Judge: Stephen I. Goorvitch, Case: 24STLC03668, Date: 2024-09-04 Tentative Ruling

Case Number: 24STLC03668    Hearing Date: September 4, 2024    Dept: 82

Primera Financial Corp. v. Angie Garcia, et al.

Case No. 24STLC03668

NOTICE:  The court will be dark on September 4, 2024.  The court posts this tentative order on August 30, 2024, in advance of the hearing date.  Defendants did not file oppositions to the applications for writs of possession.  If no party requests a hearing on or before September 4, 2024, at 9:30 a.m., the hearing will be taken off-calendar and this order will be issued without holding a hearing.  If any party requests a hearing on or before September 4, 2024, at 9:30 a.m., the hearing will be continued to September 16, 2024, at 9:30 a.m.  Any party who wishes the court to hold a hearing on this matter may contact the court’s clerk, Roberto Mendoza, at the following email address: WRDept82@LACourt.org or at the following telephone number: (213) 830-0782.  In the alternative, any party may appear on the hearing date/time, either in-person or remotely, and request a hearing from the court’s clerk at that time. 

[Tentative] Order Granting Applications for Writs of Possession

INTRODUCTION

Plaintiff Primera Financial Corp. (“Plaintiff”) moves for writs of possession against Defendant Angie A. Garcia and Kailah S. Jimenez (collectively, “Defendants”) over the following property: 2008 Jeep Wrangler, motor vehicle, Vehicle Identification Number 1J4GA391X8L519361 (the “Vehicle”).  No oppositions to the applications have been filed by either Defendant.  Because Plaintiff satisfies all statutory requirements, the writs of possession are granted.    

LEGAL STANDARD

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.”  (Code Civ. Proc. § 484.010.)  “The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) 

“Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.”  (Code Civ. Proc. § 483.010.)  The court shall issue a right to attach order if the court finds all of the following: 

(1)   The claim upon which the attachment is based is one upon which an attachment may be issued. 

(2)   The plaintiff has established the probable validity of the claim upon which the attachment is based. 

(3)   The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. 

(4)   The amount to be secured by the attachment is greater than zero.  

(Code Civ. Proc. § 484.090.) 

“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. § 481.190.)    “The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.” ¿(Code Civ. Proc. § 484.030.)¿“In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.”¿  (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) 

Code of Civil Procedure section 482.040 states in pertinent part: “The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein. As to matters shown by information and belief, the affidavit shall state the facts on which the affiant's belief is based, showing the nature of his information and the reliability of his informant. The affiant may be any person, whether or not a party to the action, who has knowledge of the facts.” 

DISCUSSION

            A.        Notice – Plaintiff has provided proper notice. 

            B.        Probable Validity of Plaintiff’s Claims – Plaintiff seeks a writ of possession based on its claim for money on a contract.  On or about March 31, 2021, Defendants entered into a Retail Installment Sale Contract (the “Contract”) with Plaintiff’s assignor to purchase the Vehicle.  (Alonso Decl. ¶¶ 4-5, Exh. A-C.)  Plaintiff submits evidence that the Contract was assigned to Plaintiff.  (Id. ¶ 4 and Exh. B.)  Defendants defaulted on the Contract by failing to make payments when due, and there is a balance due of $9,320.03.  (Id. ¶ 5, Exh. C.)  This establishes that Plaintiff likely 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 Defendants surrender the Vehicle.  (Id. ¶ 5.)  Thus, Plaintiff has made a showing that Defendants have 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 satisfied this requirement by providing the make/model and VIN number of the vehicle, as well as a statement as to its value. 

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 satisfied this requirement.

F.         Probable Location of the Vehicle

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.  (See Code Civ. Proc. §§ 512.010(b)(4), 512.080.)  Plaintiff seeks a writ of possession directing the levying officer to take the Vehicle from real property located at the following two addresses: (1) 324 E 219th Street Carson, California 90745; and (2) 1503 Locust Avenue #A, Long Beach, California 90813 (Appl. ¶ 6.)  Plaintiff has met that burden with respect to both addresses.  (See Alonso Decl. ¶ 10 and Exh. A-C; see also Proofs of Service filed June 24 and August 12, 2024.)

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 there is a balance due of $9,320.03 on the Contract, and that the wholesale and retail values of the Vehicle are $10,502 and $12,313, respectively.  (Alonso ¶ 5, Exh. C.)   Based upon this potential value, Defendants have an interest in the vehicle between $1,181.97 and $2,992.97.  Accordingly, the court estimates that each defendant’s interest in the vehicle is $2,000.  Pursuant to Code of Civil Procedure section 515.010, the court orders Plaintiff to post an undertaking in the total amount of $4,000 for each writ of possession. 

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.”  “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. Superior Court (1991) 230 Cal.App.3d 173, 178.)  Because Plaintiff has satisfied all of the requirements for writs of possession, the court also issues turnover orders. 

I.          Oral Evidence

            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 applications for writs of possession of the Vehicle are granted with respect to the following addresses:  (1) 324 E 219th Street Carson, California 90745; and (2) 1503 Locust Avenue #A, Long Beach, California 90813. 

            2.         The court issues a turnover order associated with each writ.

            3.         The court orders Plaintiff to post an undertaking in the amount of $4,000 for each writ.

            4.         Plaintiff’s counsel shall prepare and lodge proposed orders. 

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