Judge: Stephen I. Goorvitch, Case: 24STLC03768, Date: 2024-09-06 Tentative Ruling

Case Number: 24STLC03768    Hearing Date: September 6, 2024    Dept: 82

PNC Bank v. PLD & Sons Pallets, Inc., et al.

Case No. 24STLC03768

NOTICE:  The court will be dark on September 6, 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 6, 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 6, 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 PNC Bank, National Association, successor to PNC Equipment Finance, LLC (“Plaintiff”) moves for writs of possession against Defendant PLD & Sons Pallets, Inc. and Urbano Miranda Ortega (collectively, “Defendants”) over the following property: 2017 Doosan G25 Forklift, Serial No. FGA0B-1790-05463 (the “Equipment”).  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 Claim – Plaintiff seeks a writ of possession based on its claims for breach of written agreement and breach of guaranty.  On or about November 29, 2017, Defendant PLD & Sons Pallets, Inc. entered into a written Loan and Security Agreement (“Agreement”) for the lease and purchase of the Equipment from Plaintiff.  (McGinley Decl. ¶ 5, Exh. 1.)  Plaintiff perfected its security interest in the Equipment through a California Secretary of State UCC Financing Statement.  (Id. ¶ 6, Exh. 2.)  Defendant Urbano Miranda Ortega executed a personal guaranty (the “Guaranty”) of the debt obligations in the Loan Agreement.  (Id. Exh. 1.)  Defendants defaulted on the Loan Agreement and Guaranty by failing to make payments when due, and there is a balance due of $12,020.40.  (Id. ¶¶ 11, 23, Exh. 3.)  This establishes that Plaintiff probably will prevail on the claims.

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 Loan Agreement, Plaintiff has the right to repossess the Equipment in the event of default.  (McGinley Decl. Exh. 1.)  Plaintiff has demanded that Defendants surrender the Equipment.  (Id. ¶ 19.)  Thus, Plaintiff has made a showing that Defendants have wrongfully detained the Equipment. 

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 including a description of the make/model, the vehicle identification number, and the approximate 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.         Location of the Property

Pursuant to Code of Civil Procedure section 512.010(b)(4), Plaintiff must identify the probable location of the Equipment 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 Equipment from real property located at the following two addresses: (1) 8913 Miner Street, Los Angeles, California 90002; and (2) 225 E. Caldwell Street, No. B, Compton, California 90220. (Appl. ¶ 6.)  Plaintiff has satisfied that burden with respect to both addresses.  (See McGinley Decl. ¶ 17 and Exh. 1, Schedule A [Equipment Location Address of 8913 Miner St.]; see also Proofs of Service filed on July 17, 2024 [showing service on both Defendants at 225 E. Caldwell Street, Compton, California 90220].)  According to the proof of service, “[t]here is no Unit B” clearly marked at 225 East Caldwell Street in Compton, California.  Therefore, the court shall issue the writ of possession for 225 East Caldwell Street, Compton, California 90220.    

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 $12,020.40 on the Loan Agreement and Guaranty, including $7,361.73 for a “Fixed Purchase Option.”  (McGinley Decl. ¶¶ 11, 23, Exh. 3.)  Plaintiff submits evidence that the Equipment has a fair market value of approximately $15,000.  (Id. ¶ 22.)  Based on this statement of value, Defendant PLD & Sons Pallets, Inc., the purchaser, has an interest in the Equipment of approximately $3,000.  Defendant Urbano Miranda Ortega, the guarantor, does not have an interest in the Equipment as the Loan Agreement and Guaranty did not include any purchase option for Ortega individually.  Pursuant to Code of Civil Procedure section 515.010, the court orders Plaintiff to post an undertaking of $6,000 for the writ of possession against Defendant PLD & Sons Pallets, Inc.   No undertaking is required for the writ of possession against Defendant Urbano Miranda Ortega.

            H.        Turnover Order

Plaintiff requests a turnover order.  (See Proposed Order ¶ 5.g.)  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. 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. 

CONCLUSION AND ORDER 

Based upon the foregoing, the court orders as follows:

1.         The applications for writs of possession of the Equipment are granted with respect to the following addresses: (1) 8913 Miner Street, Los Angeles, California 90002; and (2) 225 E. Caldwell Street, Compton, CA 90220.

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

3.         The court orders Plaintiff to post an undertaking in the amount of $6,000 for the writ of possession against Defendant PLD & Sons Pallets, Inc.   No undertaking is required for the writ of possession against Defendant Urbano Miranda Ortega.

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.