Judge: Frank M. Tavelman, Case: 23BBCV02786, Date: 2024-03-29 Tentative Ruling

Case Number: 23BBCV02786    Hearing Date: March 29, 2024    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 Centra Funding, LLC (Plaintiff) filed suit against Anko Services and Andrii Bunk (collectively Defendants) alleging Defendants entered an Equipment Finance Agreement (Agreement) with Plaintiff for the use of a UTP160-P3 Silent Diesel Generator, but subsequently defaulted pursuant to the terms of the Agreement. Plaintiff alleges that Defendants remain in possession of the generator.   

Plaintiff now applies for a writ of possession to reclaim the Generator. 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, 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. 

II.                 MERITS

The Court finds that Plaintiff has not shown proof of service of this Application as per C.C.P. § 512.060. Plaintiff does not attach proof of service showing that Defendants have been served with a copy of the Summons and Complaint or the Notice of Application and Hearing. From the Court’s review of the record, it appears that no proof of service has ever been filed in regard to this matter. Nor is any proof of service attached to Plaintiff’s declaration in support of the Application and filed Notice.

The Court also notes that the application does not contain a copy of the Equipment Finance Agreement. Plaintiff is required to attach a copy of a written instrument which is the basis for their application as per C.C.P. § 512.010(1).

Accordingly, the Application for Writ of Possession 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 

Centra Funding, LLC’s Application for Writ of Possession came on regularly for hearing on March 29, 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 APPLICATION FOR WRIT OF POSSESSION IS DENIED WITHOUT PREJUDICE.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 29, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles