Judge Sarah J. Heidel, Case Number: 24AHCV00286, Date: 2024-08-14 Tentative Ruling

Judge: Sarah J. Heidel, Case: 24AHCV00286, Date: 2024-08-14 Tentative Ruling

Case Number: 24AHCV00286 Hearing Date: August 14, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

FINANCIAL SERVICES VEHICLE TRUST, by and through its servicer, BMW FINANCIAL SERVICES NA, LLC, a Delaware limited liability company,

Plaintiff,

vs.

GEVORG GEVSHENYAN, an individual; LUXURY AUTO REHAB, a California corporation; and DOES 1 through 20, inclusive,

Defendants.

Case No.: 24AHCV00286
Hearing Date: August 14, 2024
Time: 9:00 a.m.

[TENTATIVE] ORDER RE: APPLICATION FOR WRIT OF POSSESSION

MOVING PARTIES: Plaintiff FINANCIAL SERVICES VEHICLE TRUST

RESPONDING PARTY: Unopposed

The court considered the moving papers.

BACKGROUND

This case arises out of a breached lease agreement for a vehicle. On February 9, 2024, plaintiff Financial Services Vehicle, by and through its servicer, BMW Financial Services NA, LLC (BMW FS) filed the complaint against defendants Gevorg Gevshenyan and Luxury Auto Rehab (Luxury) alleging (1) breach of contract against Gevshenyan, (2) money due against Gevshenyan, (3) claim and delivery against all defendants, and (4) conversion against all defendants.

Plaintiff alleges that on March 29, 2022, Gevshenyan executed a 36-month lease agreement for a 2022 BMW M8 Competition Gran Coupe (vehicle). On December 29, 2022,

Gevshenyan defaulted by failing to make a payment then due and owing. Plaintiff learned the vehicle was in possession of Luxury and Luxury refused to release the vehicle to BMW FS and failed to provide an invoice to BMW FS for alleged repairs. On September 8, 2023, plaintiff’s counsel sent a demand on behalf of plaintiff, demanding an inspection of the vehicle and requesting copies of all work orders, invoices, and repair orders related to the vehicle. Plaintiff also requested a copy of the signed authorization from Gevshenyan for Luxury to perform those services. Luxury did not respond to the requests for documents nor the demand for an inspection.

Plaintiff filed the application for writ of possession on February 13, 2024. No opposition has been filed.

LEGAL STANDARD

Code of Civil Procedure section 512.060 authorizes the court to issue a writ of possession when the court finds that:

1. The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and

2. the undertaking requirements of section 515.010 are satisfied.

(Code Civ. Proc., § 512.060.)

CCP section 512.010(b)(4) provides that the application for writ of possession must include “[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.” (Code Civ. Proc., § 512.010(b)(4).)

DISCUSSION

In support of its application, plaintiff provided a declaration from Sarah Phillips, the collection legal and replevin analyst employed by BMW FS. Attached to the Phillips declaration

is a copy of the lease agreement between South Bay BMW and Gevshenyan. (Decl. of Sarah Phillips, ¶ 8, Exh. 1.) The lease agreement set the terms by which Gevshenyan took possession of the vehicle, namely that Gevshenyan agreed to make 36 consecutive base monthly lease payments of $2,349.38 plus taxes starting on the date the lease was signed and on each 29th day of the month up until the maturity date of March 29, 2025. (Decl. of Sarah Phillips, ¶ 8, 9.) Gevshenyan also agreed that he would be responsible for repairs to the vehicle not a result of normal wear and tear and to notify South Bay BMW if the vehicle was damaged or destroyed in an accident, stolen, abandoned, or taken by police or government agency. (Decl. of Sarah Phillips, ¶ 10; Exh. 1, ¶¶ 19, 24.)

South Bay BMW assigned all its rights, title and interest in the lease and the vehicle to plaintiff who perfected its registered legal ownership interest in the vehicle by obtaining an Electronic Title Document from the California Department of Motor Vehicles. (Decl. of Sarah Phillips, ¶ 11; Exh. 2.) Plaintiff granted and appointed BMW FS full power of substitution which empowers BMW FS to act on its behalf. (Decl. of Sarah Phillips, ¶ 12.)

On December 29, 2022, Gevshenyan defaulted under the terms of the lease by failing to make the payment due under the lease. (Decl. of Sarah Phillips, ¶ 15.) Plaintiff demanded payment from Gevshenyan and he refused to pay. (Decl. of Sarah Phillips, ¶ 16.) Under the lease agreement, when Gevshenyan defaults, plaintiff can take possession of the vehicle by any method permitted by law. (Decl. of Sarah Phillips, Exh. 1, ¶ 23.) Plaintiff demanded that defendants return the vehicle to plaintiff, but he refused to return the vehicle. (Decl. of Sarah Phillips, ¶ 23.) Based on this information, the court finds plaintiff has established the probable validity of its claim.

As to the probable location of the vehicle, on or about June 2, 2023, plaintiff’s agent went to Luxury’s place of business located at 2307 E. Colorado Blvd., Pasadena, CA, confirmed the vehicle was on the premises, and spoke with a representative at Luxury who refused to release the vehicle to BMW FS. (Decl. of Sarah Phillips, ¶ 19.)

Upon review of plaintiff’s records, credit file, notes regarding conversations with plaintiff’s customer, Luxury and plaintiff’s recovery agents, plaintiff believes that the vehicle is presently located at 2307 E. Colorado Blvd., Unit D Pasadena, CA 91107, the business address of Luxury. (Decl. of Sarah Phillips, ¶ 25.)

As of June 2, 2023, there was probable cause that the vehicle was at this address. Plaintiff did not file this case, however, until February 9, 2024, and there is no updated information indicating that the vehicle is still at the same location. Indeed, the proof of service of summons from May 24, 2024, for defendant Luxury, which operated at the location where Plaintiff hopes to find the vehicle, was apparently no longer open when Plaintiff went to have Luxury served. The declaration of diligence attached to the proof of service for Luxury indicates that the address is “bad” and that someone at the location told the process server that the business had not been operating there for several months. Based on the passage of time, the information establishing the probable cause for the location of the vehicle is stale and no longer sufficient. Plaintiff’s application for writ of possession is denied.

Plaintiff requests an order for transfer of possession to plaintiff. “If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court.” (Code Civ. Proc., § 512.070.) Because the writ of possession is denied, the court cannot issue a turnover order pursuant to Code of Civil Procedure section 512.070.

Based on the foregoing, the court DENIES plaintiff’s application for writ of possession.