Judge James C. Chalfant, Case Number: 25STCV09823, Date: 2025-06-10 Tentative Ruling

Marlin Leasing Corporation v. Gold Trans Group LA Inc., et al., 25STCV09823

Tentative decision on applications for writ of possession: continued or denied

Plaintiff Marlin Leasing Corporation (“Marlin”) seeks writs of possession against Defendants Gold Trans Group LA Inc. (“Gold Trans”), Super Secure Logistics, Inc., (“Super Secure”), and Elenor M. Miller (“Miller”) as trustee of the Elenor M. Miller Trust (“Miller Trust”) to recover a 2020 FP230 Quiet Diesel Generator (“Generator”).

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

On April 2, 2025, Plaintiff Marlin filed the Complaint against Defendants Gold Trans, Super Secure, and Miller alleging causes of action for claim and delivery and conversion. The Complaint alleges in pertinent part as follows.

On or about July 13, 2023, Marlin and Gold Trans entered a written Equipment Lease Agreement (“Agreement”) whereunder Marlin agreed to finance Gold Trans’ purchase of the Generator in exchange for monthly $1,972.30 payments. Compl., ¶6, Ex. 1.

Marlin subsequently performed all its obligations under the Agreement. Compl., ¶7. Marlin perfected its interested in the Generator by filing a UCC Financing Statement with the California Secretary of State. Compl., ¶7, Ex. 2.

Gold Trans failed to make all monthly payments and last paid in August of 2023. Compl., ¶8.

Marlin exercised its option under the Agreement to accelerate the balance, and accordingly the entire $130,139.04 balance is now due. Compl., ¶¶ 9-10. The Agreement specifies interest at 18% annually on the unpaid principal balance. Compl., ¶¶ 9-10.

Marlin is entitled to immediate possession of the Generator. Compl., ¶14. Defendants were and are fully aware of Marlin’s right to possession of the Generator. Compl., ¶21. Marlin has demanded that Defendants return the Generator, but they have not done so. Compl., ¶15. The Generator was not taken from Marlin for tax, assessment, or fine pursuant to statute, nor seized under execution against Marlin. Compl., ¶16.

Marlin believes the Generator is in the possession of Gold Trans or Super Secure and located on property owned by Miller as trustee of the Miller Trust at 6467 E. Washington Blvd., Commerce, California 90040. Compl., ¶¶ 12-13.

Marlin seeks possession of the Generator, or its market value in case it is not returned, any deficiency after sale or non-return, costs of suit, and such other and further relief the court may deem just and proper. Compl. at 5.

On April 7, 2025, Plaintiff Marlin filed the applications for writs of possession against Defendants Gold Trans, Super Secure, and Miller.

Proofs of service on file show Plaintiff Marlin served the Summons, Complaint, and moving papers on Defendant Gold Trans by substituted service on April 14, 2025, on Defendant Super Secure by substituted service on April 16, 2025, and on Defendant Miller by substituted service on April 16, 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).

On or about July 13, 2023, Marlin and Gold Trans entered a written Equipment Lease Agreement (“Agreement”) whereunder Marlin agreed to finance the purchase of the Generator in exchange for 60 monthly $1,972.30 payments. Ercolino Decl., ¶3, Ex. 1.[2]

Marlin performed all its obligations under the Agreement. Ercolino Decl., ¶4. Marlin perfected its interested in the Generator by filing a UCC Financing Statement with the California Secretary of State. Ercolino Decl., ¶4, Ex. 2.

Gold Trans failed to make monthly payments, and failed to become current in payments. Ercolino Decl., ¶5. Gold Trans last paid in August of 2023. Ercolino Decl., ¶5.

Marlin exercised its option under the Agreement to accelerate the balance, and accordingly the entire $130,139.04 balance is now due. Ercolino Decl., ¶¶ 6-7. The Agreement specifies interest at 18% annually on the unpaid principal balance. Ercolino Decl., ¶¶ 6-7.

Marlin is entitled to immediate possession of the Generator. Ercolino Decl., ¶11. Marlin has demanded Defendants return the Generator, but they have not returned it. Ercolino Decl., ¶¶ 12, 14, 16. The Generator was not taken from Marlin for tax, assessment, or fine pursuant to statute, nor seized under execution against Marlin. Ercolino Decl., ¶¶ 13, 15.

Marlin believes the Generator is in the possession of Gold Trans or of Super Secure and located on property owned by Miller as trustee of the Miller Trust, at 6467 E. Washington Blvd., Commerce, California 90040. Ercolino Decl., ¶¶ 9-10.

The estimated fair market value of the Generator is $85,000. Ercolino Decl., ¶18.

Plaintiff Marlin applies for an order for a writ of possession against, and turnover order for the Generator from Defendants Gold Trans, Super Secure, and Miller. No opposition is on file.

An application for a writ of possession is a law and motion matter. CRC 3.1103(a)(2). All law and motion matters require a memorandum of points and authorities detailing the basis for the motion. CRC 3.1113(a). The absence of a memorandum may be construed as an admission that the motion is not meritorious. CRC 3.1113(a).

Plaintiff Marlin failed to file a supporting memorandum of points and authorities with its application.

Marlin presents evidence that, on or about July 13, 2023, Marlin and Gold Trans entered into the Agreement to purchase the Generator for 60 monthly payments of $1,972. Ercolino Decl., ¶¶ 6-7, Ex. 1. Marlin perfected its interest by filing a UCC Financing Statement with the California Secretary of State. Ercolino Decl., ¶4, Ex. 2.

After August of 2023, Gold Trans defaulted under the Agreement by failing to make a payment. Ercolino Decl., ¶5. Marlin has demanded all Defendants turn over the Generator, but Defendants have not done so. Ercolino Decl., ¶¶ 12, 14, 16. Gold Trans owes $130,139.04. Ercolino Decl., ¶¶ 6-7. The Generator is in the possession of Gold Trans or Super Secure and is located on property belonging to Miller. Ercolino Decl., ¶9.

The declaration supporting 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).

Marlin fails to support its conclusion that Gold Trans owes $130,139.04 by attaching a payment history or any calculation of the amount owed. This is important for the calculation of Gold Trans’ interest in the Generator, if any, and the undertaking.

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.

According to Marlin, Gold Trans owes $130,139.04. Ercolino Decl., ¶¶ 6-7. The Generator’s current market value is estimated at $85,000. Ercolino Decl., ¶18. If this conclusion were supported, the value of the Generator is less than the balance owed by Gold Trans, and it would have no equity in the Generator. Skeen Decl., ¶23. No undertaking would be required. The re-delivery bond would be $130,139.04. CCP §515.020(a).

On information from Defendants and from Marlin’s repossession agents, Marlin believes that the Generator is located at 6467 E. Washington Blvd., Commerce, California 90040. Ercolino Decl., ¶¶ 9-10. The levying officer may enter this location to recover the Generator. CCP §512.060(b).

The applications for order for a writ of possession against Defendants Gold Trans, Super Secure, and Miller denied or continued for Marlin to cure the defects noted of (a) no memorandum, (b) almost illegible Agreement, and (c) no payment history. If the defects are cured, Marlin’s undertaking will be waived and the re-delivery bond shall be $130,139.04.

[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 Agreement in Exhibit 1 is almost illegible.