Judge James C. Chalfant, Case 21STLC07394 2022-10-11 Tentative Ruling

Deere & Company v. Katchik Aleksanian, 21STLC07394

Tentative decision on application for writ of possession: granted

Plaintiff Deere & Company (“Deere”) seeks a writ of possession against Defendant Katchik Aleksanian (“Aleksanian”) to recover four pieces of industrial machinery (collectively, the “Equipment”).

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

Plaintiff Deere filed the Complaint on September 24, 2021, alleging (1) breach of contract and (2) claim and delivery. The Complaint alleges that on June 8, 2020, Aleksanian entered into a Retail Installment Contract and Security Agreement (“Agreement”) for the purchase of the following Equipment:

On February 8, 2021, Aleksanian defaulted on the Agreement and has not made payments since. Because the entire unpaid balance became due and payable upon default, the total amount owed under the Agreement is $25,020.15 plus interest. Because this is a limited civil case, Deere seeks damages of only $25,000 as well as immediate possession of the Equipment and attorney’s fees and costs.

On January 12, 2022, Plaintiff Deere personally served Defendant Aleksanian with the Complaint and Summons.

On February 28, 2022, Plaintiff Deere filed a request for entry of default against Aleksanian. Department 25 (Hon. Katherine Chilton) entered the default on March 22, 2022.

On June 22, 2022, Plaintiff Deere applied for a writ of possession for the Equipment. On July 8, 2022, it withdrew the application before the hearing.

A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. See Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1288. As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment.

A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. See CCP §1281.7.

Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession. Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding. (Judicial Council Forms CD-100 et seq.).

A plaintiff must make a written application for a writ of possession. CCP §512.010(a), (b); (Mandatory Form CD-100); CCP §512.010(a). A verified complaint alone is insufficient. 6 Witkin, California Procedure, (5th ed. 2008) §255, p.203. The application may be supported by declarations and/or a verified complaint. CCP §516.030. The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. Id.

The application must be executed under oath and include: (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 plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief. If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property. Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure. CCP §512.010(b).

Before noticing a hearing, the plaintiff must serve the defendant with all of the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration. CCP §512.030(a). If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint. CCP §512.030(b).

Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing. CCP §512.050. At the hearing, the court decides the merits of the application based on the pleadings and declarations. Id. Upon a showing of good cause, the court may receive and consider additional evidence and authority presented 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. Id.

The court may order issuance of a writ of possession if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) The undertaking requirements of CCP section 515.010 are satisfied. CCP §512.060(a). “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” CCP §511.090. This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. Witkin, California Procedure, (5th ed. 2008) §261, p.208. A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it. RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.

No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there. CCP §512.060(b).

The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer.[1] CCP §513.010(c).

The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120). The order must notify the defendant that failure to comply may subject him or her to contempt of court. CCP §512.070. The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession. See Edwards v Superior Court, (1991) 230 Cal.App.3d 173, 178.

Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties). CCP §515.010(a). The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. Id. 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. Id. 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.

However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP section 515.020(b). CCP §515.010(b).

On June 8, 2020, Aleksanian entered into the Agreement for the Equipmentor personal use. Johnson Decl., ¶4, Ex. A. Aleksanian agreed to pay 59 monthly installments of $466.61 from July 2020, followed by a final $466.83 on June 8, 2025. Johnson Decl., ¶4, Ex. A. Under Paragraph 5 of the Agreement, Deere was granted a security interest in the Equipment except for any trailers. Johnson Decl., ¶5, Ex. A. In the event of default, Paragraph 10 entitled Deere to (1) recover the full remaining account balance on the date of default; (2) terminate Aleksanian’s rights under the Agreement, but not his obligations; (3) require Aleksanian to deliver the Equipment to Deere; and (4) require reimbursement for all damages associated with default, including attorney’s fees. Johnson Decl., ¶6, Ex. A.

Aleksanian defaulted on the Agreement on February 8, 2021. Johnson Decl., ¶7. The Payoff Detail shows that the only payments made after January 2021 were reversed within days. Johnson Decl., ¶7, Ex. B. After Deere commenced this action, Aleksanian’s account began accruing attorney’s fees and a $200 repossession fee. Johnson Decl., ¶7, Ex. B. The outstanding balance is $24,750.15 plus $3,257.52 in fees, a total of $28,007.67. Johnson Decl., ¶7, Ex. B.

The Agreement entitles Deere to immediate possession of the Equipment. Johnson Decl., ¶9. The wholesale value of the Equipment – the “Collateral WSV” on the Equipment Value Request – is $17,392 as of September 14, 2021. Johnson Decl., ¶8, Ex. C. The retail value, or “Collateral RSV,” is $19,575. Johnson Decl., ¶8, Ex. C.

Aleksanian refuses to surrender the Equipment. Dunning Decl., ¶4. Paragraph 7 of the Agreement required Aleksanian to maintain insurance on the Equipment. Johnson Decl., ¶10, Ex. A. Aleksanian has failed to provide evidence that he maintained the required insurance on the Equipment, thereby risking that its value will become substantially impaired. Dunning Decl., ¶4; Johnson Decl., ¶10.

Aleksanian’s address as listed in the Agreement is 1733 Atchison St., Pasadena, CA 91104 (“Aleksanian’s Property”). Johnson Decl., ¶5, Ex. A; Dunning Decl., ¶5. On September 8, 2021, Deere’s agents found the Equipment behind a locked gate at 35433 Red Rover Mine Road, Acton, California. Johnson Decl., ¶9. When they asked Aleksanian to open the gate and surrender the Equipment, he refused. Johnson Decl., ¶9.

Plaintiff Deere seeks a writ of possession against Aleksanian to recover the Equipment. Aleksanian is in default and cannot oppose.

Deere presents evidence that Aleksanian entered into the Agreement to finance the purchase of the Equipment, giving John Deere a security interest in each piece of Equipment until receipt of all amounts due under each Agreement. Johnson Decl. ¶4, Ex. A. The Agreement also entitles Deere to accelerate the amount owed as well as repossess the Equipment upon default. Johnson Decl., ¶3, Ex. A.

Deere has provided payment history showing that Aleksanian has defaulted and owes $24,750.15 before attorney’s fees. Johnson Decl., ¶7, Ex. B. Deere presents evidence that the current value of the Equipment is $19,575, less than the $24,750.15 owed. Johnson Decl., ¶6, Ex. B. Deere is entitled to possess the Equipment without an undertaking.

Deere’s agents have located the Equipment to 35433 Red Rover Mine Road, Acton, California – which is not Aleksanian’s address listed in the Agreement – and demanded that he return the Equipment to no avail. Johnson Decl., ¶¶ 3, 7, Ex. A.

Plaintiff has established the probable validity of its claim to possession of the property and that it is exempt from the undertaking requirements of CCP section 515.010. CCP §512.060(a). Plaintiff has shown that the Equipment is valued at $19,575 and that Aleksanian has no legal interest in the Equipment. See CCP §515.010.

The application for writ of possession is granted. No undertaking is required. The undertaking required from Aleksanian to stay delivery is $28,289.50.

[1] If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).