Judge Mitchell L. Beckloff, Case 22STCV28426 2023-02-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCV28426, Date: 2023-02-03 Tentative Ruling

Plaintiff, Ally Financial, Inc., seeks a writ of possession against Defendant, Donald Moffett, over the following property: 2018 Nissan Maxima (VIN 1N4AA6AP7JC392223) (the Vehicle). Defendant has not filed an opposition. The court entered Defendant’s default on October 27, 2022.

“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.

(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, the Defendant must be served with (1) a copy of the summons and complaint; (2) the form notice of application and hearing; and (3) a copy of the application and any affidavit in support thereof. (Code Civ. Proc.,

“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.” (Code Civ. Proc., § 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.” (Code Civ. Proc., § 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.” (Code Civ. Proc., § 512.040, subd. (c).)

Prior a writ of possession issuing, 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.” (Code Civ. Proc., § 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.” (Id.) “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 Civ. Proc., § 515.010, subd. (b).)

A plaintiff seeking a writ of possession must make a showing that “the plaintiff is entitled to possession of the property claimed.” (Code Civ. Proc., § 512.010, subd. (b).) “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.” (Code Civ. Proc., § 512.040.)

Here, Plaintiff submits the Declaration of Jennifer Sparks, a Replevin Specialist with Plaintiff in support of the application. The evidence demonstrates Plaintiff’s assignor and Defendant entered into a sales agreement for the Vehicle. (Sparks Decl., ¶ 5, Ex. A.) Pursuant to the sales agreement, Defendant agreed to make monthly payments in the amount of $467.52. (Sparks Decl., ¶ 6.) Defendant defaulted by failing to make the payment due on June 10, 2021, or any monthly payment thereafter. (Sparks Decl., ¶ 6.) As of August 24, 2022, Sparks represents Defendant owes $25,771.39 on the contract. (Sparks Decl., ¶ 6.)

Plaintiff has provided no evidence of its interest in the sales contract. Plaintiff has provided no proof of assignment other than Sparks’ conclusory statement. (Sparks Decl., ¶ 5.) While Plaintiff has attached a PDP Electronic Title Document, Plaintiff provides an insufficient foundation for the document to demonstrate it has an interest in the sales contract. (Sparks Decl., ¶ 5, Ex. B.)

Accordingly, the court finds Plaintiff has not shown a probable validity of its claim.

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(b)(4), 512.080; see also Simms v. NPCK Enterprises, Inc., (2003) 109 Cal.App.4th 233, 242-43.)

Plaintiff submits evidence demonstrating probable cause to believe the Vehicle is currently in the possession of Defendant at his residence located at: 7950 Howe St., #213, Paramount, CA 90723. (Sparks Decl., ¶ 10.)

Pursuant to Code of Civil Procedure section 512.010, Plaintiff has (1) submitted evidence the Vehicle is located at 7950 Howe St., #213, Paramount, CA, (2) described the Vehicle and provided evidence the value of the Vehicle is between $22,375 and $26,250, and (3) declared the property has not been taken for a tax, assessment or fine or seized under execution (Judicial Council Form CD-100 ¶ 8).

Plaintiff has not shown, however, (1) it is entitled to possession of the Vehicle, or (2) shown that the Vehicle is wrongfully detained by Defendant.

Based on the foregoing, Plaintiff’s application for a writ of possession is denied. [1]

[1] Plaintiff submits evidence Defendant owes $25,771.39 on the contract while the Vehicle is worth $22,375 wholesale and $26,250 retail. (Sparks Decl., ¶¶ 6-7.) Because Defendant has some potential interest in the Vehicle, Plaintiff is required to submit an undertaking. (Code Civ. Proc., § 515.010, subd. (b). [“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.”]) Defendant may prevent Plaintiff from taking possession of the Vehicle by filing with the Court an undertaking pursuant to Code Civil Procedure section 515.020, subdivision (a).