Judge Mitchell L. Beckloff, Case 22STLC02947 2023-02-10 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STLC02947, Date: 2023-02-10 Tentative Ruling

Plaintiff, Wheels Financial Group, LLC, seeks a writ of possession against Defendant, Francisco Cortes, individually and dba J & S Automatic Transmission, dba JS Transmissions, over the following property: 1970 Chevrolet Camero (VIN 1248701517312) (the Vehicle). Defendant has not submitted an opposition.

“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 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.” (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.)

Plaintiff submits the declaration of Ulises Borrayo, Litigation Department Manager for Plaintiff, and Sheryl Noel, Plaintiff’s attorney, to support its application. The evidence demonstrates Plaintiff’s assignor and Edwin Estuardo Reyes entered into a sales agreement for the Vehicle. (Borrayo Decl., ¶ 5) In a separate litigation, Plaintiff filed suit for possession of the Vehicle and for damages against Reyes and prevailed. (RJN Ex. 1.)

On February 4, 2022, Plaintiff received a copy of an "Application for Lien Sale Authorization and Lienholder's Certification" prepared by Defendant, which reflects storage fees in the amount of $10,000 for the Vehicle. (Borrayo Decl., ¶ 8, Ex. B) Plaintiff was informed Reyes left the Vehicle with Defendant for repairs but never picked up the Vehicle because he could not pay for the repairs. (Borrayo Decl., ¶ 11.)

Plaintiff never received an invoice or estimate for repairs, storage and/or towing for the Vehicle from Defendant. (Borrayo Decl., ¶ 14.) In February 2022, Plaintiff contacted Defendant to inspect the Vehicle and take possession after offering the statutory maximum for storage fees pursuant to Civil Code section 3068. (Borrayo Decl., ¶¶ 15-18, Ex. C; Noel Decl., ¶ 4, Ex. E.)

Defendant refused to release possession of the Vehicle and refused the statutory maximum offer for the storage. (Borrayo Decl., ¶ 19.)

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, 242-43.)

Plaintiff submits evidence demonstrating probable cause to believe the Vehicle is currently in the possession of Defendant at its place of business located at: 4445 W Imperial Highway, Inglewood, CA 90304. (Borrayo Decl., ¶¶ 22, 24.)

Pursuant to Code of Civil Procedure section 512.010, Plaintiff has (1) shown it is entitled to possession of the Vehicle; (2) shown the Vehicle is wrongfully detained by Defendant;

(3) described the Vehicle and stated the value of the Vehicle is $9,1000; (4) submitted evidence the Vehicle is located at 4445 W Imperial Highway, Inglewood, CA 90304; and (5) declared that the property has not been taken for a tax, assessment or fine or seized under execution (Form CD-100 ¶ 8).

For the foregoing reasons, Plaintiff’s application for a writ of possession is granted.[1]

[1] Plaintiff submits evidence the Vehicle is worth $9,100. (Borrayo Decl., ¶¶ 21, Ex. D.) Plaintiff argues Reyes owes $10,694.94, plus accruing post-judgment interest in the amount of $4,011.17 through September 13, 2022; however, this action is against Defendant, not Reyes. As such, it is Defendant’s interest in the Vehicle that matters for purposes of the undertaking. The court is inclined to require Plaintiff to submit an undertaking in the amount of $4,550. The court has set the undertaking based on Defendant’s statutory maximum for storage ($1,250) and towing ($1,025). (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).