Judge: Salvatore Sirna, Case: 23PSCV00077, Date: 2023-04-04 Tentative Ruling

Case Number: 23PSCV00077    Hearing Date: April 4, 2023    Dept: G

Plaintiff BMO Harris Bank N.A.’s Application for Writ of Possession Against Defendant Xian Wang

Respondent: NO OPPOSITION

Plaintiff BMO Harris Bank N.A.’s Application for Writ of Possession Against Defendant APCK Inc.

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff BMO Harris Bank N.A.’s Application for Writ of Possession Against Defendant Xian Wang is GRANTED.

Plaintiff BMO Harris Bank N.A.’s Application for Writ of Possession Against Defendant APCK Inc. is GRANTED.

BACKGROUND

This is a breach of contract action arising from a loan and security agreement. On December 3, 2021, Plaintiff BMO Harris Bank N.A. entered into a written loan and security agreement with Defendant APCK Inc. (APCK) for the financing of certain collateral. Plaintiff alleges APCK breached the agreement by failing to make monthly installment payments on September 1, 2022 and now owes $242,106.77, in addition to interest, late charges, costs, and fees.

On January 10, 2023, Plaintiff filed a complaint against APCK, Xian Wang (Wang), and Does 1-25, alleging the following causes of action: (1) breach of written agreement, (2) claim and delivery, and (3) conversion.

On January 18, 2023, Plaintiff filed the present applications for writ of possession against APCK and Wang (collectively, Defendants). On January 20, Plaintiff’s registered process server served APCK via substitute service in Yucaipa. On January 22, Plaintiff’s registered process server served Wang via substitute service in Yucaipa after two previously unsuccessful attempts to personally serve Wang. On March 8, default was entered against Defendants.

Hearings on Plaintiff’s applications for writ of possession are set for April 3, 2023 and April 4. A case management conference is also set for May 30 along with an OSC Re: Failure to File Proof of Service.

ANALYSIS

Plaintiff moves the court for a writ of possession against Defendants with regards to four 2022 Vanguard Dry Vans valued at $26,595 each. For the following reasons, the court GRANTS Plaintiff’s applications.

Legal Standard

“California’s claim and delivery law (Code Civ. Proc., §§ 511.010-516.050) authorizes the issuance of a prejudgment writ of possession for specific personal property.” (Sea Rail Truckloads, Inc. v. Pullman, Inc. (1982) 131 Cal.App.3d 511, 514.) “Except as otherwise provided this section, no writ shall be issued under this chapter except after a hearing on a noticed motion.” (Code Civ. Proc., § 512.020, subd. (a).) Prior to the hearing, Plaintiff must serve Defendants serve 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. (Code Civ. Proc., § 512.030, subd. (a).)

The application for writ of possession must be executed under oath and include (1) a “showing of the basis of the plaintiff’s claim and that the plaintiff is entitled to possession of the property claimed” as well as a copy of the written instrument if the basis of the claim is a written instrument, (2) a “showing that the property is wrongfully detained by the defendant,” (3) a showing of “the manner in which the defendant came into possession of the property,” (4) a showing of “the reason for the detention,” (5) a particular description of the property and its value, (6) a statement of the location of the property, including a showing that there is probable cause to believe the property is located there if alleged to be within a private place, and (7) a “statement that the property has not been taken for a tax, assessment, or fine” or “seized under an execution against the property of the plaintiff[.]” (Code Civ. Proc., § 512.010, subd. (b).)

Furthermore, Code of Civil Procedure section 512.060 provides that a writ of possession shall issue if the plaintiff meets the undertaking requirements of Code of Civil Procedure section 515.010 and establishes the probable validity of their claim to possession of the property. Code of Civil Procedure section 515.010 requires the plaintiff to file an undertaking of at least “twice the value of the defendant’s interest in the property” with the court before the court issues any writ of possession, unless the court finds defendants have “no interest in the property.” “No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that the property is located there.” (Code Civ. Proc., § 512.060, subd. (b).)

Discussion

In this case, Plaintiff moves for writs of possession of its collateral, described as follows:

2022 VANGUARD DRY VANS: 53' - VIN #5V8VC5321NT207054

2022 VANGUARD DRY VANS: 53' - VIN #5V8VC5327NT207351

2022 VANGUARD DRY VANS: 53' - VIN #5V8VC5329NT207352

2022 VANGUARD DRY VANS: 53' - VIN #5V8VC532XNT207053

The court finds Plaintiff has followed the statutory requirements of Code of Civil Procedure sections 512.030 and 512.010. The loan at issue in this case is Agreement 8001. (Oliver Decl., ¶ 6, Ex. 1.) Pursuant to the agreement, “Upon the occurrence of an event of default, . . . Lender may, at its option, with or without notice to Debtor (1) declare this Agreement to be in default, (ii) declare the indebtedness hereunder to be immediately due and payable . . . and (iv) exercise all of the rights and remedies of a secured party under the Uniform Commercial Code and any other applicable laws, including the right to require Debtor to assemble the Equipment and deliver it to Lender at a place to be designated by Lender and to enter any premises where the Equipment may be without judicial process and take possession thereof.” (Oliver Decl., Ex. 1., § 5.2.)

Defendants have failed to oppose Plaintiff’s application and have had default entered against them. Because Plaintiff has shown a right to immediate possession of the subject vans and because that property remains in possession of Defendants, Plaintiff’s undertaking requirement is waived and the undertaking required by Defendants for redelivery or to stay deliver shall be $106,380 (Plaintiff’s valuation of the property - Oliver Decl., ¶ 21.) (See Code Civ. Proc., § 515.020.)

Accordingly, Plaintiff’s applications for writs of possession are GRANTED.

CONCLUSION

Based on the foregoing, the court GRANTS Plaintiff’s applications for writs of possession.  The court waives Plaintiff’s undertaking requirement.

The court will require Defendants to post an undertaking in the amount of $106,380 for redelivery of the subject vehicles or to stay deliver of the subject vehicles to Plaintiff.

The following collateral is to be turned over from Defendants APCK, Inc. and Xian Wang (also known as Xian D. Wang or Xiande Wang) to Plaintiff BMO Harris Bank N.A pursuant to Code of Civil Procedure section 512.070.

-2022 VANGUARD DRY VANS: 53' - VIN #5V8VC5321NT207054

-2022 VANGUARD DRY VANS: 53' - VIN #5V8VC5327NT207351

-2022 VANGUARD DRY VANS: 53' - VIN #5V8VC5329NT207352

-2022 VANGUARD DRY VANS: 53' - VIN #5V8VC532XNT207053

Failure to turn over possession of such property to Plaintiff may subject Defendants to being held in contempt of court.