Judge: Joel L. Lofton, Case: 22AHCV00200, Date: 2022-07-27 Tentative Ruling
Case Number: 22AHCV00200 Hearing Date: July 27, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE: July 27, 2022 TRIAL DATE: No date set.
CASE: VW CREDIT INC., a corporation dba VW CREDIT LEASING, LTD, v. CARLY B. CARRILLO aka CARLY CARRILLO, an individual; JAIME ZARATA, individually and dba EXCLUSIVE MOTORING; CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, a California Governmental Agency, DOES 1 through 10, inclusive.
CASE NO.: 22AHCV00200
APPLICATION FOR WRIT OF POSSESSION
MOVING PARTY: Plaintiff VW Credit Inc.
RESPONDING PARTY: No response filed.
SERVICE: Filed May 2, 2022
RELIEF REQUESTED
Plaintiff files an application for a writ of possession for a 2017 Audi A7, Vehicle Identification Number WAUW2AFC9HN122217.
BACKGROUND
This case arises out of Plaintiff VW Credit Inc.’s (“Plaintiff”) claim that Defendant Carly B. Carrillo (“Carrillo”) defaulted on the lease of a 2017 Audi A7 (“Subject Vehicle”). Plaintiff alleges it was assigned the written contract and is the owner of the Subject Vehicle. Plaintiff alleges that Carrillo defaulted on May 18, 2021, and currently owes $49,130.78. Plaintiff alleges that Carrillo transferred the Subject Vehicle to Defendant Jamie Zarata, individually and doing business as Exclusive Motoring (collectively referred to as “Exclusive Motoring”). Plaintiff alleges that the Subject Vehicle has accrued fees in excess of $26,710.00.
Plaintiff filed this complaint on April 6, 2022, alleging five causes of action for (1) claim and delivery of personal property, (2) money due on a contract, (3) conversion, (4) quiet title, and (5) declaratory relief.
TENTATIVE RULING
Plaintiff's application for writ of possession is GRANTED.
LEGAL STANDARD
“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc. section 512.010, subd. (a).)
“The application shall be executed under oath and shall include all of the following: [¶] (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 basis of the plaintiff’s claim is a written instrument, a copy of the instrument shall be attached. [¶] (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. [¶] (3) A particular description of the property and a statement of its value. [¶] (4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there. [¶] (5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.” (Code Civ. Proc. section 512.010, subd. (b).)
“Prior to the hearing required by subdivision (a) of Section 512.020, the defendant shall be served with all of the following: [¶] (1) A copy of the summons and complaint. [¶] (2) A Notice of Application and Hearing. [¶] (3) A copy of the application and any affidavit in support thereof.” (Code Civ. Proc. section 512.030, subd. (a).)
DISCUSSION
Requirements of Code of Civil Procedure Section 512.010
Here, Plaintiff provides that the basis of its claim is a written contract for the Subject Vehicle that was assigned to Plaintiff. (Perez Decl. ¶ 7, Exhibit A.) Plaintiff also establishes it is entitled to possession of the Subject Vehicle by attaching the California Certificate of Title, which provides that Plaintiff is the registered owner of the Subject Vehicle. (Id. ¶ 7, Exhibit B.) Plaintiff also provides that Exclusive Motoring gained possession of the vehicle when Carrillo transferred the vehicle to it for repair or storage. (Id. ¶ 10.) Plaintiff provides that Exclusive Motoring has applied to the California Department of Motor Vehicles for approval to conduct a lien sale. (Id. ¶ 11.) Plaintiff provides that Exclusive Motoring has refused Plaintiff’s offer to pay the maximum under Civil Code section 3068. (Id. ¶ 13, Exhibit C.)
Plaintiff provides the Subject Vehicle is a 2017 Audi A7 with the Vehicle Identification Number of WAUW2AFC9HN122217 (Perez Decl. ¶ 7) worth approximately $37,975.00 wholesale and $43,150.00 retail (Id. ¶ 14). Perez provides that, to her best knowledge, the Subject Vehicle is either located at Carrillo’s residence or Exclusive Motoring’s principal place of business. (Id. ¶ 18.) Plaintiff provides that the Subject Property has not been taken for a tax, assessment, or fine and has not been seized under an execution against Plaintiff’s property. (Application at p. 2, ¶ 8.)
Plaintiff has complied with the requirements of Code of Civil Procedure section 512.010.
Service Under Code of Civil Procedure Section 512.030
Plaintiff files a proof of statement showing that the documents required to be served under Code of Civil Procedure section 512.030 were served on Jamie Zarata, individually and doing business as Exclusive Motoring. Plaintiff does not provide a proof of servicing showing that Carrillo was served the documents.
Undertaking
“At the hearing, a writ of possession shall issue 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. [¶] (2) The undertaking requirements of Section 515.010 are satisfied.” (Code Civ. Proc. section 512.060.)
CONCLUSION
Dated: July 27, 2022 ___________________________________
Joel L. Lofton
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the court indicating their