Judge James C. Chalfant, Case Number: 23STLC07523, Date: 2024-06-06 Tentative Ruling

Ally Bank v. National Transportation Inc., et al, 23STLC07523

Tentative decision on application for writ of possession: granted

Plaintiff Ally Bank seeks a writ of possession and turnover order against Defendant National Transportation Inc. (“NTI”) to recover a 2017 Toyota Sienna with VIN 5TDJZ3DC2HS150149 (“Vehicle”).[1]

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

On November 27, 2023, Plaintiff Ally Bank filed the Complaint against Defendants NTI, John Eldon Kindt (“Kindt”), and Gleich for (1) claim & delivery of personal property for pre-trial writ of possession and order directing transfer of personal property and restraining order, and (2) money due on a contract. The Complaint alleges in pertinent part as follows.

Prior to this lawsuit, Ally Bank became and is now the owner of a written contract (“Contract”) through written assignment, wherein Defendant NTI purchased the Vehicle from Ally Bank’s assignor. Compl., ¶6, Ex. A. Ally Bank is now the holder of a first priority security interest in the Vehicle. Compl., ¶7, Ex. B.

The Vehicle has not been taken for tax, assessment or fine, or seized under an execution or attachment against the property of Ally Bank. Compl., ¶10. Defendants, and each of them, claim to have some claim, right or interest in and to the Vehicle or in the Contract. Compl., ¶11. Any such interest is subordinate to that of Ally Bank. Compl., ¶11. Defendants have wrongfully detained the Vehicle from the possession of Ally Bank. Compl., ¶11.

The J.D. Power report for November 2023 states the average wholesale and retail values of the Vehicle is between $18,750 and $23,100. Compl., ¶12, Ex. C. Defendants are currently in possession of the Vehicle and concealing it from Ally Bank. Compl., ¶13. Prior to filing this action, Ally Bank made a demand to Defendants for the surrender of possession of the Vehicle. Compl., ¶14. Defendants have failed, refused, or neglected to return possession of the Vehicle to Ally Bank. Compl., ¶14.

Ally Bank has performed each and every obligation on its part to be performed under the Contract. Compl., ¶15.

Ally Bank seeks recovery of the Vehicle, or its value in case recovery cannot be had, a pre-trial writ of possession in favor, a turnover order and an order preventing transfer of the Vehicle, and judgment against NTI for $22,507.51 less any amounts to be credited for sale of the Vehicle. Compl., Prayer.

On May 29, 2024, Plaintiff Ally Bank filed proof of service by personal service of the Complaint, Summons, and moving papers on Defendants NTI and Gleich.

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.[2] 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).

Plaintiff Ally Bank owns the Vehicle pursuant to an assignment of the Contract in which Defendants NTI and Gleich purchased the Vehicle. Singleton Decl., ¶5, Ex. A. Pursuant to the Contract, Ally Bank has right to immediate possession of the Vehicle upon default of any provision thereof. Singleton Decl., ¶5, Ex. B.

Defendant NTI is in default of the Contract by failing to make the payment due and owing on February 27, 2022 in the sum of $460.16 or any of the regular monthly payments of $460.16 due thereafter. Singleton Decl., ¶6. Defendant NTI is in default of $22,507.51 in total as of November 2, 2023. Singleton Decl., ¶6. Ally Bank has made a demand upon Defendant NTI for the surrender of possession of the Vehicle, but Defendant NTI has failed to surrender it to Ally Bank. Singleton Decl., ¶6.

The J.D. Power report is an industry-standard index listing approximate values of motor vehicles. Singleton Decl., ¶7. The J.D. Power report for November 2023 states the average wholesale and retail values of the Vehicle is between $18,750 and $23,100. Singleton Decl., ¶7, Ex. C. Ally Bank’s file reflects that Defendants are currently in possession of the Vehicle and concealing it from Ally Bank. Singleton Decl., ¶8. There is no indication that the Vehicle has been taken on account of a tax, assessment or fine, or seizure under an execution or an attachment against the property of Ally Bank. Singleton Decl., ¶9.

Plaintiff Ally Bank’s file reflects that Defendant NTI’s place of business is 1417 Madrid Ave Torrance CA, 90501. Singleton Decl., ¶10. This is the current location of the Vehicle. Singleton Decl., ¶10.

Plaintiff Ally Bank seeks a writ of possession and turnover order for the Vehicle against Defendant NTI. No opposition is on file and NTI is in default.

Ally Bank presents evidence that it is the owner by assignment of the Vehicle from Banklease Acceptance Corporation to Ally Financial, and from Ally Financial to Ally Bank. Singleton Decl., Ex. A.

Defendant NTI is in default of the Contract by failing to make the payment due and owing on February 27, 2022 in the sum of $460.16 or any of the regular monthly payments of $460.16 due thereafter. Singleton Decl., ¶6. The total owed is $22,507.51, as of November 2, 2023. Singleton Decl., ¶6. Ally Bank has made a demand upon Defendant NTI for the surrender of possession of the Vehicle, but Defendant NTI has failed to surrender it. Singleton Decl., ¶6.

Ally Bank fails to show a payment history or other documentation to support the total owed of $22,57.51. The declaration supporting a writ of possession must be set forth with particularity. CCP §516.030. 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.

As NTI fails to oppose, this defect is waived. Ally Bank has established the probable validity of its claim to possession of the Vehicle. CCP §§ 511.090, 512.060(a).

The undertaking required by CCP section 515.010(a) is 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. Id. The average wholesale and retail values of the Vehicle is between $18,750 and $23,100. Singleton Decl., ¶7, Ex. C. Defendant NTI owes $22,507.51 and the Vehicle’s retail value is $23,100. Ally Bank’s undertaking will be $1184 (2 x $592). The re-delivery bond will be $22,500.

The application for writ of possession and turnover order is granted. The levying officer may enter Defendant NTI’s place of business at 1417 Madrid Ave Torrance CA, 90501 to recover the Vehicle. Ally Bank’s undertaking will be $1184 and the re-delivery bond will be $22,500. No order for writ of possession is on file and Ally Bank is ordered to file it in the next two court days or it will be waived.

[1] The court has been informed that Defendant Jim Gleich (“Gleich”) has declared bankruptcy. The separate application for him is taken off calendar because the action against him is stayed pursuant to Bankruptcy Code section 362.

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