Judge: Stephen I. Goorvitch, Case: 24STLC03530, Date: 2024-08-23 Tentative Ruling

Case Number: 24STLC03530    Hearing Date: August 23, 2024    Dept: 82

Primera Financial Corp. v. Maria Delia Alvarez

Case No. 24STLC03530

[Tentative] Order Granting Application for Writ of Possession

INTRODUCTION

Plaintiff Primera Financial Corp. (“Plaintiff”) seeks a writ of possession against Defendant Maria Delia Alvarez (“Defendant”) over the following property: 2014 Kia Sorento, motor vehicle, Vehicle Identification Number 5XYKTCA65EG475522 (the “Vehicle”).  The court grants the application because Plaintiff has satisfied all statutory requirements, and Defendant does not oppose the application.

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.

(Code Civ. Proc. § 512.010(b).)

            In addition to the requirements of section 512.010(b), 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.)  Finally, Plaintiff must establish that the claim is “probably valid.”  (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

Plaintiff has satisfied all of the statutory requirements for issuance of the writ of possession. 

            A.        Notice – Plaintiff provided proper notice, per the proof of service filed on June 11, 2024. 

B.        Probable Validity of the Claim – Plaintiff seeks a writ of possession based on its claim for money on a contract.  On or about June 28, 2021, Defendant entered into a Retail Installment Sale Contract (the “contract”) with Plaintiff’s assignor to purchase the Vehicle.  (Alonso Decl. ¶¶ 4-5, Exhs. A-C.)  Plaintiff submits evidence that the Contract was assigned to Plaintiff.  (Id. ¶ 4 and Exh. B.)  Defendant defaulted on the Contract by failing to make payments when due, and there is presently a balance due of $11,515.78.  (Id. ¶ 5, Exh. C.)  This establishes that Plaintiff probably will prevail on the claim.

C.        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.  (Alonso Decl. Exh. A.)  Plaintiff has demanded that Defendant surrender the Vehicle.  (Id. ¶ 5.)  Thus, Plaintiff has made a showing that Defendant has wrongfully detained the Vehicle.

D.        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.  Plaintiff therefore satisfies section 512.010(b)(3).

E.         Statutory Statement – Pursuant to Code of Civil Procedure section 512.010(b)(5), Plaintiff must provide 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.  Plaintiff has complied with this requirement.

F.         Location of the Property – Pursuant to Code of Civil Procedure section 512.010(b)(4), Plaintiff must identify the probable location of the vehicle and establish probable cause to that effect.  Plaintiff seeks a writ of possession directing the levying officer to take the Vehicle from real property located at the following two addresses: (1) 325 W 83rd Street, Los Angeles, CA 90003, and (2) 1380 E Maple St., #3 Glendale, CA 91205.  (Appl. ¶ 6.)  Plaintiff has met that burden only with respect to West 83rd Street address.  (See Alonso Decl. ¶ 10 and Exhs. A & B; see also Proof of Service filed June 11, 2024.)  Although Plaintiff’s representative declares that Plaintiff’s file “reflects” that Defendant also resides at the Maple Street address, she does not identify the records in Plaintiff’s file upon which she relies.  (Alonso Decl. ¶ 10.)   The Contract, evidence of title, and payment records filed with the application do not show that Defendant resides at the Maple Street address.  Accordingly, on this record, Plaintiff does not show probable cause to believe that the Vehicle is located at that address. 

G.        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.”  Section 515.010(a) states that the value of the defendant’s interest “is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property.”  Plaintiff submits evidence that the amount owed on the Contract exceeds the Vehicle’s value.  (Alonso Decl. ¶¶ 5-6.)  Accordingly, the evidence supports a finding that Defendant does not have any interest in the Vehicle and Plaintiff is not required to post an undertaking. 

H.        Turnover Order

Plaintiff appears to request a turnover order.  (See Memorandum 2:17-22.)  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.”  (emphasis added.) “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 all requirements for issuance of the writ of possession are met, the court also issues a turnover order.

I.          Request to Present Testimony at Hearing  

            Plaintiff does not show good cause for the court to take oral evidence at the hearing.  (See Memorandum 3.)  The request for oral testimony is denied.

CONCLUSION AND ORDER 

Based upon the foregoing, the court orders as follows:

1.         The application for a writ of attachment is granted with respect to the following address: 325 W 83rd Street, Los Angeles, CA 90003.

2.         The turnover order is granted.

3.         Plaintiff’s counsel shall lodge a proposed writ of possession and proposed turnover order.

4.         Plaintiff’s counsel shall provide notice and file proof of service with the court.