Judge: Michael J. Strickroth, Case: 2023-01301013, Date: 2023-08-14 Tentative Ruling
Application for Writ of Possession
Plaintiff John Deere Construction & Forestry Company’s Application for Writ of Possession is GRANTED as to the following equipment, located at 692 N. Cypress St., Orange, CA 92867:
· John Deere 624K 4WD Loader ID#lDW624KZJFF671075 including coupler, 3-yard bucket, and 60" Forks; a
· John Deere 644K Loader 4WD ID#lDW644KZKHF680970; a
· Hitachi ZX135LC-6 Excavator ID#HCMDAF60L00100362; and
· John Deere 210L EP Landscape Loader ID#lT8210ELAHJ894291
Plaintiff has Shown Probable Validity of Claim
Code of Civil Procedure section 512.010 provides in relevant part, “(a) 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. [¶] (b) The application shall be executed under oath and shall include all of the following: [¶] (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.”
Code of Civil Procedure section 512.060 states, “(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 of Civil Procedure section 511.090 provides, “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.”
Here, Plaintiff attaches Exhibits A-D, the subject contracts which give Plaintiff a security interest in the equipment and provide that Plaintiff can recover the equipment upon Defendants’ default on the installment contracts. Plaintiff’s counsel declares Defendants defaulted on payment under the contracts. The declaration of Plaintiff’s counsel includes the required matters under CCP 512.010.
Plaintiff has established probable cause to believe the property is located at 692 N. Cypress St., Orange, CA 92867 based on counsel’s declaration that their repo agents located the equipment at that address, but the equipment was blocked and the repo agents could not get access to it.
Undertaking
Code of Civil Procedure section 515.010 provides,
“(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 of Civil Procedure section 515.020 provides,
“(a) The defendant may prevent the plaintiff from taking possession of property pursuant to a writ of possession or regain possession of property so taken by filing with the court in which the action was brought an undertaking in an amount equal to the amount of the plaintiff's undertaking pursuant to subdivision (a) of Section 515.010 or in the amount determined by the court pursuant to subdivision (b) of Section 515.010.
(b) The undertaking shall state that, if the plaintiff recovers judgment on the action, the defendant shall pay all costs awarded to the plaintiff and all damages that the plaintiff may sustain by reason of the loss of possession of the property. The damages recoverable by the plaintiff pursuant to this section shall include all damages proximately caused by the plaintiff's failure to gain or retain possession.
(c) The defendant's undertaking may be filed at any time before or after levy of the writ of possession. A copy of the undertaking shall be mailed to the levying officer.
(d) If an undertaking for redelivery is filed and the defendant's undertaking is not objected to, the levying officer shall deliver the property to the defendant, or, if the plaintiff has previously been given possession of the property, the plaintiff shall deliver the property to the defendant. If an undertaking for redelivery is filed and the defendant's undertaking is objected to, the provisions of Section 515.030 apply.”
Here, Plaintiff has posted an undertaking in the amount of $10,000.
Plaintiff has complied with the statutory requirements and the application is unopposed,
Defendants shall cooperate in transferring possession of the equipment to Plaintiff. Failure to turn over possession of the property may subject Defendants to being held in contempt of Court. Code of Civil Procedure § 512.70.
Plaintiff is ordered to submit a Proposed Order consistent with the Court’s ruling above.
Plaintiff to give notice.