Judge: Shirley K. Watkins, Case: 22VECV02568, Date: 2023-04-06 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 22VECV02568    Hearing Date: April 6, 2023    Dept: T

Tentative ruling: 22VECV02568 Cashmere Valley Bank v VGK Express

Ex parte application for Writ of Possession: Denied on ex parte application.  May be set for hearing.

Failure to comply with CCP section 512.020.

   (a) Except as otherwise provided in this section, no writ shall be issued under this chapter except after a hearing on a noticed motion.

(b) A writ of possession may be issued ex parte pursuant to this subdivision if probable cause appears that any of the following conditions exists:

(1) The defendant gained possession of the property by feloniously taking the property from the plaintiff. This subdivision shall not apply where the defendant has fraudulently appropriated property entrusted to him or obtained possession by false or fraudulent representation or pretense or by embezzlement.

(2) The property is a credit card.

(3) The defendant acquired possession of the property in the ordinary course of his trade or business for commercial purposes and:

(i) The property is not necessary for the support of the defendant or his family; and

(ii) There is an immediate danger that the property will become unavailable to levy by reason of being transferred, concealed, or removed from the state or will become substantially impaired in value by acts of destruction or by failure to take care of the property in a reasonable manner; and

(iii) The ex parte issuance of a writ of possession is necessary to protect the property.

          Failure to comply with CCP section 512.030.

(a) Prior to the hearing required by subdivision (a) of Section 512.020, the defendant shall be served with all of the following:

(1) A copy of the summons and complaint.

(2) A Notice of Application and Hearing.

(3) A copy of the application and any affidavit in support thereof.

(b) If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.

          Discussion:  The documents were served by FedEx.  Even though this is improper service, still no receipt has been provided.  There is no evidence provided that the Jonathan Street address is the correct address for defendant.  The court will, if requested, set the matter for hearing in which case there shall be compliance with CCP section 525.010 et seq.  If granted after hearing, the court will not require a plaintiff’s bond as the evidence is that defendants do not have equity in the truck.  The court would also require that in order for defendants to prevent the taking of the truck, defendant would first be required to post a $200,000 bond (not less than twice the value of the truck) and otherwise comply with CCP section 515.020.