Judge: Curtis A. Kin, Case: 24STLC03415, Date: 2024-11-05 Tentative Ruling

Case Number: 24STLC03415    Hearing Date: November 5, 2024    Dept: 86

APPLICATION FOR WRIT OF POSSESSION

Date:               11/5/24 (1:30 PM) 

Case:               Americredit Financial Services v. Melanie Dorfman et al. (24STLC03415) 

TENTATIVE RULING:

As a preliminary matter, the declaration of plaintiff’s counsel was not executed under penalty of perjury under the laws of the State of California, as required under CCP § 2015.5. (See Tran Decl.) Because the motion is unopposed, the Court finds that the defect is harmless under the circumstances. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1204.) Plaintiff is admonished to comply with CCP § 2015.5 in the future.

With respect to defendant Melanie Dorfman, the UNOPPOSED Application for Writ of Possession by petitioner Americredit Financial Services is DENIED. Under CCP § 512.030, prior to the hearing on an application for a writ of possession, the defendant “shall be served” with specific documents, including the Summons and Complaint, the Notice of Application and Hearing, and a copy of the application and any affidavits. Plaintiff has neither filed any proofs of service of the foregoing with the Court nor attached proofs of service to the filed documents. Because plaintiff has failed to provide proof of service on defendant Melanie Dorfman as required, the application cannot be granted as to her.

With respect to defendant MLUX Autobody, 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 2019 Volkswagen Jetta (VIN 3VWC57BUXKM240838).

Plaintiff is the assignee of a contract with defendant Melanie Dorfman for the purchase of a motor vehicle. (Williams Decl. ¶ 5 & Ex. A.) Under this contract, upon a default of any provision, plaintiff has the right to take the vehicle from defendant Dorfman. (Williams Decl. ¶ 5 & Ex. A at ¶ 3(d).) Defendant Dorfman has defaulted in payment on the agreement. (Williams Decl. ¶ 7.) Plaintiff demands surrender and is entitled to return of the automobile. (Williams Decl. ¶ 7.)

On March 26, 2024, plaintiff received a Notice of Stored Vehicle, which indicated that defendant MLUX Autobody (“MLUX”) was holding the vehicle and demanded towing and storage charges. (Tran Decl. ¶ 3 & Ex. A.) MLUX remains in possession of the vehicle. Accordingly, it appears that the subject vehicle may be located at 1919 S. La Cienega Blvd., Los Angeles, CA 90034, the address where MLUX conducts its business. (Tran Decl. ¶ 3 & Ex. A.)

Further, on March 20, 2024, plaintiff sent MLUX 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. B.) Plaintiff also asked MLUX for any written authorization from the registered owner, i.e., defendant Dorfman (see Williams Decl. ¶ 6 & Ex. B [Certificate of Title]), to perform work or services, but no such authorization was provided. (Tran Decl. ¶¶ 6, 7.) This evidence establishes that MLUX came into possession of the vehicle and that the legal owner did not give consent to the vehicle being towed or stored by MLUX Autobody. (Tran Decl. ¶ 5 & Ex. B.) Plaintiff shows a probably valid claim that any statutory lien would be limited to the amounts stated in Civil Code § 3068(c)(1).

MLUX Autobody refused plaintiff’s offer to pay the maximum amounts for release of the subject vehicle. (Tran Decl. ¶ 9.) Consequently, MLUX Autobody 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.

With respect to item 7 of the application, plaintiff has not shown probable cause that the vehicle is located at 2974 Bellevue Ave Apt 1, Los Angeles, CA 90026. The Court will not issue any order allowing the sheriff or marshal to enter the Bellevue Avenue address.

No undertaking is required. The amount owed ($20,022.34) exceeds the market value of the vehicle ($13,568.00). (CCP § 515.010; Williams Decl. ¶ 11 & Ex. D.)

By no later than 11/7/24, plaintiff shall submit a proposed order on Judicial Council form CD-120 that comports with the ruling above.