Judge: Lynette Gridiron Winston, Case: 23PSCV03885, Date: 2024-03-28 Tentative Ruling

Case Number: 23PSCV03885    Hearing Date: March 28, 2024    Dept: 6

CASE NAME:  Ally Bank v. Xiangkai Hu 

Plaintiff’s Application for Writ of Possession 

TENTATIVE RULING 

The Court GRANTS Plaintiff’s application for writ of possession. Plaintiff must file and serve a completed copy of Judicial Council Form CD-120 consistent with this order for the Court’s review and signature before the writ may issue. 

             Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a breach of contract action. On November 1, 2023, plaintiff Ally Bank (Plaintiff) filed this action against defendant Xiangkai Hu (Defendant) and Does 1 through 10, alleging causes of action for claim and delivery of personal property and for money on a contract. 

On January 2, 2024, Plaintiff applied for a writ of possession. The application is unopposed. 

LEGAL STANDARD 

(a) Except as otherwise provided in this section, no writ shall be issued under this chapter except after a hearing on a noticed motion.

(b) … 

The plaintiff's application for the writ shall satisfy the requirements of Section 512.010 and, in addition, shall include a showing that the conditions required by this subdivision exist. A writ of possession may issue if the court finds that the conditions required by this subdivision exist and the requirements of Section 512.060 are met. Where a writ of possession has been issued pursuant to this subdivision, a copy of the summons and complaint, a copy of the application and any affidavit in support thereof, and a notice which satisfies the requirements of subdivisions (c) and (d) of Section 512.040 and informs the defendant of his rights under this subdivision shall be served upon the defendant and any other person required by Section 514.020 to be served with a writ of possession. 

(Code Civ. Proc., § 512.020.) 

(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. 

(Code Civ. Proc., § 512.030.) 

(a) At the hearing, a writ of possession shall issue if both of the following are found: 

(1) The plaintiff has established the probable validity of the plaintiff's claim to possession of the property. 

(2) The undertaking requirements of Section 515.010 are satisfied. 

(b) No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that the property is located there. 

(Code Civ. Proc., § 512.060.) 

(a) Except as provided in subdivision (b), the court shall not issue a temporary restraining order or a writ of possession until the plaintiff has filed an undertaking with the court . The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount. The value of the defendant's interest in the property is determined by 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. 

(b) If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff's undertaking and shall include in the order for issuance of the writ the amount of the defendant's undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020. 

(Code Civ. Proc., § 515.010.) 

DISCUSSION 

Plaintiff seeks a writ of possession for levy on a 2023 Ford F-150 motor vehicle, VIN 1FTFW1E89PKD39710, based on Defendant’s alleged default under a retail installment sales contract (the Contract) for that vehicle (the Vehicle). (Application for Writ of Possession, Singleton Decl., ¶ 6, Ex. A.) 

The Court finds Plaintiff has established the probable validity of the Plaintiff’s claim to possession of the Vehicle. (See Code Civ. Proc., § 511.090.) Plaintiff has presented the Contract indicating Defendant’s indebtedness for purchasing the Vehicle, and evidence that Plaintiff is the lienholder. (Application for Writ of Possession, Singleton Decl., Exs. A, B.) The Court finds that Defendant is in default under the Contract, that Plaintiff is entitled to possession of the Vehicle, and that Defendant has wrongfully detained the Vehicle. (Application for Writ of Possession, Singleton Decl., ¶¶ 5-6, Exs. A, B.) Defendant was served as required by Code of Civil Procedure section 512.030. (See Proof of Service, (2/5/24.) The Court construes Defendant’s lack of opposition to the application as a tacit admission that Plaintiff’s arguments are meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) 

The Court further finds there is probable cause to believe the Vehicle is located at 608 N Rural Dr, Monterey Park, CA 91755. (Application for Writ of Possession, ¶ 6; Id., Singleton Decl., Ex. B.) 

Plaintiff has not filed an undertaking. The approximate value of the Vehicle is $51,650.00. Plaintiff contends Defendant owes $ 77,480.11. (Application for Writ of Possession, Singleton Decl., ¶¶ 6-7, Ex. C.) Since Defendant owes more than the market value of the Vehicle, Defendant has no interest in the Vehicle pursuant to Code of Civil Procedure section 515.010. (Application for Writ of Possession, Singleton Decl., ¶¶ 6-7, Ex. C.) Thus, the Court waives the requirement of Plaintiff’s undertaking. Should Defendant seek to prevent Plaintiff from taking possession of the Vehicle, Defendant shall file an undertaking with the Court under Code of Civil Procedure section 515.020, in the amount of $51,650.00, the fair market value of the Vehicle. (See Code Civ. Proc., § 515.010, subd. (b); Id., § 515.020, subds. (a), (b).) 

Based on the foregoing, the Court GRANTS Plaintiff’s application for writ of possession and Defendant is ordered to transfer the Vehicle to Plaintiff forthwith. 

CONCLUSION 

The Court GRANTS Plaintiff’s application for writ of possession. Plaintiff must file and serve a completed copy of Judicial Council Form CD-120 consistent with this order for the Court’s review and signature before the writ may issue. 

             Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.