Judge: Joel L. Lofton, Case: 23AHCV02947, Date: 2024-06-27 Tentative Ruling

Case Number: 23AHCV02947    Hearing Date: June 27, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      June 27, 2024                                      TRIAL DATE: No date set.

CASE:                         John Deere Construction & Forestry Company, a corporation, v. Esmeralda Ramirez Arellano, an individual

CASE NO.:                 23AHCV02947

APPLICATION FOR WRIT OF POSSESSION

MOVING PARTY:               Plaintiff John Deere Construction & Forestry Company

RESPONDING PARTY:      No response filed.

SERVICE:                              Filed April 11, 2024

RELIEF REQUESTED

             Plaintiff applies for a writ of possession for two excavators and a hydraulic breaker.

BACKGROUND

             This case arises out of Plaintiff John Deere Construction & Forestry Company’s (“Plaintiff”) claim that Defendant Esmeralda Ramirez Arellano (“Defendant”) failed to make payments pursuant to two contracts for the sale of a new John Deere 60G Compact Excavator (ID# 1FF060GXCMJ294075) (“Subject Equipment No. 1”), a used Hitachi ZX85-5 Hydraulic Excavator (ID# HCMDEF60P00022693) (“Subject Equipment No. 2”), and a new Furukawa FX55 Hydraulic Breaker (ID# #X55-11837) (“Subject Equipment No. 3”) (collectively the “Equipment”). Plaintiff filed this complaint on December 21, 2023, alleging two causes of action for (1) 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 August 25, 2021, Defendant entered into a contract to purchase Subject Equipment No. 1 for $86,221.25. (Ross Decl. ¶ 4.A.) Plaintiff provides that on May 6, 2021, Defendant entered into a contract to purchase Subject Equipment No. 2 and Subject Equipment No. 3 for $134,093.00. (Id. ¶ 4.B.) Plaintiff provides that pursuant to the contracts, it had a security interest for the Equipment 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 Defendant failed to make timely payments on the contracts. (Id. ¶ 7.) Plaintiff provides that an unpaid balance of $204,615.41 remain on the combined balance of the Equipment. (Id. ¶ 4.) Plaintiff provides that the current wholesale value of the Equipment is $185,336.00. (Id. ¶ 8.) Plaintiff provides that Defendant acquired possession of the Subject Vehicles by purchase for business purposes. (Id. ¶ 10.)  Plaintiff provides that the location for the Equipment is 396 W. Montana St., Pasadena, CA 91103. (Dunning Decl., ¶ 4, Application ¶ 6.) 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 of the Equipment is $185,336.00 (Ross Decl. ¶ 8) while the sum owed by Defendant is $204,615.41 (id. ¶ 4). Thus, no undertaking is required in the present case.

CONCLUSION

            Plaintiff’s application for writ of possession is tentatively GRANTED upon Plaintiff demonstrating probable validity of its claims of possession.

            Moving Party to provide notice.

Dated:   June 24, 2024                                                ___________________________________

                                                                                    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.  alhdeptx@lacourt.org