Judge James C. Chalfant, Case Number: 23STLC05853, Date: 2023-11-30 Tentative Ruling

Foursight Capital, LLC v. Marcus Johnson, 23STLC05853

Tentative decision on application for a writ of possession and turnover order: granted

Plaintiff Foursight Capital, LLC (“Foursight”) seeks a writ of possession against Defendant Marcus Johnson (“Johnson”) to recover a 2012 Hyundai Sonata, VIN 5NPEC4AC9CH440285 (“Vehicle”).

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

Plaintiff Foursight filed the Complaint against Defendant Johnson on September 7, 2023, alleging claim and delivery and seeking a pretrial writ of possession and an order directing transfer of personal property. The Complaint alleges as follows.

On July 20, 2022, Johnson entered into a written Note and Security Agreement (“Contract”) in which Foursight’s assignor OpenRoad Lending, LLC (“Assignor”) would finance the purchase of the Vehicle, which was collateral. Assignor assigned the Contract to Foursight on July 22, 2022.

At all relevant times, Foursight has been the legal owner of the Vehicle. The Certificate of Title from the Department of Motor Vehicles reflects Foursight’s security interest. The Contract gives Foursight the right to take and have immediate possession of the Vehicle after default.

Johnson breached the Contract on January 5, 2023, by failing to make the $268.21 monthly installment due. He has since failed to make the regular monthly payments of $268.21 due thereafter. The balance due and owing is $12,433.47. Demands to turn over the Vehicle have failed. It has a current wholesale value of $3,875 and retail value of $8,400.

Foursight seeks (1) recovery and a pretrial writ of possession for the Vehicle, (2) its value if recovery cannot be had, (3) a temporary restraining order enjoining Johnson from transferring possession of or concealing the Vehicle, and (4) attorney’s fees and costs.

On September 23, 2023, Foursight served Johnson with the Complaint, Summons, and moving papers by substitute service, effective October 3, 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 July 20, 2022, Johnson and Assignor executed a written Contract giving Assignor a security interest in the Vehicle. Leetham Decl., ¶4, Ex. A. Johnson was required to make 72 installments of $268.21 beginning September 3, 2022. Leetham Decl., ¶4, Ex. A. In the event of default for failure to pay, Assignor 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. Leetham Decl., ¶4, Ex. A.

On July 22, 2022, Assignor assigned its rights under the Contract to Foursight. Leetham Decl., ¶4, Ex. A. The Certificate of Title from the Department of Motor Vehicles reflects Foursight’s interest in the Vehicle. Leetham Decl., ¶4, Ex. B.

Johnson breached the Contract on January 5, 2023 when he failed to pay $268.21. Leetham Decl., ¶5. He has failed to make the regular monthly payments of $268.21 due thereafter. Leetham Decl., ¶5. As of September 7, 2023, the balance due and owing is $12,433.47. Leetham Decl., ¶5. Demands for Johnson to turn over the Vehicle have failed. Leetham Decl., ¶¶ 7, 9.

The Manheim Market Report for September 2023 lists the Vehicle wholesale value as $3,875 and retail value as $8,400. Leetham Decl., ¶6, Ex. C[2].

The Contract lists Johnson’s address as 1612 W 81st Street, Apt 2, Los Angeles, CA 90047, and Foursight believes the Vehicle is currently there. Leetham Decl., ¶10, Ex. A.

Plaintiff Foursight seeks a writ of possession and turnover order for the Vehicle against Johnson.

The Contract required Johnson to make 72 installments of $268.21 from September 3, 2022 thereafter. Leetham Decl., ¶4, Ex. A. Any late payment would incur a 5% late charge and entitle Assignor to accelerate the amount owed and repossess the Vehicle. Leetham Decl., ¶4, Ex. A. Assignor then assigned its rights under the Contract to Foursight. Leetham Decl., ¶4, Ex. A. The Certificate of Title reflects Foursight’s interest in the Vehicle. Leetham Decl., ¶4, Ex. 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.

Foursight presents conclusory evidence that the balance due and owing is $12,433.47. Mem. at 2; Leetham Decl., ¶5. Foursight fails to support this conclusion with a payment history or calculation that these are the amounts owed. This evidence generally is necessary to support the decision whether an undertaking is necessary. As Johnson has not opposed, the court will not deny the application on this ground.

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 Vehicle’s retail value is estimated to be $8,400. Leetham Decl., ¶6, Ex. C. The balance Johnson owes is $12,433.47. Leetham Decl., ¶5. Because the amount Johnson owes exceeds the value of the Vehicle, no undertaking is required.

The Contract shows Johnson’s address as 1612 W 81st Street, Apt 2, Los Angeles, CA 90047. Leetham Decl., ¶10, Ex. A. This is the probable location of the Vehicle and Foursight can obtain a writ to enter a private residence at this address.

The court may 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, supra, 230 Cal.App.3d at 178.

Foursight requests a turnover order compelling Johnson to transfer possession of the Vehicle. Mem. at 3. The request for a turnover order is granted.

The application for a writ of possession and turnover order for the Vehicle is granted. Foursight 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. The levying officer may enter 1612 W 81st Street, Apt 2, Los Angeles, CA 90047 if it is a private residence, as well as 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).

[2] The declaration misidentifies this as the Kelly Blue Book Auto Market Report and Exhibit D. Leetham Decl., ¶6.