Judge James C. Chalfant, Case Number: 24STLC01113, Date: 2024-06-06 Tentative Ruling

Mercedes-Benz Vehicle Trust v. CaliFit, Inc., et al;

24STLC01113

Tentative decision on application for writ of possession: granted

Plaintiff Mercedes-Benz Vehicle Trust (“MBVT”) seeks a writ of possession and turnover order against Defendant German Tek Auto Shop, LLC (“German Tek”) to recover a 2019 Mercedes-Benz C300W, Serial No. 55SWF8DB4KU304681 (“Vehicle”).

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

On February 15, 2024, Plaintiff MBVT filed the Complaint against Defendants CaliFit, Inc., a California corporation aka Cali Fit Inc. (“CaliFit”), Pierre Patin aka Pierre Patinwiltz (“Patin”), and German Tek Auto Shop, LLC (“German Tek”) for: (1) breach of contract; (2) common count; (3) claim & delivery; and (4) conversion. The Complaint alleges in pertinent part as follows.

On or about January 5, 2019, Defendants CaliFit and Patin entered into a written Motor Vehicle Lease Agreement (“Lease”) with Keyes European (“Dealer”) for the lease of the Vehicle. Compl., ¶8. Defendants CaliFit and Patin agreed to pay $618.20 plus taxes, commencing on January 5, 2019, and remaining payments due on the 5^th day of each month until January 5, 2023. Compl., ¶8, Ex. 1.

Dealer assigned the Lease to Daimler Trust. Compl., ¶9, Ex. 2. On or about January 31, 2023, Daimler Trust merged into Plaintiff MBVT. Compl., ¶¶2, 11, Ex. 3.

On or about June 5, 2022, Defendants CaliFit and Patin defaulted under the terms of the Lease by failing to make the required monthly payments. Compl., ¶10. On or about January 5, 2023, Defendants CaliFit and Patin failed to return possession of the Vehicle to Plaintiff MBVT. Compl., ¶10. Defendants defaulted under the Lease by abandoning the Vehicle and leaving it subject to a lien sale. Compl., ¶10.

On or about June 13, 2023, Plaintiff MBVT, Defendants CaliFit and Patin received a Notice of Pending Lien Sale for the Vehicle (“Notice”) executed on June 7, 2023. Compl., ¶12., Ex. 4. The Notice stated that Defendant German Tek was going to conduct the lien sale on July 10, 2023 for the following charges: Lien Sale Cost ($70.00), Repair Costs ($250.00), Towing Costs ($585.00) and storage ($3,375) incurred at the daily rate of $225.00). Compl., ¶12.

Plaintiff MBVT did not give Defendant German Tek any approval to take possession and store the Vehicle. Nor did Defendant German Tek seek prior approval to do so. Compl., ¶13. MBVT opposed the Notice. Compl., ¶14. The Department of Motor Vehicle (“DMV”) entered MBVT’s opposition on June 27, 2023. Compl., ¶14, Ex. 4. MBVT is unaware of any opposition to the Notice filed by Defendants CaliFit and Patin. Compl., ¶14. Defendant German Tek never served Plaintiff MBVT with any court action following the DMV’s denial of the lien sale. Compl., ¶14.

MBVT attempted to negotiate the release of the Vehicle by offering Defendant German Tek the California statutory maximum sum of $1,275 for the purported repairs and storage. Compl., ¶15. Defendant German Tek refused MBVT’s offer. Compl., ¶15.

Plaintiff seeks, inter alia, return and possession of the Vehicle, the sum of $34,622.35 plus the Total Monthly Payment in the sum of $676.93 for each month from January 5, 2023 until the recovery of the Vehicle, taxes and late charges from and after November 10, 2022 until paid in full or date of entry of judgment, and attorney's fees and costs of suit. Compl., Prayer

On April 23, 2024, MBVT filed proof of service by substituted service of the Complaint, Summons, and moving papers on Defendant German Tek.

On April 25, 2024, MBVT filed proof of service by personal service of the Complaint, Summons, and moving papers on Defendants CaliFit and Patin

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 or about January 5, 2019, Defendants CaliFit and Patin entered into a written Lease with the Dealer for the Vehicle. McClurg Decl., ¶12, Ex. 1. Defendants CaliFit and Patin agreed to pay $618.20 plus taxes, commencing on January 5, 2019, and remaining payments due on the 5^th day of each month until January 5, 2023. McClurg Decl., ¶13.

Dealer assigned the Lease to Daimler Trust. McClurg Decl., ¶14, Ex. 2. On or about January 31, 2023, Daimler Trust merged into Plaintiff MBVT Vehicle Trust. McClurg Decl., ¶17, Ex. 3.

MBVT has performed all the conditions, covenants and promises required under the terms of the Lease. McClurg Decl., ¶15.

On or about June 5, 2022, Defendants CaliFit and Patin defaulted under the terms of the Lease by failing to make the required monthly payments. McClurg Decl., ¶16. MBVT accelerated the Lease term and declared all unpaid sums immediately due and payable. McClurg Decl., ¶16.

On or about January 5, 2023, Defendants CaliFit and Patin failed to return possession of the Vehicle to MBVT. McClurg Decl., ¶16. Defendants CaliFit and Patin defaulted under the Lease by abandoning the Vehicle and leaving it subject to a lien sale. McClurg Decl., ¶16.

MBVT demanded payment from Defendants CaliFit and Patin, but they failed and refused to pay the balance of $34,622.35 plus the total monthly payment of $676.93, now due and owing under the Lease. McClurg Decl., ¶18, Ex. 4.

