Judge James C. Chalfant, Case Number: 24STLC04293, Date: 2024-08-29 Tentative Ruling

PNC Bank, National Association v. Pepe’s Transport, Inc., et al., 24STLC04293

Tentative decision on application for writ of possession: granted

Plaintiff PNC Bank, National Association (“PNC Bank”) seeks a writ of possession and turnover order against Defendants Pepe’s Transport, Inc. (“Pepe’s Transport”) and Jose Gonzalez Roma (“Roma”) to recover a 2019 Vanguard Dry Van Trailer with VIN 5V8VC532KT912579 (“Vehicle”).

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

On June 14, 2024, Plaintiff PNC Bank filed the Complaint against Defendants Pepe’s Transport and Roma, alleging causes of action for (1) breach of written agreement, (2) claim & delivery, (3) conversion, (4) account stated, and (5) breach of guaranty. The Complaint alleges in pertinent part as follows.

On or about April 1, 2019, Pepe’s Transport and PNC Bank entered into a written Loan and Security Agreement (“Agreement”) for the purchase of the Vehicle. Compl., ¶7, Ex. 1. PNC Bank performed all of the terms and conditions of the Agreement required to be performed by it. Compl., ¶8. PNC Bank obtained title documents to the Vehicle. Compl., ¶8, Ex. 2. PNC Bank delivered the Vehicle to Pepe’s Transport. Compl., ¶9.

On or about September 1, 2023, Pepe’s Transport failed to make the payment due on the Agreement and has failed to make any further payments due under the Agreement. Compl., ¶10. PNC Bank has elected to accelerate the remaining contract balance and the future purchase option due under Agreement. Compl., ¶11. The contract balance at the time of default was $6,567.93. Compl., ¶11.

Pursuant to the terms of the Agreement, Pepe’s Transport is liable for late charges of $727.45, a repossession fee of $500, NSF Fees in the sum of $100, insurance fee of $351.05, and other fees and costs accruing thereunder in a total amount to be determined at the time of trial. Compl., ¶12. Pursuant to the terms of the Agreement, the default interest accrues at the rate of 18% per annum. Compl., ¶12.

The unpaid total principal balance is currently $6,567.93, together with interest thereon at the rate set forth in Agreement. Compl., ¶13.

The Agreement also provides for the payment of all expenses incurred in connection with the enforcement of any of PNC Bank’s remedies under the Agreement, including reasonable attorney’s fees. Compl., ¶14.

The Vehicle is currently located at 2403 ¼ Palm Place, Huntington Park, CA 90255 or such other location known to Pepe’s Transport. Compl., ¶19. PNC Bank is entitled to immediate possession of the Vehicle. Compl., ¶20. PNC Bank has made demand upon Pepe’s Transport for the return of the Vehicle, but the same has not been delivered to PNC Bank, thus is wrongfully retained by Defendants. Compl., ¶21.

The Vehicle was not taken from PNC Bank for a tax assessment, or fine, pursuant to statute, or seized under execution against PNC Bank. Compl., ¶22.

PNC Bank seeks (1) sum of $6,567.93; (2) interest on the principal at the default rate of 18% per annum from October 1, 2023; (3) late charges of $727.45, a repossession fee of $500, NSF Fees in the sum of $100.00, insurance fee of $351.05, plus interest thereon at the rate of 18% per annum; (4) reasonable attorney’s fees; (5) an order requiring Pepe’s Transport to release the Vehicle to PNC Bank; (6) recovery of the fair market value of the Vehicle in case delivery cannot be had; (7) fair compensation for the time and money expended in pursuit of the Vehicle; (8)costs incurred herein; and (9) other and further relief as the Court may deem just and proper. Compl., at Prayer.

On July 17, 2024, Plaintiff PNC Bank filed proofs of service of the Complaint and Summons, and moving papers on Defendants Pepe’s Transport and Roma by substitute service through Elvira “Doe”, person in charge/co-occupant.

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 April 1, 2019, Defendant Pepe’s Transport entered into a written Loan and Security Agreement (“Agreement”) with Plaintiff PNC Bank for the purchase of a 2019 Vanguard Dry Van Trailer (“Vehicle”). McGinley Decl., ¶5, Ex. 1. PNC Bank performed all of the terms and conditions of the Agreement required to be performed by it. McGinley Decl., ¶6. PNC Bank obtained title documents to the Vehicle. McGinley Decl., ¶6, Ex. 2. PNC Bank delivered the Vehicle to Pepe’s Transport. McGinley Decl., ¶7.

On or about September 1, 2023, Pepe’s Transport failed to make the payment due on the Agreement and has failed to make any further payments due under the Agreement. McGinley Decl., ¶8. PNC Bank has elected to accelerate the remaining contract balance at the time of default in the sum of $6,567.93 and the future purchase option due under Agreement. McGinley Decl., ¶9.

Pursuant to the terms of the Agreement, Pepe’s Transport is liable for late charges of $727.45, a repossession fee of $500, NSF Fees in the sum of $100, insurance fee of $351.05, and other fees and costs accruing thereunder. McGinley Decl., ¶10. Pursuant to the Agreement, the default interest accrues at the rate of 18% per annum. McGinley Decl., ¶10.

The unpaid total principal balance is currently $6,567.93, together with interest thereon at the rate set forth in Agreement. McGinley Decl., ¶11.

Defendant Roma executed a Personal Guaranty (“Guaranty”) of all of Defendant’s obligations including those under the Agreement in favor of PNC Bank. McGinley Decl., ¶13, Ex. 3.

The Vehicle is currently located at 2403 ¼ Palm Place, Huntington Park, CA 90255 or such other location known to Pepe’s Transport. McGinley Decl., ¶19. PNC Bank is entitled to immediate possession of the Vehicle. McGinley Decl., ¶20. PNC Bank has made demand upon Defendants for the return of the Vehicle, but the same has not been delivered to PNC Bank, thus is wrongfully retained by Defendants. McGinley Decl., ¶21.

The Vehicle was not taken from PNC Bank for a tax assessment, or fine, pursuant to statute, or seized under execution against PNC Bank McGinley Decl., ¶22.

The Vehicle’s fair market value is $20,000 based on the original price, equipment age, forecast of current market values, PNC Bank’s conversation with various equipment vendors, and PNC Bank’s experience in equipment leasing. McGinley Decl., ¶24.

Plaintiff PNC Bank applies for an order for a writ of possession against, and turnover order for the Vehicle from, Defendants Pepe’s Transport and Roma. No opposition is on file.

Plaintiff PNC Bank financed the purchase of the Vehicle pursuant to the Agreement. McGinley Decl., ¶5, Ex. 1. PNC Bank obtained title documents to the Vehicle. McGinley Decl., ¶6, Ex. 2. PNC Bank delivered the Vehicle to Pepe’s Transport. McGinley Decl., ¶7.

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).

PNC Bank fails to meet this particularity requirement to support the amount owed as $6,456.93. No loan history or evidentiary detail is provide 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.

PNC 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 Vehicle’s fair market value is $20,000. McGinley Decl., ¶24. The unpaid principal balance is currently $6,567.93. McGinley Decl., ¶11.

The market value exceeds the amount owed by $13,424. PNC Bank’s undertaking shall be $26,848. The re-delivery bond also shall be $26,848. CCP §515.020(a).

The Vehicle is currently located at 2403 ¼ Palm Place, Huntington Park, CA 90255, which is the address of Pepe’s Transport on the Agreement. McGinley Decl., ¶19, Ex. A. 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 Pepe’s Transport and Roma are granted. PNC Bank’s undertaking shall be $26,848. The re-delivery bond also shall be $26,848.

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