Judge Salvatore Sirna, Case Number: 23PSCV02835, Date: 2023-12-14 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV02835, Date: 2023-12-14 Tentative Ruling

Case Number: 23PSCV02835 Hearing Date: December 14, 2023 Dept: G

Plaintiff U.S. Bank National Association’s Application for Writ of Possession against Defendant Koky, Inc.

Respondent: NO OPPOSITION

Plaintiff U.S. Bank National Association’s Application for Writ of Possession against Defendant Jorge Chavez Avalos

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff U.S. Bank National Association’s Application for Writ of Possession against Defendant Koky, Inc. is DENIED without prejudice.

Plaintiff U.S. Bank National Association’s Application for Writ of Possession against Defendant Jorge Chavez Avalos is DENIED without prejudice.

BACKGROUND

This is a breach of contract action arising from an equipment finance agreement. In February 2023, Plaintiff U.S. Bank National Association (U.S. Bank) entered into a written equipment finance agreement with Defendant Koky, Inc. (Koky) in which U.S. Bank agreed to provide financing for Koky’s purchase of two semi-trucks. In support of the agreement, Defendant Jorge Chavez Avalos executed a personal guaranty. Starting in May 2023, U.S. Bank alleges Koky and Chavez Avalos breached the agreement by failing to make the required monthly payments.

On September 14, 2023, U.S. Bank filed a complaint against Koky, Chavez Avalos, and Does 1-100, alleging the following causes of action: (1) breach of written agreement, (2) breach of personal guaranty, (3) account stated, (4) indebtedness, (5) unjust enrichment, (6) claim and delivery, and (7) conversion.

On September 20, 2023, U.S. Bank filed the present applications. A hearing on the applications is set for December 14 with a case management conference and OSC Re: Failure to File Proof of Service on February 14, 2024.

ANALYSIS

U.S. Bank applies to the court for writs of possession against Koky and Chavez Avalos with regards to a 2018 Freightliner and 2016 Peterbilt. For the following reasons, the court DENIES U.S. Bank’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, 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

U.S. Bank applies for writs of possession against Koky and Chavez Avalos with regards to a 2018 Freightliner (VIN: 3AKJGLDR0JSHM6118) and a 2016 Peterbilt (VIN: 1XPBD49X1GD253494). But proof of service is required for the instant writs of possession pursuant to Code of Civil Procedure section 512.030, subdivision (a). While U.S. Bank filed proofs of service on October 30, 2023, for the summons, complaint, and other notices in this action, U.S. Bank failed to file a proof of service for the present applications, hearing notices, and supporting affidavits. Accordingly, U.S. Bank’s applications are DENIED without prejudice.

CONCLUSION

Based on the foregoing, the court DENIES U.S. Bank’s applications for writs for possession without prejudice.

The court will hear from counsel for moving party on the time needed to effectuate service of the instant writs of possession against Koky and Chavez Avalos.