On or about June 13, 2023, MBVT, Califit, and Patin were notified by a Notice of Pending Lien Sale for Vehicle Valued $4000 or Less (“Notice”) that German Tek was going to conduct a lien sale of the Vehicle on July 10, 2023. The Notice stated that German Tek was claiming a lien against the Vehicle for the following charges: lien sale cost ($70), repair costs ($250), towing costs ($585) and storage ($3,375, incurred at the daily rate of $225). McClurg Decl., ¶19, Ex. 5.

German Tek did not seek prior approval from MBVt to take possession of, and store, the Vehicle. Nor did MBVT give approval for the alleged storage fees incurred by German Tek. McClurg Decl., ¶20.

MBVT timely opposed German Tek’s Notice on June 13, 2023, and is informed and believes that the DMV entered the opposition into DMV’s records and placed a VLT stop (legal hold on title preventing further transfers) on June 27, 2023. MBVT is unaware of any opposition to the lien sale application by Califit and Patin. McClurg Decl., ¶21.

Prior to filing this action, MBVT and its counsel attempted to negotiate the release of the Vehicle by offering German Tek the statutory maximum sum of $1,275 ($250 in alleged repairs and $1,025 for storage) pursuant to Civil Code section 3068. German Teck refused MBVT’s offer and has failed to release the Vehicle. McClurg Decl., ¶22; Caley Decl., ¶¶ 4-5.

German Tek is currently has custody, control and possession of the Vehicle. McClurg Decl., ¶25, Ex. 5. MBVT’s records reflecting conversations with Defendants Califit and Patin, and with recovery adjusters, show that the Vehicle is presently located at Defendant German Tek’s business of 5332 Topanga Canyon Blvd., Woodland Hills, CA, 91364. McClurg Decl., ¶27. Defendant German Tek refuses to surrender possession of the Vehicle. McClurg Decl., ¶27.

The Kelley Blue Book valuation of the Vehicle is approximately $24,699. McClurg Decl., ¶28, Ex. 6.

Defendant German Tek’s interest in the Vehicle is $4,210 for alleged repair, towing, and storage fees at the daily rate of $225 from May 24, 2023. McClurg Decl., ¶29. MBVT will be posting a bond as to German Tek in the amount of $9,000, which is more than twice the amount of its interest, and requests that German Tek be required to post a re-delivery bond in the sum of $25,000. McClurg Decl., ¶29.

Plaintiff MBVT seeks a writ of possession and turnover order for the Vehicle against Defendant German Tek. No opposition is on file.

MBVT presents evidence that it owns the Lease and the Vehicle. McClurg Decl., Ex. 2. A body shop, German Tek, possesses the Vehicle and MBVT has demanded the Vehicle at least once to no effect. McClurg Decl., ¶27.

A person performing repairs has a lien on a vehicle for the services and for storage subject to limitations. Civil Code §3068(a). The lien arises after a written statement for charges is given to the vehicle’s registered owner or 15 days after the work or services are completed. Ibid.

A lien in excess of $1500 for work performed, and in excess of $1025 for any storage of the vehicle, is invalid unless written consent of the vehicle’s legal owner or lessor was obtained before the work was performed or the storage occurred. Civil Code §3068(c)(1). The term “legal owner” is defined as a person holding a security interest in a vehcile which is subject to UCC. Civil Code §3067; Vehicle Code §370. The lien shall be extinguished if the vehicle’s legal owner or lessor tenders, by cashier’s check or cash, the amount for storage, safekeeping, or parking space rental to which the lienholder is entitled under Civil Code section 3068(c).

The lien is extinguished unless the lienholder either applies to the DMV for an authorization to conduct the sale or files a court action within 30 days after the lien arises. Civil Code §3068(b)(1)(A). The lienholder shall apply to the DMV for authorization to conduct a liens sale for any vehicle with a value more than $4000. Civil Code §3071(a). For a vehicle valued at $4000 or less, the lienholder shall apply to the DMV for the names and addresses of the registered and legal owners and notify them of a pending lien sale. Civil Code §3071(a), (b). If the DMV receives a timely Declaration of Opposition form, it shall notify the lienholder within 16 days of receipt of the form that a lien sale shall not be conducted unless the lienholder files an action in court within 30 days of the DMV’s notice. Civil Code §3071(d). Any lien sale shall be void if the lienholder does not comply with this requirement. Civil Code §3071(l).

Defendant German Tek’s notice of lien sale shows that Defendants Califit and Patin owe German Tek a lien sale cost ($70), repair costs ($250), towing costs ($585) and storage ($3,375, incurred at the daily rate of $225). McClurg Decl., ¶19, Ex. 5. MBVT never authorized or consented to these charges before they were incurred as required by Civil Code section 3068(c)(1). MBVT has offered German Tek the statutory maximum repair and storage charges totaling the statutory maximum sum of $1,275 ($250 in alleged repairs and $1,025 for storage) pursuant to Civil Code section 3068 but German Tek has not accepted. McClurg Decl., ¶22; Caley Decl., ¶¶ 4-5. German Tek’s lien is therefore void. Civil Code §3068(c); Universal CIT Credit Corp. v. Rater, (1963) 214 Cal.App.2d 493, 495.

There is probable cause to believe that the Vehicle is located at German Tek’s business of 5332 Topanga Canyon Blvd., Woodland Hills, CA, 91364. McClurg Decl., ¶27. MBVT may post a bond as to German Tek in the amount of $9,000. German Tek be required to post a re-delivery bond in the sum of $25,000.[2]

The application for a writ of possession and turnover order against Defendant German Tek is granted. A levying officer may enter German Tek’s address of 9625 South Alameda Street, Los Angeles, CA 90002 to seek possession 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).

[2] As for Califit and Plain, MBVT is entitled to immediate possession under its Lease with Califit and Palin. McClurg Decl., ¶24, Ex. 1. Defendants Califit and Plain have no legal interest in the Vehicle and no undertaking is required. CCP §515.010(b).