Judge James C. Chalfant, Case Number: 23STLC03353, Date: 2023-08-17 Tentative Ruling

AmeriCredit Financial Services v. Eugene Lane, 23STLC03353

Tentative decision on application for a writ of possession: granted

Plaintiff AmeriCredit Financial Services, doing business as GM Financial (“AmeriCredit”) seeks a writ of possession against Defendant Eugene Lane (“Lane”) to recover a 2017 Chevrolet Silverado 2500, VIN 1GC1KVEY7HF130070 (“Vehicle”).

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

Plaintiff AmeriCredit filed the Complaint against Lane on May 20, 2023, alleging (1) possession of personal property, (2) breach of contract, (3) goods sold and delivered, (4) book account, and (5) account stated. The Complaint alleges as follows.

On September 5, 2017, Lane entered a written Contract (“Contract”) in which Felix Chevrolet (“Assignor”) financed the purchase of the Vehicle, which would be collateral. Assignor then assigned its rights under the Contract to AmeriCredit under the name “GM Financial.” At all relevant times, AmeriCredit has been the legal owner of the Vehicle. The Certificate of Title from the Department of Motor Vehicles (“DMV”) reflects AmeriCredit’s interest. The Contract gives AmeriCredit the right to take and have immediate possession of the Vehicle after default.

Lane breached the Contract, on October 20, 2022, by failing to make the monthly installment due. He has also failed to maintain physical damage insurance for the Vehicle, which the Contract also defines as a breach. The balance due and owing is $11,557.17. Demands to turn over the Vehicle have failed. The Contract requires Lane to reimburse AmeriCredit for all expenses incurred to enforce the Contract, including collection costs and attorney’s fees and costs.

AmeriCredit seeks (1) recovery and a pretrial writ of possession for the Vehicle, or payoff of $11,557.17 with interest if recovery cannot be had; (2) compensatory damages of $32.30 per day from October 20, 2022 until AmeriCredit has possession of the Vehicle; (3) the balance owed under the Contract plus interest at the maximum judicial rate from October 20, 2022, with applicable delinquency charges and collection costs, less any proceeds from disposition of the Vehicle if AmeriCredit obtains it; and (4) attorney’s fees and costs.

On June 10, 2023, AmeriCredit served Lane with the Complaint and Summons by substitute service, effective June 20, 2023.

On June 24, 2023, AmeriCredit personally served Lane with the moving papers for this application.

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, (“Edwards”) (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 September 5, 2017, Lane and Assignor entered into a written Contract for purchase of the Vehicle. Williams Decl., ¶5, Ex. A. Lane was to make 71 installments of $988.86 from October 20, 2017 thereafter, plus a final $969.49 payment on September 29, 2023. Williams Decl., ¶5, Ex. A. During this time, Lane also agreed to have physical damage insurance that will cover any loss of or damage to the Vehicle. Williams Decl., ¶5, Ex. A. In the event of default for failure to pay or Lane’s breach of any other promise in the Contract, Assignor had the right to accelerate the amount owed, repossess the Vehicle, and assess a 5% late charge for any payment that is overdue by more than ten days. Williams Decl., ¶5, Ex. A.

In the Contact, Assignor assigned its rights to AmeriCredit under the name “GM Financial.” Williams Decl., ¶5, Ex. A. The Certificate of Title from the California Department of Motor Vehicles reflects AmeriCredit’s interest in the Vehicle in its own name. Williams Decl., ¶5, Ex. B.

Lane breached the Contract for failure to pay the installment due on October 20, 2022. Williams Decl., ¶7. Lane has also failed to maintain physical damage insurance for the protection of the Vehicle, a separate breach of the Contract. Williams Decl., ¶8. AmeriCredit has elected to exercise its right to accelerate the amount owed under the Contract and demand return of the Vehicle. Williams Decl., ¶7. The outstanding balance is $11,557.17. Williams Decl., ¶9.

