Judge James C. Chalfant, Case Number: 23STCV02962, Date: 2023-08-10 Tentative Ruling

Nissan-Infiniti LT v. Autopro Collision Center, et al., 23STCV02962

Tentative decision on application for writ of possession: granted

Plaintiff Nissan-Infiniti LT, as a division of Nissan Motor Acceptance Corporation (“Nissan”) seeks a writ of possession against Defendant Autopro Collision Center, Inc. (“AutoPro”) to recover a 2022 Nissan Pathfinder, Vehicle Identification Number 5N1DR3CA3NC221199 (“Vehicle”).

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

Plaintiff Nissan commenced this proceeding on February 9, 2023 against Defendants AutoPro, Ester Garcia (“Garcia”), the Department of Motor Vehicles (“DMV”), and Steve Gordon in his capacity as its acting director (“Gordon”). The Complaint alleges (1) breach of contract, (2) conversion, (3) claim & delivery, (4) quiet title, and (5) temporary restraining order, preliminary and permanent injunctions, and damages. The verified Complaint alleges in pertinent part as follows.

From November 16, 2022 thereafter, Garcia defaulted on the Agreement for failure to make payments when due. Nissan accelerated the outstanding balance. Garcia now owes $47,065.20, plus attorney's fees, costs, and interest.

Garcia is no longer in possession of the Vehicle. AutoPro is in possession and asserts that it holds a lien for alleged repairs and storage. Nissan has received a Notice of Pending Lien Sale from the DMV for the Vehicle, which lists AutoPro as the lienholder.

When Nissan contacted AutoPro on December 13, 2022, it confirmed it still had the Vehicle. It demanded $15,000 for storage, which exceeds the allowable statutory amount of such a lien. When Nissan attempted to contact AutoPro to tender the statutory amount, AutoPro was unresponsive.

J.D. Power lists the current estimated wholesale value of the Vehicle as $36,710 and retail value as $42,560.

Nissan seeks (1) possession of the Vehicle or its equivalent value of $42,560, (2) judgment that Nissan is the sole owner of the Vehicle, (3) a temporary restraining order, preliminary injunction, and permanent injunction against Defendants registering the Vehicle, transferring title, or eliminating Nissan’s security interest in the Vehicle; and (4) attorney’s fees and costs.

On March 28, 2023, Nissan served AutoPro with the Complaint, Summons, and moving papers by substitute service, effective April 7, 2023.

On March 30, 2023, Nissan served DMV with the Complaint, Summons, and moving papers.

On April 3, 2023, Nissan served Gordon with the Complaint, Summons, and moving papers by substitute service, effective April 13, 2023.

On May 10, 2023, pursuant to a stipulation regarding waiver of appearance by and monetary recovery against DMV and Gordon, Department 56 (Hon. Holly Fujie) excused them from any further appearance in this case.

On May 19, 2023, Department 56 entered dismissal of the case against Garcia without prejudice.

On July 5, 2023, Department 56 entered dismissal of the case against Does 1-10 without prejudice.

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 October 22, 2021, Garcia and Nissan LA signed an Agreement for purchase of the Vehicle. Love Decl., ¶9, Ex. 1. Under the Agreement, Garcia was required to make 75 monthly installments of $805.95 beginning on December 6, 2021. Love Decl., ¶11, Ex. 1. In the event of default for failure to pay, Nissan LA had the right to assess a 5% late charge if ten days have passed since a payment’s due date, accelerate the amount owed, and repossess the Vehicle. Love Decl., ¶9, Ex. 1. Any amounts past due would also accrue 3.5% annual interest. Love Decl., ¶9, Ex. 1.

A notice dated February 1, 2023 shows that Nissan LA assigned the Agreement to Nissan. Love Decl., ¶10, Ex. 1. The Vehicle’s Lien and Title Information reflects Nissan’s lien on the Vehicle. Love Decl., ¶10, Ex. 2.

