Judge Lee W. Tsao, Case Number: 23NWCV01907, Date: 2024-01-09 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV01907, Date: 2024-01-09 Tentative Ruling

Case Number: 23NWCV01907 Hearing Date: January 9, 2024 Dept: C

Allegiant Partners, Inc. vs. J&G Services LLC, et. al

Case No.: 23NWCV01907

Hearing Date: 1/9/2024 at 10:30 a.m.

TENTATIVE RULING

Plaintiff ALLEGIANT PARTNERS INC.’s applications for writ of possession as to Defendants J&G Services, LLC, Joel Dominguez, Jr., and Gabriella Dominguez are GRANTED.

Moving party to give notice.

Background

On or about December 20, 2021, Defendants J&G SERVICES LLC, a California limited liability company (“J&G”), Joel Dominguez, Jr. and Gabriela Dominguez (“Defendants”) entered into a written Equipment Finance Agreement (“EFA”) with Plaintiff ALLEGIANT PARTNERS INCORPORATED, a corporation (hereinafter referred to as “Plaintiff”) for the purchase of one (1) 2018 International Truck, Vehicle Identification Number 3HSDZAPR6JN440872, more specifically described in Equipment Schedule No. 129792 to the EFA (hereinafter referred to as “Collateral” or “International”) (Jueschke Decl., ¶ 4.)

On or about December 20, 2021, J&G executed and delivered to Plaintiff Equipment Schedule No. 129792, which provided for Plaintiff to finance to J&G the aforementioned International and, in consideration thereof, J&G agreed to make fifty-nine (59) monthly payments of $2,291.62, together with applicable taxes, as well as an advance payment of $18,262.50, and fees of $495.00, and other payments as set forth therein. (Jueschke Decl., ¶ 5.)

Plaintiff has filed three motions as to each Defendant.

No Oppositions filed as of January 5, 2024.

Applicable Law

“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).)

Analysis

1. Notice

Notice appears proper.

2. Basis of Plaintiff’s Claim

Plaintiff seeks a writ of possession based on its claim for either payments in full pursuant to the terms of the payment schedule or the return of the two vehicles. (Jueschke Decl., ¶¶ 6-10; Exhibit 1.)

3. Wrongful Detention

Pursuant to Code of Civil Procedure section 512.010(b)(2), the application must include “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.”

Plaintiff makes a showing that Defendant has not been making the agreed upon payments. (Jueschke Decl., ¶¶ 6-10.)

4. Description and Value of Property

Pursuant to Code of Civil Procedure section 512.010(b)(3), the application must include a particular description of the property and a statement of its value.

Each application identifies the property as: “One (1) 2018 International Truck Vehicle Identification Number 3HSDZAPR6JN440872 and One (1) 2017 Freightliner Cascadia 125 Vehicle Identification Number 1FUJGLDR3HLJH640.” (App., ¶ 4.) The attached declaration states that the value is $135,205.58 (calculated at 59 monthly payments of $2,291.62 plus an advanced payment of $19,262.50), plus fees of $495.00. (Jueschke Decl., ¶ 5.)

Accordingly, the Court finds the description is particular and has a proper value connected to the property.

5. Statutory Statements

Pursuant to Code of Civil Procedure section 512.010(b)(4)-(5), the application must include:

The Court finds the application has properly included these statements.

6. Undertaking

Code of Civil Procedure section 515.010 requires an undertaking to be filed before the writ issues in the amount of “not less than twice the value of the defendant’s interest in the property.”

Defendants do not argue for a different amount of undertaking. Plaintiff makes a showing that the principal balance owing is $107,711.21 of the original $135,205.58 owed. Accordingly, the Court finds that the Defendants’ interest in the property is $27,494.37 (calculated from the amount paid on the contract). Accordingly, an undertaking of $54,988.74 shall be filed before the writ issues.