Judge Sandy N. Leal, Case 2023-01317904 2023-06-15 Tentative Ruling

Judge: Sandy N. Leal, Case: 2023-01317904, Date: 2023-06-15 Tentative Ruling

Application/Request

Plaintiff Citizens Business Bank’s motion for an order for issuance of writ of possession after hearing against defendant RAAR International is GRANTED.

Code of Civil Procedure section 512.010 states, “(a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought. [¶] (b) The application shall be executed under oath and shall include all of the following: [¶] (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. [¶] (c) The requirements of subdivision (b) may be satisfied by one or more affidavits filed with the application.”

Code of Civil Procedure section 512.060 states, “(a) 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. [¶] (b) 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 of Civil Procedure section 511.090 provides, “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.”

First, with respect to basis of the claim, Plaintiff has shown that on October 2, 2017, Community Bank made a loan (“Loan”) to defendant RAAR International (“Borrower”) in the principal amount of $350,000.00, as evidenced by a U.S. Small Business Administration Note of even sum and date executed by Borrower and payable to the order of Community Bank (“Note”). (Baker Decl., ¶ 7, Ex. 1.) Community Bank and Borrower entered into a Business Loan Agreement dated October 2, 2017 (“BLA”), providing further terms, conditions, covenants, representations, and warranties for the Loan. (Baker Decl., ¶ 13, Ex. 2.) Borrower also executed and delivered to Community Bank a Commercial Security Agreement dated October 2, 2017 (“CSA”), whereby Borrower granted Community Bank a security interest in all of Borrower’s present and future inventory, accounts, equipment, and general intangibles (“Collateral”). (Baker Decl., ¶ 14, Ex. 3.) Plaintiff Citizens Business Bank is a successor by merger to Community Bank. (Baker Decl., ¶ 16.) Borrower defaulted under and breached the Note by failing to make the Loan payments due on January 1, 2023, and on the same day of each month thereafter. (Baker Decl., ¶ 17.) Therefore, Plaintiff has sufficiently shown the basis of its claim and that it is entitled to possession of the property claimed.

Second, with respect to a showing that the property is wrongfully detained by the Borrower, Plaintiff has shown that on February 14, 2023, Plaintiff sent a letter to Borrower providing notice of Borrower’s payment defaults and demanding that Borrower surrender the assembled Collateral to the Bank no later than February 17, 2023. (Baker Decl., ¶ 17, Ex. 6.) However, Borrower has failed to comply with this demand and has failed to cure the payment defaults under the Loan. (Baker Decl., ¶ 17.)

Third, Plaintiff has submitted Attachment 4 to the Application which provides the description of the property and a statement of its value. (Application, Attachment 4.)

Fourth, Plaintiff has shown that Borrower operates a restaurant called First Class Pizza and Pub located at 4290 Riverwalk Parkway, Suite 310, Riverside CA 92505 (“Business Premise”) where the Collateral is located. (Baker Decl., ¶ 19.)

Fifth, that Application states that the Collateral has not been taken on account of a tax, assessment, or fine, pursuant to a statute, and has not been seized under an execution against Plaintiff’s property.

Accordingly, Plaintiff’s Application meets the requirements under Code of Civil Procedure section 512.010, subdivision (b). Further, Plaintiff has demonstrated the probable validity of a claim to possession of the subject vehicle. (Code Civ. Proc. § 512.060(a)(1).)

Pursuant to Code of Civil Procedure § 515.010, the Court finds that Plaintiff has sufficiently shown that Borrower has no interest in the Collateral and an undertaking is not required of Plaintiff in connection with the issuance of a writ of possession. Should Borrower contest Plaintiff’s application, or seek to regain possession of the Collateral, Borrower is required to post a redelivery bond, pursuant to Code of Civil Procedure § 515.020(b), in the amount of $30,250.

Plaintiff to give notice.