Judge: Nathan Vu, Case: 2023-01314635, Date: 2023-05-22 Tentative Ruling
Application for Writ of Possession
Plaintiff JPMorgan Chase Bank, N.A.’s application for writ of possession is GRANTED as to Defendant Insurance Auto Collision Center and Defendant Aram Grigorian, and DENIED as to Defendant Robert Fichidzyan.
Plaintiff JPMorgan Chase Bank, N.A. is ORDERED to prepare and submit a proposed Writ of Possession After Hearing (Judicial Council form CD-130) consistent with the court’s ruling.
The requirement that Plaintiff JPMorgan Chase Bank, N.A post a bond in order to obtain the writ of possession is WAIVED.
Defendant Insurance Auto Collision Center (Defendant IACC) and/or Defendant Aram Grigorian (Defendant Grigorian) are ORDERED to post a bond in the amount of $102,350 if either of them wishes to prevent Plaintiff JPMorgan Chase Bank, N.A. from taking possession of the Subject Vehicle pursuant to the writ of possession or otherwise from regaining possession of the Subject Vehicle.
Defendants’ undertaking shall state that, if the plaintiff recovers judgment on the action, the defendants shall pay all costs awarded to the plaintiff and all damages that the plaintiff may sustain by reason of the loss of possession of the property.
Plaintiff JPMorgan Chase Bank, N.A applies for a pre-judgment writ of possession of a 2021 Jeep Gladiator, VIN 1C6JJTBG4ML555977 (Subject Vehicle). The writ of possession would apply against Defendant Insurance Auto Collision Center (Defendant IACC), Defendant Aram Grigorian (Defendant Grigorian), and Defendant Robert Fichidzyan (Defendant Fichidzyan).
Personal Jurisdiction
A court may not issue a provisional remedy against a defendant absent personal jurisdiction over that defendant. (Comfort v. Comfort (1941) 17 Cal.2d 736, 741; Rothschild v. Erda (1968) 258 Cal.App.2d 750, 753.)
Here, the court record shows no proof of service of the summons and complaint on Defendant Fichidzyan. The court thus lacks personal jurisdiction over Defendant Fichidzyan. (See Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832 [“ Service of summons in conformance with the mode prescribed by statute is deemed jurisdictional. Absent such service, no jurisdiction is acquired by the court in the particular action.”].)
Further, there is no proof of service showing that Defendant Fichidzyan has been served with the moving papers in this case. Thus, Defendant Fichidzyan has not received notice of this application and it would violate his due process rights to grant the application against him. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757 [“The failure to give plaintiffs notice of defendants' motion for dismissal . . . violated not only statutory requirements but fundamental principles of due process as well.”].)
The application for writ of possession must be denied as to Defendant Fichidzyan.
Standard for Writ of Possession
A secured party wishing to repossess collateral may seek judicial assistance by obtaining a writ of possession through the claim and delivery procedures set out in Civil Procedure Code section 512.010, et seq. Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property may recover possession of that specific property before judgment. (See Waffner International Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.)
The application for a writ of possession must 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.
(Code Civ. Proc., § 512.010, subd. (b).)
Assuming the application for writ of possession is complete, Code of Civil Procedure section 512.060 states that a writ of possession “shall issue” if the court finds that: (1) the plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) the plaintiff has provided any bond required under Civil Procedure Code section 515.010. (See Code Civ. Proc., § 512.060.)
A claim has probable validity where it is more likely than not that the plaintiff will obtain judgment against the defendant on that claim. (See Code Civ. Proc., § 511.090.)
The bond provided by the plaintiff must be in an amount equal to or greater than twice the defendant’s interest in the property, which is the fair market value less any encumbrances. (See Code Civ. Proc., § 515.010, subd. (a).) The bond must provide for both the return of the property and payment of any amount defendant may recover against plaintiff. (Ibid.)
If the Court finds that the defendant has no interest in the property, the court must waive the requirement that the plaintiff post a bond and set an amount for any undertaking to be filed by the defendant to prevent repossession by the plaintiff. (Code Civ. Proc. § 515.010, subd. (b), 515.020, subds. (a) & (b).)
