Judge: John J. Kralik, Case: 23BBCV01071, Date: 2023-08-04 Tentative Ruling

Case Number: 23BBCV01071    Hearing Date: August 4, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of the Complaint

Plaintiff Audi Financial Services (“Plaintiff”) alleges that it on November 8, 2022, Defendant Stephan H. Eskidjian (“Defendant” as buyer) entered into a Retail Installment Sale Contract Simple Interest Finance Charge Agreement with Audi South Coast (seller).  Plaintiff alleges that Audi South Coast sold to Defendant and Defendant received possession of a 2022 Audi e-tron S vehicle.  Plaintiff alleges that Audi South Coast assigned all of its rights, title, and interest under the Agreement to Plaintiff and that Plaintiff is the lien holder of record of the subject vehicle.  Plaintiff alleges that on December 23, 2022, Defendant defaulted on his payment obligation to Plaintiff by failing to make payments when due under the Agreement.  Plaintiff alleges it demanded the return of the vehicle, but Defendant has failed to turn over possession of the vehicle. 

 The complaint, filed May 12, 2023, alleges causes of action for: (1) breach of contract; and (2) claim and delivery.

B.     Application for Writ of Attachment  

On May 18, 2023, Plaintiff filed the application for writ of possession against Defendant. 

On July 6, 2023, Plaintiff filed a proof of service of the summons, complaint, and application documents, showing that Defendant had been served by substituted service on June 21, 2023 at 3:25 p.m. at his home located at 1055 E Verdugo Ave., Burbank, CA 91501-1515 by serving Enrique “Doe” (occupant).  The documents were thereafter mailed on June 21, 2023. 

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 Simple Interest Finance Charge Agreement, seeking possession of the subject vehicle.

Plaintiff provides the declaration of Lucy Perez in support of its application for writ of possession of the subject vehicle.  Ms. Perez states that she is employed as an Agent by Plaintiff and is the custodian of records for the subject account.  (Perez Decl., ¶¶1-5.)

Ms. Perez states that on November 8, 2022, Defendant entered into the Agreement with Audi South Coast and received possession of the subject vehicle.  (Id., ¶6, Ex. 1.)  She states that Plaintiff is the lien holder of record of the subject vehicle.  (Id., ¶7, Ex. 2.)  She states that pursuant to the terms and conditions of the Agreement, Defendant agreed to pay an initial down payment of $5,000, plus 71 consecutive monthly payments of $1,807.27 from December 23, 2022 to November 23, 2028.  (Id., ¶8.)  Ms. Perez states that Plaintiff fully performed on its obligations, but Defendant defaulted on his payment obligation on December 23, 2022.  (Id., ¶9.)  Ms. Perez states that Plaintiff demanded the return of the vehicle from Defendant, but Defendant has refused and failed to turn over possession of the vehicle.  (Id., ¶10.)  The Agreement at section 3(d) states that if Defendant is in default, Plaintiff may take (repossess) the vehicle from Defendant. 

Ms. Perez’s 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. Perez states that Plaintiff is informed and believes that the subject vehicle is located at Defendant’s last known address 1055 E Verdugo Ave., Burbank, CA 91501, including any and all garages and storage facilities adjacent thereto.  (Perez Decl., ¶15.)  This is the address listed on the Agreement. 

These facts are sufficient to identify the location of the vehicle at Defendant’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. Perez estimates the current wholesale and retail values of the subject vehicle are $87,003 and $102,594, respectively, according to the present market values and “J.D. Power” authority.  (Perez Decl., ¶12, Ex. 3.)  Ms. Perez states that Defendant owes $105,921.40 on the subject vehicle.  (Id., ¶12, Ex. 4.)   She states that as a result of the default and Defendant’s lack of equity in the subject vehicle, Defendant has no interest in the subject vehicle and Plaintiff should not be required to post an undertaking.  (Id., ¶14.) 

These facts show that Defendant owes $105,921.40 on the subject vehicle with a market value between $87,003 and $102,594.  This indicates that, for the purposes of CCP § 515.010, Defendant lacks and interest in the vehicle.  As such, the requirement for Plaintiff to post an undertaking will be waived.

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 2022 Audi e-tron S motor vehicle directed against Defendant Stephan H. Eskidjian is granted.  The Court issues the requested writ of possession to obtain the vehicle at Defendant’s address at 1055 E Verdugo Ave., Burbank, CA 91501.

The Court waives the requirement for Plaintiff to file an undertaking. 

            Plaintiff shall provide notice of this order.