Beginning November 16, 2022,[2] Garcia defaulted on the Agreement for failure to make payments when due. Love Decl., ¶13. Nissan may therefore retake possession of the Vehicle. Love Decl., ¶15.

Garcia is no longer in possession of the Vehicle. Love Decl., ¶14. AutoPro is in possession and asserts that it holds a lien for alleged repairs and storage. Love Decl., ¶14.

When Nissan contacted AutoPro on December 13, 2022, it confirmed it still had the Vehicle. Love Decl., ¶13.[3] It demanded $15,000 for storage, which exceeds the allowable statutory amount of such a lien. Love Decl., ¶13. Although Nissan has attempted to contact AutoPro to tender the statutory amount, AutoPro remains unresponsive. Love Decl., ¶14.

J.D. Power lists the current estimated value of the Vehicle between $36,710 and $42,560. Love Decl., ¶15, Ex. 3.[4] Because AutoPro has no interest in the Vehicle, Nissan should not need to post an undertaking. Love Decl., ¶16. Conversely, AutoPro should have to post an undertaking of $42,560 to stay the redelivery. Love Decl., ¶16.

The Vehicle is located at 2130 S. Vermont Avenue, Los Angeles, CA 90007, including any adjacent garages and storage facilities. Love Decl., ¶18.

Plaintiff Nissan applies for a writ of possession for the Vehicle against Defendant AutoPro.

Nissan presents evidence that Garcia entered into the Agreement for the purchase of the Vehicle. Love Decl., ¶9, Ex. 1. Under the Agreement, Garcia was required to pay 75 monthly installments of $805.95 from December 6, 2021 thereafter. Love Decl., ¶11, Ex. 1. The Agreement entitled Nissan LA to accelerate the outstanding balance, assess late charges and interest, and repossess the Vehicle in the event of default. Love Decl., ¶9, Ex. 1. Nissan LA then assigned this Agreement to Nissan, who has perfected its interest in the Vehicle. Love Decl., ¶10, Exs. 1-2.

In seeking a writ of possession, the supporting declaration must be set forth with particularity. CCP §516.030. This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings. A recitation of conclusions without a foundation of evidentiary facts is insufficient. See Rodes v. Shannon, (1961) 194 Cal.App.2d 743, 749 (declaration containing conclusions inadequate for summary judgment); Schessler v. Keck, (1956) 138 Cal.App.2d 663, 669 (same). All documentary evidence, including contracts and canceled checks, must be presented in admissible form, and admissibility as non-hearsay evidence or exception to the hearsay rule, such as the business records exception. Lydig Construction, Inc. v. Martinez Steel Corp., (2015) 234 Cal.App.4^th 937, 944; Pos-A-Traction, Inc., v. Kepplly-Springfield Tire Co., (C.D. Cal. 2000) 112 F.Supp.2d, 1178, 1182.

Nissan asserts that on November 16, 2022, Garcia defaulted on the Agreement for failure to make payments when due. Love Decl., ¶13. Nissan presents no payment history or other evidence to demonstrate the value of Garcia’s interest in the Vehicle. However, he is no longer in possession, the court need not be concerned about an undertaking to protect his interest, and Nissan’s application is only against AutoPro.

Nissan asserts that on December 13, 2022, AutoPro confirmed that it has possession of the Vehicle and demanded $15,000 for storage. Love Decl., ¶13.

Nissan completely fails to discuss the law concerning mechanic’s liens for the repair and storage of vehicles.

A person performing repairs has a lien on a vehicle for the services and for storage subject to limitations. Civil Code §3068(a). The lien arises after a written statement for charges is given to the vehicle’s registered owner or 15 days after the work or services are completed. Ibid.

A lien in excess of $1500 for work performed, and in excess of $1025 for any storage of the vehicle, is invalid unless written consent of the vehicle’s legal owner or lessor was obtained before the work was performed or the storage occurred. Civil Code §3068(c)(1). The term “legal owner” is defined as including a person holding a security interest in a vehicle which is subject to UCC. Civil Code §3067; Vehicle Code §370.

