Judge: John J. Kralik, Case: 23BBCV00080, Date: 2023-05-19 Tentative Ruling

Case Number: 23BBCV00080    Hearing Date: May 19, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of the Complaint

Plaintiff Santander Consumer USA Inc. (“Plaintiff”) alleges that it is currently the owner of a written contract pursuant to which Defendant Mohamed Elhawary (“Defendant”) purchased from Plaintiff’s assignor a 2019 Jeep Grand Cherokee motor vehicle and agreed to perform the conditions of the contract, such as timely payment of all amounts falling due thereunder.  Plaintiff alleges that Defendant defaulted by failing to make payment on April 29, 2022 in the sum of $640.52 or any regular monthly payments of $660.13 due thereafter.  It alleges that the current amount due and owing by Plaintiff is $26,061.58, with other charges. 

 The complaint, filed January 12, 2023, alleges a single cause of action for claim and delivery of personal property.

B.     Application for Writ of Attachment  

On January 24, 2023, Plaintiff filed the application for writ of possession against Defendant Mohamed Elhawary. 

On March 22, 2023, Plaintiff filed a proof of service of the summons, complaint, and application documents, showing that Defendant had been served by substituted service on March 11, 2023 at 3:34 p.m. at 20459 Jay Carroll Dr., Saugus, CA 91350 by serving a Jane Doe (co-occupant/mother) at home.  The documents were thereafter mailed.

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

CCP § 512.010 requires that the application for writ of possession be executed under oath and include affidavits showing 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.

(CCP § 512.010(b).)

CCP § 512.060 permits the Court to issue a writ of possession when the Court finds the following:

(1)   The plaintiff has established the probable validity of the plaintiff's claim to possession of the property.

(2)   The undertaking requirements of CCP § 515.010 are satisfied.

(CCP § 512.060.)

DISCUSSION

A.    Probable Validity of Plaintiff’s Claims

Plaintiff applies for writ of possession based on the Retail Installment Sale Contract, seeking possession of the subject vehicle.

Plaintiff provides the declaration of Felicia James in support of its application for writ of possession of the subject vehicle.  Ms. James states that she is employed by Plaintiff and is the custodian of records for the subject account.  (James Decl., ¶¶1-2.)

Ms. James states that Plaintiff’s assignor and Defendant entered into the contract, which has been assigned to Plaintiff, regarding the purchase of the subject vehicle.  (Id., ¶4, Ex. A.)  She states that pursuant to the contract, upon default of any provision, Plaintiff has the right to immediate possession of the subject motor vehicle.  (Id., ex. B [California Certificate of Title].)  Ms. James states that the contract is in default because Defendant failed to make the payment due and owing on April 29, 2022 in the amount of $640.52 or any of the regular monthly payments of $660.13 due thereafter.  (Id., ¶5.)  She states that Plaintiff made demand to Defendant for surrender of possession of the vehicle to Plaintiff, but Defendant has failed or refused to surrender the vehicle. (Id., ¶¶5, 7.)  She states that the amount currently due and owing to Plaintiff on account of the contract is $26,061.58, together with other charges as provided in the contract.  (Id., ¶5.) 

Ms. James’ declaration provides evidence to establish the probable validity of Plaintiff’s claim to possession of the subject vehicle against Defendant because it shows that Plaintiff has the right to take immediate possession of the subject vehicle as a result of Defendant’s default.

B.     Location of Vehicle

Under CCP § 512.010(b)(4), the plaintiff must provide evidence of the location of the property.  Further, if the property is within a private place which may have to be entered to take possession, section (b)(4) requires there to be a showing that there is probable cause to believe that the property is located there.            

Ms. James states that she believes that the subject vehicle is located at 11313 Oxnard St., #309, North Hollywood, CA 91606.  (James Decl., ¶10.)  She states that this is the address contained in Plaintiff’s file and computer pertaining to the subject vehicle.  (Id.)  It is the address listed on the contract.  (Plaintiff served Defendant with the documents pertaining to this action at his purported home address located at 20459 Jay Carroll Dr., Saugus, CA 91350.  The Court notes that Plaintiff does not seek a writ of possession of the subject vehicle at this location.)

These facts are sufficient to identify the location of the vehicle at Plaintiff’s address listed in the contract. 

C.     Undertaking

Finally, CCP § 512.060 requires that an undertaking be filed before a writ of possession may be issued.  CCP § 515.010(a) states that the undertaking shall be set at an amount not less than twice the value of the defendant's interest in the property.  In addition, CCP § 515.010(a) defines the value of the defendant's interest in the property as the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant's interest in the property.  When a defendant does not have any interest in the property, CCP § 515.010(b) permits the Court to waive the requirement of the plaintiff's undertaking and set an undertaking for the defendant to keep possession or regain possession. 

            If the defendant seeks to retain possession of the property, CCP § 515.020 permits the defendant to file an undertaking and retain the property in an amount equal to the amount of the plaintiff’s undertaking determined in CCP § 515.010(a), or in an amount determined by the Court pursuant to CCP § 515.010(b). 

            Ms. James estimates the average wholesale and retail values of the subject vehicle are $26,875 and $28,513, respectively.  (James Decl., ¶6, Ex. C.)  She provides a copy of the Kelley Blue Book Auto Market Report, December 2022.  (Id.)  Ms. James states that Defendant owes $26,061.58 on the subject vehicle.  (Id., ¶5.)   

These facts show that Defendant owes $26,061.58 on the subject vehicle with a market value of $26,875 and $28,513.  This indicates that, for the purposes of CCP § 515.010, Defendant has a small interest in the vehicle.  Plaintiff has not discussed in its papers whether a bond is appropriate and the amount.  Thus, the Court will require Plaintiff to file an undertaking in the amount of $1,000 upon issuance of the writ of possession.

As the application is not opposed, it does not appear that Defendant seeks to retain possession of the vehicle.

CONCLUSION AND ORDER

Plaintiff’s application for a writ of possession of the 2019 Jeep Grand Cherokee motor vehicle directed against Defendant Mohamed Elhawary is granted.  The Court issues the requested writ of possession to obtain the vehicle at Defendant’s address at 11313 Oxnard St., #309, North Hollywood, CA 91606.

Plaintiff is ordered to post an undertaking in the amount of $1,000.

            Plaintiff shall provide notice of this order.