Judge: Joel L. Lofton, Case: 23AHCV00520, Date: 2023-10-23 Tentative Ruling
Case Number: 23AHCV00520 Hearing Date: November 30, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: November 29, 2023 TRIAL
DATE: No date set.
CASE: DEERE &
COMPANY, a corporation, v. AFT M.G., a corporation; HAOREN MA, an individual;
and
CASE NO.: 23AHCV00520
APPLICATION
FOR WRIT OF POSSESSION
MOVING PARTY: Plaintiff Deere & Company
RESPONDING PARTY: No
response filed.
SERVICE: Filed August 21, 2023
RELIEF
REQUESTED
Plaintiff applies for a writ of
possession for two vehicles.
BACKGROUND
This case arises out of Plaintiff Deere &
Company’s (“Plaintiff”) claim that Defendants AFT M.G. and Haoren Ma
(“Defendants”) failed to make payments pursuant to two contracts for the sale
of a new Harlo HBP6500 Forklift Identification Number 104598 (“Subject Vehicle
No. 1”) and a new Manitou MLT-737-1 Telehandler Identification Number
MAN00000L01014869 (“Subject Vehicle No. 2.”). Plaintiff filed this complaint on
March 10, 2023, alleging three causes of action for (1) breach of contract, (2)
breach of contract, and (3) claim and delivery.
TENTATIVE RULING
Plaintiff’s
application for writ of possession is tentatively GRANTED upon Plaintiff
demonstrating probable validity of its claims of possession.
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 the basis of its claim are two
separate contracts. Plaintiff provides that on April 21, 2021, Defendants
entered into a contract to purchase Subject Vehicle No. 1 for $84,917. (Johnson
Decl. ¶ 4.) Plaintiff provides that on May 6, 2021, Defendants entered into a
contract to purchase Subject Vehicle No. 2 for $91,697.50. (Ibid.)
Plaintiff provides that pursuant to the contracts, it had a security interest
for the Subject Vehicles which was perfected by filing UCC-1 financing
statements with the California Secretary of State. (Id. ¶ 5.) Plaintiff
also provides that the contracts contain acceleration clauses. (Id. ¶
6.) Plaintiff provides Defendants failed to make timely payments on the
contracts. (Id. ¶
7.) Plaintiff provides that an unpaid balance of $171,941.66 remain on the
combined balance of the Subject Vehicles. (Id. ¶ 8.) Plaintiff provides
that the current wholesale value of the Subject Vehicles is $111,250.00. (Id.
¶ 9.) Plaintiff provides that Defendant acquired
possession of the Subject Vehicles by purchase for business purposes. (Id.
¶ 10.)
Plaintiff provides that the location for the Subject Vehicle is 708
Kenmore Drive, San Gabriel California. (Id. ¶ 13.) Plaintiff also provides that the property has not
been taken for a tax, assessment, or fine nor has it been seized under
execution against Plaintiff’s property. (Application ¶ 8.)
Plaintiff has complied with the requirements of Code of
Civil Procedure section 512.010.
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.)
“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.” (Code Civ. Proc. section 515.010,
subd. (b).
Plaintiff
argues that no undertaking should be required because the wholesale value is
$111.250 (Johnson Decl. ¶ 9) while the sum owed by Defendants is $171,941.66 (id. ¶8.)
Thus, no undertaking is required in the present case.
CONCLUSION
Plaintiff’s
application for writ of possession is tentatively GRANTED.
Dated: November 29,
2023 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court