Judge James C. Chalfant, Case Number: 23STLC06782, Date: 2024-02-13 Tentative Ruling

Ally Bank v. Evaristo Cuellar Hernandez, 23STLC06782

Tentative decision on application for a writ of possession: denied

Plaintiff Ally Bank (“Bank”) seeks a writ of possession against Defendant Evaristo Cuellar Hernandez (“Hernandez”) to recover a 2017 Honda Pilot, VIN 5FNYF5H7XHB000231 (“Vehicle”).

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

Plaintiff Bank filed the Complaint against Defendant Hernandez on October 20, 2023, alleging (1) claim and delivery and (2) money on a contract. The Complaint alleges as follows.

Hernandez entered into a written Contract in which Bank’s assignor would finance the purchase of the Vehicle, which was collateral. At all relevant times, Bank has been the holder of a first priority security interest in the Vehicle. The Certificate of Title from the California Department of Motor Vehicles (“DMV”) reflects Bank’s interest. The Contract gives Bank the right to take and have immediate possession of the Vehicle after default.

Hernandez breached the Contract on September 28, 2022, by failing to make the $486.79 monthly installment due. He has since failed to make the regular monthly payments of $486.79 due thereafter. The balance due and owing is $18,645.05. Demands to turn over the Vehicle have failed.

Bank seeks recovery and a pretrial writ of possession for the Vehicle, a temporary restraining order enjoining Hernandez from transferring possession of the Vehicle, and $18,645.05 in damages less proceeds from Bank’s resale of the Vehicle.

On January 15, 2024, Bank served Hernandez with the Complaint, Summons, and moving papers by substitute service, effective January 25, 2024.

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 March 14, 2020, Hernandez and Bank’s assignor, California Motor Trade, Inc. (“CMT”), entered into a written Contract for purchase of the Vehicle. Singleton Decl., ¶5, Ex. A. Pursuant to the Contract, Hernandez was required to make 75 monthly installments of $486.79 beginning on April 28, 2020. Singleton Decl., ¶5, Ex. A. In the event of Hernandez’s default for failure to pay, CMT 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. Singleton Decl., ¶5, Ex. A.

CMT assigned all of its rights under the Contract to Ally Financial, Inc. (“Ally Financial”). Singleton Decl., ¶5, Ex. A. The April 3, 2020 Certificate of Title from the DMV reflects Ally Financial’s interest in the Vehicle as a lienholder. Singleton Decl., ¶5, Ex. B. On October 9, 2023, Financial assigned the Contract to Bank. Singleton Decl., ¶5, Ex. A.

Hernandez breached the Contract on September 28, 2022 when he failed to pay $486.79. Singleton Decl., ¶6. He has since failed to make the regular monthly payments of $486.79 due thereafter. Singleton Decl., ¶6. As of October 9, 2023, the balance due and owing is $18,645.05. Singleton Decl., ¶6. Demands to turn over the Vehicle have failed. Singleton Decl., ¶8.

The J.D. Power report for October 9, 2023 lists the Vehicle’s wholesale value as $18,775 and retail value as $21,475. Singleton Decl., ¶7, Ex. C.

The Contract and Certificate of Title list Hernandez’s address as 290 W Waterman Ave Apt D, El Centro, CA 92243. Singleton Decl., Exs. A-B. Bank’s file on Hernandez lists his address as both 290 W Waterman Ave Apt D, El Centro, CA 92243 and 2451 W Holt Ave, El Centro, CA 92243. Singleton Decl., ¶10. Bank believes the Vehicle is currently at either address. Singleton Decl., ¶10.

On January 15, 2024, Bank served Hernandez with the Complaint, Summons, and moving papers by substitute service, effective January 25, 2024. Unless otherwise ordered or specifically provided by law, all moving and supporting papers for an application for writ of possession shall be served and filed at least 16 court days before the hearing. CCP §1005(b). As January 25 is only 12 court days before this hearing,[2] the application must be denied for insufficient notice.

The Contract required Hernandez to make 75 monthly installments of $486.79 for the Vehicle. Singleton Decl., ¶5, Ex. A. Any late payment would incur a 5% late charge and entitle the assignor to accelerate the amount owed and repossess the Vehicle. Singleton Decl., ¶5, Ex. A. CMT assigned all of its rights under the Contract to Financial, who then assigned them to Bank. Singleton Decl., ¶5, Ex. A. The Certificate of Title from the DMV reflects Financial’s interest in the Vehicle as a lienholder before the assignment to Bank. Singleton Decl., ¶5, 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).

Bank presents conclusory evidence that the balance due is $18,645.05. Singleton Decl., ¶6. Bank fails to support this conclusion with a payment history or calculation that these are the amounts owed.

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 $21,475. Singleton Decl., ¶7, Ex. C. The balance Hernandez owes is $18,645.05. Singleton Decl., ¶6. Because the difference is $21,475 - $18,645.05 = $2,829.95, Hernandez’s interest in the Vehicle is $2,829.95. The undertaking would be $2,829.95 x 2 = $5,659.9.

When an undertaking is required, the defendant may prevent the plaintiff from taking possession by filing an undertaking in an amount equal to either the amount of the plaintiff’s undertaking (CCP §515.020(a)) or the amount determined by the court under CCP section 515.010(b). The redelivery bond would be the amount owed of $18,645.05.

The Contract and Certificate of Title list Hernandez’s address as 290 W Waterman Ave Apt D, El Centro, CA 92243. Singleton Decl., Exs. A-B. Bank asserts that Hernandez’s address and the Vehicle’s current location is either 290 W Waterman Ave Apt D, El Centro, CA 92243 or 2451 W Holt Ave, El Centro, CA 92243. Singleton Decl., ¶10. Bank provides no documentary evidence to support the assertion that the Vehicle is on Holt Avenue. Nonetheless, Bank could obtain a writ to enter this location as a private residence.

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.

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

The application for a writ of possession for the Vehicle lacks sufficient notice. Even if considered, Bank fails to provide documentary evidence of the amount owed. The application is denied.

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

[2] February 12, 2024 is a court holiday.