Judge: Joel L. Lofton, Case: 23AHCV01613, Date: 2023-12-13 Tentative Ruling

Case Number: 23AHCV01613    Hearing Date: December 13, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     December 13, 2023                                         TRIAL DATE: No date set.

CASE:                         PAWNEE LEASING CORPORATION v. CABANAS TRANSPORT, INC., a California corporation; NELSON NOE ALFARO AREVALO aka NELSON ALFARO, an individual; and DOES 1-100, inclusive.

CASE NO.:                 23AHCV01613

APPLICATION FOR WRIT OF POSSESSION

MOVING PARTY:               Plaintiff Pawnee Leasing Corporation

SERVICE:                              Filed July 17, 2023

BACKGROUND

             This case arises out of Plaintiff Pawnee Leasing Corporation’s (“Plaintiff”) claim that Defendants failed to pay for equipment under an equipment finance agreement. Plaintiff filed this complaint on July 13, 2023, alleging nine causes of action for (1) breach of written agreement, (2) breach of personal guaranty, (3) open book account, (4) reasonable value, (5) account stated, (6) indebtedness, (7) unjust enrichment, (8) claim and delivery, and (9) conversion.

TENTATIVE RULING

            Plaintiff’s application for writ of possession is tentatively 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

Plaintiff filed an application for writ of possession for a 2018 Freightliner Cascadia, Vehicle Identification number 3AKJHHDR9JSJS3104 (“Subject Vehicle”).

Plaintiff provides that its assignor, Tandem Finance Inc. entered into an agreement with Defendant Cabanas Transport Inc. for the Subject Vehicle. (Fitzgerald Decl. ¶ 4, Exhibit 1.) Cabanas had agreed to pay $3,292.79 each month. (Id. ¶ 5.) Plaintiff provides that Cabanas failed to make monthly payments starting on June 28, 2023. (Id. ¶ 8.) Plaintiff provides that Cabanas owes $172,881.81. (Id ¶ 9.) Plaintiff provides that the subject vehicle is worth between $30,000.00 to $45.000. (Id. ¶ 22.) Plaintiff provides that the vehicle is located at 1337 North Alvarado Street, Los Angeles, California 90026 or 704 East Angeleno Avenue, San Gabriel, California 91776. (Id. ¶ 17.) 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. (Id ¶ 20.)

            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).)

            The court finds that the declaration and attached exhibits filed by Kenny Fitzgerald demonstrate probably validity of its claims of possession and its compliance with the undertaking requirement of section 515.010.

CONCLUSION

            Plaintiff’s application for writ of possession is tentatively GRANTED.

Dated:   December 13, 2023                                       ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court