Judge James C. Chalfant, Case Number: 24STCV27523, Date: 2025-03-18 Tentative Ruling

Copart, Inc. v. Lloyd Cannon, 24STCV27523

Tentative decision on application for writ of possession: denied

Plaintiff Copart, Inc. (“Copart”) seeks a writ of possession against Defendant Lloyd Cannon (“Cannon”) to recover a 2023 Hino L7, VIN (5PVNJ7BS3P5T50083) (“Vehicle”).

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

Plaintiff Copart commenced this proceeding on October 22, 2024, alleging causes of action for (1) Recovery of Possession of Personal Property; (2) Breach of Contract; (3) Unjust Enrichment; and (4) Conversion. Compl. The Complaint alleges in pertinent part as follows.

On or about August 1, 2022, Holman Fleet Leasing (“Holman”) entered into a written agreement under which Holman would lease vehicles directly to third party service providers (“Lessees”) who have contracts with Copart (“Copart/Holman Program”). Compl., ¶5.

On or about June 16, 2023, Holman and Cannon agreed to a written Vehicle Lease Agreement (“VLA”) and Master Vehicle Transportation and Logistics Services Agreement (“MVLA”) (collectively, “Lease”). Compl., ¶6; Ex. A. Under the Lease, Copart leased Cannon the Vehicle in exchange for 60 monthly payments of $2,248.60. Compl., ¶6. Additionally, Cannon agreed to tow no fewer than four cars per day (“Services”). Compl., ¶6.

The VLA provides in part that breach of Copart’s service agreement with Cannon constitutes a default on the Lease. Compl., ¶8. The VLA further provides Holman the right in case of default to accelerate the payments, take possession of the Vehicle, terminate the VLA and MCLA, and/or pursue other available legal and equitable remedies. Compl., ¶ 8. The VLA also allowed for costs and expenses incurred to exercise these rights, including reasonable fees for attorneys and collections agencies. Compl., ¶8.

On or about July 26, 2023, Holman delivered the Vehicle to Cannon, which Cannon accepted. Compl., ¶10. Copart and Holman have performed all obligations under the Lease. Compl., ¶16.

Cannon breached the Lease by failing to provide the Services required. Compl., ¶12.

Holman granted Copart power of attorney to act as Holman’s agent to repossess vehicles leased by Holman to any Lessee under the Copart/Holman Program where Holman has notified that particular Lessee that it is in default and that Holman is terminating all underlying agreements with the Lessee. Compl., ¶11.

In a letter dated October 30, 2023, Copart notified Cannon of the breach and failure to cure, and that Copart was terminating the service agreement immediately. Compl., ¶13. Copart further elected to accelerate the payments and terminate the Lease. Compl., ¶14. Cannon owes a remaining balance of $128,488, plus interest at the legal rate beginning October 30, 2023. Compl., ¶14. Copart also demands expenses and reasonable attorney fees pursuant to the agreement. Compl., ¶15.

The Vehicle has been identified at Cannon’s residence, 9927 Grape Street Los Angeles, California 90002, inaccessible behind walls.

On October 22, 2024, Copart filed an ex parte application for a writ of possession or, alternatively, for a temporary restraining order. The application was withdrawn the same day.

A proof of service on file shows that Copart personally served Defendant Cannon on December 20, 2024 with the Summons, Complaint, and moving papers for a writ of possession.

On January 31, 2025, Copart filed another ex parte application for writ of possession or alternatively a temporary restraining order. On February 4, 2025, the ex parte application was removed from the I/C court calendar with instructions to refile it in the Writs and Receivers department.

On February 5, 2025, Copart refiled its ex parte application in this department. On February 10, 2025, Copart’s ex parte application was denied.

On February 14, 2025, Copart filed the instant application and served Defendant Cannon by mail.

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).

On or about June 16, 2023, Holman and Cannon agreed to a written Vehicle Lease Agreement (“VLA”) and Master Vehicle Transportation and Logistics Services Agreement (“MVLA”) (collectively, “Lease”). Shah Decl., ¶6; Ex. A. Under the Lease, Copart leased Cannon the Vehicle in exchange for 60 monthly payments of $2,248.60. Shah Decl., ¶6. Additionally, Cannon agreed to tow no fewer than four cars per day (“Services”). Shah Decl., ¶6.

The VLA provides in part, that breach of Copart’s service agreement with Cannon constitutes a default on the Lease. Shah Decl., ¶8. The VLA further provided Holman the right in case of default to accelerate the payments, take possession of the Vehicle, terminate the VLA and MCLA, or pursue other available legal and equitable remedies. Shah Decl., ¶ 8. The VLA also allowed for costs and expenses incurred to exercise these rights, including reasonable fees for attorneys and collections agencies. Shah Decl., ¶8.

Holman granted Copart power of attorney to act as Holman’s agent to repossess vehicles leased by Holman to any Lessee under the Copart/Holman Program where Holman has notified that Lessee is in default, and that Holman is terminating all underlying agreements with the Lessee. Shah Decl., ¶11.

On or about July 26, 2023, Holman delivered the Vehicle to Cannon, which Cannon accepted. Shah Decl., ¶10.

Cannon breached the Lease by failing to provide the Services required. Shah Decl., ¶12.

In a letter dated October 30, 2023, Copart notified Cannon of the breach and failure to cure, and that Copart was terminating the service agreement immediately. Shah Decl., ¶13, Ex. B.

In a letter dated November 8, 2023, Holman notified Cannon that, as a result of that breach, Holman elected to accelerate the payments, demand surrender of the vehicle, and terminate the Lease effective 30 days from receipt or first refusal of that letter. Shah Decl., ¶14; Ex. C. Cannon owes a remaining balance of $128,488, plus interest at the legal rate beginning October 23, 2023. Shah Decl., ¶15. Copart also demands expenses and reasonable attorney fees pursuant to the agreement. Shah Decl., ¶16.

Plaintiff Copart applies for an order for a writ of possession against Defendant Cannon for the Vehicle. No opposition was filed.

Copart’s application contains numerous defects. First, the declaration of Vania M. Caro that is part of the application is undated and unsigned. Therefore, it is not evidence.

Second, an application for a writ of possession is a law and motion matter. CRC 3.1103(a)(2). Copart failed to file a supporting memorandum of points and authorities with his application. All law and motion matters require a memorandum of points and authorities detailing the basis for the motion. CRC 3.1113(a). The absence of a memorandum may be construed as an admission that the motion is not meritorious. CRC 3.1113(a).

Third, a writ of possession is a provisional remedy for which strict compliance is required with statutory obligations. The 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). The declaration must also affirmatively show the declarant’s competency to testify to the facts. CCP §516.030. At a minimum, the declaration must show how the declarant knows the facts; boilerplate recitations that the declarant has personal knowledge are inadequate. See Snider v. Snider, (1962) 200 Cal.App.2d 741, 754 (boilerplate recitation of personal knowledge insufficient without additional foundation showing how he or she knew). 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. For business records, evidence should be presented to establish that the record was made in the regular course of business, at or near the time of the act or event, and the custodian of records or other qualified witness must identify the record and its mode of preparation, as well as the sources of information and method and time of preparation. Id.

Copart provides only an attorney declaration with no foundation of personal knowledge, and no supporting exhibits, including the August 1, 2022 Holman written agreement, the Lease, the power of attorney, payment history for Cannon, notice of breach, value of the Vehicle, or location of the Vehicle.

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