Judge Mitchell L. Beckloff, Case Number: 23STLC04235, Date: 2023-12-15 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STLC04235, Date: 2023-12-15 Tentative Ruling

Plaintiff, Ally Bank, moves for a writ of possession against Defendant, Jamarr C. Tillman, with respect to the following motor vehicle: 2014 Honda Crosstour with a vehicle identification number of 5J6TF3H5XEL001539 (Vehicle).

On July 6, 2023, Plaintiff filed a complaint against Defendant for claim and delivery and money due on a contract.

On October 2, 2023, Plaintiff filed a proof of service of the complaint, summons, application for writ of possession, notice of hearing, and other papers on Defendant, by personal service, on September 11, 2023. The proof of service, which is signed by a process server under penalty of perjury, states the papers were personally delivered on Defendant at 2711½ W. 42^nd Street in Los Angeles.

“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.

“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.” (Id. at § 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. at § 515.010, subd. (a).)

Plaintiff submits evidence Defendant entered a contract to purchase the Vehicle; the agreement was assigned to Plaintiff; Defendant defaulted on the payment terms; Plaintiff has made demand to surrender possession; Defendant has failed to surrender the Vehicle upon demand; and Defendant owes $12,558.39 on the contract. (Singleton Decl. ¶¶ 2-9.) As noted, there is no opposition.

Based on Plaintiff’s evidence, Plaintiff has demonstrated it has a probably valid claim.

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 contract, Plaintiff has the right to repossess the Vehicle in the event of default. (Singleton Decl. Exh. A.) Plaintiff has demanded Defendant surrender the Vehicle. (Id. ¶¶ 7, 9.) Plaintiff has shown Defendant wrongfully detained the Vehicle after defaulting on the contract by failing to make required monthly payments.

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 vehicle identification number. Plaintiff has also provide a statement of the Vehicle’s value. Plaintiff therefore satisfies Code of Civil Procedure section 512.010, subdivision (b)(3).

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

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

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’s representative, James Singleton, declares “the file of Plaintiff reflects that defendant Jamarr Tillman resides at 2711½ W. 42nd St, Los Angeles, CA 90008.” (Singleton Decl. ¶ 11.) The certificate of title for the Vehicle and also the proof of service of the summons and complaint corroborate this statement. Specifically, the certificate of title lists Defendant’s address as 2711 W. 42^nd St., Los Angeles, CA 90008. (Id. Exh. B.) The proof of service, which is signed by a process server under penalty of perjury, states that the summons, complaint, and other papers were personally delivered to Defendant at 2711½ W. 42^nd St., Los Angeles, CA 90008 on September 11, 2023. The court infers from this evidence that Defendant resides at 2711½ W. 42^nd St., Los Angeles, CA 90008 and stores the Vehicle at that location.

The court finds probable cause to believe that the Vehicle is located at 2711½ W. 42^nd St., Los Angeles, CA 90008. Accordingly, the court grants the writ of possession with respect to that location.

Code of Civil Procedure section 515.010 requires an undertaking to 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 that the amount owing on the Vehicle exceeds its market value. (See Singleton Decl. ¶¶ 6, 8.)[1] Accordingly, no undertaking from Plaintiff is required.

Plaintiff appears to request a turn-over order. (See Memorandum 2:16-21.) Code of Civil Procedure section 512.070 states: “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.)

Plaintiff is entitled to a turnover order based on its showing on the application.

The application for writ of possession and request for a turnover order are GRANTED.

[1] Specifically, Singleton declares that Defendant owes the sum of $12,558.39 on the contract. (Id. ¶ 6.) He also submits evidence that the “average” trade-in value for the Vehicle is $9,400.00. (Id. ¶ 8, Exh. C.) While the J.D. Power report submitted by Singleton states that the “clean retail” value of the Vehicle is $13,100, the court concludes that the average trade-in value provides a better estimate of the value of the Vehicle for purposes of the undertaking calculation.