The parties may support or oppose the application with affidavits. However, any affidavit must set forth the facts “with particularity” and “[e]xcept where matters are specifically permitted by this chapter to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein.” (Code Civ. Proc., § 516.030.)
A verified complaint may be used in lieu of or in addition to an affidavit, but the verified complaint must set forth facts with particularity and include competent evidence. (Ibid.)
Required Showings in the Application
Plaintiff’s application for writ of possession makes the showings required by Section 512.010(b). As discussed more fully below, the application describes the basis of Plaintiff’s claim and shows that Plaintiff is entitled to possession.
The application also establishes that Defendant IACC an Defendant Grigorian are wrongfully detaining the Subject Vehicle, the manner in which Defandant IACC and/or Defendant Grigorian came into possession of the Subject Vehicle, and that Defendant IACC and Defendant Grigorian are detaining the vehicle in order to obtain repair and storage fees. (See Decl. of JPMorgan Chase Bank, N.A. in Supp. of Motion for Temp. Restraining Order (Jackson Decl.), ¶¶ 8-10.)
The application identifies the Subject Vehicle with particularity as a 2021 Jeep Gladiator, VIN 1C6JJTBG4ML555977, License #65504E3 and states that its market value is $51,175. (See Application for Writ of Possession After Hearing and for Temporary Restraining Order (Application), § 4; Jackson Decl. ¶ 11.)
Plaintiff also submitted evidence that, according to its best knowledge, information, and belief, the Subject Vehicle is located at 561 S. Cypress Street, La Habra, CA 90631. (Application, § 6.) Further, the invoice and notice sent by Defendant IACC and Defendant Grigorian are sufficient to show probable cause that the vehicle is located at that address. (See Jackson Decl., ¶ 9.)
Finally, the application declares that the Subject Vehicle has not been taken for a tax, assessment, or fine, pursuant to statute, and has not been seized under an execution against plaintiff’s property. (Application, § 8.)
Probability of Prevailing on Merits
Plaintiff’s first cause of action is for replevin or possession of personal property. In order to prevail on a claim for possession of personal property, the plaintiff must show that: (1) the plaintiff had the right to possession of the property when the action was commenced; (2) the defendant has possession of the property; and (3) if the defendant’s possession was initially lawful, the plaintiff has demanded possession of the property and the defendant has refused. (Stockton M.P. Co. v. Mariposa County (1950) 99 Cal.App.2d 210, 213; see also Code Civ. Proc., § 512.010.)
Where a party repairs a vehicle at the request of the registered owner without a written notice to and the consent of the legal owner (i.e., the entity providing the financing), the repairing party may place a lien on the vehicle only up to the amount provided by Civil Code section 3068. (Civil Code, § 3068, subd. (c); Universal CIT Credit Corp. v. Rater (1963) 214 Cal.App.2d 493, 495.) Further, if the legal owner tenders the proper amount of the lien and the repairing party rejects the tender, the lien is extinguished. (Universal CIT Credit Corp. v. Rater, supra, 214 Cal.App.2d at p. 495.)
Civil Code section 3068 provides that any portion of a lien in excess of a maximum of $1,500 for any work or services, and $1,025 for any storage rendered at the request of any person other than the legal owner or lessor, “is invalid, unless prior to commencing any work, services, storage, safekeeping, or rental of parking space, the person claiming the lien gives actual notice in writing either by personal service or by registered letter addressed to the legal owner named in the registration certificate, and the written consent of that legal owner is obtained before any work, services, storage, safekeeping, or rental of parking space are performed.” (Civil Code, § 3068, subd. (c)(1).)
