Judge James C. Chalfant, Case Number: 24STCV29903, Date: 2025-02-25 Tentative Ruling

Allegiant Partners Incorporated v. Nathan’s Towing LLC, et al., 24STCV29903

Tentative decision on application for writ of possession: granted

Plaintiff Allegiant Partners Incorporated (“Allegiant”) seeks a writ of possession against Defendants Nathan’s Towing, LLC (“Nathan’s Towing”) and Frank Fuentes (“Fuentes”) to recover a 2022 Ram 5500 with Chevron Series 10 Carrier and Standard Towing Accessories, VIN (3C7WRMDL6NG275194) (“Vehicle”).

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

Plaintiff Allegiant commenced this proceeding on November 14, 2024, alleging causes of action for (1) breach of written finance agreement; (2) breach of personal guaranty; (3) foreclosure of security and possession of collateral; (4) open book account; and (5) account stated. The Complaint alleges in pertinent part as follows.

On or about February 7, 2023, Nathan’s Towing entered into a written Equipment Finance Agreement (“Finance Agreement”), with Allegiant for the lease of the Vehicle. Compl., ¶6, Ex. 1. Pursuant to the Finance Agreement, Allegiant financed the Collateral and, in consideration thereof, Nathan’s Towing agreed to make one (1) payment of $2,895.71, followed by sixty (60) monthly payments of $2,895.71, together with applicable taxes, fees of $295.00, and other payments as set forth therein. Compl., ¶7.

The California Department of Motor Vehicle issued a Certificate of Title (hereinafter referred to as “Title”) identifying Allegiant as lienholder. Compl., ¶8, Ex. 2.

To induce Nathan’s Towing to enter into the Agreement, Fuentes executed a written Continuing Personal Guaranty (“Guaranty”). Compl., ¶18, Ex. 3.

On or about February 29, 2024, Nathan’s Towing breached the terms of the Finance Agreement by failing to make the monthly payment then due and owing. Compl., ¶10. As a result thereof, and pursuant to the terms of the Finance Agreement, Allegiant has declared the entire balance owed under the Finance Agreement immediately due and payable. Compl., ¶10. After application of all rental debits and credits, including payments made after termination of the Finance Agreement, the principal balance owing is $150,381.22, plus other additional items due under the terms of the Finance Agreement. Compl., ¶11.

Pursuant to the Finance Agreement, Nathan’s Towing is liable for all late charges and other fees accruing thereunder in an amount to be determined at the time of trial and all taxes and fees accruing thereunder; the Finance Agreement and Guaranty also provides for the payment of reasonable attorney’s fees should legal action be instituted to enforce the terms. Compl., ¶¶ 13, 14, 16, and 20. If the Vehicle is recovered, Nathan’s Towing may be entitled to a credit, minus the taxes, fees, expenses and liens in connection with the repossession, holding/storage fees, repair, appraisal, transportation and subsequent sale on the Vehicle. Compl., ¶15.

Allegiant has made demand for payment, but Nathan’s Towing has failed and refused, to pay said sums. Compl., ¶12. Accordingly, there is now due, owing and unpaid from Nathan’s Towing under the Finance Agreement is $150,381.22, plus other additional items due under the terms of the Finance Agreement, together with interest thereon at the rate of 10% of any monthly payment. Compl., ¶12.

A proof of service on file shows that the Complaint, Summons, and moving papers were served on Defendant Nathan’s Towing by substitute service on December 7, 2024, effective December 17, 2024. A default was entered against Nathan’s Towing on February 10, 2025.

A proof of service on file shows that the Complaint, Summons, and moving papers were served on Defendant Fuentes by substitute service on December 7, 2024, effective December 17, 2024. A default was entered against Fuentes on January 30, 2025.

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).

On or about February 7, 2023, Nathan’s Towing entered into the Finance Agreement with Allegiant for the lease of the Vehicle. Jueschke Decl., ¶3, Ex. 1. Pursuant to the Finance Agreement, Allegiant financed the Vehicle and Nathan’s Towing agreed to make one payment of $2,895.71, followed by 60 monthly payments of $2,895.71, together with applicable taxes, fees of $295.00, and other payments as set forth therein. Jueschke Decl., ¶4.

