Judge James C. Chalfant, Case Number: 24STLC04511, Date: 2024-11-07 Tentative Ruling

John Deere Construction and Forestry Company v. LFG Arbor Care, Inc. and Luis Fernando Garcia, 24STLC04511

Tentative decision on application for writ of possession: granted

Plaintiff John Deere Construction and Forestry Company (“John Deere”) seeks a writ of possession against Defendant LFG Arbor Care, Inc. (“Arbor”) and Luis Fernando Garcia (“Garcia”) to recover a VERMEER SC-382 STUMP CHIPPERS ID:1VRU112BCN1001542 ("Equipment”).

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

On June 24, 2024, Plaintiff John Deere filed the Complaint against Defendants Arbor and Garcia, alleging causes of action for breach of contract and claim and delivery. The Complaint alleges in pertinent part as follows.

On April 25, 2022, Defendants executed a Retail Installment Contract- Security Agreement (“Contract”) with Plaintiff for the purchase of the Equipment. Defendants promised to pay the financed amount of $38,825.97, payable by thirty-six (36) equal monthly payments of $1,270.50 beginning May 25, 2022. The Contract provides that, in the event of a default, the entire unpaid balance may be declared immediately due and payable at the option of the holder.

On April 25, 2023, Defendants defaulted in making the payments as agreed. By reason thereof, the entire unpaid balance of the Contract was declared due and payable. Plaintiff has performed all conditions and covenants of the Contract except those as excused by Defendants' breach. Despite the fact that demand has been made upon Defendants, no part thereof has been paid and there is now due and owing an unpaid balance of $33,466.72.

Plaintiff is entitled to return of the Equipment because Plaintiff has a security interest in the Equipment and the Contract is in default. Although Plaintiff has repeatedly requested that Defendants surrender the Equipment, Defendants have refused to do so.

Proofs of service on file show that (1) Defendant Arbor was served with Summons and Complaint by substitute service on August 6, 2024 and served with the moving papers by substitute service on October 10, 2024 and that (2) Defendant Garcia was served with Summons and Complaint by substitute service on July 22, 2024 and served with the moving papers by substitute service on October 10, 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, (“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).

Plaintiff's security interest in the Equipment was perfected by the filing of a UCC- 1 Financing Statement with the Secretary of State. Johnson Decl., ¶5; Johnson Decl., Ex. B. the Contract contains an acceleration clause. Johnson Decl., ¶6. In the event of default, Plaintiff may recover "the Account Balance as of the date of such default, without presentment or demand or notice of intention to declare all of that indebtedness immediately due and payable ...” Johnson Decl., ¶6; Johnson Decl., Ex. A.

On April 25, 2023, Defendants were in default on the payment obligations under the Contract. Johnson Decl., ¶7. Plaintiff declared the entire unpaid balance on the Contract due and payable pursuant to the acceleration clause in the Contract. Johnson Decl., ¶7. Plaintiff has performed all conditions and covenants of the Contract except those as excused by Defendants' breach. Johnson Decl., ¶7. Despite that the demand was made upon Defendants, no part thereof has been paid, and there is now due and owing an unpaid balance of $33,466.72. Johnson Decl., ¶7.

The total current retail value of the Equipment is estimated to be $28,284.00. Johnson Decl., ¶8. This estimate is based on internal data compiled by Plaintiff's remarketing department. Johnson Decl., ¶8. That data includes, but is not limited to, references to current sales of similar equipment in the market, historical sales and market conditions, and experience monitoring equipment repossession and sales of similar equipment. Johnson Decl., ¶8; Johnson Decl., Ex. C.

Plaintiff has a right to immediate possession of the Equipment pursuant to the terms of the Contract. Johnson Decl., ¶9. The Contract provides, "[w]e may determine you to be in default if: (a) you fail to remit to us any Installment Payment or other payment when due;…If we determine that you are in default, we may do one or more of the following: (d) require you to deliver the Equipment to us in the manner outlined below or take possession of the Equipment." Johnson Decl., ¶9; Johnson Decl., Ex. A.

Defendants acquired possession of the Equipment for business purposes, and it is not necessary for the support of the Defendants or Defendants' families because this type of equipment is widely available to rent, lease or purchase in the current market. Johnson Decl., ¶10.

Since the time of Defendants' default, Plaintiff repeatedly attempted to regain possession of the Equipment and Defendants have refused to surrender it. Johnson Decl., ¶12. On December 18, 2023, Plaintiff's repossession agents made contact with Defendant Garcia who finally agreed to surrender the Equipment. Johnson Decl., ¶12. The Equipment was present when Plaintiff's agents arrived at the 8526 International Avenue, Apt 62, Canoga Park, CA 91304 address to pick up the Equipment. Johnson Decl., ¶12. Thereafter, Defendant would not return Plaintiff's agent's phone calls. Johnson Decl., ¶12. The address for Defendants on the Contract is 8526 International Avenue, Apt 62, Canoga Park, CA 91304. Johnson Decl., ¶12.

Plaintiff John Deere applies for an order for a writ of possession of the Equipment against Defendants Arbor and Garcia.[2] No opposition is on file.

On April 25, 2022, Defendants executed a Contract with Plaintiff for the purchase and financing of the Equipment. Johnson Decl., ¶4; Johnson Decl., Ex. A. Defendants promised to pay the financed amount of $38,825.97. Johnson Decl., ¶4. Plaintiff has a security interest in the Equipment pursuant to the Contract. Johnson Decl., ¶5. Plaintiff's security interest in the Equipment was perfected by the filing of a UCC- 1 Financing Statement with the Secretary of State. Johnson Decl., ¶5; Johnson Decl., Ex. B.

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).

Plaintiff John Deere fails to meet this particularity requirement to support the amount owed as $33,466.72. 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.

Plaintiff John Deere 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 Equipment’s fair market value is $28,284. Johnson Decl., ¶8. The unpaid principal balance is currently $33,466,72.

The amount owed exceeds the market value exceeds the amount owed by $5182.72. No undertaking is required. The re-delivery bond will be $33,466.72. CCP §515.020(a).

John Deere presents evidence that the Equipment is located at 8526 International Avenue, Apt 62, Canoga Park, CA 91304. Johnson Decl., ¶12. The levying officer may enter this location to recover the Equipment. CCP §512.060(b).

The application for an order for a writ of possession of the Equipment against Defendants Arbor and Garcia is granted. No undertaking is required. The re-delivery bond shall be $33466.72.

[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 application is defective as it is jointly made against both Defendants. A separate application should have been made for each Defendant.