Judge Salvatore Sirna, Case Number: 23PSCV02768, Date: 2024-02-13 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV02768, Date: 2024-02-13 Tentative Ruling

Case Number: 23PSCV02768 Hearing Date: February 13, 2024 Dept: G

Plaintiff Cathay Bank’s Application for Writ of Possession

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Cathay Bank’s Application for Writ of Possession is GRANTED.

BACKGROUND

This is a collections action. From April 2005 to April 2022, Plaintiff Cathay Bank and Defendant Raidcom Technology Inc. (Raidcom) entered into a series a written loan agreements in which Cathay Bank agreed to loan funds to Raidcom. In support of these agreements, Defendant Chi Chun Lin executed a continuing guaranty. In March 2023, Cathay Bank alleges Raidcom and Lin breached their obligations pursuant to the loan agreement by failing to pay the balance of the loans and now owe a principal sum of $560,000.

On September 11, 2023, Cathay Bank filed a complaint against Raidcom, Lin, and Does 1-30, alleging the following causes of action: (1) breach of promissory note, (2) possession of personal property collateral and appointment of receiver, and (3) breach of guaranty.

On November 30, 2023, Cathay Bank filed the present motion. A hearing on Cathay Bank’s motion is set for February 13, 2024, along with a case management conference and OSC Re: Failure to File Proof of Service.

ANALYSIS

Cathay Bank moves for a writ of possession against Raidcom and Lin with regards to all of Raidcom’s assets. For the following reasons, the court GRANTS Cathay Bank’s application.

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, applicant must serve respondent 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, Cathay Bank moves for a writ of possession of any asset owned by Raidcom as described in Attachment 1 of its application for a writ of possession. The court finds Cathay Bank followed the statutory requirements of Code of Civil Procedure sections 512.030 and 512.010. Pursuant to a commercial security agreement, Cathay has a security interest in Raidcom’s assets as described in Attachment 1 and has the right to possess such assets in the event of default. (Waye Decl., Ex. F.) Raidcom and Lin failed to oppose Cathay Bank’s application.

Therefore, Cathay Bank has demonstrated a right to immediate possession of the collateral at issue and because the collateral is alleged to still be in Raidcom’s possession, Cathay Bank’s undertaking taking requirement is waived and the undertaking required by Raidcom for redelivery or to stay shall be $610,532.82 (Cathay Bank’s estimated valuation of the property - Waye Decl., ¶ 12.) (See Code Civ. Proc., § 515.020.)

Accordingly, Cathay Bank’s application for writ of possession is GRANTED.

CONCLUSION

Based on the foregoing, the court GRANTS Cathay Bank’s application for a writ of possession. The collateral described in Attachment 1 of Cathay Bank’s application is ordered to be turned over from Defendant Raidcom Technology Inc. to Plaintiff Cathay Bank pursuant to Code of Civil Procedure section 512.070.

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