The California Department of Motor Vehicle issued a Title identifying Allegiant as lienholder. Jueschke Decl., ¶5, Ex. 2.

To induce Nathan’s Towing to enter into the Agreement, Fuentes executed a written Continuing Personal Guaranty (“Guaranty”). Jueschke Decl., ¶13, Ex. 3.

Allegiant performed, or was excused from performing, all terms and conditions under the Finance Agreement required to be performed by them. Jueschke Decl., ¶13

On or about February 29, 2024, Nathan’s Towing breached the terms of the Finance Agreement by failing to make the monthly payment then due and owing. Jueschke Decl., ¶7. Pursuant to the terms of the Finance Agreement, Allegiant has declared the entire balance owed immediately due and payable. Jueschke Decl., ¶7. After application of all rental debits and credits, including payments made after termination of the Finance Agreement, the principal balance owing is $150,381.22, plus other additional items due under the terms of the Finance Agreement. Jueschke Decl., ¶8.

Pursuant to the Finance Agreement, Nathan’s Towing is liable for all late charges and other fees accruing thereunder in an amount to be determined at the time of trial and all taxes and fees accruing thereunder. The Finance Agreement and Guaranty also provides for the payment of reasonable attorney’s fees should legal action be instituted to enforce the terms. Jueschke Decl., ¶¶ 10, 11, and 15. If the Vehicle is recovered, Nathan’s Towing may be entitled to a credit, minus the taxes, fees, expenses and liens in connection with the repossession, holding/storage fees, repair, appraisal, transportation and subsequent sale. Jueschke Decl., ¶12.

Allegiant has made demand for payment but Nathan’s Towing has failed and refusedto pay said sums. Jueschke Decl., ¶9. Accordingly, there is now due, owing and unpaid from Nathan’s Towing under the Finance Agreement is $150,381.22, plus other additional items due under the terms of the Finance Agreement, together with interest thereon at the rate of 10% of any monthly payment. Jueschke Decl., ¶9.

Allegiant is informed and believes and thereon alleges that the Vehicle is in the possession of the Defendant. Jueschke Decl., ¶19. At the commencement of this action, it was located at 12499 Gilmore Avenue, Los Angeles, CA 90066 or at 708 E. Florence Avenue, Inglewood, CA 90301, or at such other location known to Defendant. Jueschke Decl., ¶20. The Vehicle was not taken from Plaintiff for a tax, assessment, or fine. Jueschke Decl., ¶22.

Allegiant is informed and believed that the fair market value of the Vehicle is between $10,000.00 - $20,000.00.[2] Jueschke Decl., ¶24. This opinion is based upon its original price, the equipment age, and forecast of current market values, conversations with various equipment vendors and experience in equipment leasing. Jueschke Decl., ¶24.

Plaintiff Allegiant seeks a writ of possession and turnover orders against Defendants Nathan’s Towing and Fuentes to recover the Vehicle. Defendants are in default and do not oppose.

The California Department of Motor Vehicle issued a Title identifying Allegiant as lienholder. Jueschke Decl., ¶5, Ex. 2.

The declaration supporting an application for a writ of possession 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).

Allegiant fails to meet this particularity requirement to support the amount owed as $150,381.22. No payment history or evidentiary detail is provided to show the accuracy of this amount, which is important for the issue of undertaking. As no opposition is on file, this defect is waived.

Allegiant 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 Vehicle’s fair market value is $28,000 to $40,000 as stated in the applications. The unpaid principal balance is $150,381.22.

Defendants have no legal interest in the Vehicle and no undertaking is required. The re-delivery bond also shall be $150,381.22. CCP §515.020(a).

The Vehicle is currently located at either 12499 Gilmore Avenue, Los Angeles, CA 90066 or at 708 E. Florence Avenue, Inglewood, CA 90301. The levying officer may enter this location to recover the Vehicle. CCP §512.060(b).

The applications for order for a writ of possession and turnover order against Defendants Nathan’s Towing and Fuentes are granted. No undertaking is required, and the re-delivery bond shall be $150,381.22.

[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 applications state a fair market value of $28,000 to $40,000.