Judge: Mitchell L. Beckloff, Case: 22STCV00146, Date: 2022-08-03 Tentative Ruling
Case Number: 22STCV00146 Hearing Date: August 3, 2022 Dept: 86
VW Credit Leasing LTD V. Greta A. Sheelinkarian
Case Number: 22STCV00146
Hearing Date: August 3, 2022
[Tentative] ORDER DENYING APPLICATION FOR WRIT OF POSSESSION
This action arises out of a breach of a car lease agreement.
On April 12, 2022, Plaintiff, VW Credit Leasing LTD, filed its operative First Amended Complaint (1AC) against Defendants, Greta A. Sheelinkarian and Clutch Motorsport, Inc. (Clutch). The 1AC contains three causes of action: (1) breach of contract; (2) conversion; and (3) claim and delivery.
Plaintiff alleges Sheelinkarian entered into a written Lease Agreement with Audi Downtown LA (Audi) whereby Audi leased to Sheelinkarian a 2020 Audi A8, vehicle identification number WAU8DAF84LN015471 (Vehicle) in exchange for Sheelinkarian’s payment to Audi of $7,000.00 at lease signing followed by 35 consecutive monthly installment payments in the amount of
$1,356.39. Plaintiff[1] alleges Sheelinkarian defaulted on the contract and owes an unpaid principal balance of $83,088.11. Plaintiff alleges on information and belief only Clutch has possession of the Vehicle.
On July 13, 2022, the court entered a default against Clutch.
Plaintiff now applies for writ of possession of the Vehicle.
The application is unopposed.
The application is denied without prejudice.
LEGAL STANDARD
“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.” (Code Civ. Proc., § 512.010, subd. (a).)
Pursuant to Code of Civil Procedure section 512.010, subdivision (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 application for a writ of possession, a defendant must be served with (1) a copy of the summons and complaint; (2) a Judicial Council form notice of application and hearing; and (3) a copy of the application and any affidavit in support thereof. (Id., § 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.” (Id., § 512.040, subd. (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.” (Id., § 511.090.) “If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff’s right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with Section 515.020.” (Id., § 512.040, subd. (6).)
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.” (Id., § 515.010, subd. (a).) “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.” (lbid.) ‘‘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.” (Id., § 515.010, subd. (b).)
ANALYSIS
Plaintiff seeks a writ of possession against Clutch to recover the Vehicle. Plaintiff submits the following documents: (1) notice of the application; (2) application; (3) Tompkins Declaration; and (4) proof of service.
Service Requirements
The proof of service shows Plaintiff served Clutch by substitute service on Clutch’s agent, Arman Simonyan, on June 2, 2022. The court entered a default against Clutch on July 13, 2022.
“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, subd. (b).)
As Clutch has not appeared, service must be made in the same manner as a summons. Substitute service is a valid form of service. Accordingly, service is proper. (The court notes Plaintiff provided notice of the application when it served the application.)
Lack of Memorandum of Points and Authorities
An application for a writ of possession is a law and motion matter. (Cal. Rules of Court, Rule 3.1103, subd. (a)(1) [application before trial]). A motion “must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” (Id. at Rule 3.112, subd. (a).) The California Rules of Court do not excuse the submission of a memorandum of points and authorities with an application for a writ of possession. (Id. at Rule 3.1114, subd. (a) [motions for which memo not required].)
“A party filing a motion, except for a motion listed in rule 3.114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion . . . is not meritorious and cause for its denial . . . .” (Id. at Rule 3.113, subd. (a).) A memorandum “must contain a statement of the facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Id. at subd. (b).)
Plaintiff’s application is incomplete and does not comply with the law. Plaintiff filed a notice of application and hearing form (Judicial Council Form CD-110), an application (Judicial Council Form CD-100) and a Declaration of Jennifer Tompkins. Plaintiff filed no other document in support of its application (other than a proof of service).
Accordingly, the court denies Plaintiff’s application without prejudice.
Statement of Location
The court also notes Plaintiff has not sufficiently alleged where the property to be attached is located. A plaintiff seeking a writ of possession over property located “within a private place which may have to be entered to take possession,” must “sho[w] that there is probable cause to believe that such property is located there.” (Code Civ. Proc., §§ 512.010, subd. (b)(4), 512.080; see also Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 242-243.)
Plaintiff believes the Vehicle is located at Clutch’s business address, which is 7255 Atoll Avenue, North Hollywood, California 91605. (Application ¶¶ 6-7, Tompkins Decl. ¶ 14.) Plaintiff makes its showing on information and belief. The foundation for Plaintiff’s belief is unspecified. The application is insufficient to demonstrate probable cause to believe the Vehicle is located at 7255 Atoll Avenue.
CONCLUSION
Based on the foregoing, Plaintiff’s application for the writ of possession is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
August 3, 2022 ________________________________
Hon. Mitchell Beckloff
Judge of the Superior Court