Judge James C. Chalfant, Case Number: 24STLC06493, Date: 2024-11-19 Tentative Ruling

PNC Bank v. Sarbjit Singh and Isaura Singh, 24STLC06493

Tentative decision on application for writ of possession:

PNC Bank (“Bank”) seeks a writ of possession against Defendants Sarbjit Singh (“Sarbjit”) and Isaura Singh (“Isaura”).

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

On September 9, 2024, Plaintiff filed the Complaint against Defendants Sarbjit and Isaura alleging claims for breach of contract, claim and delivery, conversion, account stated, and breach of guaranty.

On or about December 26, 2017, Plaintiff Bank and Defendant Sarbjit entered into a written Loan and Security (“Agreement”) for the purchase of a 2018 Great Dane Reefer Trailer, VIN 1GRAA062XJW122251 (“Equipment”). Thereafter, Bank performed all the terms and conditions of the Agreement required of it.

To induce Bank to furnish the Equipment, Sarbjit and Isaura each executed a Personal Guaranty (“Guaranty”) of all of Sarbjit’s obligations, including those under the Agreement in favor of Bank.

Bank obtained a Certificate of Title and filed a UCC Financing Statement with the California Secretary of State, thereby perfecting its security interest in the Equipment.

On or about October 1, 2023, Sarbjit failed to make the payment due under the Agreement and has failed to make any further payments due thereafter. Pursuant to the Agreement, Plaintiff has elected to accelerate the remaining contract balance. The contract balance at the time of default was $5,103.92. Additionally, pursuant to the terms of Agreement, Sarbjit is liable for late charges of $510.40 and a site visit/repossession fee of $500 in a total amount to be determined at trial. Additionally, default interest accrues at the rate of 18% per annum.

The unpaid total balance now due, owing, and unpaid from Sarbjit under the Agreement is $6,114.32, together with interest thereon at the rate set forth in Agreement in a total according to proof at the time of trial.

Defendants were served by substitute service on October 29, 2024, with service effective on November 8, 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).

Bank’s business records are made and kept in a careful and businesslike fashion. McGinley Decl., ¶3. Entries are made on these records, at or about the time a payment or charge is made on an account, by a person with knowledge of said events. McGinley Decl., ¶3. It is the business practice of Bank to make and keep careful records of all charges and payments on its accounts and these records are audited regularly to preserve their accuracy. McGinley Decl., ¶3.

On or about December 26, 2017, Defendant Sarbjit entered into the (“Agreement”) with Bank for the purchase of the Equipment. McGinley Decl., ¶5, Ex. 1. Thereafter, Bank performed all the terms and conditions of the Agreement required to be performed by it. McGinley Decl., ¶6.

Bank obtained a Certificate of Title and filed a UCC Financing Statement with the California Secretary of State, thereby perfecting its security interest in the subject. McGinley Decl., ¶6, Ex. 2.

On or about October 1, 2023, Defendant Sarbjit failed to make the payment due under the Agreement and has failed to make any further payments due thereafter. McGinley Decl., ¶7. Pursuant to the terms of Agreement, Bank has elected to accelerate the remaining contract balance due under Agreement. McGinley Decl., ¶8. The contract balance at the time of default was $5,103.92. McGinley Decl., ¶8. Additionally, pursuant to the terms of Agreement, Defendant Sarbjit is liable for late charges of $510.40 and a site visit/repossession fee of $500 in a total amount to be determined at the time of trial. McGinley Decl., ¶9. Default interest accrues at the rate of 18% per annum. McGinley Decl., ¶9. The unpaid total balance now due, owing, and unpaid from Defendant Sarbjit under the Agreement is currently $6,114.32, together with interest thereon in a total according to proof at the time of trial. McGinley Decl., ¶10.

The Agreement also provides for the payment of all expenses incurred in connection with the enforcement of any of Plaintiff’s remedies, including reasonable attorney’s fees. McGinley Decl., ¶14.

To induce Plaintiff to furnish the Equipment to Defendant Sarbjit, Defendants Sarbjit and Isaura each executed a Guaranty of all of Sarbjit’s obligations under the Agreement. McGinley Decl., ¶12, Ex. 3.

Sarbjit and Isaura are indebted to Bank in the sum of $6,114.32, including late fees of $510.40, a site visit/repossession fee of $500 and interest on the principal at the rate of 18%. McGinley Decl., ¶13. The Guaranty also provides for the payment of all expenses incurred in connection with the enforcement of any of Plaintiff's remedies under the Agreement, including reasonable attorney's fees. McGinley Decl., ¶14.

As part of the terms of the Agreement, Sarbjit granted a security interest in the Equipment. McGinley Decl., ¶15. Upon default, Bank is entitled to recover the Equipment but has been unable to do so. McGinley Decl., ¶16. Bank is informed and believes that the Equipment is in possession or under the control of the Sarbjit and/or Isaura at 2726 Chicory Lane, Palmdale, CA 93551 or another location known to Defendants. McGinley Decl., ¶¶ 17-18.

Bank’s employee is required to know that the market price for used Equipment and to keep in constant contact with equipment re-marketers. McGinley Decl., ¶23. Based upon his experience, the fair market value of the Equipment is the amount of $20,000. McGinley Decl., ¶23. His opinion of the Equipment’s value is based upon its original price, the equipment age, and forecast of current market values, his conversations with various equipment vendors and based upon his experience in equipment leasing. McGinley Decl., ¶23.

Plaintiff Bank seeks a writ of possession for the Equipment against Defendants. No opposition is on file.

On or about December 26, 2017, Defendant Sarbjit entered into the Agreement with Bank for the purchase of the Equipment. McGinley Decl., ¶5, Ex. 1. Thereafter, Bank performed all the terms and conditions of the Agreement required to be performed by it. McGinley Decl., ¶6.

Bank obtained a Certificate of Title and filed a UCC Financing Statement with the California Secretary of State, thereby perfecting its security interest in the subject. McGinley Decl., ¶6, Ex. 2.

On or about October 1, 2023, Defendant Sarbjit failed to make the payment due under the Agreement and has failed to make any further payments due thereafter. McGinley Decl., ¶7. Pursuant to the terms of Agreement, Bank has elected to accelerate the remaining contract balance due under Agreement. McGinley Decl., ¶8. The contract balance at the time of default was $5,103.92. McGinley Decl., ¶8. Additionally, pursuant to the terms of Agreement, Defendant Sarbjit is liable for late charges of $510.40 and a site visit/repossession fee of $500 in a total amount to be determined at the time of trial. McGinley Decl., ¶9. The unpaid total balance now due, owing, and unpaid from Defendant Sarbjit under the Agreement is currently $6,114.32, together with interest thereon in a total according to proof at the time of trial. McGinley Decl., ¶10.

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 Bank fails to meet this particularity requirement to support the amount owed as $6,114.32. No loan 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.

Plaintiff 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 Equipment’s fair market value is $20,000. McGinley Decl., ¶24. The unpaid principal balance is currently $6,114.32. McGinley Decl., ¶10.

The market value exceeds the amount owed by $13,886. Bank’s undertaking shall be $27,771. The re-delivery bond also shall be $27,771. CCP §515.020(a).

There is probable cause to believe the Equipment is currently located at 2726 Chicory Lane, Palmdale, CA 93551. McGinley Decl., ¶19. This is the address for Defendants on the Agreement. 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 Sarbjit and Isaura are granted. Bank’s undertaking shall be $27,771. The re-delivery bond also shall be $27,771. Plaintiff has provided proposed orders stamped “Courtesy Copy” and must provide clean versions with the correct undertaking numbers within two court days or they will be deemed as waived.

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