The lien is extinguished unless the lienholder either applies to the DMV for an authorization to conduct the sale or files a court action within 30 days after the lien arises. Civil Code §3068(b)(1)(A). The lienholder shall apply to the DMV for authorization to conduct a liens sale for any vehicle with a value more than $4000. Civil Code §3071(a). For a vehicle valued at $4000 or less, the lienholder shall apply to the DMV for the names and addresses of the registered and legal owners and notify them of a pending lien sale. Civil Code §3071(a), (b). If the DMV receives a timely Declaration of Opposition form, it shall notify the lienholder within 16 days of receipt of the form that a lien sale shall not be conducted unless the lienholder files an action in court within 30 days of the DMV’s notice. Civil Code §3071(d). Any lien sale shall be void if the lienholder does not comply with these requirements. Civil Code §3071(l).

The Vehicle’s Lien and Title Information reflects Nissan’s lien on the Vehicle. Love Decl., ¶10, Ex. 2. As such, Nissan is a legal owner of the Vehicle. No evidence suggests that Nissan agreed to AutoPro’s storage charges before they were incurred as required by Civil Code section 3068(c)(1). As a result, AutoPro’s storage lien was limited to $1025. See Civil Code §3068(c)(1).

Nissan asserts that it has offered the statutory amount required to statisfy the lien, but that AutoPro remains unresponsive. Love Decl., ¶14. Nissan fails to support this with any specific details or documentary evidence. While the court could deny the application on this basis, the defect is waived in the absence of an opposition. Because AutoPro has effectively rejected the offer, its lien is void. Civil Code §3068(c).

Even if Nissan did not offer the statutory maximum, AutoPro confirmed that it had the Vehicle and invoked a storage lien on December 13, 2022. Love Decl., ¶13. AutoPro had until January 12, 2023 to either file a court action or apply to the DMV for authorization to conduct the sale of the Vehicle. See Civil Code §3068(b)(1)(A). No evidence suggests that AutoPro has taken either action. Any lien that it might have had on the Vehicle is void.

Nissan asserts without explanation that the Vehicle is at 2130 S. Vermont Avenue, Los Angeles, CA 90007, including any adjacent garages and storage facilities. Love Decl., ¶18. Evidence supporting entry into a private place is not necessary. The location appears to be a commercial address. The levying officer may enter it and any other public or commercial address to recover the Vehicle.

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. CCP §515.010(a).

Any interest AutoPro once had in the Vehicle is now void. Because AutoPro has no interest in the Vehicle, Nissan does not need to post an undertaking. Love Decl., ¶16.

Nissan asserts that the redelivery bond should be $42,560 should AutoPro seek to prevent Nissan from taking possession of the Vehicle. Mem. at 3; Love Decl., ¶16.

When the defendant at issue has no interest in the property, a defendant’s redelivery undertaking shall state that if the plaintiff recovers judgment on the action, the defendant shall pay all costs awarded to the plaintiff and all damages that the plaintiff may sustain by reason of the loss of possession of the property. CCP §§ 515.010(b), 515.020(b).

Damages from loss of possession of the Vehicle cannot exceed the Vehicle’s value. Nissan presents evidence from J.D. Power that the market value of the Vehicle is as high as $42,560. Love Decl., ¶15, Ex. 3. The redelivery bond shall be $42,560.

The application for writ of possession is granted. The levying officer may enter 2130 S. Vermont Avenue, Los Angeles, CA 90007 and any public or commercial address. Nissan has not submitted an order for writ of possession and must do so in two court days or it will be waived. AutoPro may prevent possession if it posts a $42,560 redelivery bond.

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

[2] Declarant Cassandra Love (“Love”) misstates the year as 2023, which is in the future. Love Decl., ¶13.

[3] After Paragraph 15, Love inadvertently renumbers the paragraphs from number 13.

[4] Nissan misquotes these numbers as the wholesale and retail values. Love Decl., ¶15.