Judge: Mitchell L. Beckloff, Case: 22STLC03425, Date: 2022-12-14 Tentative Ruling

Case Number: 22STLC03425    Hearing Date: December 14, 2022    Dept: 86

MEDALLION BANK v. MADISON

Case Number: 22STLC03425

Hearing Date: December 14, 2022

[Tentative]       ORDER DENYING APPLICATION FOR WRIT OF POSSESSION

This action arises out of a breach of a retail installment sale contract. The sole cause of action alleged by Plaintiff, Medallion Bank, against Defendants, Jerome Madison, Jr. and Rakeshia Sloan-Madison, Jr., is for breach of that contract.

Plaintiff alleges Defendants entered into a written financing agreement whereby Plaintiff financed Defendants’ purchase of a 2010 Keyston III Country 333DB Trailer, Vehicle Identification Number 4YDF33321AA740018 (Vehicle). Plaintiff alleges Defendants defaulted on the contract and owe an unpaid principal balance of $24,573.38. Plaintiff alleges Defendants have possession of the Vehicle.

Plaintiff seeks a writ of possession for the Vehicle.

On July 6, 2022, the court entered a default against Defendant Rakeshia Sloan-Madison, Jr.[1]

The court first heard this application for a writ of attachment on September 7, 2022. The court continued the matter because Plaintiff had not served Defendant, Jerome Madison, Jr., co-owner of the Vehicle.

On November 3, 2022, Plaintiff dismissed its claims against Defendant, Jerome Madison, Jr.

The application is DENIED.

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 Defendant Rakeshia Sloan-Madison, Jr. to recover the Vehicle. Plaintiff submits the following documents: (1) notice of the application; (2) application; and (3) proof of service on Defendant Rakeshia Sloan-Madison, Jr.

The application is denied.

First, Plaintiff fails to explain the absence of the Vehicle’s co-owner, Jerome Madison, Jr., in this proceeding. (Complaint, Ex. C.) Plaintiff is requesting an order adverse to Jerome Madison, Jr. (who was formerly named as a defendant), yet Plaintiff has provided no notice to him. That Plaintiff dismissed Jerome Madison, Jr. from these proceedings does not eliminate his interest in the Vehicle and the need for due process.

Second, Plaintiff fails to meet its burden on the application. Plaintiff did not file a memorandum of points and authorities to support its application as required by the California Rules of Court, Rule 3.1113, subdivision (a). (Cal. Rules of Court, rule 3.1103, subd. (a).) The court notes other than the verified complaint, there is no supporting evidence submitted for the application. The verified complaint is conclusory with few evidentiary facts.

CONCLUSION

Based on the foregoing, Plaintiff’s application for a writ of possession is denied without prejudice. (As the court previously continued this matter once, the court finds another continuance is unwarranted.)

IT IS SO ORDERED.

December 14, 2022                                                                ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court