Judge Joel L. Lofton, Case Number: 23AHCV00756, Date: 2023-08-10 Tentative Ruling

Judge: Joel L. Lofton, Case: 23AHCV00756, Date: 2023-08-10 Tentative Ruling

Case Number: 23AHCV00756 Hearing Date: August 10, 2023 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: August 10, 2023 TRIAL DATE: No date set.

CASE: ALLY BANK, a corporation, v. NEW B BROTHER INC., a corporation; GALOOST AVEDIAN, an individual; KINGS OF BODY LLC, a limited liability company; TIGRAN AVAGYAN, individually and dba KINGS OF BODY; CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, a California Governmental Agency; DOES 1 through 10, inclusive.

CASE NO.: 23AHCV00756

APPLICATION FOR WRIT OF ATTACHMENT

MOVING PARTY: Plaintiff Ally Bank

RESPONDING PARTY: No response filed.

SERVICE: Filed May 23, 2023.

RELIEF REQUESTED

Plaintiff applies for a writ of possession for a 2020 BMW X6, Vehicle Identification No. 5UXCY8C00LLE40465.

BACKGROUND

This case arises out of Plaintiff Ally Bank’s claim that Defendant New B. Brother Inc. and Galoost Avedian failed to make timely payments for a 2020 BMW X6, Vehicle Identification No. 5UXCY8C00LLE40465 (“Subject Vehicle”). Plaintiff filed this complaint on April 4, 2023, alleging five causes of action for (1) claim and delivery of personal property, (2) money due on a contract, (3) conversion, and (4) quiet title, and (5) declaratory relief.

TENTATIVE RULING

Plaintiff’s application for writ of possession is granted upon Plaintiff’s showing it has met the following conditions: (1) Plaintiff’s proof of service of the required documents on New B Brothers, Inc. and Galoost Avedian and (2) Plaintiff’s proof it filed an undertaking totaling $26,500.

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 is the contract for the purchase of the Subject Vehicle, which was assigned to Plaintiff. (Carty Decl. ¶ 7, Exhibit A.) Plaintiff also the certificate of title for the Subject Vehicle. (Id. ¶ 7, Exhibit B.) Plaintiff provides Defendants breached the contract when they failed to make the monthly payment of $1,466.80. (Id. ¶ 9.) Plaintiff provides that Defendants transferred the Subject Vehicle to a body shop, Defendants Kings of Body, LLC and Tigran Avagyan (“body shop”) (Id. ¶ 10.) Plaintiff provides the wholesale value of the Subject Vehicle is approximately $69,944.00 and the retail value of the Subject Vehicle is approximately $71,720.00. (Id. ¶ 14.) Plaintiff provides, based on information and belief, that the Subject Vehicle is either at New B Brother Inc.’s last known address or the principal place of business of the body shop. (Id. ¶ 18.)

Plaintiff has complied with the requirements of Code of Civil Procedure section 512.010.

Service Under Code of Civil Procedure Section 512.030

Plaintiff filed two separate proofs of substituted service for Kings of Body LLC and Tigran Avagyan. However, Plaintiff has not filed a proof of service for New B. Brothers Inc. or Galoost Avedian.

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.)

Plaintiff also provides that under the contract it is entitled to have immediate possession the Subject Vehicle upon default. (Carty Decl. ¶ 9.) Plaintiff also provides that New B Brothers and Galoost Avedian have breached the agreement by failing to make payments. (Id. ¶ 8.) The court tentatively finds that Plaintiff has demonstrated probable validity of its claim to possess the Subject Vehicle. Plaintiff requests that it should be required to file an undertaking in the amount of $26,500.00.

CONCLUSION

Dated: August 10, 2023 ___________________________________

Joel L. Lofton

Judge of the Superior Court