Judge Mitchell L. Beckloff, Case 22STLC07246 2023-04-21 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STLC07246, Date: 2023-04-21 Tentative Ruling

Plaintiff, American Credit Acceptance, seeks a writ of possession against Defendants Deonte Crump, Trust Auto Collision Center, Inc., Felix Pennington, individually and dba Trust Auto Collision Center, Inc., over the following property: a 2016 BMW 428i motor vehicle (VIN WBA3N7C56GK228501) (Vehicle). Defendants did not file an opposition.[1]

“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., § 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.” (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.” (Ibid.) “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 Jessica Lopez Palma, Plaintiff’s employee, in support of the applications. The evidence shows Plaintiff’s assignor and Defendant Crump entered into a sales agreement for the Vehicle. (Palma Decl., ¶ 7, Ex. A.) Pursuant to the contract, Defendant Crump agreed to make monthly payments in the amount of $773.72 in exchange for the Vehicle. (Palma Decl., ¶¶ 7-8, Ex. A.) Defendant Crump thereafter defaulted by failing to make any payments due after July 4, 2022. (Palma Decl., ¶ 8.) Plaintiff represents $26,729.21 is now owed on the contract. (Palma Decl., ¶ 8, Ex. C.)

Plaintiff also submits evidence that prior to the commencement of this action, the Vehicle was transferred to the possession of Defendant body shop[2] where it remains. (Palma Decl., ¶¶ 10-11.) Plaintiff contacted Defendant body shop to resolve the matter and offered the maximum amounts for repair and storage pursuant to Civil Code Section 3O68, subdivision (c); the parties did not resolve the matter. (Palma Decl., ¶ 13., Ex. E.)

The court finds Plaintiff has shown the probable validity of its claim against Defendants.

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.)

Based on the evidence submitted, Plaintiff has demonstrated probable cause to believe the Vehicle is currently in the possession of Defendants at either: Defendant Crump’s residence located at 14 512 W. 64th Place, Inglewood, CA 90302; Defendant Trust Auto Collision Center, Inc.’s principal place of business located at 2801 West Slauson Ave., Los Angeles, CA 90043; or Defendant Pennington’s place of employment located at 2801 West 17 Slauson Ave., Los Angeles, CA 90043. (Palma Decl., ¶ 18.)

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 Defendants; (3) described the Vehicle and stated the value of the Vehicle is between $16,000 wholesale and $21,300 retail; (4) submitted evidence as to the Vehicle’s location; and (5) declared that the property has not been taken for a tax, assessment or fine or seized under execution (Judicial Council Form CD-100 ¶ 8).

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

Plaintiff submits evidence Defendant Crump owes $26,729.21 on the contract while the Vehicle is worth approximately $21,000 retail. (Palma Decl., ¶¶ 8, 14.) Defendants have no equity in the Vehicle; therefore, Plaintiff is not required to submit an undertaking. (Code Civ. Proc., § 515.010, subd. (b).) Defendants may prevent Plaintiff from taking possession of the Vehicle by filing an undertaking with the court. (Code Civ. Proc., § 515.020, subd. (a).) Defendants’ undertaking shall be for $26,729.21.

[1] The court entered Defendants’ default on March 2, 2023.

[2] The court references the body shop to collectively refer to Defendant Pennington, individually and doing business as Trust Auto Collision Center, and Defendant Trust Auto Collision Center, Inc.