Judge Mary H. Strobel, Case 22STLC06160 2023-01-24 Tentative Ruling

Plaintiff VW Credit, Inc., a corporation dba VW Credit Leasing Ltd (“Plaintiff”) moves for writs of possession against Defendants Jennifer Cynthia Allen (“Allen”), Krash Collision LLC (“Krash”), Kormann Redd Sr., individually and dba Krash Collision (“Redd”), and California Department of Motor Vehicles (“DMV”) over the following property: 2020 Volkswagen Tiguan, VIN # 3VV1B7AX5LM104604 (the “Vehicle”).

On September 22, 2022, Plaintiff filed its complaint for recovery of possession of personal property and other claims against Defendants.

On October 20, 2022, Plaintiff filed the instant applications for writ of possession.

Plaintiff has not filed proof of service of the summons, complaint, and application for writ of possession on Defendant Allen.

On October 27, 2022, Plaintiff filed proof of substitute service, on October 24, 2022, of the summons, complaint, applications for writ of possession, and notices of hearing on Defendants Krash and Redd.

The DMV has been served and has filed a Stipulation, Acceptance of Service, and Order, signed by the court, re: waiver of appearance by and of monetary recovery against DMV.

“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).)

Plaintiff has not filed proof of service of the summons, complaint, and application for writ of possession on Defendant Allen. Accordingly, the application is denied as to that Defendant. (CCP § 512.030.)

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 declaration of Lucy Perez, the attached Lease Agreement (“Contract”), and the attached Certificate of Title, that Pacific Volkswagen assigned the Contract to Plaintiff (dba VW Credit Leasing Ltd) on or about July 16, 2020. (Perez Decl. ¶ 7, Exh. A, B.)

Plaintiff submits sufficient evidence that Defendant Allen defaulted on the Contract starting June 30, 2022, by failing to remit the regular monthly payment. (Perez Decl. ¶ 8.) Plaintiff submits evidence of performance of its obligations under the Contract and damages. (Id. ¶¶ 1-18.)

Plaintiff submits evidence that Defendant Allen transferred the Vehicle to Defendant Redd, who operates Krash, a body shop; that the Vehicle has accrued tow and storage fees in excess of $13,356; and that Krash applied to the DMV for approval to conduct a lien sale, but Plaintiff opposed the sale. (Perez Decl. ¶¶ 9-13, Exh. D, E.) On September 23, 2022, Plaintiff sent a letter to Redd and Krash offering to pay the maximum lien stated by Civil Code section 3068 of $2,045 for its tow bill, lien fee, and accrued storage fees. Redd and Krash rejected the offer. (Id. ¶¶ 12-13, Exh. E.)[1]

The evidence, including reasonable inferences from it, sufficiently supports that Allen transferred the Vehicle to Defendants Redd and Krash and that Plaintiff did not give consent to the Vehicle being towed, stored, or repaired by Redd and Krash. (Lopez Decl. ¶¶ 6-15 and Exh. D, E.) Accordingly, Plaintiff shows a probably valid claim that it never authorized or consented to the subject vehicle being towed, stored, or repaired by Redd and Krash, and that any statutory lien would be limited to $2,750 ($1,500 for repair work and $1,250 for storage.) (See Mot. 3; Civ. Code § 3068(c)(1).) Since it appears no repair work was performed, Plaintiff’s offer to pay $2,045 for Krash’s tow bill, lien fee, and accrued storage fees was consistent with section 3068(c)(1).

No opposition to this evidence has been received. Plaintiff has shown the probable validity of its claim for possession of the Vehicle against Redd and Krash.

Plaintiff does not show that DMV has possession of the Vehicle or has wrongfully detained the Vehicle. Plaintiff has stipulated that DMV is excused from attending any proceedings in this action. Accordingly, Plaintiff does not show a probably valid claim against DMV.

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 Contract, Plaintiff has the right to repossess the Vehicle in the event of default. (Perez Decl. Exh. A.) Plaintiff has demanded that Defendants surrender the Vehicle, including from Krash and Redd. (Id. ¶¶ 12-13, 15, Exh. E.) Plaintiff has made a showing that Defendants Krash and Redd have wrongfully detained the Vehicle.

Plaintiff does not show that DMV has possession of the Vehicle or has wrongfully detained the Vehicle. Plaintiff has stipulated that DMV is excused from attending any proceedings in this action.

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.

Plaintiff seeks a writ of possession directing the levying officer to take the Vehicle from real property located at 629 Hardin Dr., Apt. 1, Inglewood, CA 90302 and 3434 West 67th Street, Los Angeles, CA 90043. (Appl. ¶ 6.) Plaintiff must establish “probable cause” to believe that the Vehicle is located at the property specified in the application. (See CCP §§ 512.010(b)(4), 512.080.)

The Hardin Dr. address is Allen’s residence. Plaintiff’s evidence, and reasonable inferences from it, supports a conclusion that Krash and Redd have retained possession at the body shop. (Perez Decl. ¶¶ 8, 10-13, 15, 17-18.) Accordingly, Plaintiff does not show probable cause to believe the Vehicle is at Allen’s residence. Moreover, since Plaintiff has not properly served Allen, Plaintiff is not entitled to a writ of possession authorizing entry onto Allen’s property.

Plaintiff submits evidence that Krash’s and Redd’s body shop is located at 3434 West 67th Street, Los Angeles, CA 90043, and that Krash and Redd have detained the Vehicle at that location. (Perez Decl. ¶¶ 8, 10-13, 15, 17-18 and Exh. D, E.) Accordingly, Plaintiff show probable cause to believe the Vehicle is located at the West 67th Street address.

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.” Plaintiff concedes that an undertaking of $43,456 (twice the Vehicle’s value) should be required of Plaintiff. (See Mot. 4:7-15.)

The court does not rule on Plaintiff’s claim for attorney’s fees at this time. (See Mot. 4.) Plaintiff should bring a separate motion for fees should Plaintiff contend that it has prevailed in this action against Krash or Redd. (See Civ. Code § 3068(d).)

Plaintiff does not show good cause for the court to take oral evidence at the hearing. (See Mot. 5.) The request for oral testimony is denied.

Plaintiff does not show that a TRO should be issued, in addition to a writ of possession. (See Mot. 4:7-15.) The request for a TRO is denied.

The applications for writ of possession against Redd and Krash are GRANTED. The court will issue a writ of possession for the Vehicle at 3434 West 67th Street, Los Angeles, CA 90043. The court does not issue the writ of possession with respect to 629 Hardin Dr., Apt. 1, Inglewood, CA 90302. Plaintiff to file an undertaking in the amount of $43,456. Plaintiff to lodge a revised proposed order within two days.

[1] Krash’s invoice and Notice of Pending Lien Sale submitted to the DMV stated that $0.00 in repairs were performed. (Lopez Decl. Exh. D.) Apparently for that reason, Plaintiff did not offer to pay the statutory lien of $1,500 for repair work.