Judge: Frank M. Tavelman, Case: 24NNCV04583, Date: 2024-12-27 Tentative Ruling

Case Number: 24NNCV04583    Hearing Date: December 27, 2024    Dept: A

APPLICATION FOR WRIT OF POSSESSION

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 required 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: 

Financial Services Vehicle Trust, by and through its, BMW Financial Services NA, LLC (Plaintiff)

brings this action against Sevak Bidzyan (Defendant) in connection with a motor vehicle Lease Agreement for a 2023 BMW 760XI (the Subject Vehicle). Plaintiff alleges that Defendant agreed to lease the Subject Vehicle yet subsequently defaulted on payments.

On May 15, 2024, Plaintiff filed its Complaint stating four causes of action: (1) Breach of Contract, (2) Common Count, (3) Claim and Delivery, and (4) Conversion.

Before the Court is an application made by Plaintiff for a Writ of Possession. Plaintiff seeks to recover the Subject Vehicle so that it may recoup funds toward the defaulted agreement. Defendant has filed no response.

A failure to oppose a motion may be deemed a consent to the granting of the motion.  Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c).

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 512.030 requires personal service of an application for writ of possession in instances where the defendant has not appeared in the action. Defendant has not appeared in this matter and thus Plaintiff must personally serve this application or demonstrate that the circumstances are such that substitute service is proper. (See C.C.P. § 415.20(b).) The Court finds Plaintiff has done neither.

Plaintiff’s proof of service of this Application reflects substitute service on “Narine K.” at 10207 Fernglen Ave Apt. 2 Tujunga, CA 91042-2200. (See November 14, 2024 Proof of Service.) Plaintiff’s declarations contain no statements as to why substitute service was proper here. Although the Fernglen address is listed as Defendant’s address on the lease agreement, Plaintiff’s application does not detail any efforts to determine whether Defendant still lives there. It appears from the Proof of Service that Narine K. did not know Defendant and neither did a next door neighbor. (Id.)

The Court further notes that even if Plaintiff had properly served Defendant, the application fails to put forth a statement as to the location of the property as required by C.C.P. § 512.2010(4). The only declaration in support of the Subject Vehicles current location is that of Plaintiff’s Replevin Analyst Kulwant Johnson (Johnson). Johnson does not state where the Subject Vehicle is located according to the “best knowledge, information and belief of the plaintiff, of the location of the property.” Johnson merely states based on his review of Plaintiff’s records, the Fernglen address was the address Defendant lived at when he entered into the lease. This is not a sufficient statement as to the location of the Subject Vehicle.

In short, the Court finds Plaintiff did not personally serve this application nor demonstrate why substitute service was proper. Accordingly, Plaintiff’s application is DENIED without prejudice.

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RULING:

In the event 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 

Financial Services Vehicle Trust’s Applications for Writ of Possession came on regularly for hearing on December 27, 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:  December 27, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles