Judge: Mitchell L. Beckloff, Case: 23STCV10856, Date: 2023-10-11 Tentative Ruling

Case Number: 23STCV10856    Hearing Date: January 12, 2024    Dept: 86

SANTANDER CONSUMER USA INC. v. POLOVYI

Case Number: 23STCV10856

Hearing Date: October 11, 2023 and January 12, 2024

[Tentative]       ORDER DENYING APPLICATIONS FOR WRITS OF POSSESSION

Plaintiff, Santander Consumer USA Inc., moves for writs of possession against Defendants Artem Polovyi, California Department of Motor Vehicles , Eco Blue, and Christopher Stephan (collectively, Defendants) with respect to the following property: 2022 Nissan Armada, motor vehicle, Vehicle Identification Number JN8AY2AC7N9160854 (Vehicle).

The applications are denied.

RELEVANT PROCEDURAL HISTORY

On May 15, 2023, Plaintiff filed a complaint against Defendants for claim and delivery, conversion, quiet title, and declaratory relief.

On June 22, 2023, Plaintiff its applications for writs of possession. 

On June 30, 2023, DMV filed a stipulation, acceptance of service, and order regarding waiver of appearance by and of monetary recovery against DMV. 

On July 17, 2023, Plaintiff filed proof of service of the summons, complaint, and application for writ of possession on Defendant Polovyi by substituted service.

No proof of service of the summons, complaint, and application for writ of possession has been filed as to Defendants Eco Blue and Christopher Stephan.

The court continued the matter for 90 days to allow Petitioner to serve the required documents. Plaintiff merely filed a notice of continuance.

SUMMARY OF APPLICABLE LAW

“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, subd. (b), an application for a writ of possession 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.

“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.) 

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).) 

ANALYSIS 

No Proof of Service for Defendants Eco Blue and Christopher Stephan

Before the hearing on the application for writ of possession, the defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof.  (Code Civ. Proc., § 512.030.)

No proof of service of the summons, complaint, notice of hearing, and application for writ of possession has been filed with respect to Defendant Eco Blue and Defendant Stephan.  Accordingly, the applications are DENIED WITHOUT PREJUDICE as to those Defendants. 

Probable Cause re: Location of the Vehicle as to Defendant Polovyi

Pursuant to Code of Civil Procedure, section 512.010, subdivision (b)(4), the application must include:

(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.

Because the application asks for an order permitting a levying officer to enter private property and take possession of the Vehicle, Plaintiff must establish “probable cause” to believe that the Vehicle is located at the property.  (See Code Civ. Proc., §§ 512.010, subd. (b)(4), 512.080.)  

Plaintiff contends the Vehicle is located at 7236 Woodman Avenue, Van Nuys, CA 91405 or 18336 Soledad Canyon Road, Suite 1819, Canyon Country, CA 91386.  (Appl. ¶ 6; Vargas Decl. ¶ 18.)  Plaintiff’s representative declares that Plaintiff’s file reflects that Defendant Polovyi resides at 7236 Woodman Avenue and Defendants Eco Blue and Stephan operate a body shop at 18336 Soledad Canyon Road. (Vargas Decl. ¶¶ 6, 18.) Plaintiff’s representative further declares Defendant Polovyi transferred the Vehicle to Defendant Eco Blue and Defendant Stephan for repairs or storage; the Vehicle has accrued labor, tow, and storage fees in excess of $10,000; Defendant Eco Blue and Defendant Stephan applied to the DMV for a lien sale, which Plaintiff opposed; and Defendant Eco Blue and Defendant Stephan have confirmed they still have possession of the Vehicle. (Id. ¶¶ 6-12.) In light of this evidence, Plaintiff does not show probable cause to believe the Vehicle is located at Defendant Polovyi’s residence at 7236 Woodman Avenue. Nor does Plaintiff show Defendant Polovyi currently has possession of the Vehicle. Accordingly, the application is DENIED as to Defendant Polovyi and to the extent it seeks to authorize the levying officer to enter 7236 Woodman Avenue, Van Nuys, CA 91405.

DMV

Plaintiff has not shown that DMV currently has possession of the Vehicle.  Accordingly, the application is DENIED WITHOUT PREJUDICE as to DMV.

CONCLUSION 

The application seeking a writ of possession with respect to Defendant Polovyi and property located at 7236 Woodman Avenue, Van Nuys, CA 91405 is DENIED WITHOUT PREJUDICE.

The applications seeking a writ of possession with respect to Defendant Eco Blue and DEFENDANT Stephan and property located at 18336 Soledad Canyon Road, Suite 1819, Canyon Country, CA 91386 are DENIED WITHOUT PREJUDICE.

The application seeking a writ of possession with respect to DMV is DENIED WITHOUT PREJUDICE.

Given that the court continued this matter previously and nothing further has occurred, the court is not inclined to grant any further continuances. The court previously advised counsel on this case or another that continuances for counsel in these types of cases were become far too routine.

 IT IS SO ORDERED. 

January 12, 2024                                                                   _______________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court