Judge Peter A. Hernandez, Case Number: 23PSCV01834, Date: 2023-10-10 Tentative Ruling

Judge: Peter A. Hernandez, Case: 23PSCV01834, Date: 2023-10-10 Tentative Ruling

Case Number: 23PSCV01834 Hearing Date: October 10, 2023 Dept: K

Plaintiff Ally Bank’s Application for Writ of Possession After Hearing is continued to November 20, 2023 at 8:30 am..

Background

Plaintiff Ally Bank (“Plaintiff”) alleges as follows:

On January 31, 2018, Defendant Ivette Rodriguez (“Defendant”) entered into a Retail Installment Sales Contract (“Agreement”) with Plaintiff’s assignor, Puente Hills Chevrolet (“Assignor”), wherein Assignor agreed to finance a 2018 Chevrolet Silverado, VIN # 3GCPCRECXJG139952 (“subject vehicle”) to Defendant in exchange for Defendant’s payments. Defendant has failed to make payments owing under the Agreement.

On June 20, 2023, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-10 for:

1. Claim & Delivery of Personal Property

2. Money on a Contract

A Case Management Conference and Order to Show Cause Re: Failure to File Proof of Service are set for November 20, 2023.

Discussion

Plaintiff applies for a writ of possession after hearing pursuant to Code of Civil Procedure

sections 512.010 et seq. Plaintiff seeks to recover the 2018 Chevrolet Silverado, VIN #

3GCPCRECXJG139952 (“subject vehicle”) now in the possession of Defendant.

“Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment.” (Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.)

Procedural Considerations: No writ of possession may issue, except after a hearing on a noticed motion (Code Civ. Proc., § 512.020, subd. (a)) or by ex parte application satisfying the conditions of section 512.020, subdivision (b). Prior to the section 512.020 hearing, the defendant must be served with all of the following: (a) A copy of the summons and complaint; (b) A Notice of Application and Hearing; (c) A copy of the application and any affidavit in support thereof. (Code Civ. Proc., § 512.030, subd. (a).) “If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.” (Code Civ. Proc., § 512.030, subd. (b).)

The "Notice of Application and Hearing" must inform the defendant of all of the following: (a) A hearing will be held at a place and at a time, to be specified in the notice, on plaintiff's application for a writ of possession; (b) The writ will be issued if the court finds that the plaintiff's claim is probably (not actually) valid and the other requirements for issuing the writ are established; (c) If the defendant desires to oppose the issuance of the writ, he must 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; (d) The notice must contain the following statement: “If you believe the plaintiff may not be entitled to possession of the property claimed, you may wish to seek the advice of an attorney. Such attorney should be consulted promptly so that he may assist you before the time set for the hearing.” (Code Civ. Proc., § 512.040.)

On October 2, 2023, Plaintiff filed a proof of service, which reflected that Defendant had been personally served with, inter alia, the summons, complaint, Notice of Application for Writ of Possession and Hearing, Application for Writ of Possession, and Memorandum of Points and Authorities in Support of Plaintiff’s Application for Pre-Trial Writ of Possession on September 19, 2023. Code of Civil Procedure § 1005 (i.e., 16 court days’ notice) governs the written notice under Code of Civil Procedure § 512.030. (Code Civ. Proc., § 1005, subd. (a)(2)). Friday, September 22, 2023 was a court holiday and is thus excluded from notice calculations.

The application, then, is continued to November 20, 2023 at 8:30 a.m. on the basis of insufficient notice.