Judge Gary Y. Tanaka, Case 22TRCV00826 2023-01-17 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Tuesday, January 17, 2023

Department B Calendar No. 4

Financial Services Vehicle Trust, et al.’s Application for Writ of Possession is granted pursuant to Code of Civil Procedure § 512.040(b).

Plaintiff filed its Complaint on September 19, 2022. Plaintiff alleges the following facts. Defendant Ng breached the motor lease agreement which Defendants entered into with Plaintiff’s assignor. Defendant Edward Transit Express Group, Inc. is wrongfully retaining possession of the vehicle. Plaintiff alleges the following causes of action: 1. Breach of Contract; 2. Common Count; 3. Claim and Delivery; 4. Conversion.

CCP § 512.010 sets forth the requirements in an application for writ of possession. CCP § 512.010(b) states: “The application shall be executed under oath and shall include all of 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.

(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.

Pursuant to CCP § 512.040(b): “The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established. The hearing is not for the purpose of determining whether the claim is actually valid. The determination of the actual validity of the claim will be made in subsequent proceedings in the action and will not be affected by the decision at the hearing on the application for the writ.” Pursuant to CCP § 511.090, a “claim has probable validity where it is more likely than not that plaintiff will obtain judgment against defendant on that claim.”

Further, “[a]t the hearing, the court shall make its determinations upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider additional evidence and authority produced at the hearing or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities.” CCP § 512.050.

Plaintiff applies for a writ of possession to possess the vehicle that was the subject of the lease agreement. Here, Plaintiff has set forth all the essential elements required in CCP § 512.010(b). (Decl., Sarah Phillips, ¶¶ 7-23.) Plaintiff has met its burden to establish the probable validity of its claim. (Id.) Plaintiff submitted facts to show that Defendant Ng is in breach of the lease agreement and that the vehicle is now in the possession of co-Defendant Edward Transit Express Group, Inc. (Id.) Plaintiff submitted facts that Defendant Edward failed to timely apply with the DMV to conduct a lien sale. (Id.)

Plaintiff is not required to post an undertaking as Defendants have no positive interest in the vehicle. Pursuant to Code of Civil Procedure § 515.020(a), the amount of Defendants undertaking is set at $83,000.00.