Judge Joel L. Lofton, Case 22AHCV00683 2023-02-22 Tentative Ruling

Judge: Joel L. Lofton, Case: 22AHCV00683, Date: 2023-02-22 Tentative Ruling

Case Number: 22AHCV00683 Hearing Date: February 22, 2023 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: February 22, 2023 TRIAL DATE: No date set.

CASE: ALLY BANK LEASE TRUST, an association, v. MARIAH B. ACOSTA DURAN aka MARIAH B. ACOSTA aka MARIA B. DURAN aka MARIAH ACOSTA DURAN aka MARIAH B. A. DURAN aka MARIAH A. DURAN aka MARIAH ACOSTA aka MARIAH DURAN, an individual; DOES 1 through 10, inclusive.

CASE NO.: 22AHCV00683

APPLICATION FOR WRIT OF POSSESSION

MOVING PARTY: Plaintiff Ally Bank Lease Trust

RESPONDING PARTY: No response filed.

SERVICE: Filed September 22, 2022

RELIEF REQUESTED

Plaintiff files an application for a writ of possession for 2021 Jeep Wrangler, Vehicle Identification No. 1C4HJXFGXMW695331.

BACKGROUND

Plaintiff Ally Bank Lease Trust (“Plaintiff”) filed a complaint for claim and delivery on September 14, 2022. Plaintiff alleges that Defendant Mariah B. Acosta Duran (“Defendant”) leased a 2021 Jeep Wrangler, Vehicle Identification No. 1C4HJXFGXMW695331 (“Subject Vehicle”). Plaintiff alleges that Defendant failed to make payments starting on June 6, 2021.

TENTATIVE RULING

The Court’s tentative ruling is to grant the application for writ of possession subject to Plaintiff’s demonstration that it has complied with Code of Civil Procedure Section 515.010.

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 leased the Subject Vehicle and attaches a copy of the lease. (Sparks Decl. ¶ 5, Exhibit A.) Plaintiff also provides a copy of the electronic title document evincing Plaintiff’s ownership through VAULT and its perfected security interest through Ally Bank of the Subject Vehicle. (Id. ¶ 5, Exhibit B.) Plaintiff provides that Defendant failed to make payments starting on June 6, 2021, in the amount of $957.21. (Id. ¶ 6.) Plaintiff provides as of September 7, 2022, Plaintiff has an unpaid sum of $62,118.79 due under the lease. (Ibid.)

Plaintiff approximates the Subject Vehicle’s wholesale value at $49,750.00 and retail value at $54,250. (Sparks Decl. ¶ 7, Exhibit C.) Plaintiff provides that the vehicle is located, to the best of its knowledge, at Defendant’s residence at 6643 N. San Gabriel Blvd., San Gabriel, California 91775. (Id. ¶ 10.) Plaintiff also provides that it has no knowledge that the Subject Vehicle has not been taken for tax, assessment, or fine. (Id. ¶ 9.)

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 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 memorandum.

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. However, at the hearing, Plaintiff will be required to demonstrate compliance with the undertaking filing requirement of Code of Civil Procedure Section 515.010, subdivision (a), or that the requirement should be waived under subdivision (b).

CONCLUSION

The Court’s tentative ruling is to grant the application for writ of possession subject to Plaintiff’s demonstration that it has complied with Code of Civil Procedure Section 515.010.

Dated: February 22, 2023 ___________________________________

Joel L. Lofton

Judge of the Superior Court