Judge: Jon R. Takasugi, Case: 23STCV20065, Date: 2024-05-29 Tentative Ruling

Case Number: 23STCV20065    Hearing Date: May 29, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s application for a writ of possession is DENIED, WITHOUT PREJUDICE.

            On 8/22/2023, Plaintiff Ally Bank (Plaintiff) filed suit against Mary L. Dozzie aka Mary Dozzie, alleging: (1) claim and delivery of personal property for pre-trial writ of possession; and (2) money due on contract.

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.”  (CCP § 512.010(a).) 

Pursuant to Code of Civil Procedure section 512.010(b), the application must be submitted under oath and include: 

(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. 

Before the hearing on the Writ of Possession, the Defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof.  (CCP § 512.030.) 

“The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.”  (CCP § 512.040(b).)  “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”  (CCP § 511.090.)   

Prior to the issuance of a writ of possession, the Plaintiff must file an undertaking “in an amount not less than twice the value of the defendant's interest in the property or in a greater amount.”  (CCP § 515.010(a).)   

Discussion

            Plaintiff seeks a writ of possession for a 2017 Audi Q7, pursuant to CCP section 512.010.

            CCP section 512.030 provides:

(a) 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.

(b) If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.

            Here, Plaintiff has not submitted any proof of service to show service has been effectuated on Defendant. Accordingly, the motion must be denied.

            Based on the foregoing, Plaintiff’s application for a writ of possession is denied, without prejudice.   

It is so ordered.

Dated:  May    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.