Judge James C. Chalfant, Case Number: 23STLC02792, Date: 2023-08-17 Tentative Ruling

TD Bank, N.A, v. Antonio Aposaga, et al., 23STLC02792

Tentative decision on applications for writs of possession: denied

Plaintiff TD Bank, N.A (“TD Bank”) seeks writs of possession against Defendants Antonio Aposaga (“Aposaga”), Renee Capistrano (“Capistrano”), and the Department of Motor Vehicles (“DMV”) to recover a 2018 Hyundai Elantra, Vehicle Identification Number KMHD04LBXJU612069 (“Vehicle”).

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

Plaintiff TD Bank commenced this proceeding on April 26, 2023 against Defendants Aposaga, Capistrano, and DMV alleging (1) claim and delivery, (2) conversion, (3) quiet title, and (4) declaratory relief. The Complaint alleges as follows.

On April 20, 2018, Aposaga entered into a written Contract (“Contract”) in which seller Glendora Hyundai (“Seller”) sold him the Vehicle. Aposaga agreed to make timely payments of all amounts that fell due under the Contract. Seller then assigned its rights under the Contract to TD Bank under the name “TD Auto Finance.” TD Bank has been the legal owner of the Vehicle at all relevant times. The Contract gives TD Bank the right to take and have immediate possession of the Vehicle after default.

Aposaga breached the Contract at some point for failure to pay the $455.13 monthly installments due. The balance due and owing is $15,018.79.

Aposaga has transferred the Vehicle to Capistrano for repair or storage. It has since accrued excessive labor, tow, and storage fees. Capistrano has applied to the DMV for approval to conduct a lien sale, but TD opposes it. When TD Bank contacted Capistrano, she confirmed that she had the Vehicle but rejected efforts to negotiate the matter.

Any interests the Defendants may have in the Vehicle are subordinate to TD’s interests. TD Bank seeks (1) recovery of the Vehicle, or value thereof if recovery cannot be had; (2) a pretrial writ of possession for the Vehicle; (3) a temporary restraining order enjoining Vasquez from concealing or transferring possession of the Vehicle; (4) up to $1,750 in attorney’s fees from Capistrano; (5) $18,660 plus interest; (6) punitive and exemplary damages; (7) judgment that TD is the legal owner of the Vehicle, and that its interest therein is superior to all others; (8) interest by law or on the Contract; and (9) attorney’s fees and costs.

On April 27, 2023, TD Bank personally served the DMV with the Complaint and Summons.

No Answer or proof of service for the Complaint or Summons is on file for either Aposaga or Capistrano. No proof of service for the moving papers is on file for any Defendant.

On June 2, 2023, the DMV stipulated that it would abide by any determination regarding transfer of registration or title to the Vehicle, provided that all parties with an interest therein have proper notice of the action.

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 April 20, 2018, Aposaga and Seller entered into a written Contract for purchase of the Vehicle. Dumas Decl., ¶5, Ex. A. Aposaga was required to make 75 monthly payments of $455.13 beginning June 3, 2018. Dumas Decl., ¶5, Ex. A. In the event of default for failure to pay, Seller 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. Dumas Decl., ¶¶ 5, 7, Ex. A.

The bottom of the Contract shows that Seller assigned its interest in the Contract to “TD Auto Finance, LLC.” Dumas Decl., ¶5, Ex. A. The Lien and Title Information Report reflects TD Auto Finance’s lien on the Vehicle. Dumas Decl., ¶5, Ex. B.

Aposaga breached the Contract when he failed to make regular monthly payments of $455.13. Dumas Decl., ¶6. As of May 11, 2023, the balance due and owing is $15,018.79. Dumas Decl., ¶6, Ex. C.

Aposaga has transferred the Vehicle to Capistrano for repair and storage. Dumas Decl., ¶8. The Vehicle has accrued labor, tow, and storage fees in excess of $9,000. Dumas Decl., ¶8, Ex. D. On March 21, 2023, the DMV gave TD Auto Finance notice that Capistrano applied to hold a lien sale on the Vehicle. Dumas Decl., ¶9, Ex. D. Capistrano has confirmed that it still has possession of the Vehicle. Dumas Decl., ¶10.

On April 28, 2023, TD Bank sent Capistrano notice that the DMV had placed an Involuntary Transfer Stop on any transfer of the Vehicle. Dumas Decl., ¶11, Ex. E. TD Bank also asserted that because Capistrano was not an automotive repair dealer or licensed storage facility, TD Bank had no obligation under Civil Code sections 3068 and 3068.1 to pay a mechanic’s storage lien. Dumas Decl., ¶11, Ex. E. TD Bank might still pay a nominal amount if Capistrano sent pictures of the Vehicle and explained its current condition. Dumas Decl., ¶11, Ex. E. Capistrano would have to pay $1,750 in attorney’s fees if he refused the offer to return the Vehicle for the amount he was entitled to under statute. Dumas Decl., ¶11, Ex. E. Capistrano rejected the offer and failed to settle. Dumas Decl., ¶11.

The Kelley Blue Book as of April 2023 lists the Vehicle wholesale value as $18,660 and retail value as $19,374. Dumas Decl., ¶12, Ex. F.

The Contract lists Aposaga’s address as 302 E. Sepulvada Blvd, Carson, CA 90745. Dumas Decl., ¶5, Ex. A. However, TD Bank’s files reflect that Aposaga’s address is 14692 Goldenwest St., Westminster, CA 92683. Dumas Decl., ¶16. Capistrano’s address is 7247 Browning Rd., Highland, CA 92346. Dumas Decl., ¶16, Exs. D-E. TD Bank believes the Vehicle is either at 4692 Goldenwest St., Westminster, CA 92683, or 7247 Browning Rd., Highland, CA 92346. Dumas Decl., ¶16.

Plaintiff TD Bank applies for a writ of possession for the Vehicle against Defendants Aposaga, Capistrano, and the DMV.

TD Bank has not served Aposaga or Capistrano with the Complaint, Summons, and moving papers. Due process and CCP section 512.030 requires service of the summons and complaint on the defendant in the manner of service under CCP section 413.10 et seq. The court does not have personal jurisdiction over these Defendants and the application is denied as to them.

As for the DMV, no proof of service for this application is on file. DMV stipulated that it would only comply with any orders regarding possession of the Vehicle if all interested parties had sufficient notice. Because Aposaga and Capistrano have not received sufficient notice, the application is also denied as to the DMV.[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] If TD Bank effects service, there are defects. First, TD Bank does not show that it has standing. The Contract was assigned to TD Auto Finance, LLC, not TD Bank. Second, TD Bank’s letter to Capistrano asserted that it owed nothing. Dumas Decl., ¶11, Ex. E. TD presents no evidence supporting its position that it does not owe $1,025 in storage fees, which the maximum lien amount for any storage not authorized by the Vehicle’s owner. See Civil Code §3068(c)(1); Dumas Decl., ¶11, Ex. E.