Judge: Curtis A. Kin, Case: 24STLC00247, Date: 2024-06-27 Tentative Ruling

Case Number: 24STLC00247    Hearing Date: June 27, 2024    Dept: 86

APPLICATIONS (3) FOR WRIT OF POSSESSION

Date:               6/27/24 (1:30 PM) 

Case:               Nissan-Infiniti Lease Trust LLC v. Blanca Garcia et al. (24STLC00247) 

TENTATIVE RULING:

On 5/30/24, the Court continued the hearing on the three applications for writ of possession because the document plaintiff Nissan-Infiniti Lease Trust LLC had submitted to demonstrate plaintiff’s entitlement to possession—the Motor Vehicle Lease Agreement—was largely illegible. (See Fitzgerald Decl. Ex. A [Motor Vehicle Lease Agreement].)

The Court allowed plaintiff to serve and file a supplemental declaration with a legible Motor Vehicle Lease Agreement by no later than 6/6/24.

On 5/30/24, plaintiff served and filed a declaration with a legible copy of the Motor Vehicle Lease Agreement. (Krugliak Decl. Ex. A.) On 5/30/24, plaintiff also served and filed notice of continuance of the hearing on plaintiff’s applications for writ of possession.  Again, on June 24, 2024, plaintiff served and filed a declaration with a legible copy of the Motor Vehicle Lease Agreement.  (Krugliak Decl. [filed 6/24/24] Ex. A.) Having reviewed the agreement, the Court now rules as follows:

The UNOPPOSED Applications for Writ of Possession by plaintiff Nissan-Infiniti Lease Trust LLC are GRANTED. The Court finds that plaintiff has established the probable validity of its claim to possession of the property, namely, a 2023 Nissan Altima motor vehicle (VIN 1N4BL4DVXPN424480).

Plaintiff is the assignee of a contract with defendant Blanca Garcia for the lease of the motor vehicle. (Fitzgerald Decl. ¶ 7 & Ex. A.) Under this contract, upon a default of any provision, plaintiff has the right to repossess the vehicle. (Krugliak Decl. Ex. A at § 25(ii)) Defendant Garcia has defaulted in payment on the agreement. (Fitzgerald Decl. ¶ 8.)

Plaintiff received a lien sale notice for the vehicle, which indicated that defendant New Era Auto Collision LLC, owned by defendant Jesus Gomez dba New Era Auto Collision (collectively, “Body Shop”), intended to sell the subject vehicle because its storage or repair bill had not been paid. (Fitzgerald Decl. ¶ 11 & Ex. C.) Based on communication with Body Shop, plaintiff avers that Body Shop remains in possession of the subject vehicle. (Fitzgerald Decl. ¶ 11 & Ex. C.) Accordingly, it appears that the subject vehicle is located at 4961 Firestone Blvd., South Gate, CA 90280, the address where Body Shop conducts its business. (Fitzgerald Decl. ¶¶ 11, 18 & Ex. C.)

Further, on January 5, 2024, plaintiff sent Body Shop 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. (Fitzgerald Decl. ¶ 13 & Ex. D.) Body Shop refused plaintiff’s offer to pay the maximum statutory amounts for release of the subject vehicle. (Fitzgerald Decl. ¶ 13.) Consequently, Body Shop 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 concludes that plaintiff has shown a probably valid claim for waiver of the statutory lien.

No undertaking is required. The amount owed ($33,197.43) exceeds the market value of the vehicle ($19,974.00). (CCP § 515.010; Fitzgerald Decl. ¶ 14 & Ex. E.)

Plaintiff also seeks a temporary restraining order. (Memo. of P&A at 4:15-19.) A temporary restraining order may be issued on an ex parte basis if the court makes certain findings, including that “plaintiff has established the probability that there is an immediate danger that the property claimed may become unavailable to levy by reason of being transferred, concealed, or removed or may become substantially impaired in value.” (CCP § 513.10(b).) “If at the hearing on issuance of the writ of possession the court determines that the plaintiff is not entitled to a writ of possession, the court shall dissolve any temporary restraining order; otherwise, the court may issue a preliminary injunction to remain in effect until the property claimed is seized pursuant to the writ of possession.” (CCP § 513.10(c).)

Here, plaintiff seeks a writ of possession by noticed motion, not ex parte application. Thus, plaintiff does not seek a temporary restraining order but rather a preliminary injunction. Plaintiff does not submit sufficient evidence satisfying the “immediate danger” requirement. Plaintiff appears to have received the lien sale notice on December 6, 2023, but there is no indication that the lien sale is imminent. (Fitzgerald Decl. ¶ 11 & Ex. C.) The Court declines to issue a preliminary injunction.

No later than 3 court days hereof, plaintiff is ordered to serve and lodge proposed orders on the appropriate Judicial Council Form in accordance herewith.