Judge James C. Chalfant, Case Number: 23STLC05063, Date: 2023-11-09 Tentative Ruling

Keys Auto Finance v. Ryan Torre, 23STLC05063

Tentative decision on application for a writ of possession: granted

Plaintiff Keys Auto Finance (“Keys”) seeks a writ of possession against Defendant Ryan Torre (“Torre”) to recover a 2007 BMW 3 Series 335i Sedan, VIN WBAVB73547VF50895 (“Vehicle”).

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

Plaintiff Keys filed the Complaint against Defendant Torre on August 10, 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 May 6, 2022, Torre entered a written Contract (“Contract”) in which Keys leased the Vehicle to Torre. At all relevant times, Keys has been the legal owner of the Vehicle. The Certificate of Title from the Department of Motor Vehicles (“DMV”) reflects Keys’s interest. The Contract gives Keys the right to take and have immediate possession of the Vehicle after default.

Torre breached the Contract on March 6, 2023, by failing to make the monthly lease payment 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 $12,436.66 plus interest thereon. Demands to turn over the Vehicle have failed. The Contract requires Torre to reimburse Keys for all expenses incurred to enforce the Contract, including collection costs and attorney’s fees and costs.

Keys seeks (1) possession for the Vehicle, or payoff of $12,436.66 with interest and costs if recovery cannot be had; (2) compensatory damages of $15.23 per day from March 6, 2023, until Keys has possession of the Vehicle; (3) the balance owed under the Contract plus interest at the maximum judicial rate from March 6, 2023, with applicable delinquency charges and collection costs, less any proceeds from disposition of the Vehicle if Keys obtains it; and (4) attorney’s fees and costs.

On October 3, 2023, Keys served Torre with the Complaint, Summons, and moving papers by substitute service, effective October 13, 2023.

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 May 6, 2022, Torre and Keys entered into a written Contract to lease the Vehicle. Shafie Decl., ¶5, Ex. A. Torre was required to make 42 installments of $456.91 from June 6, 2022 thereafter. Shafie Decl., ¶5, Ex. A. During this time, Torre also agreed to have physical damage insurance that will cover any loss of or damage to the Vehicle. Shafie Decl., ¶5, Ex. A. In the event of default for failure to pay or Torre’s breach of any other promise in the Contract, Keys 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. Shafie Decl., ¶5, Ex. A.

The Certificate of Title from the DMV reflects Keys’s interest in the Vehicle. Shafie Decl., ¶5, Ex. B. Keys has been the Vehicle’s legal owner at all relevant times. Shafie Decl., ¶6.

Torre breached the Contract for failure to pay the monthly installment due on March 6, 2023. Shafie Decl., ¶7. Torre has also failed to maintain physical damage insurance for the protection of the Vehicle, a separate breach of the Contract. Shafie Decl., ¶8. Keys has elected to exercise its right to accelerate the amount owed under the Contract and demand return of the Vehicle. Shafie Decl., ¶7. The outstanding balance is $12,436.66. Shafie Decl., ¶9.

As of July 21, 2023, the Kelley Blue Book lists the Vehicle’s market value as $5,570 and its current listing price as $6,520. Shafie Decl., ¶9, Ex. C. Because the outstanding balance owed is $12,436.66, Torre’s equity in the Vehicle is negative $6,866.66. Shafie Decl., ¶9.

The Contract and Certificate of Title lists Torre’s address as 365 Cliff Dr Apt 208, Pasadena, CA 91107. Shafie Decl., ¶5, Exs. A-B. Keys believes this is the Vehicle’s current location. Shafie Decl., ¶12.

The Contract required Torre to make 42 lease payments of $456.91 from June 6, 2022 thereafter. Shafie Decl., ¶5, Ex. A. During this time, Torre also agreed to have physical damage insurance that will cover any loss of or damage to the Vehicle. Shafie Decl., ¶5, Ex. A. In the event of default for failure to pay or Torre’s breach of any other promise in the Contract, Keys 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. Shafie Decl., ¶5, Ex. A. The Certificate of Title reflects Keys’s interest in the Vehicle. Shafie Decl., ¶5, Ex. B.

Keys presents only conclusory evidence that Torre breached the Contract, both for failure to maintain insurance and failure to pay the installment due on March 6, 2023. Shafie Decl., ¶¶ 7-8. There is no payment history or calculation of the amount owed. However, the Contract is a lease and there is no showing that Torre has any legal interest in 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).

T Keys does not need to post an undertaking because Torre has no legal interest in the Vehicle. Mem. at 4.

The memorandum also asserts that Torre should have to file an undertaking of $12,436.66, plus attorney’s fees and costs. Mem. at 4.

If the court finds that the defendant 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). This cannot exceed the value of the Vehicle, or $6,520. Shafie Decl., ¶9, Ex. C. The redelivery bond shall be the $6,520 value of the Vehicle.

Keys believes the Vehicle is currently at 365 Cliff Dr Apt 208, Pasadena, CA 91107, the address listed on the Contract and Certificate of Title. Shafie Decl., ¶¶ 5, 12, Exs. A-B. Keys 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 for the Vehicle is granted. Keys 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 undertaking is required, and the re-delivery undertaking will be $6,520. The levying officer may enter the private address at 365 Cliff Dr Apt 208, Pasadena, CA 91107 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).