Judge James C. Chalfant, Case Number: 24STCV11693, Date: 2024-06-25 Tentative Ruling

Americredit Financial Services dba GM Financial v. Eulalio Perez, 24STCV11693

Tentative decision on application for writ of possession: denied

Plaintiff Americredit Financial Services dba GM Financial (“Americredit”) seeks a writ of possession against Defendant Eulalio Perez (“Perez”) to recover a 2020 Chevrolet Silverado 1500, VIN 3GCPWCEK9LG300211 (“Vehicle”).

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

Plaintiff Americredit commenced this proceeding on May 9, 2024, alleging causes of action for (1) possession of personal property, (2) breach of contract, (3) good sold and delivered, (4) book account, and (5) account stated. On June 4, 2024, Americredit voluntarily dismissed the second, third, fourth, and fifth causes of action. The Complaint alleges in pertinent part as follows.

Prior to the commencement of this action, Perez agreed to purchase the Vehicle from Americredit through a written installment sale contract (“Contract”), making monthly instalment payments. Americredit holds a perfected security interest in the Vehicle.

Perez defaulted under the Contract by failing to make the payment due and owing on January 8, 2024, or any payments thereafter. There is currently due to Americredit a remaining balance of $16,429.49 together with other charges provided in the Contract. Americredit has demanded that Perez surrender the Vehicle, and he has failed to do so.

According to a proof of service on file, Perez was personally served with the Complaint, Summons, and moving papers on June 6, 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, (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).

Americredit presents evidence that Defendant Perez entered into the Contract with non-party Chevrolet of Montebello on May 25, 2020 to finance and purchase the Vehicle. Williams Decl. Ex. A. Chevrolet of Montebello assigned its interest in the Contract to “GM Financial”, the name under which Americredit does business. Id., p. 2. Americredit holds a first priority perfected interest in the Vehicle. Williams Decl. ¶6, Ex. B.

Pursuant to the terms of the Contract, Perez was required to make 72 monthly payments of $545.00, beginning on July 9, 2020. Williams Decl. Ex. A. Perez breached the Contract by failing to make the payment due and owing on January 8, 2024, or any payments thereafter. Williams Decl. ¶6. Although Americredit demanded return, Perez has refused to surrender the Vehicle. Williams Decl. ¶10.

According to Americredit’s supporting declaration, the amount due under the Contract is $16,429.49. Williams Decl. ¶9. Americredit fails to provide any supporting documentary payment history or calculation of the amount owed.

The retail market value of the Vehicle is $25,325. Williams Decl. ¶9, Ex. C. Therefore, Perez’s interest in the property is equal to $8,895.51.

Americredit asserts that the Vehicle is located at Perez’s residence at 10528 Anetta Ave, South Gate, CA 90280. Williams. Decl. ¶12. This address is also where Perez was served with process.

Plaintiff Americredit seeks a writ of possession against Defendant Perez to recover the Vehicle. Americredit served the moving papers with the Summons and Complaint on June 6, 2024, less than the 16 court days required by CCP section 1005. The application for a writ of possession is procedurally defective and 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).