Judge: Stephen I. Goorvitch, Case: 24STLC00854, Date: 2024-06-21 Tentative Ruling
Case Number: 24STLC00854 Hearing Date: June 21, 2024 Dept: 82
VW
Credit Inc. v. Ronald Martinez, et al.
Case No. 24STLC00854
[Tentative] Order
Granting Application for Writ of Possession
INTRODUCTION
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).) 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.
(Code Civ. Proc. §
512.010(b).) 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.) Prior to
the issuance of a writ of possession, the Plaintiff must file an undertaking
“in an amount not less than twice the value of the defendant's interest in the
property or in a greater amount.” (Code Civ. Proc. § 515.010(a).)
DISCUSSION
A. Ronald
Martinez
Plaintiff
has not served Ronald Martinez, which is a requirement of a writ of
possession. (See Code Civ. Proc. § 512.030.) Therefore, the application for a writ of
possession with respect to Ronald Martinez is denied.
B. Gary
Williams
1. Probable validity of the claim
Plaintiff seeks a writ of possession based on its claims for money due
on a contract. Ronald Martinez executed
a Motor Vehicle Lease Agreement (the “Contract”). (See Ellefson Decl. ¶ 7 & Exh. A.) Martinez subsequently defaulted on the
Contract by failing to make monthly payments, and there is presently a balance
due of $15,075.43. (Id. ¶ 8 & Exh.
C.) Plaintiff submits evidence that Defendant Benavidez transferred the Vehicle to LA’s Bestway Towing Service
(the “Body Shop”) for repairs. (Id. ¶ 10.) The Body Shop applied to the DMV for approval
to conduct a lien sale, but Plaintiff opposes the sale. (Id. ¶ 11 & Exh. D.) Prior to commencement of this action,
Plaintiff contacted the Body Shop, which confirmed that it still has possession
of the Vehicle. (Id. ¶ 12.) On February 13, 2024, Plaintiff sent a letter
to the Body Shop offering to pay a lien pursuant to Civil Code section 3068 of
$2,750 for its mechanic’s lien for repairs and storage fees. (Id. ¶ 13 & Exh. E.) The Body Shop did not return the
vehicle. (Id. ¶ 15.)
The evidence,
including reasonable inferences from it, establishes that Martinez transferred
the Vehicle to the Body Shop and that Plaintiff did not give written consent to
the Vehicle being towed, stored, or repaired by the Body Shop. Accordingly, any statutory lien would be
limited to $2,750 ($1,500 for repair work and $1,250 for storage.) (See Civ. Code § 3068(c)(1).) Plaintiff offered to pay this amount to
release the Vehicle and the Body Shop did not accept this offer. This constitutes a waiver and extinguishes
the lien. (See Universal C.I.T.
Credit Corp. v. Rater (1963) 214 Cal.App.2d 493, 494-495 [defendant who
made repairs to vehicle waived statutory lien pursuant to Civil Code section
3068 when he rejected plaintiff’s tender of the lien amount].) Williams has not filed an opposition or
advanced any evidence to undermine Plaintiff’s showing. Therefore, Plaintiff has established the
probable validity of its claim.
2. 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. (Ellefson Decl.,
Exh. A.) Plaintiff has demanded that
Defendants surrender the Vehicle, including from the Body Shop. (Id., Exh. E.) Plaintiff
has made a showing that the
Body Shop has wrongfully detained the Vehicle.
3. Description and Value of the 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.
4. Statutory Statements
Pursuant to Code of Civil Procedure section 512.010, the application
must include:
(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.
(Code Civ. Proc. §
512.010(b)(4), (5).) Plaintiff has
provided a statement that the property has not been taken for a tax,
assessment, or fine, pursuant to statute and has not been seized under an
execution against the Plaintiff’s property.
(See Ellefson Decl. ¶ 16.)
Plaintiff seeks a writ of possession directing the levying officer to
take the Vehicle from real property located at 6815 South Crenshaw Boulevard in
Los Angeles, California 90043. Plaintiff
presents evidence that the Body Shop is in possession of the vehicle and is
located at that address. (See id. ¶
18.) This establishes “probable cause”
to believe that the Vehicle is located at the property specified in the
application. (See Code Civ. Proc. §§
512.010(b)(4), 512.080.)
5. Undertaking
Code of Civil Procedure section 515.010 requires an undertaking to be
filed before the writ issues in the amount of “not less than twice the value of
the defendant’s interest in the property.”
As discussed, the Body Shop has no claim against Plaintiff. “[W]hen the repairman lost his line which was
a security, he has no future claim against the owner.” (Universal C.I.T., supra, 214
Cal.App.2d at 495.) Therefore, Plaintiff
is not required to post an undertaking.
6. Attorney’s Fees
Code of Civil Procedure section
3068(d) permits a prevailing plaintiff to seek up to $1,750 in attorneys’ fees. However, Plaintiff is not yet the prevailing
party. Therefore, if Plaintiff seeks
attorneys’ fees, it must file a motion at the conclusion of the case, which
shall be heard by the home court.
CONCLUSION AND
ORDER
Based upon the foregoing, the court
orders as follows:
1. Plaintiff’s
application for a writ of possession against Ronald Martinez is denied.
2. Plaintiff’s
application for a writ of possession against Gary Williams, individually and doing
business as “LA’s Bestway Towing Service,” is granted.
3. Plaintiff’s
counsel shall provide notice and file proof of service with the court.