Here, Plaintiff meets its initial burden as to Defendant IACC and Defendant Grigorian. Plaintiff submits competent evidence showing: (1a) Plaintiff is the legal owner of the Subject Vehicle, (see Jackson Decl., ¶ 4, Exh. A); (1b) that Plaintiff received no written notice and gave no consent to repair the Subject Vehicle, (see id., ¶ 8); (1c) that Plaintiff formally demanded that Defendant IACC and Defendant Grigorian relinquish possession of the Subject Vehicle for the statutory lien amount, (see id., ¶ 10); (2) that Defendant IACC and/or Defendant Grigorian have possession of the Subject Vehicle, (see id. at ¶ 9); and (3) that Defendant IACC and/or Defendant Grigorian failed to release or to permit inspection of the Subject Vehicle, or otherwise respond to Plaintiff’s demand, (see id. at ¶ 10).
Undertaking
In this case, Plaintiff has provided evidence that Defendant IACC’s and Defendant Grigorian’s lien on the Subject Vehicle was extinguished after Plaintiff demanded to inspect the vehicle and these Defendants failed to permit the inspection. (See Civ. Code, § 3068(b)(3); Jackson Decl., ¶ 10.)
The court therefore must waive the requirement that Plaintiff post a bond in order to obtain a writ of possession.
In addition, Defendant IACC and/or Defendant Grigorian shall post a bond in the amount of $102,350 if they wish to prevent Plaintiff from taking possession of the Subject Vehicle pursuant to the writ of possession or otherwise regaining possession of the Subject Vehicle. (See Code, Civ. Proc., §515.020, subd. (a).) Defendants’ undertaking shall state that, if the Plaintiff recovers judgment on the action, the Defendants shall pay all costs awarded to the Plaintiff and all damages that the Plaintiff may sustain by reason of the loss of possession of the property. (See Code, Civ. Proc., §515.020, subd. (a).)
Application for Temporary Restraining Order
Plaintiff JPMorgan Chase Bank, N.A.’s application for temporary restraining order is GRANTED as to Defendant Insurance Auto Collision Center and Defendant Aram Grigorian, and DENIED as to Defendant Robert Fichidzyan.
Plaintiff JPMorgan Chase Bank, N.A. is ORDERED to prepare and submit a proposed Preliminary Injunction consistent with the court’s ruling.
Plaintiff JPMorgan Chase Bank, N.A. applies for a temporary restraining order (TRO) against Defendant Insurance Auto Collision Center, Defendant Aram Grigorian, and Defendant Robert Fichidzyan.
The requested TRO would prevent Defendants from transferring any interest in the 2021 Jeep Gladiator, VIN 1C6JJTBG4ML555977 (Subject Vehicle); concealing or otherwise removing the Subject Vehicle in such a manner as to make it less available to seizure by the levying officer; or impairing the value of the Subject Vehicle.
Personal Jurisdiction
For the reasons stated above, the court does not have personal jurisdiction over Defendant Fichidzyan and is without authority to issue a temporary restraining order against him.
Standard for Temporary Restraining Order
To obtain a TRO in conjunction with a writ of possession, the plaintiff must: (1) establish the probable validity of the plaintiff’s claim to possession of the property; (2) provide an undertaking pursuant to Civil Procedure Code section 515.010; and (3) establish the probability that there is an immediate danger that the property claimed may become unavailable to levy by reason of being transferred, concealed, or removed or may become substantially impaired in value. (See Code Civ. Proc., § 513.010, subd. (b).)
“Probable validity” means it is “more likely than not” that the plaintiff will obtain judgment against defendant on the claim to possession of the property. (See Code Civ. Proc., § 511.090.)
If the court determines that the plaintiff is not entitled to a writ of possession, the court must dissolve any temporary restraining order issued on an ex parte basis. (See Code Civ. Proc., § 513.010, subd. (c).) “Otherwise, the court may issue a preliminary injunction to remain in effect until the property claimed is seized pursuant to the writ of possession.” (Ibid.)
For the reasons stated in the court’s ruling on application for writ of possession, the Plaintiff has met the requirements to obtain a temporary restraining order. Because the court has granted the application for a writ of possession, the court will issue a preliminary injunction restraining Defendant IACC and Defendant Grigorian.
Plaintiff shall give notice of these rulings.