Judge: Lee W. Tsao, Case: 22NWCV00761, Date: 2023-04-19 Tentative Ruling

Case Number: 22NWCV00761    Hearing Date: April 19, 2023    Dept: C

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

CASE NO.:  22NWCV00761

HEARING:  4/19/23 @ 10:30 AM

#2

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.