Judge: Joel L. Lofton, Case: 22AHCV00462, Date: 2022-09-21 Tentative Ruling


Case Number: 22AHCV00462    Hearing Date: September 21, 2022    Dept: X

   Tentative Ruling

 

Judge Joel L. Lofton, Department X

 

 

HEARING DATE:      September 21, 2022                            TRIAL DATE:  No date set.

                                                          

CASE:                         VW CREDIT, INC. v. XIUXIANG CHEN, an individual, and DOES 1 through 10, inclusive.  

 

CASE NO.:                 22AHCV00462

 

 

APPLICATION FOR WRIT OF POSSESSION

 

MOVING PARTY:              Plaintiff VW Credit, Inc.

 

RESPONDING PARTY:     No response filed.

 

SERVICE:                             Filed July 21, 2022

 

RELIEF REQUESTED

 

            Plaintiff files an application for writ of possession for a 2022 Audi Q8, Vehicle Identification Number WA1AVBF15ND009417.

 

BACKGROUND

 

            This case arises from Plaintiff VW Credit, Inc.’s (“Plaintiff”) claim that Defendant Xiuxiang Chen (“Defendant”) failed to make payments under a finance agreement for the sale of an Audi Q8, Vehicle Identification Number WA1AVBF15ND009417 (“Subject Vehicle”). Plaintiff alleges that Defendant agreed to make seventy-one consecutive payments of $1,309.35, beginning from February 21, 2022, through February 21, 2028. Plaintiff alleges that Defendant defaulted on the payments starting from March 21, 2022.

 

            Plaintiff filed this complaint on July 13, 2022, alleging two causes of action for (1) breach of contract and (2) claim and delivery.

 

TENTATIVE RULING

 

            Motion continued Oct 10, 2022, at 8:30 am.  Plaintiff’s application for writ of possession will be granted if plaintiff submits evidence that Audi Financial Services is a subsidiary of VW Credit Inc.

 

            Pursuant to Code of Civil Procedure section 515.020, Defendant may prevent Plaintiff from taking possession of the Subject Vehicle by filing an undertaking equal to $75,801.

 

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

 

            Plaintiff provides that Defendant was sold the vehicle by Audi Peoria. (Perez Decl. ¶ 6, Exhibit 1.) Plaintiff provides that the basis of its claim is as the lien holder of the Subject Vehicle and attaches the electronic title to the present motion. (Id. ¶ 7, Exhibit 2.)  However, exhibit 2 indicates that the title holder is Audi Financial Services, not the named Plaintiff VW Credit, Inc Plaintiff avers that Defendant obtained possession of the vehicle through the finance agreement. (Id. ¶ 8.) Plaintiff provides that Defendant defaulted on the agreement from March 21, 2022. (Id. ¶ 11.) Plaintiff provides that Defendant refused and failed to turn over the Subject Vehicle. (Id. ¶ 12.) Plaintiff estimates the value of the Subject Vehicle at $70,874, wholesale, and $75,801, retail. (Id. ¶ 14, Exhibit 3.)

 

            Plaintiff provides that it believes the Subject Vehicle is located at 694 Cecil Street, Monterey Park, CA 91755. (Id. ¶ 18.) Plaintiff provides that the property has not been taken for a tax, assessment, and fine. (Application ¶ 8.)

 

             

 

Service Under Code of Civil Procedure Section 512.030

 

            Plaintiff files a proof of substituted service showing that Defendant was served a copy of the summons, complaint, notice of application and hearing, a copy of the application, and the declaration.

 

Issues at Hearing

 

            “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.)

 

            Based on the attached agreement and the electronic title, the Court tentatively finds that Plaintiff has established the probable validity of its claim to possession of the Subject Vehicle (once the connection to the lien holder and Plaintiff has been established).   Further, Plaintiff asserts that because of Defendant’s default, Plaintiff was entitled to accelerate the total amount of the agreement. (Perez Decl. ¶ 15.) Plaintiff provides that Defendant thus owes Plaintiff $84,980. (Ibid, Exhibit 4.) Plaintiff asserts that based on the value of the Subject Vehicle and the total Defendant owes Plaintiff, Defendant has no equity in the Subject Vehicle. (Id. ¶ 16.)

 

            Code of Civil Procedure section 515.010, subdivision (b) provides: “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff’s undertaking and shall include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” The Court finds based on Plaintiff’s Exhibit 4, that Defendant has no interest in the subject property and waives Plaintiff’s undertaking requirement.

 

            Pursuant to Code of Civil Procedure section 515.020, Defendant may prevent Plaintiff from taking possession of the Subject Vehicle by filing an undertaking equal to $75,801.

 

 

 

 

 

CONCLUSION

 

            Motion continued Oct 10, 2022, at 8:30 am.  Plaintiff’s application for writ of possession will be granted if plaintiff submits evidence that Audi Financial Services is a subsidiary of VW Credit Inc.

 

 

            Pursuant to Code of Civil Procedure section 515.020, Defendant may prevent Plaintiff from taking possession of the Subject Vehicle by filing an undertaking equal to $75,801.

 

           

 

 

Dated:   September 21, 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

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org