penske”). The vehicles were provided to Supra subject to the terms and conditions of the written lease agreement entitled “Vehicle Lease Service Agreement,” executed between Penske and Supra on May 21, 2021 (“VLSA”). (Walters Decl. ¶ 4 & Ex. A.)

Under the terms of the VLSA, Supra was required to, among other things, pay Penske all “Lease Charges” within seven (7) days of the date of Penske’s invoices, without deduction or offset, which is defined to include the fixed lease charges, mileage charges, hourly charges, refrigeration charges, fuel charges, mileage and fuel tax obligations, including “overmileage charges” and all other amounts and charges described in the VLSA. (Walters Decl. ¶ 4 & Ex. A at 7(a-c); see also Walters Decl. ¶¶¿5, 8, 9 & Exs. B, D, E.) Failure to pay those Lease Charges constitutes a default. (Walters Decl. ¶ 4 & Ex. A at 13(a).) In an Event of Default, the VLSA provides, among other things, that Penske:

shall not be required to perform its obligations under [the VLSA] and may immediately terminate [the VLSA]…. In addition, Penske may, with or without terminating [the VLSA], with or without demand or notice to Customer, and with or without any court order or process of law, take immediate possession of any or all Vehicles wherever located, without being liable to Customer for damages caused by taking of possession.

(Walters Decl. ¶ 4 & Ex. A at 13(b).)

On November 1, 2023, Penske gave written notice to Supra that it was in default of the VLSA for past-due payments in the total amount of $191,215.45 and demanded payment of all amounts due within five days of that notice. (Walters Decl. ¶ 10 & Ex.¿G.) On or around November 17, 2023, Penske provided written notice to Supra that, due to Supra’s violation of certain provisions of the VLSA and failure to cure such violations, Penske was terminating the VLSA. (Walters Decl. ¶¿11 & Ex. H.) Among other things, Penske demanded that Supra immediately return the Leased Vehicles and pay all outstanding amounts due under the VLSA. (Walters Decl. ¶ 11 & Ex. H.) Penske has repeatedly demanded that the vehicles be returned from Supra, including as recently as May 1, 2024. (Boniske Decl. ¶¶ 3-6 & Exs. 1-4.) Penske contends that eight vehicles remain in Supra’s possession, identified as:

Vehicle Identification Numbers

3AKJHTDV9RDUM5497

3AKJHTDV09RDUM5498

3AKJHTDV29RDUM5499

3AKJHTDV7RDUM5501

3AKJHTDV8PSNU2487

3AKJHTDVXPSNU2488

3AKJHTDV6PDNU2489

3AKJHTDV4PDNU2491

(Walters Decl. ¶ 12.)

DISCUSSION

“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).) “At the hearing, a writ of possession shall issue 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. [¶] (2) The undertaking requirements of Section 515.010 are satisfied.” (CCP § 512.060(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.” (CCP § 511.090.)

As a preliminary matter, Supra’s evidentiary objections to the declaration of Colleen Walters are OVERRULED. Walters declares that, in her role as District Manager, she has access to Penske’s business records, including the files and contracts associated with Supra’s account. (Walters Decl. ¶ 2.) Walters reviewed the files and documents in preparing her declaration. (Walters Decl. ¶ 2.) Walters declared under penalty of perjury that her averments are correct. “[A]ny ‘qualified witness’ who is knowledgeable about the documents may lay the foundation for introduction of business records—the witness need not be the custodian or the person who created the record.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324.) Walters’ averments are sufficient to establish that the files and contracts she reviewed, which were attached to the declaration, are records of Penske that may be considered by the Court.

Nonetheless, the Court does not find that Walter’s conclusory statement and accompanying one-page letter stating that Supra is in default of the VLSA is sufficient to demonstrate that Penske is likely to obtain a judgment in its favor on either of its causes of action for breach of contract or conversion. While it is true the VLSA provides that, in the Event of Default, Penske may immediately terminate the VLSA and take possession of the trucks (Walters Decl. ¶ 4 & Ex. A at 13(b)), Penske provides insufficient proof to support its conclusory statement that “[a]s off the close of business on November 1, 2023, [Supra] has failed to pay Penske in the amount of $191,215.45.” (Walter Decl. Ex. G.) Penske provides no invoices, accounting records, computations, communications with Supra, or competent testimony of a qualified individual regarding Supra’s failure to make payments in accordance with the VLSA. A bare statement of $191,215.45 due and owing is insufficient where, as here, competing testimony (albeit rather conclusory as well) indicates that Penske has over-charged Supra and sent invoices with discrepancies. (See Linares Decl. ¶¶¿3-4.) Penske thus fails to demonstrate the necessary probable validity of its claim to support issuance of a writ of possession.

Further, Penske fails to satisfy CCP § 512.010(b)(4), which requires “[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.” While Penske submits evidence that Supra may possess the subject trucks somewhere for purposes of ongoing regular preventative maintenance (Boniske Decl. ¶ 4 & Ex. 2), Penske fails to provide any evidence of any particular location or address where any of the trucks might actually be found. A writ of possession cannot issue on such a vague showing for unspecified locations.