The J.D. Power report for March 22, 2023 lists the Vehicle’s base value as $45,925 and its current retail value as $33,050. Williams Decl., ¶9, Ex. C. Because the outstanding balance owed is $11,557.17, Lane’s equity in the Vehicle is $33,050 - $11,557.17 = $21,492.83. Williams Decl., ¶9.

The Certificate of Title lists Lane’s address as 47040 Hondo Dr., Victorville, CA 92394. Williams Decl., ¶5, Ex. B. The Contract lists it as 411 Queen Street, Apt. 5, Inglewood, CA, 90301. Williams Decl., ¶5, Ex. A. However, AmeriCredit believes the Vehicle is currently at Lane’s last known residential address, 14740 Hondo Dr., Victorville, CA 92394. Williams Decl., ¶12.

The Contract required Lane to make 71 installments of $988.86 from October 20, 2017 thereafter, plus a final $969.49 payment on September 29, 2023. Williams Decl., ¶5, Ex. A. During this time, Lane also agreed to have physical damage insurance that will cover any loss of or damage to the Vehicle. Williams Decl., ¶5, Ex. A. In the event of default for failure to pay or Lane’s breach of any other promise in the Contract, Assignor had the right to accelerate the amount owed, repossess the Vehicle, and assess a 5% late charge for any payment that is overdue by more than ten days. Williams Decl., ¶5, Ex. A. Assignor then assigned its rights under the Contract to AmeriCredit, and the Certificate of Title reflects AmeriCredit’s interest in the Vehicle. Williams Decl., ¶5, Exs. A-B.

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.

AmeriCredit presents only conclusory evidence that Lane breached the Contract, both for failure to maintain insurance and failure to pay the installment due on October 20, 2022. Williams Decl., ¶¶ 7-8. There is no payment history or calculation of the amount owed. As Lane has not opposed, the court will not deny the application for lack of sufficient evidence.

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).

The memorandum asserts that AmeriCredit does not need to post an undertaking because Lane has no equity in the Vehicle. Mem. at 4. This is wrong. The J.D. Power report for March 22, 2023 lists the Vehicle’s current retail value as $33,050. Williams Decl., ¶9, Ex. C. Because the outstanding balance owed is $11,557.17, Lane’s equity in the Vehicle is $33,050 - $11,557.17 = $21,492.83. Williams Decl., ¶9. The undertaking will be $21,492.83 x 2 = $42,985.66.

The memorandum also asserts that Lane should have to file an undertaking of $11,557.17. Not so. A Defendant only needs to file a bond if it seeks to prevent the plaintiff from taking possession of the Vehicle. Should Lane do so, the amount of the redelivery undertaking is equal to the amount of the plaintiff’s undertaking. CCP §515.020(a). Because AmeriCredit owes an undertaking of $42,985.66, the redelivery bond shall also be $42,985.66.

AmeriCredit believes the Vehicle is currently at Lane’s last known residential address, 14740 Hondo Dr., Victorville, CA 92394. Williams Decl., ¶12. The Certificate of Title lists Lane’s address as 47040 Hondo Dr., Victorville, CA 92394. Williams Decl., ¶5, Ex. B. The Contract lists Lane’s address as 411 Queen Street, Apt. 5, Inglewood, CA, 90301. Williams Decl., ¶5, Ex. A. AmeriCredit only seeks a writ to enter a private residence at the 14740 Hondo Dr. address. AmeriCredit can obtain a writ to enter that address as a private residence, and any public or commercial address, to obtain the Vehicle.

The application for a writ of possession and turnover order for the Vehicle is granted. AmeriCredit has not filed a proposed order for writ of possession and must do so within two court days of this hearing on the proper Judicial Council form or it will be waived. No writ shall issue until AmeriCredit posts a $42,985.66 undertaking. The re-delivery undertaking will be in the same amount. The levying officer may enter the private address at 14740 Hondo Dr. and any commercial or public address.

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