Judge Mitchell L. Beckloff, Case Number: 23STLC03047, Date: 2023-08-30 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STLC03047, Date: 2023-08-30 Tentative Ruling

Case Number: 23STLC03047 Hearing Date: August 30, 2023 Dept: 86

SIERRA CREDIT CORP. v. VILLA

Case Number: 23STLC03047

Hearing Date: August 30, 2023

[Tentative] ORDER GRANTING APPLICATION FOR WRIT OF POSSESSION

[NOTE: As Defendant is in default, if Plaintiff intends to submit on this tentative decision, Plaintiff may notify the court clerk in advance of the hearing.]

Plaintiff, Sierra Credit Corp., applies for a writ of possession against Defendant, Gustavo E. Villa, with respect to the following property: a 2008 Mercedes-Benz CLS 550, motor vehicle, Vehicle Identification Number WDDDJ72X18A123299 (Vehicle).

RELEVANT PROCEDURAL HISTORY

On May 5, 2023, Plaintiff filed a complaint against Defendant for claim and delivery and money due on a contract.

On May 18, 2023, Plaintiff filed its application for writ of possession.

On June 2, 2023, Plaintiff filed a proof of service of the complaint, summons, application for a writ of possession, notice of hearing, and other papers on Defendant, by substitute service, on May 22, 2023. The declaration of diligence (signed by a process server under penalty of perjury) states a “co occupant/wife” accepted service of the papers for Defendant at 1739 Temple Ave., #F in Long Beach.

On July 18, 2023, the court entered Defendant’s default.

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, 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.” (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.)

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).)

ANALYSIS

Probable Validity of Plaintiff’s Claim

Plaintiff submits evidence Defendant entered an agreement to purchase the Vehicle; the agreement was assigned to Plaintiff; Defendant defaulted on the payment terms; Plaintiff has made demand to surrender possession of the Vehicle; Defendant has failed to surrender the Vehicle upon demand; and Defendant owes the sum of $11,648.93, including $6,160.19 in principal, $5,270.05 in interest, and $158.69 for late charges. (Alonso Decl. ¶¶ 4-5.) Defendant has not filed any opposition to this evidence. (As noted, Defendant’s default has been entered.) Based on Plaintiff’s showing, Plaintiff has demonstrated it has a probably valid claim.

Wrongful Detention

Pursuant to Code of Civil Procedure section 512.010, subdivision (b)(2), the application must include “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.”

Under the purchase agreement, Plaintiff has the right to repossess the Vehicle in the event of default. (Alonso Decl. Exh. A.) Plaintiff has demanded Defendant surrender the Vehicle. (Id. ¶ 5.) Thus, Plaintiff has demonstrated Defendant wrongfully detained the Vehicle after defaulting on the parties’ contract.

Description and Value of Property

Pursuant to Code of Civil Procedure section 512.010, subdivision (b)(3), the application must include a particular description of the property and a statement of its value.

Plaintiff has provided a particular description of the property—by make and VIN. Plaintiff has also provided a statement as to value. Plaintiff therefore has satisfied Code of Civil Procedure section 512.010, subdivision (b)(3).

Statutory Statements

Pursuant to Code of Civil Procedure section 512.010, subdivisions (b)(4) and (5), the application must include:

Plaintiff has provided a statement the property has not been taken for a tax, assessment, or fine and has not been seized under an execution against the Plaintiff’s property.

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

Plaintiff’s representative, Lisset Alonso, declares “[t]he file . . . reflects that defendant Gustavo Villa resides at 1739 Temple Ave., #F, Long Beach, CA 90804 and is employed at Elite Fuels Transportation at 2155 Chicago Ave., #200 Riverside, CA 92507.” (Alonso Decl. ¶ 10.) The proof of service of the summons and complaint corroborates Alonso’s statement as to the 1739 Temple Avenue address. Specifically, the declaration of diligence (signed by a process server under penalty of perjury) states a “co occupant/wife” accepted service of the papers for Defendant at “1739 Temple Ave., #F, Long Beach, CA 90804” on May 22, 2023. The court infers from this evidence Defendant resides at 1739 Temple Avenue in Long Beach and stores the Vehicle at that location. The court cannot find sufficient probable cause from Alonso’s declaration, however, that Defendant stores the Vehicle at 2155 Chicago Avenue in Riverside.

The court only finds probable cause the Vehicle may be located at the 1739 Temple Avenue location only. Accordingly, the writ of possession will reflect only that location.

Undertaking

Code of Civil Procedure section 515.010 requires an undertaking be filed before the writ issues in the amount of “not less than twice the value of the defendant’s interest in the property.” Plaintiff provides evidence the amount owing on the Vehicle exceeds its market value. (See Alonso Decl. ¶¶ 5-6.) Accordingly, no undertaking from Plaintiff is required.

Turnover Order

Plaintiff appears to request a turn-over order. (See Memo 2:18-23, 3:13.) Code of Civil Procedure section 512.070 provides: “If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court.” (Emphasis added.) “Thus a ‘turnover’ order, issued pursuant to section 512.070, is not a separate remedy but rather an alternative means of enforcing a writ of possession.” (Edwards v. Superior Court (1991) 230 Cal.App.3d 173, 178.)

Given that Plaintiff has established its entitlement to a writ of possession, the court also issues a turnover order.

CONCLUSION

The application for writ of possession is GRANTED with a specified location of 1739 Temple Ave., #F in Long Beach only.

Plaintiff’s request for a turnover order pursuant to Code of Civil Procedure section 512.070 is granted.

No undertaking is required.

IT IS SO ORDERED.

August 30, 2023 _______________________________

Hon. Mitchell Beckloff

Judge of the Superior Court