Judge James C. Chalfant, Case 22NWLC20534 2023-04-27 Tentative Ruling

Harley-Davidson Credit Corp. v. Roland McKinnie, 22NWLC20534

Tentative decision on application for writ of possession: denied

Plaintiff Harley-Davidson Credit Corp. (“Harley-Davidson”), as assignee of Eaglemark Savings Bank (“Eaglemark”), seeks a writ of possession against Defendant Roland McKinnie (“McKinnie”) to recover a 2014 Harley-Davidson FLHTKSE CVO Ultra Li, VIN 1HD1TEN32EB958742 (“Vehicle”).

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

Plaintiff Harley-Davidson commenced this proceeding on July 8, 2022 against Defendant McKinnie alleging a cause of action for (1) claim & delivery, (2) breach of contract, and (3) common count – money lent. The verified Complaint alleges in pertinent part as follows.

On July 17, 2020, Harley-Davidson and McKinnie executed a Promissory Note and Security Agreement (“Agreement”). McKinnie obtained possession of the Vehicle pursuant to the Agreement.

On July 16, 2021, McKinnie defaulted by failing to pay the installment due under the Agreement on that date and thereafter. Damages from the breach as of July 16, 2021 total $18,933.86 plus interest, late charges, and attorney’s fees and costs. Harley-Davidson has demanded return of the Vehicle to no effect. Harley-Davidson believes the Vehicle is at 5411 Paramount Blvd., Suite 103, Long Beach, CA 90805.

Harley-Davidson seeks $18,933.86 plus interest at 19.99% per year, $339.19 in late charges, and attorney’s fees and costs. It also seeks possession of the Vehicle, an order compelling McKinnie to transfer the Vehicle, and an order allowing the sheriff to enter private property to recover the Vehicle.

On January 15, 2023, Plaintiff Harley-Davidson served Defendant McKinnie substitute service, effective January 25, 2023, with the Complaint, Summons, and moving papers for a prior application for writ of possession for the Vehicle by.

On January 25, 2023, Department Y (Hon. Andrew Kim) vacated the hearing date for Harley-Davidson’s prior application for writ of possession of the Vehicle, ruling that the case needed was not a collections hub case, and transferred the case to Department 1 (Hon. Michelle Williams Court) for reassignment.

On January 31, 2023, Department 1 (Hon. Michelle Williams Court) reassigned the case to Department 25 (Hon. Katherine Chilton).

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).

Plaintiff Harley-Davidson seeks a writ of possession against Defendant McKinnie to recover the Vehicle.

An application for a writ of possession is a law and motion matter. CRC 3.1103(a)(2). All law and motion matters require a memorandum of points and authorities detailing the basis for the motion. CRC 3.1113(a). The absence of a memorandum may be construed as an admission that the motion is not meritorious. CRC 3.1113(a).

Harley-Davidson’s previous application with Department Y included a memorandum of points and authorities, but the hearing date on that application was vacated. When Harley-Davidson refiled its application with this court, it failed to file a supporting a memorandum of points and authorities. No proof of service for the instant application is on file, but this is excused by the fact that Defendant McKinnie is in default.[2]

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

[2] It further appears that Harley-Davidson failed to provide documentary evidence of the assignment to it by Eaglemark.