Judge: Stephen I. Goorvitch, Case: 24STCV06346, Date: 2024-07-10 Tentative Ruling

Case Number: 24STCV06346    Hearing Date: July 10, 2024    Dept: 82

First Technology Federal Credit Union v. Matthew Christopher Thomas, et al.

Case No. 24STCV06346

Order Denying Application for Writ of Possession 

INTRODUCTION

Plaintiff First Technology Federal Credit Union (“Plaintiff”) moves for a writ of possession against Defendant Matthew Christopher Thomas (“Defendant”) over the following property: 2022 Tesla Model X, Vehicle Identification Number 7SAXCBE69NF333811 (the “Vehicle”).  Plaintiff has not shown probable cause to believe that the Vehicle is located at the address specified in the application, as required by statute.  (See Code Civ. Proc. §§ 512.010(b)(4), 512.080.)   Accordingly, the application is denied without prejudice. 

LEGAL STANDARD 

“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.”  (Code Civ. Proc. § 512.010(a).)

Pursuant to Code of Civil Procedure section 512.010(b), the application must be submitted 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. 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.

Before the hearing on the Writ of Possession, the Defendant must be served 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.)  “The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.”  (Code Civ. Proc. § 512.040(b).)  “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.”  (Code Civ. Proc. § 511.090.) 

DISCUSSION

A.        Probable Validity of Plaintiff’s Claim

Plaintiff seeks a writ of possession based on its claims for breach of contract and money lent.  On or about November 29, 2022, Defendant entered into Loan and Security Agreements (the “Contract”) with Plaintiff to finance the purchase of the Vehicle.  In consideration for an auto loan in the amount of $154,310.78, Defendant granted Plaintiff a security interest in the Vehicle and agreed to pay interest of 12.0300% per year.  (Dexheimer Decl. ¶¶ 5-6, Exh. 1 and 2.)  Defendant defaulted on the Contract by failing to make payments when due, and there is presently a balance due of $153,981.28, plus interest.  (Id. ¶ 8, Exh. 3.)  Therefore, Plaintiff has satisfied this requirement.  

B.        Wrongful Detention

Pursuant to Code of Civil Procedure section 512.010(b)(2), the application must include “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.”  Under the Contract, Plaintiff has the right to repossess the Vehicle in the event of default.  (Dexheimer Decl. Exh. 1.)  Plaintiff has demanded that Defendant surrender the Vehicle, and Defendant has refused to do so.  (Id. ¶ 11.)  Therefore, Plaintiff has satisfied this requirement.    

C.        Description and Value of Property

Pursuant to Code of Civil Procedure section 512.010(b)(3), the application must include a particular description of the property and a statement of its value.  Plaintiff has provided a particular description of the property, by make, and VIN number.  Plaintiff has also given a statement as to value.  Therefore, Plaintiff has satisfied this requirement. 

D.        Probable Location of the Vehicle  

The court denies this application without prejudice because Plaintiff does not include sufficient evidence 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,” as required by Code of Civil Procedure section 512.010(b)(4).  Plaintiff’s application seeks a writ of possession directing the levying officer to take the Vehicle from “Defendant’s last known residence address, which is a private place located at 4216 W. 59th Place, Los Angeles, CA 90043.”  (Appl. ¶ 6.)  However, the declaration of Shaun Dexheimer is not sufficient to establish probable cause to believe the vehicle is located at that address.  The declaration merely states: “I am informed and believe that the Vehicle is currently in the possession of [Defendant] at his last known residence address” and that “Plaintiff is informed and believes that Defendant is concealing the Vehicle at his residence so Plaintiff cannot gain access to it.”  (Dexheimer Decl. ¶ 10.)  The declaration provides no attribution for this information and appears to be based upon hearsay.  Of equal concern, the record suggests that Plaintiff does not, in fact, reside at that address.  Although Defendant listed the 59th Place address on his contract, Plaintiff has been personally serving Defendant at a different address: 3988 East Hardy Street, Apartment 132, in Inglewood, California 90303.  The record does not clarify this inconsistency.  Accordingly, Plaintiff does not establish sufficient probable cause to believe the vehicle is located at the address on the application.    

E.         Turnover Order

Plaintiff requests a turnover order.  (See Memorandum 4:6-14.)  Section 512.070 states: “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.”  “Thus a ‘turnover’ order, issued pursuant to section 512.070, is not a separate remedy but rather an alternative means of enforcing a writ of possession.”  (Edwards v. Sup.Ct. (1991) 230 Cal.App.3d 173, 178.)  Because the court is denying the application for a writ of possession, the court cannot issue a turnover order. 

CONCLUSION AND ORDER

            Based upon the foregoing, the court denies the application for a writ of possession without prejudice.  Plaintiff’s counsel shall provide notice and file proof of service with the court.