Judge: Stephen I. Goorvitch, Case: 24STLC06070, Date: 2025-01-21 Tentative Ruling
Case Number: 24STLC06070 Hearing Date: January 21, 2025 Dept: 82
Alliant Credit Union Case No. 24STLC06070
v.
Hearing:
January 21, 2025
Location:
Stanley Mosk Courthouse
Department:
82
Michel A. Srour, et al. Judge:
Stephen I. Goorvitch
[Tentative] Order Granting
Application for Writ of Possession
INTRODUCTION
Plaintiff Alliant Credit Union (“Plaintiff”)
moves for a writ of possession against Defendant Michel A. Srour (“Defendant”)
over the following property: A 2010 Subaru Impereza-4 CYL motor vehicle,
Vehicle Identification Number JF1GE7G62AG504390 (the “Vehicle”). Defendant has not filed an opposition. The application is granted.
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, 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.)
DISCUSSION
A. Notice
– Plaintiff
served all required pleadings, including the application, upon Defendant. Plaintiff provided notice of the original
hearing date. On December 9, 2024,
Defendant filed an ex parte application to continue the hearing date to
accommodate his international travel and afford him sufficient time to retain
counsel. The court granted the
application and continued the hearing date to January 21, 2025, at 9:30
a.m. The court’s clerk provided notice
via regular mail and email. Therefore,
Defendant received proper notice of the hearing.
B. Probable
Validity of Plaintiff’s Claim – Plaintiff
seeks a writ of possession based on its claim for money on a contract. The declaration of Stanley Chism and exhibits
demonstrate that Defendant owes at least $20,973.30 and has not made monthly
payments (in the amount of $515.13) for almost one year. 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. Plaintiff has demanded that Defendants
surrender the Vehicle. 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 provided a particular description of the property, by make, and VIN number,
as well as a statement as to the value of the Vehicle. Plaintiff has also given a statement as to
value. Plaintiff has satisfied this
requirement.
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 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 2416 East Washington Boulevard, Pasadena, California 91104. Plaintiff must establish “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.) Plaintiff has satisfied this
requirement.
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. 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 requests a turnover order. 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 all requirements for issuance of the
writ of possession are met, the court also issues a turnover order.
I. Oral
Evidence – Plaintiff does not show good cause for the court
to take oral evidence at the hearing.
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 possession of the Vehicle is GRANTED with
respect to 2416 East Washington Boulevard, Pasadena, California 91104.
2. The
request for a turnover order is granted.
3. The
court orders that no undertaking is required.
4. Plaintiff’s
counsel shall provide notice and file proof of service with the court.
IT IS SO ORDERED
Dated: January 21,
2025 ______________________
Stephen
I. Goorvitch
Superior
Court Judge