Judge: Peter A. Hernandez, Case: 23PSCV01919, Date: 2023-11-30 Tentative Ruling

Case Number: 23PSCV01919    Hearing Date: November 30, 2023    Dept: K

Plaintiff Ally Bank’s Applications for Writ of Possession After Hearing is GRANTED as to

Defendants Mario Angulo and Heidy V. Roldan aka Heidy Roldan, with no bond.

Background     

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

Prior to the commencement of this action, pursuant to an assignment in writing, Plaintiff became and now is the owner of a written contract (the “Contract”), pursuant to which Defendants Mario Angulo (“Angulo”) and Heidy v. Roldan aka Heidy Roldan (“Roldan”) (collectively “Defendants”), purchased from Plaintiff’s assignor a 2019 Dodge Hellcat, VIN No. 2C3CDXL97KH571704 (the “subject vehicle”). (Complaint, ¶ 6.) The complaint alleges that Defendants agreed to timely pay all amounts due under the Contract yet have failed to make payments owed under the Contract. (Id., ¶ 8.) The complaint alleges that Defendants currently owe Plaintiff the sum of $75,128.29 pursuant to the Contract. (Id.)   

On June 27, 2023, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-10 for:

1.               Claim & Delivery of Personal Property

2.               Money on a Contract

Plaintiff applied for a writ of possession in which Plaintiff seeks to recover the subject vehicle from Defendants. Plaintiff applied for separate writs of possession as to Defendant Angulo and Defendant Roldan. The Court will address both writs of possession in this one ruling.

A Case Management Conference is set for November 30, 2023.

Discussion 

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

sections 512.010.  Plaintiff seeks to recover the 2019 Dodge Charger Hellcat,

VIN #2C3CDXL97KH571704 (the “subject vehicle”) now in the possession of Defendants.

“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).)  Substitute service of summons and complaint may be effectuated where personal service cannot be accomplished with reasonable diligence. (Code Civ. Proc., § 415.20, 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 August 10, 2023, Plaintiff filed a proof of service, which reflected that Defendant Roldan was served by substituted served on July 26, 2023 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. A declaration of due diligence is attached to the proof of service showing four attempts to personally serve Defendant Roldan.

On August 23, 2023, Plaintiff filed a proof of service, which reflected that Defendant Angulo was served by substituted served on July 26, 2023 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. A declaration of due diligence is attached to the proof of service showing four attempts to personally serve Defendant Angulo.

The court determines that adequate notice was provided to Defendant Roldan and Defendant Angulo.

MERITS: As for the merits of the application, the court must make its determinations upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider additional evidence and authority produced at the hearing or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities. (Code Civ. Proc., § 512.050.) The court must issue writ of possession if the plaintiff establishes “the probable validity of his claim” to possession of the property and the undertaking requirements of section 515.010 are satisfied. (Code Civ. Proc., § 512.060; RCA Service Co. v. Superior Court (1982) 137 Cal.App.3d 1, 3.) “Probable validity” exists where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc., § 511.090; RCA Service Co., supra, 137 Cal.App.3d at 3.)

Probable validity, in this case, has been established pursuant to the applications, which are

executed under penalty of perjury by Plaintiff’s Authorized Representative James Singleton

(“Singleton”) and the exhibits attached thereto.[1] Singleton attests, and/or the relevant documents

reflect the following: Plaintiff owns the Contract pursuant to an assignment and the subject

vehicle was purchased pursuant to the Contract. (Singleton Decl., ¶ 5 and Exhibit A.) Plaintiff

has the right to immediate possession of the subject vehicle pursuant to the Contract.

(Id., ¶ 5 and Exhibit B.)

Defendants have defaulted on the Contract as they have failed to make the payment becoming

due on October 14, 2022, in the amount of $1,463.09, or any of the regular monthly payments of

$1,463.09 due thereafter. (Id., ¶ 6.) Singleton attests that Plaintiff has made demand upon

Defendants for the surrender of possession of the subject vehicle but Defendants have failed to

surrender the subject vehicle to Plaintiff. (Id.) As of June 15, 2023, there is an unpaid balance,

due and owed to Plaintiff, pursuant to the Contract in the amount of $75,128.29, together with

other charges as provided in the Contract. (Id.)

Singleton declares that the average wholesale and resale values of the subject vehicle are in the

sum of $51,400.00 and $56,250.00, respectively. (Id., ¶ 7 and Exhibit D.) It is

believed that Defendants are concealing possession of the subject vehicle from Plaintiff.

(Id., ¶ 8.) Singleton has no knowledge of the subject vehicle being taken on account of tax,

assessment, fine, or being seized under an execution or an attachment against Plaintiff’s

property. (Id., ¶ 9.) The subject vehicle is believed to be currently located at 7101 Rosecrans

Avenue, Space 67, Paramount, CA 90723 or 16519 Holton Street, La Puente, CA 91744.

(Id., ¶ 10.)

Undertaking: A bond must be posted as part of the undertaking unless the court finds that the defendant has no interest in the property.  (Code Civ. Proc., § 515.010, subd. (b).) The undertaking must be in an amount equal to twice the value of the defendant's interest in the property (market value less all liens, etc.).  (Code Civ. Proc., § 515.010.) Defendant’s interest is based on the market value of the property less (1) any amount due and owing on any conditional sales contract or security agreement, (2) all liens and encumbrances on the property, and (3) any other factors to determine the defendant’s interest in the property.  (Code Civ. Proc., § 515.010, subd. (a).)

The applications are granted, with no bond. The court determines that, since the balance owed is substantially more than the fair market value of the Collateral, Defendants have no interest in same, and therefore Plaintiff is not required to post an undertaking.