Judge: Mary H. Strobel, Case: 22STLC03848, Date: 2022-10-20 Tentative Ruling

Case Number: 22STLC03848    Hearing Date: October 20, 2022    Dept: 82

Plaintiff Medallion Bank (“Plaintiff”) moves for a writ of possession against Defendant Edmond Moore aka Edmond Morrie (“Defendant”) over the following property: 2019 Texas Pride CA730616KGN, Serial No. 7HCGC3622KB010701 (the “Vehicle”). 

Procedural History

                On June 7, 2022, Plaintiff filed a verified complaint against Defendant Edmond Moore, and also Defendant Jane Doe Moore, for breach of contract.

            On July 22, 2022, Plaintiff filed the instant application for writ of possession. 

            On October 13, 2022, the court entered Plaintiff’s request for dismissal of Defendant Jane Doe Moore.

            On October 17, 2022, Plaintiff filed proof of substitute service of the summons, complaint, application for writ of possession, and notice of hearing on Defendant Edmond Moore on July 31, 2022.

            Also on October 17, 2022, the court entered Defendant Edmond Moore’s default.

            No opposition to the application for writ of possession has been received.

Summary of 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.         No Memorandum of Points and Authorities

Plaintiff did not submit a memorandum of points and authorities.  A memorandum of points and authorities is required by the California Rules of Court for an application for writ of possession.  (See CRC Rules 3.1113 and 3.1114). When considered with the lack of evidence concerning the location of the Vehicle (see below), the absence of a memorandum is an additional basis for the court’s denial of the application. 

2.         Location of Vehicle

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

(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.

Section 512.010(b) specifies that this statement “shall be executed under oath.” 

In the sworn application, Plaintiff’s attorney declares that “Plaintiff does not know where the property is currently located and Defendants refuse to provide the information.”  (Appl. ¶ 6.)  Thus, Plaintiff has not provided a sworn statement as to the location of the Vehicle. 

In the proposed order, but not the sworn application, Plaintiff states: “Defendant's residence is 9139 1/4 Park Street, Bellflower, CA 90012.”  (Proposed Order ¶ 3.d.)  Plaintiff seeks an order permitting entry to 9139 1/4 Park Street, Bellflower, CA 90012.  (Id. ¶ 5.f.)

Because the application asks for an order permitting a levying officer to enter private 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.)   Plaintiff does not satisfy this probable cause standard.  Plaintiff submits no evidence, including statements of agents or process servers, showing probable cause to believe that the Vehicle is located at Defendant’s residence.  Furthermore, Plaintiff concedes that it does not know the location of the Vehicle, showing a lack of probable cause to believe the Vehicle is located at Defendant’s residence.  The court further notes that the residential address listed on the proposed order is different than that stated on the lien information attached to the verified complaint.  Plaintiff has not submitted a declaration from any representative explaining this difference but relies on the “verified complaint” to support its application.

Because Plaintiff does not provide a sworn statement of the Vehicle’s location, or show probable cause to believe the Vehicle is located at the address stated in the proposed order, the application is denied. 

5.         Turn-Over Order

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. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court.”  (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. 

Conclusion

The application for writ of possession and turnover order is DENIED.