Judge: Salvatore Sirna, Case: 24PSCV02185, Date: 2024-11-05 Tentative Ruling

Case Number: 24PSCV02185    Hearing Date: November 5, 2024    Dept: G

Plaintiff Mercedes-Benz Vehicle Trust’s Application for a Writ of Possession against Defendant Michelle Terkelsen

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Mercedes-Benz Vehicle Trust’s Application for a Writ of Possession against Defendant Michelle Terkelsen is GRANTED.

BACKGROUND

This is a breach of contract action arising from a vehicle lease agreement. In February 2019, Defendants Frank Terkelsen and Michelle Terkelsen executed and delivered a motor vehicle lease agreement for a 2019 Mercedes-Benz E300W to Mercedes-Benz of Laguna Nigel who assigned the lease to Plaintiff Mercedes-Benz Vehicle Trust (Mercedes-Benz). In February 2023, the Terkelsens allegedly defaulted on the terms of the lease agreement by failing to return the subject vehicle upon expiration of their lease.

On July 9, 2024, Mercedes-Benz filed a complaint against the Terkelsens and Does 1-20, alleging the following causes of action: (1) breach of contract, (2) money due, (3) claim and delivery, and (4) conversion.

On July 18, 2024, Mercedes-Benz filed the present application. On August 9, 2024, Mercedes-Benz’s process server served Michelle Terkelsen with notice of the present application through substitute service in Diamond Bar.

On August 16, 2024, Mercedes-Benz dismissed Frank Terkelsen from the present action.

A hearing on the present application is set for November 5, 2024, along with a case management conference.

ANALYSIS

Mercedes-Benz moves for a writ of possession against Michelle Terkelsen with regards to 2019 Mercedes-Benz E300W. For the following reasons, the court GRANTS Mercedes-Benz’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, 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, Mercedes-Benz moves for a writ of possession for a 2019 Mercedes-Benz E300W motor vehicle with serial number WDDZF4JB1KA585932.

The court finds Mercedes-Benz has followed the statutory requirements of Code of Civil Procedure sections 512.030 and 512.010. Pursuant to the motor vehicle lease agreement at issue in this action, Michelle Terkelsen was required to return possession of the subject vehicle upon the end of lease on February 28, 2023, and has failed to do. (McClurg Decl., ¶ 16, Ex. 1, § 22(1).) Mercedes-Benz has also established they have a right to immediate possession of the subject vehicle. (McClurg Decl., Ex. 1, § 23(c).) Michelle Terkelsen failed to oppose this application or timely appear in this action. Because Mercedes-Benz has shown a right to immediate possession of the subject vehicle and because it remains in Michelle Terkelsen’s possession, The court waives Mercedez-Benz’s undertaking requirement.  The¿undertaking required by Michelle Terkelsen for redelivery or stay shall be $41,000.00. (Mercedez-Benz’s estimation of damages - McClurg Decl., ¶ 24.) (See Code Civ. Proc., § 515.020.)

Accordingly, the court GRANTS Mercedes-Benz’s application.

CONCLUSION

Based on the foregoing, Mercedes-Benz’s application for a writ of possession against Michelle Terkelsen is GRANTED.