Judge: Mitchell L. Beckloff, Case: 23STLC01587, Date: 2023-10-04 Tentative Ruling

Case Number: 23STLC01587    Hearing Date: October 4, 2023    Dept: 86

HARLEY-DAVIDSON CREDIT CORP. v. AMEZCUA

Case Number: 23STLC01587

Hearing Date: October 4, 2023

[Tentative]       ORDER DENYING APPLICATION FOR WRIT OF POSSESSION

Plaintiff, Harley-Davidson Credit Corp., seeks writ of possession against Defendant, Anthony Amezcua, for a 2021 Harley-Davidson FXLRS Low Rider S (motorcycle) with a vehicle identification number of 1HD1YWK26MB050571. Defendant has not filed an opposition.

The court finds notice has been given as required by law.

The application is denied without prejudice. Plaintiff as not established it—as opposed to Eaglemark Savings Bank—has any interest in the contract underlying the dispute between the parties.

APPLICABLE LAW

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply . . . 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.”

“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).)

ANALYSIS

The complaint alleges causes of action for (1) claim and delivery of personal property,

(2) breach of contract, and (3) a common count for money lent. 

“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.) 

In support of its claims, Plaintiff submits evidence of a promissory note and security agreement (contract) executed on June 30, 2021 between Defendant and Eaglemark Savings Bank. (Mistry Decl. ¶ 4, Ex. A.) Plaintiff has not provided any evidence it has any interest in the contract.

Plaintiff’s employee attests Defendant failed to make the May 30, 2022 payment or any subsequent payments thereafter as required by the contract. (Mistry Decl. ¶ 5.)

Plaintiff has not demonstrated the probable validity of its claim because it has not demonstrated it has any interest in the contract. Assuming Plaintiff could show the assignment, Plaintiff has demonstrated its claim against Defendant is probably valid.

Plaintiff alleges Defendant came into possession of the motorcycle pursuant to the contract and has refused to surrender the motorcycle after his default under the contract and Plaintiff’s demand. (Application ¶ 5.) Plaintiff also contends Defendant refused to explain the reason for Defendant’s detention of the motorcycle. (Id.)

According to Plaintiff, the motorcycle is “[i]n a garage, behind a locked gate or inside structure on the premises at Defendant’s residence or employment address at 904 W 85th St, Los Angeles, CA 90044.” (Application ¶ 6.) Defendant’s mailing address on the contract reflects the same address. (Mistry Decl., Ex. A.)

Plaintiff attests the wholesale and retail value of the motorcycle is $12,655 and $18,265, respectively. (Mistry Decl. ¶6, Ex. B.) Plaintiff also contends the balance owed by Defendant on the contract is $19,134.10 plus interest, late charges, attorneys’ fees, and costs (Mistry Decl. ¶6, Ex. C.)

As Defendant has no interest in the motorcycle based on its value and the amount due under the contract, no undertaking would be required of Plaintiff—assuming Plaintiff has an interest in the contract. Plaintiff’s request for a redemption bond of $19134.10 is granted. (See Code Civ. Proc., § 515.010, subd. (b).)

CONCLUSION

Based on the foregoing, the application for a writ of possession is denied.

IT IS SO ORDERED.

October 4, 2023                                                       ________________________________

                                                                                      Hon. Mitchell Beckloff

                                                                                      Judge of the Superior Court