Judge: Mitchell L. Beckloff, Case: 23STCV29207, Date: 2024-03-06 Tentative Ruling
Case Number: 23STCV29207 Hearing Date: March 6, 2024 Dept: 86
AFC CAL,
LLC v. GONZALEZ
Case No.
23STCV29207
Hearing Date:
March 6, 2024
[Tentative] ORDER DENYING APPLICATION FOR WRIT OF POSSESSION
[Plaintiff
should be prepared to address notice at the hearing. The due diligence attached
to the proof of service filed January 25, 2024 indicates the address where
Plaintiff served Defendant is “vacant” and the “company moved out weeks ago.” A
week later, Plaintiff’s process server served by substitute service a manager
who would apparently have no relationship with Defendant. Further, the notice
of the hearing for today’s application went to the vacant address on February
9, 2024.]
Plaintiff, AFC
CAL, LLC, seeks a writ of possession against Defendant, Maria Teresa Gonzalez
over motor vehicles and trucks “floored by” Plaintiff. Plaintiff has provided the
vehicle identification numbers for nine different vehicles for which it has a perfected
security interest as an attachment to the application. Defendant has not filed
an opposition.
The application
for a writ of possession is denied. Plaintiff has not provided any evidence of the
location of the property it seeks to attach. The evidence from Plaintiff’s
process servers suggests the San Fernando Road address is “vacant,” and nothing
suggests the vehicles are located at the Sylmar address. Further, the court
cannot find Defendant has been served with the summons and complaint.
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, 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, 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).)
ANALYSIS
Probable Validity of its Claim
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 Gricelda Ochoa, Plaintiff’s employee, in support of
the application. The evidence shows Plaintiff and Defendant
entered into a loan agreement whereby Plaintiff provided financing for
automobiles purchased by Defendant for resale. To perfect its security
interest, Plaintiff filed a UCC-1 with the Secretary of State. Defendant also signed
a guaranty agreement to assure repayment of the loan. Defendant has defaulted
in her payment obligations to Plaintiff, and Plaintiff is entitled to
possession of the collateral based on the default. Despite Plaintiff’s demands,
Defendant has not surrendered the collateral. Plaintiff has submitted the
relevant loan documents into evidence.
The court
finds Plaintiff has shown the probable validity of its claim against Defendant.
Plaintiff Fails to Submit Evidence
Showing the Vehicle’s Probable Location
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 and the court’s review of the file, Plaintiff has not demonstrated probable
cause to believe the Vehicle is currently in the possession of Defendant at the
business address in Pacoima—which apparently is vacant—or Defendant’s residence
address in Sylmar.
Neither Plaintiff’s
points and authorities nor Ochoa’s declaration address the location of the vehicles.
Plaintiff’s verified complaint also omits any evidence of the location of the vehicles.
Accordingly,
the application must be denied.
Service
of Summons and Complaint
Based on the
evidence in the process server’s declaration of due diligence, the court is not
inclined to find Defendant has been served with the summons and complaint in
this matter. Without such service, the court cannot order a writ of attachment
be issued. (Code Civ. Proc.,
§ 512.030.)
CONCLUSION
Based on the foregoing,
Plaintiff’s application for a writ of possession is denied.
IT IS SO ORDERED.
March 6, 2024 ________________________________
Hon. Mitchell
Beckloff
Judge of the
Superior Court