Judge: Frank M. Tavelman, Case: 21BBCV00148, Date: 2024-06-28 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify "all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue."  The tentative ruling will become the ruling of the court if no argument is requested.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 21BBCV00148    Hearing Date: June 28, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO TRANSFER POSSESSION OF PROPERTY

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Before the Court is a motion brought by Judgment Creditor Wells Fargo Equipment Finance, Inc. (Wells Fargo) as against Judgment Debtor Capital Ready Mix, Inc. (Judgment Debtor). Wells Fargo seeks an order of the Court demanding Judgment Debtor transfer property which is subject to levy as per a writ of execution filed in this matter. Judgment Debtor has filed no opposition.

On December 3, 2021, judgment was entered in favor of Wells Fargo and against Defendants. The judgment was for money and possession of six vehicles. On June 1, 2023, Wells Fargo obtained two writs of possession for vehicles directed to the Los Angeles County Sheriff and the Sacramento County Sheriff respectively. Wells Fargo now seeks an order of the Court, pursuant to C.C.P. § 699.040, to transfer possession to the levying officer as they have been unable to recover the vehicles.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 699.040 provides the following:

(a) If a writ of execution is issued, the judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the judgment debtor to transfer to the levying officer either or both of the following:

(1)   Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody.

(2)   Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter.

(b) The court may issue an order pursuant to this section upon a showing of need for the order.

(c) The order shall be personally served on the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to arrest and punishment for contempt of court.

II.                 MERITS

Request for Judicial Notice

Wells Fargo requests the Court take judicial notice of the following:

A.    The judgment entered on December 3, 2021

B.     The writ of Possession issued on June 1, 2023, directed to the Los Angeles County Sheriff.

C.     The writ of Possession issued on June 1, 2023, directed to the Sacramento County Sheriff.

Given the above documents are all records of the Court made in the course of this litigation, the Court finds judicial notice is appropriate pursuant to Evidence Code § 452. As such, Wells Fargo’s request is GRANTED.

Discussion

The Court has concerns about the validity of the writ of execution given the time that has passed since its issuance. On June 1, 2023, Plaintiff obtained a writ of execution for both Los Angeles County Sheriff and the Sacramento County Sheriff. (RJN Exhs. B & C.) On September 7, 2023, the writ for Sacramento County was returned to the Court, reflecting that no property was levied. In contrast, it does not appear that the writ for Los Angeles County was ever returned.

The Court believes that the writ of execution has expired pursuant to C.C.P. § 699.560, which provides:

(a) Except as provided in subdivisions (b) and (c), the writ expires and the levying officer to whom the writ of execution is delivered shall return the writ to the court, or store the writ as provided in Section 263.6, and file a return with the court reporting the levying officer's actions and an accounting of amounts collected, and costs incurred, at the earliest of the following times:

(1)   Two years from the date of issuance of the writ, unless paragraph (1) of subdivision (a) of Section 706.022 is applicable.

(2)   Promptly after all of the duties under the writ are performed.

(3)   When return is requested in writing by the judgment creditor.

(4)   If no levy takes place under the writ within 180 days after its issuance, promptly after the expiration of the 180-day period.

(5)   Upon expiration of the time for enforcement of the money judgment.

The Court finds that C.C.P. § 699.560(a)(4) applies to Wells Fargo’s writ as to the Los Angeles County Sheriff. By Wells Fargo’s submissions, it appears no property was levied in accordance with the writ within 180 days of its issuance. (See Nolan Decl. ¶ 7.)  As such, the writ has expired and cannot be the basis for a motion pursuant to C.C.P. § 699.040.

Accordingly, Wells Fargo’s motion is DENIED without prejudice.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Wells Fargo Equipment Finance, Inc.’s Motion to Transfer Possession came on regularly for hearing on June 28, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO ORDER TRANSFER OF PROPERTY POSSESSION IS DENIED WITHOUT PREJUDICE.

UNLESS ALL PARTIES WAIVE NOTICE, WELLS FARGO TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  June 28, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles