Judge Mary H. Strobel, Case 20STLC10638 2022-08-25 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Plaintiff Balboa Thrift & Loan (“Plaintiff”) moves for a writ of possession against Defendant Flotia Denise Johnson (“Defendant”) over the following property: 2018 Honda Civic, VIN # 2HGFC2F5XJH541006 (the “Vehicle”).

On December 23, 2020, Plaintiff filed its complaint for recovery of possession of personal property.

On June 7, 2021, the court (Judge Simpson) issued an order for publication of the summons.

On August 31, 2021, Plaintiff filed an application for writ of possession. On December 9, 2021, after a hearing, the court denied the application due to incomplete service and also “insufficient probable cause to believe that the Vehicle is located at the address at 37231 Sabal Avenue.” (Minute Order dated 12/9/21.)

On December 15, 2021, Plaintiff filed a proof of service stating that Plaintiff mailed the summons and complaint to Defendant on May 10, 2021, at two addresses: 37231 Sabal Avenue, Palmdale, CA 93552 and 6556 Alfalfa Road, Palmdale, California 93552.

On May 23, 2022, Plaintiff its second application for writ of possession, supporting declaration, notice of hearing, proof of service, and proposed order. No opposition to the application for writ of possession has been received.

“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.

(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).)

On December 9, 2021, after a hearing, the court denied Plaintiff’s first application for writ of possession due to incomplete service and also “insufficient probable cause to believe that the Vehicle is located at the address at 37231 Sabal Avenue.” (Minute Order dated 12/9/21.)

CCP section 1008(b) states: “ A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Plaintiff does not comply with section 1008(b), despite making “a subsequent application for the same order” as sought in the first application for writ of possession. In support of the renewed application, Plaintiff submits the same declaration of Mike Bordwell, executed July 7, 2021, that was previously considered by the court for the first application. Plaintiff has not submitted a declaration of counsel, or a memorandum of points and authorities, explaining the “new or different facts, circumstances, or law” upon which the renewed application is based.

The court will deny the application for failure to comply with section 1008(b) and for the additional reasons stated below.

In its ruling dated December 9, 2021, the court denied the application in part based on Plaintiff’s apparent failure to comply with the order of publication and CCP sections 415.50 and 417.10(b).

On December 15, 2021, apparently in response to the court’s ruling, Plaintiff filed a proof of service stating that Plaintiff mailed the summons and complaint to Defendant on May 10, 2021, at two addresses: 37231 Sabal Avenue, Palmdale, CA 93552 and 6556 Alfalfa Road, Palmdale, California 93552. On May 23, 2022, Plaintiff filed proof of service stating that the second application for writ of possession was mail served on Defendant on May 16, 2022, at the 37231 Sabal Avenue address. On July 29, 2022, the clerk entered Defendant’s default.

Based on the proofs of service filed December 15, 2021, and May 23, 2022, Plaintiff has arguably satisfied the requirements of section 512.030, assuming 37231 Sabal Avenue reflects a proper address for Defendant. The entry of Defendant’s default, which presently has not been challenged by Defendant, also reflects a determination of compliance with service of summons requirements in CCP sections 415.50 and 417.10(b). However, in light of the evidence discussed below that Defendant no longer resides at 37231 Sabal Avenue, Plaintiff’s counsel should explain at the hearing why the application for writ of possession was only served on Defendant at the 37231 Sabal Avenue address, and not the address at 6556 Alfalfa Road, Palmdale, California 93552. Even if proof of service was adequate, the application must be denied for reasons discussed below as to the probable location of the Vehicle.

Plaintiff seeks a writ of possession based on its claims for breach of written agreement and claim and delivery.

Plaintiff submits sufficient evidence, in the verified complaint, Bordwell declaration, and attached Agreement, that Robertson Palmdale Honda assigned the Agreement to Plaintiff on or about May 26, 2018. (Bordwell Decl. ¶¶ 7-9, Exh. A at last page of agreement; see also Verified Complaint ¶ 5.)[1]

Plaintiff also submits sufficient evidence that Defendant defaulted on the Agreement starting June 30, 2019, by failing to remit the regular monthly loan payment. (Id. ¶ 10.) Plaintiff also submits evidence of performance of its obligations under the Agreement and damages. (Id. ¶¶ 3-10.)

No opposition to this evidence has been received. Plaintiff has shown the probable validity of its claims.

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.”

Under the Agreement, Plaintiff has the right to repossess the Vehicle in the event of default. (Bordwell Decl. Exh. 1.) Plaintiff submits evidence that it made demand upon Defendant for return of the Vehicle, including in telephone conversations. (Id. ¶ 12.) Defendant refused to surrender the Vehicle. (Ibid.) Plaintiff has made a showing that Defendant wrongfully detained the Vehicle after defaulting on the Agreement.

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.

Plaintiff has provided a particular description of the property, by make, and VIN number. Plaintiff has also given a statement as to value. Plaintiff therefore satisfies section 512.010(b)(3).

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

Plaintiff has provided a statement that the property has not been taken for a tax, assessment, or fine, pursuant to statute and has not been seized under an execution against the Plaintiff’s property.

With regard to the location of the vehicle, Bordwell declares that he spoke with Defendant by phone concerning the Vehicle and that he is “informed and believes[s] based on statements from the defendant that the subject automobile is being hidden at Defendant’s home, located at 37231 Sabal Avenue, Palmdale, CA 93552.”believes based on statements made by Defendant that the Vehicle is hidden at Defendant’s home at 37231 Sabal Ave., Palmdale, CA 93552. (Bordwell Decl. ¶ 12.) However, Bordwell does not explain the nature of those statements or why he believes they show the Vehicle is located at the stated address. This is the same declaration that was submitted in support of the earlier application.

