Judge: Lee W. Tsao, Case: 22NWCV00761, Date: 2023-03-22 Tentative Ruling

Case Number: 22NWCV00761    Hearing Date: March 22, 2023    Dept: SEC

JMK AUTO INC. v. KEMPER INSURANCE,
et al.

CASE NO.:  22NWCV00761

HEARING:  3/22/23 @ 1:30 PM

#1

TENTATIVE RULING

Cross-Complainant
Kemper Insurance’s unopposed application for writ of possession is GRANTED.  No bond. 
Kemper is to advise the court of the location of the property.

Moving Party to give NOTICE.

Cross-Complainant
Kemper Insurance applies for a writ
of possession pursuant to CCP § 512.010 et seq.

If the proof of service
is filed on or before the hearing, the following analysis applies:

Upon the filing of the
complaint or at any time thereafter, the plaintiff may apply for a writ of
possession.  (CCP § 512.010(a).)  The application shall include all of the
following, which may be established by affidavit, pursuant to CCP § 512.101(b):

1.   
The
basis of the plaintiff’s claim that the plaintiff is entitled to possession;

2.   
A
showing that the property is wrongfully detained and of the manner in which
defendant came into possession;

3.   
A
particular description of the property and a statement of its value;

4.   
The
property’s location based on plaintiff’s knowledge, information and belief; and

5.   
A
statement that the property has not been seized by statute or execution against
it.

The writ will be issued
if the plaintiff’s claim is probably valid. 
(CCP § 512.040(b).)  A writ to
take possession of property at a private location requires the plaintiff to
show probable cause that the property is located there.  (CCP § 512.060(b).)

Kemper, by reason of an insurance settlement
with its policy holder, is the current owner of the gray 2017 Chevrolet
Silverado, VIN 3GCUKREC7HG315548. 
(Sickle Decl., ¶ 2.)  The
vehicle was involved in an accident, and JMK took possession of the
vehicle.  (Id., ¶ 3.)  When Kemper requested release of the vehicle,
JMK demanded payment for excessive storage. 
(Id., ¶ 8.)  JMK then attempted to
conduct an improper lien sale.  (Id., ¶
12.)  The DMV denied JMK’s request for
lien sale.  (Id., ¶ 14.)  The purported lien was extinguished because
JMK did not file a lien sale suit within 30 days of the denial.  (CC § 3072(d).)  Therefore, JMK’s lien rights have been
extinguished. 

Based
on Kemper’s declaration and lacking any opposition, Kemper’s claim is probably
valid. 

Undertaking:  A bond must be posted as part of the
undertaking unless the court finds that the defendant has no interest in the
property.  (CCP § 515.010(b).)  The undertaking must be in an amount equal to
twice the value of the defendant's interest in the property (market value less
all liens, etc.).  (CCP § 515.010.)  Defendant’s interest is based on the market
value of the property less (1) any amount due and owing on any conditional
sales contract or security agreement, (2) all liens and encumbrances on the
property, and (3) any other factors to determine the defendant’s interest in
the property.  (CCP § 515.010(a).)

Defendant
has no interest in the property.  Kemper is
not required to post an undertaking.  

Accordingly,
Kemper’s application for writ of possession is GRANTED.  No bond.