Judge James C. Chalfant, Case Number: 24STLC07241, Date: 2025-02-20 Tentative Ruling

Ally Bank v. Lock & Load Trucking Services, LLC, et. al.

24STLC07241
Tentative decision on application for writ of possession: granted

Plaintiff Ally Bank seeks a writ of possession against Defendants Lock & Load Trucking Services, LLC (“Lock & Load”) and Ryan Walton (“Walton”), to recover a 2018 Kenworth T680 motor vehicle, Vehicle Identification No. 1XKYDP9X8JJ200740 (“Vehicle”).

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

On October 7, 2024, Plaintiff Ally Bank filed the verified Complaint against Defendants Lock & Load and Walton alleging causes of action for writ of possession (claim and delivery). The Complaint alleges in pertinent part as follows.

Lock & Load defaulted under the Contract in that if failed to make the payment due on April 3, 2024 in the sum of $627.16, and all the regular monthly payments of $1,127.71 due thereafter.

As of September 4, 2024, and there is due and owing under the Contract the sum of $11,806.16, together with other charges as provided in the Contract. Compl., ¶8. Under the terms of the Contract, Ally Bank may immediate possession of the Vehicle. Compl., ¶9. Before filing suit, Plaintiff demanded surrender of the Vehicle but Defendants have not returned it. Compl., ¶14.

A proof of service on file shows that Defendant Walton was personally served with Summons, Complaint, and the moving papers on November 27, 2024.

A proof of service on file shows that Defendant Lock & Load was served with Summons, Complaint, and the moving papers by substitute service effective January 24, 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, (“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).

Pursuant to an assignment in writing, Ally Bank became the owner of the Contract pursuant to which Lock & Load purchased the Vehicle from Ally Bank’s assignor, Rush Truck Center-Dallas. Lock & Load agreed to pay all amounts due to Ally Bank. Defendant Ryan Walton signed a personal guaranty. Singleton Decl., ¶5, Ex. A.

The Contract is in default in that Defendants failed to make the payment due and owing on April 3, 2024 in the sum of $627.16 or any of the regular monthly payments of $1,127.71 due thereafter. As of September 4, 2024, and there is, owing, and unpaid to Plaintiff on account of the Contract the sum of $11,806.16, together with other charges as provided in the Contract. Singleton Decl., ¶6, Ex. D.

A demand was made to Defendants to return the Vehicle, but it has not been returned. Singleton Decl., ¶6, Ex. C.

The JD Power report for September 2024 states that the average wholesale and retail values of the Vehicle were $27,750.00 and $36,500.00, respectively. Singleton Decl., ¶7, Ex. E.

Although Ally Bank made demand, Defendants have failed and refused to surrender the Vehicle to Plaintiff. Singleton Decl., ¶8. If the Vehicle has been taken on account of tax, assessment, or fine, or has been seized, Singleton has no knowledge of it. Singleton Decl., ¶9.

Ally Bank’s file reflects that Defendants have possession of the Vehicle. Ally Bank’s file reflects that Defendant Lock & Load’s principal place of business is at 301 East Arrow Highway, Ste 101 #505, San Dimas, CA 91773 and 630 S Indian Hill Blvd., #1, Claremont, CA 91711. Defendant Walton resides at 1850 Canyon Way, Pomona, CA 91768. Ally Bank believes the current location of the Vehicle is one of these three addresses. Singleton Decl., ¶10.

Plaintiff Ally Bank applies for an order for a writ of possession for the Vehicle against Defendants Lock & Load and Walton. No opposition is on file.

Pursuant to the Contract, Lock & Load purchased the Vehicle from Rush Truck Center-Dallas. The Contract was assigned to Plaintiff Ally Bank and Lock & Load agreed to pay all amounts due. Defendant Ryan Walton signed a personal guaranty. Singleton Decl., ¶5, Ex. A.

The Contract is in default in that Defendants failed to make the payment due and owing on April 3, 2024 in the sum of $627.16 or any of the regular monthly payments of $1,127.71 due thereafter. The payment history shows that, as of September 4, 2024, and there is, owing, and unpaid the sum of $11,806.16, together with other charges as provided in the Contract. Singleton Decl., ¶6, Ex. D.

A demand was made to Defendants to return the Vehicle, but it has not been returned. Singleton Decl., ¶6, Ex. C.

Ally 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 retail value is $36,500. Singleton Decl., ¶7, Ex. E. The unpaid Contract balance is $11,806.16. Singleton Decl., ¶6, Ex. D.

The market value exceeds the amount owed by $24,694. Ally Bank’s undertaking shall be $49,3487. The re-delivery bond also shall be $49,387. CCP §515.020(a).

The Vehicle is currently located at one of three addresses: 301 East Arrow Highway, Ste 101 #505, San Dimas, CA 91773 and 630 S Indian Hill Blvd., #1, Claremont, CA 91711. Singleton Decl., ¶10. The levying officer may enter these locations to recover the Vehicle. CCP §512.060(b).

The applications for an order for writ of possession against Defendants Lock & Load and Walton are granted. shall be $49,3487. The re-delivery bond also shall be $49,387. Ally Bank has not submitted a proposed order for writ of possession and must do so within two court days or it will be waived.

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