Tentative Ruling 

HEARING DATE: December 19, 2023 

CASE NUMBER: 23TRCV02742 

CASE NAME: Ally Bank v. Geraldine Brown, etc., et al.   

 

MOVING PARTY: Plaintiff, Ally Bank   

 

RESPONDING PARTY: Defendant Geraldine Brown (No Opposition.)  

 

TRIAL DATE: Not Set.  

MOTION: (1) Application for Writ of Possession 

Tentative Rulings: (1) GRANTED.  

 

 

I. BACKGROUND

 

A. Factual

On August 21, 2023, Plaintiff, Ally Bank., a corporation, filed a Complaint against Defendants, Geraldine Brown, Donna Rae Jones aka Donna R. Jones aka Donna Jones, and DOES 1 through 10. The Complaint alleges causes of action for: (1) Claim and Delivery of Personal Property, for pre-trial writ of possession, and order directing transfer of personal property, and restraining order; (2) Money Due on Contract.   

 

Plaintiff now files an Application for Writ of Possession.  

 

B. Procedural

On September 8, 2023, Plaintiff filed a Notice of Application for Writ of Possession and Hearing. Proof of service of the application as well as the Summons and Complaint was filed on October 13, 2023.  In the ensuing two months, Defendant has not filed any documents, such as an answer to the Complaint or response to the writ being applied for.   

 

To date, no opposition has been filed by any Defendant.  

 

II. ANALYSIS 

 

 

(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. 

 

Before the hearing on the application for writ of possession, the defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. (Id. § 512.030.) 

 

“At the hearing, a writ of possession shall issue if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property. (2) The undertaking requirements of Section 515.010 are satisfied.” (Id. § 512.060(a).) “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. § 511.090.) 

A writ of possession shall not issue unless the plaintiff files 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. § 515.010(a).) 

Pursuant to Code of Civil Procedure § 512.030, Prior to the hearing, the defendant(s) shall be served with all of the following: (1) A copy of the summons and complaint; (2) a notice of application and hearing; (3) a copy of the application and any affidavit in support hereof. However, subsection (b) also notes that “[i]f 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 its title, service shall be made in the same manner as a summons is served under Chapter 4.)  

 

According to the Proof of Service submitted on October 13, 2023, Defendant, Geraldine Brown was were served by Personal Service with a copy of the summons, complaint, , Alternative Dispute Resolution Package, and the documents submitted concurrently with this motion on October 4, 2023.  

 

Accordingly, the Court continues below on the merits.  

 

Basis of Plaintiff’ Claim  

 

Pursuant to Code of Civil Procedure § 512.010(b)(1), the application must be submitted under oath, and include a showing of the basis of the Plaintiff’s claim and that the Plaintiff is entitled to possession of the property claimed. Further, if the basis of the Plaintiff’s claim is a written instrument, a copy of the instrument shall be attached.  

 

Here, Plaintiff has brought forth a Complaint for: (1) Claim and Delivery of Personal Property, for pre-trial writ of possession, and order directing transfer of personal property, and restraining order; and (2) Money Due on Contract. Plaintiff claims it is entitled to possession of the subject vehicle, because Defendant’s account is in default, and it has attached a Contract noting that it has the right to immediate possession of the subject Vehicle, upon a default of any provision. (Declaration of James Singleton (“Singleton Decl.”), ¶ 5, Exhibit A.) In Singleton’s declaration, he notes that the Contract is in default because Defendant Geraldine Brown failed to make the payment due on November 1, 2022 in the amount of $673.25, or any regular monthly payments of $673.25 due thereafter. As of August 1, 2023, Plaintiff notes that there is due, owing, and unpaid on account of the Contract, the sum of $32,834.51. (Singleton Decl., ¶ 6.)  

 

Based on the contract between the parties, Defendant Brown’s default on her payments, the Court finds that Plaintiff has a probable claim of ownership of the subject vehicle.  

 

Showing that the Property is Wrongfully Detained  

 

 

Plaintiff maintains that Defendants do not have a claim of ownership of the subject Vehicle, because, pursuant to Plaintiff’s contract with Defendant Brown, Plaintiff contends that if she did not pay any payment on its scheduled due date under the lease, she would be in default (Singleton Decl., Exhibit A – Contract.) Here, Plaintiff has included the RISC, as well as Exhibit B, which is a copy of the California Certificate of Title or other proof evidencing Plaintiff’s first priority perfected security interest in said motor vehicle (Singleton Decl., ¶ 5, Exhibit B.) The Exhibits indicate that Plaintiff no longer has possession of the vehicle, and instead, Defendant is wrongfully detaining the subject vehicle.  

 

Description and Value of Property  

 

As noted in the CD-100 form, as well as in Plaintiff’s memorandum of points and authorities, the description of the property is as follows: 2020 Chevrolet Malibu, Motor Vehicle Identification No. 1G1ZD5ST5LF102534. Plaintiff also notes that the value of the vehicle, according to the Contract, totaled $14,050. Plaintiff also attaches, to the Declaration of Singleton, the J.D. Power Report for August 2023, listing the average wholesale and retail values of the subject motor vehicle in the sum of $17,050 and $21,250, respectively. 

 

Statutory Statements  

 

Pursuant to Code of Civil Procedure § 512.010(b)(4) and (b)(5), the application must include: 

 

(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. 

 

With respect to Code of Civil Procedure § 512.010(b)(5), plaintiff avers that the subject vehicle has not been taken for a tax, assessment, or fine, pursuant to a statute, and has not been seized under an execution against the property of the plaintiff. (Application ¶ 8(a).) 

 

With respect to Code of Civil Procedure § 512.010(b)(4), plaintiff notes that to the best of its knowledge, the vehicle is located at defendant Brown’s residence, in a garage, or other parking area, windowless, locked or otherwise, at: 623 E 41st Pl., Los Angeles, CA 90011 or 2614 W 7th St. Apt. 103, Los Angeles CA 90057 

 

Because Plaintiff has satisfied all of the requirements of Code of Civil Procedure § 512.010, this Court GRANTS the application for writ of possession.  

 

IV. CONCLUSION 

 

For the foregoing reasons, Plaintiff’s Motion is Granted.   

 

Plaintiff is ordered to give notice.