The Agreement, executed in May 2018, shows a different address for Defendant at 6556 Alfafa Rd., Palmdale CA. On June 3, 2021, Plaintiff filed a declaration of Robert Schroth, Jr. in support of its application for service by publication. That declaration stated, in part:

We made multiple attempts to serve process on the Defendant at her residence located at 37231 Sabal Avenue, Palmdale, California 93552, without success. Specifically, from on or about December 28, 2020 through January 8, 2021, our process server attempted service at the Defendant's residence located at 37231 Sabal Avenue, Palmdale, California 93552, at various times of day without success. On or about, January 14, 2021, our process server spoke to a neighbor of the Defendant who resides at 37225 Sabal Avenue, Palmdale, California 93552, who advised that the Defendant does not live at 37225 Sabal Avenue, Palmdale, California 93552.

On or about April 21, 2021, we forwarded a form entitled. Request for Change of Address or Boxholder Information Needed for Service of Legal Process, to the U.S. Postmaster regarding Defendant's residence located at 37231 Sabal Avenue, Palmdale, California 93552, and was advised that no change of address order is on file.

On or about May 10, 2021, we conducted a comprehensive data and analytics search of the TLOxp database, a comprehensive location tool powered by TransUnion, which from my experience, is the most effective tool available in obtaining a Defendant's last known address. We received an address summary. which listed 6556 Alfalfa Road, Palmdale, California 93552 as Defendant's last known address. This report also references 37231 Sabal Avenue, Palmdale, California 93552, as a recent address for the Defendant….

The TransUnion report submitted by Schroth as exhibit E suggests that 37231 Sabal Avenue may have been a residence of Defendant’s as recently as August 2020, but that another address, specifically 6556 Alfalfa Rd., is more current. (Id. Exh. E.)

Because the application asks for an order permitting a levying officer to enter the Property and take possession of the Vehicle, Plaintiff must establish “probable cause” to believe that the Vehicle is located at the Property. (See CCP §§ 512.010(b)(4), 512.080.) Based on the evidence summarized above, including the incomplete description of alleged statements of Defendant in Bordwell’s declaration and evidence that Defendant does not presently reside at 37231 Sabal Avenue and could not be served at that address, the court finds insufficient probable cause to believe that the Vehicle is located at the address at 37231 Sabal Avenue. Notably, Petitioner does not provide any declaration that any process servers or other agents have spotted the Vehicle at 37231 Sabal Avenue.

In the renewed application filed May 23, 2022, Plaintiff has not cited any evidence that would support a different conclusion than the court reached on December 9, 2021. Plaintiff relies on the same declaration of Bordwell discussed above. While Plaintiff filed a new proof of service on December 15, 2021, stating that the summons and complaint were mailed to Defendant at 37231 Sabal Avenue, and also 6556 Alfalfa Road Palmdale, CA 93552, on May 10, 2021, that proof of service does nothing to clarify the issues discussed above with regard to the probable location of the Vehicle. The December 15 proof of service does not show personal or substitute service of the papers on Defendant at 37231 Sabal Avenue or include any evidence that Defendant resides at that address. The December 15 proof of service reflects mail service on May 10, 2021, the same day that Schroth conducted a search finding that Defendant’s last known address was 6556 Alfalfa Road, Palmdale, California 93552.

Because Plaintiff does not show probable cause to believe the Vehicle is located at the address at 37231 Sabal Avenue, the application is denied.

Plaintiff also requests a turn-over order. Section 512.070 states: “If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff.” (emphasis added.) “Thus a ‘turnover’ order, issued pursuant to section 512.070, is not a separate remedy but rather an alternative means of enforcing a writ of possession.” (Edwards v. Sup.Ct. (1991) 230 Cal.App.3d 173, 178.) Because the requirements for issuance of the writ of possession are not met, the court will not issue a turnover order.

Plaintiff also seeks a temporary restraining order retraining Defendant from transferring any interest in the Vehicle; concealing the Vehicle; or impairing its value. (Bordwell Decl. ¶ 14.) A TRO may be issued on an ex parte basis if the court makes certain findings, including that “plaintiff has established the probability that there is an immediate danger that the property claimed may become unavailable to levy by reason of being transferred, concealed, or removed or may become substantially impaired in value.” (CCP § 513.10(b).) “If at the hearing on issuance of the writ of possession the court determines that the plaintiff is not entitled to a writ of possession, the court shall dissolve any temporary restraining order; otherwise, the court may issue a preliminary injunction to remain in effect until the property claimed is seized pursuant to the writ of possession.” (CCP § 513.10(c).)

Here, Plaintiff seeks a writ of possession by noticed motion, not ex parte application. Thus, Plaintiff does not seek a TRO but rather a preliminary injunction. Plaintiff does not submit evidence satisfying the “immediate danger” requirement. Even if it did, it appears the court lacks authority to issue a preliminary injunction if it denies the writ of possession upon noticed motion. (CCP § 513.10(c).)

For the reasons stated above, the application for writ of possession, turnover order, and TRO is DENIED.

[1] In his declaration, Bordwell also refers to a “copy of the title” attached as Exhibit B. (Bordwell Decl. ¶ 9.) No title document was submitted as exhibit B to Bordwell’s declaration. However, the Agreement, which is dated May 26, 2018, shows execution of an assignment to Plaintiff by Robertson Palmdale Honda.