Judge: Peter A. Hernandez, Case: 23PSCV00014, Date: 2023-08-03 Tentative Ruling

Case Number: 23PSCV00014    Hearing Date: August 3, 2023    Dept: K

Plaintiff Harley-Davidson Credit Corporation’s Application for Writ of Possession is GRANTED subject to the Plaintiff showing proof that the Application was served on Defendant

Background   

Plaintiff Harley-Davidson Credit Corporation (“Plaintiff”) applies for a writ of possession (“Application”) to claim a motorcycle currently in Defendant Shawndra Johnson’s (“Defendant”) possession.

On January 3, 2023, Plaintiff filed a complaint against Defendant and Does 1-10 for:

1.                  Claim & Delivery

2.                  Breach of Contract

3.                  Common Count—Money Lent

On May 31, 2023, Plaintiff submitted a form application for a writ of possession after hearing for possession of “2019 Harley-Davidson FLHRXS RD KING SPEC, VIN 1HD1KVP39KB614711” (the “Property”). The parties entered into a Note and Security Agreement on November 14, 2021 (the “Agreement”) in the amount of $27,019.56, secured by the Property. After obtaining possession of the Property, Defendant failed to make the March 29, 2022 payment and all subsequent payments. Plaintiff has demanded return of the Property but Defendant has not returned it. Plaintiff requests the Redemption Bond be set at $27,001.94, the amount of the debt owed to Plaintiff.

No opposition has been filed.

Discussion

Prior to the hearing, the defendant shall be served with all of the following: (a) a copy of the summons and complaint; (b) A Notice of Application and Hearing; and (c) a copy of the application and any affidavit in support thereof.  (CCP § 512.030.)  

Upon the filing of the complaint or at any time thereafter, the plaintiff may apply for a writ of possession.  (CCP § 512.010(a).)  The application shall include all of the following, which may be established by affidavit, pursuant to CCP § 512.101(b): 

•                      The basis of the plaintiff’s claim that the plaintiff is entitled to possession; 

•                      A showing that the property is wrongfully detained and of the manner in which defendant came into possession;  

•                      A particular description of the property and a statement of its value; 

•                      The property’s location based on plaintiff’s knowledge, information and belief; and  

•                      A statement that the property has not been seized by statute or execution against it.  

The writ will be issued if the plaintiff’s claim is probably valid.  (CCP § 512.040(b).)  A writ to take possession of property at a private location requires the plaintiff to show probable cause that the property is located there.  (CCP § 512.060(b).) 

Defendant entered into the Note and Security Agreement on November 14, 2021, giving Plaintiff the right to repossess the motorcycle after default.  (Mistry Decl. ¶ 4, Ex. A.)  Defendant defaulted by failing to make her March 29, 2022 payment.  (Id. at ¶ 5.)  The contract describes the property as a “2019 Harley-Davidson FLHRXS RD KING SPEC, VIN 1HD1KVP39KB614711”.  (Id. at ¶ 4.)  The property is not being seized pursuant to an execution or attachment.  (CD-100 Application ¶ 8.)  The property is believed to be located at 16 Sage Canyon Road, Pomona, CA 91766.  (Mistry Decl. at ¶ 7.)  Based on Plaintiff’s declaration and lacking any opposition, Plaintiff’s claim is probably valid. 

However, there is no proof of service of notice of application and hearing, application, and supporting declarations (CCP 512.030(a)).

Conclusion

Plaintiff’s application for a writ of possession is GRANTED subject to the Plaintiff demonstrating that the Application was served on Defendant.