Judge: Frank M. Tavelman, Case: 23BBCV02005, Date: 2023-12-08 Tentative Ruling

Case Number: 23BBCV02005    Hearing Date: December 8, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

APPLICATION FOR WRIT OF POSSESSION

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies 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 notice of intent to appear is received.”  

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

ALLEGATIONS: 

Plaintiff Crossroads Equipment Lease and Finance, LLC (“Plaintiff”) filed suit against Shane Josef Weber, an individual dba Weber Enterprises (“Defendant”) alleging Defendant entered a Master Equipment Finance Agreement (“Agreement”) with Plaintiff for the use of a 2021 Peterbilt 389 tractor truck, VIN 1XPXA48X8MD744303 (“Vehicle”), but subsequently defaulted pursuant to the terms of the Agreement. Plaintiff alleges that Defendant remains in possession of the Vehicle.  

Plaintiff now applies for a writ of possession to reclaim the Vehicle. Defendant has rendered no opposition.

ANALYSIS: 

I.                    LEGAL STANDARD 

Code of Civil Procedure (“C.C.P.”) § 512.010 requires that the application for writ of possession be executed under oath and include affidavits showing the following: 

(1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. 

(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. 

(3) A particular description of the property and a statement of its value. 

(4) 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. 

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure. 

Before the hearing on the Writ of Possession, the defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof.  (C.C.P. § 512.030.)

C.C.P. § 512.060 permits the Court to issue a writ of possession when the Court finds the following:

(1) the plaintiff has established the probable validity of the plaintiff's claim to possession of the property; and

(2) the undertaking requirements of C.C.P. § 515.010 are satisfied.

C.C.P. § 515.010 provides: “The undertaking shall be in an amount not less than twice the value of¿the¿defendant's interest in the property or in a greater amount.”

“Before issuance of a writ of attachment … the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.” (C.C.P. § 489.210.) But when a defendant does not have any interest in the property, C.C.P. § 515.010(b) permits the Court to waive the requirement of the plaintiff's undertaking and set an undertaking for the defendant to keep possession or regain possession. 

C.C.P. §512.010(a)(4) requires a showing of probable cause to believe that the property is located at a specific location, when such location is private property.

II.                 MERITS

Plaintiff submits proof service of this motion was rendered on Defendant by mail on November 1, 2023 at 429 N Lincoln Street Burbank, CA 91506-2113. Pursuant to C.C.P. § 512.030, personal service of an application for writ of possession is only required in instances where the defendant has not appeared in the action. As Defendant filed his Answer in pro per on October 6, 2023, Plaintiff’s service of the motion by mail is sufficient.

Plaintiff provides the declaration of Michael Cohen, its Chief Risk Officer, to establish the facts relevant to the writ application. Plaintiff has demonstrated an entitlement to possession of the property claimed due to Defendant’s default under the Agreement and the probable validity of Plaintiff's claims for breach of contract. (Cohen Decl. ¶¶ 3-19.) The evidence demonstrates the existence of the Agreement between Plaintiff and Defendant. (Cohen Decl. ¶ 3, Exh. 1.) Additionally, Plaintiff has shown it is the legal owner of the Vehicle. (Cohen Decl. ¶ 4, Exh. 2.)

Plaintiff attests it has performed all the conditions, covenants, and promises required under the terms of the Agreement and Defendant defaulted in the terms, conditions, and covenants of the Agreement by failing to make payment. (Cohen Decl. ¶¶ 5-6.) Plaintiff demanded Defendant return the vehicle, however Defendant refused. (Cohen Decl. ¶ 14.) Plaintiff believes the vehicle is in the control and possession of Defendant at any of the following locations:

1.      429 N. Lincoln Street, Burbank, CA 91506

2.      11475 Penrose Street, North Hollywood, CA 91605

3.      11501 Strathern Street, North Hollywood, CA 91605

4.      9500 Foothill Boulevard, Los Angeles (Shadow Hills), CA 91040

(Cohen Decl. ¶ 12.)

The Plaintiff has demonstrated it has been damaged by being deprived of possession of the vehicle.

Plaintiff has also provided a particular description of the property and the value of the property. (Cohen Decl. ¶ 22.) Plaintiff has provided that the Vehicle has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff. (App. ¶ 8.)

Plaintiff has met its burden in demonstrating their entitlement to a writ of possession. As a result, Plaintiff must file an undertaking “in an amount not less than twice the value of the defendant's interest in the property or in a greater amount” unless the court finds the defendant has no interest in the property. (C.C.P. §§ 515.010(a) & (b).) “The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant's interest in the property.” (Id.)

The Court finds Plaintiff has NOT made a showing mandated by C.C.P. §512.010(b)(4), which mandates “a showing that there is probable cause to believe that such property is located [at a specific location.].  The only supporting evidence to support probable cause is a conclusory statement that, “Plaintiff is informed and believes that the Truck is currently located at [one of four location.”  However, the basis for that belief is not set forth in the Cohen’s declaration.  Before law enforcement enter upon and seize property on private property, that entry and search for the property must be supported by probable cause, and not conclusory statements.

The approximate wholesale value of the Vehicle is $113,500.00 while the approximate retail value is $144,675.00. (Cohen Decl. ¶ 22, Exh. 3.) Plaintiff contends Defendant owes $275,825.36. (Cohen Decl. ¶ 8.) Since Defendant owes more than the market value of the Vehicle, they have no interest in the Vehicle pursuant to C.C.P. § 515.010. The Court thus waives the requirement to file an undertaking for Defendant’s interest.

In the event that a defendant has no interest in the property, C.C.P. § 515.010(b) requires the Court include in the writ the amount of defendant’s undertaking sufficient to satisfy C.C.P. § 515.020(b). C.C.P. § 515.020(b) permits the Court to determine the amount to be posted for re-delivery when defendant is found to have no interest in the property. Here, the Court finds a re-delivery bond of $150,000 to be reasonable.

III.              CONCLUSION

Plaintiff’s unopposed Application for Writ of Possession is DENIED. The Court finds that Plaintiff has NOT established and set forth probable cause to believe property is located at one of four addreses.

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 

Crossroads Equipment Lease and Finance, LLC’s Application for Writ of Possession came on regularly for hearing on December 8, 2023, 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 APPLICATION FOR WRIT OF POSSESSION IS DENIED WITHOUT PREJUDICE.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 8, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles