Judge Stephen Morgan, Case 22AVCV00959 2023-02-28 Tentative Ruling

This is a collections case. Plaintiff Citizen’s Business Bank (“CBB”) alleges that Balpal S. Sandhu (“Sandhu”) as a managing member for Sandhu Arabians, LLC (“Arabians” and collectively “Defendants”) entered delivered promissory notes for three loans – Loan No. XX076 on or about October 4, 2018; Loan No. XX419 on or about January 15, 2019; and Loan No. XX541 on or about February 26, 2019 – and, subsequently, defaulted on each. CBB further alleges that on or about October 04, 2018, Sandhu executed and delivered to CBB a commercial guaranty (“Guaranty”) where he agreed to guarantee all indebtedness of Arabians due to CBB, including but not limited to the amounts owed under the 076 Note, then existing, or thereafter arising on a continuing basis. The Guaranty is alleged to include the debt under the 419 and 541 notes. The alleged outstanding balances due from Arabians on the 076 Note, 419 Note and 541 Note are in the sums of $10,241.64, $70,744.98 and $112,187.29, respectively, totaling $193,173.91. CBB presents that it made a demand upon Sandhu, but no payment was made.

On November 18, 2022, CBB filed its Complaint alleging seven (7) causes of action for: (1) Breach of Promissory Note Against Arabians, (2) Breach of Promissory Note Against Arabians, (3) Breach of Promissory Note Against Arabians, (4) Breach of Commercial Guaranty Against Sandhu, (5) Recovery of Personal Property against Arabians and Sandhu, (6) For Money Lent Against Defendants, and (7) For Money Had and Received Against Defendants.

On December 12, 2022, this case was deemed related to 22AVCV00960 Citizens Business Bank, a California state-chartered bank, v. Dr. Sandhu Animal Hospital, Inc.; a California corporation; Balpal Sandhu aka Balpal S. Sandhu, an individual; and Does 1 through 50, inclusive.

On February 09, 2023, Sandhu filed his Answer. The Court notes that defense counsel, Darin R. Dominguez (“Dominguez”), arbitrarily changed Arabians to Sandhu Arabians Trucking, LLC (“Arabians Trucking”).[1]

On February 09, 2023, Sandhu and Arabians Trucking filed a Cross-Complaint against Ranjit Singh Dhillon and Chanjarit Singh.

Standard for Writ of Possession – “California’s Claim and Delivery Law (Code of Civ. Proc., §§ 511.010-516.050) authorizes the issuance of a pre-judgment writ of possession for specific personal property.” (Sea Rail Truckloads, Inc. v. Pullman, Inc. (1982) 131 Cal.App.3d 511, 514.)

“Except as otherwise provided [by Cal. Code Civ. Proc. § 512.020], no writ shall be issued under this chapter except after a hearing on a noticed motion.” (Cal. Code Civ. Proc. § 512.020(a).) Prior to the hearing, the defendant shall 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. (Cal. Code Civ. Proc. § 512.030.) “If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant.” (Id. at (b).) The application must be executed under oath and include a “showing of the basis of the plaintiff’s claim and that the plaintiff is entitled to possession of the property claimed,” a copy of the written instrument if the basis of the claim is a written instrument, a “showing that the property is wrongfully detained by the defendant,” a showing of “the manner in which the defendant came into possession of the property,” a showing of “the reason for the detention,” a particular description of the property and its value, a statement of the location of the property, including a showing that there is probable cause to believe the property is located there if alleged to be within a private place, and a “statement that the property has not been taken for a tax, assessment, or fine” or “seized under an execution against the property of the plaintiff[.]” (Cal. Code Civ. Proc. § 512.010(b).) That is, the substantive legal requirements to obtain a writ of possession are: (1) plaintiff must show a right to immediate possession of tangible personal property; and (2) plaintiff must show that the property is being wrongfully withheld by the defendant.” (Id., Englert v. IVAC Corp. (1979) 92 Cal.App.3d 178, 184.)

Cal. Code Civ. Proc. section 512.060 provides that a writ of possession shall issue if the plaintiff establishes the probable validity of his claim to possession of the property and the undertaking requirements of Cal. Code section 515.010. Cal. Code of Civ. Proc. section 515.010 requires the plaintiff to file an undertaking of at least “twice the value of the defendant’s interest in the property” with the Court before the Court issues any writ of possession, unless the Court finds the defendants have “no interest in the property.” “No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that the property is located there.” (Cal. Code Civ. Proc. § 512.060(b).

Application – CBB moves for a writ of possession of its collateral, described as:

In addition, in connection with all of the above, (A) All Accessions, attachments, accessories, replacements of and additions to any of the collateral described herein, whether added now or later, (B) All products and produce of any of the property described above, (C) All accounts, general intangibles, instruments, rents, monies, payments, and all other rights, arising out of a sale, lease, consignment or other disposition of any of the property described above, (D) All proceeds (including insurance proceeds) from the sale, destruction, loss, or other disposition of any of the property described above, and sums due from a third party who has damaged or destroyed the property above, or from that party’s insurer, whether due to judgment, settlement or other process, (E) All records and data relating to any of the property described above, whether in the form of a writing, photograph, microfilm, microfiche, or electronic media, together with all of grantor’s right, title and interest in and to all computer software required to utilize, create, maintain, and process any such records or data on electronic media.

CBB has followed the statutory requirements set out in Cal. Code Civ. Proc. § 512.030.

The Memorandum of Points and Authorities presents that the loans at issue for this Writ of Possession are only Loan Nos. XX419 and XX541.

CBB presents the promissory notes and their respective commercial security agreements, UCC-1 Financing Statement and Certificates of Title, and CBB’s notice of default and demand for its collateral for each promissory note as exhibits. (Decl. Bruce D. Adams Exhs. 1-8.) Each document is authenticated by Bruce D. Adams (“Adams”), Senior Vice President of CBB, who attests that the documents are authentic, original, and accurate. (Id. at ¶¶ 4-10.)

Both the commercial security agreements provide that: “If an Event of Default occurs under this Agreement, at any time thereafter, Lender shall have all the rights of a secured party under the California Uniform Commercial Code. In addition, and without limitation, Lender may exercise any one or more of the following rights and remedies: Assemble Collateral. …Lender…shall have full power to enter upon the property of Grantor to take possession of and remove the collateral. (Exh. 2, p. 4; Exh. 6, p. 4.)

CBB has also included appraisals of personal property serving as security for the two notes. (See Exh. 10.)

Sandhu and Arabian Trucking’s Opposition does not address the issues presented in the moving papers. Instead, Sandhu and Arabian Trucking have called this application a “Right to Attachment Order and Temporary Protective Order” and apply Cal. Code Civ. Proc. § 481.010 et seq. instead of Cal. Code Civ. Proc. § 512.010 et seq. No judicial notice is taken as the opposing arguments do not apply to the application at hand.

There are two Notice and Acknowledgment of Receipt forms showing that CBB served Defendants with the Application for Writ of Possession and its relevant concurrent filings. (See Notice and Acknowledgment of Receipt for each defendant [“This acknowledges receipt of (to be completed by sender before mailing): Notice of Application for Writ of Possession and Hearing; Application for Writ of Possession after Hearing; Memorandum of Points and Authorities in Support of Application of Writ of Possession; Declaration of Bruce D. Adams in Support of Application for Writ of Possession; Order for Writ of Possession after Hearing; Writ of Possession after Hearing”].) Darin R. Dominguez, Defendants’ counsel of record, signed the Acknowledgment of Receipt on each form.

The Court, however, can glean some facts from the Opposition. First, Defendants attempt to make a distinction between Arabians and Arabians Trucking though the Parties to the action are CBB, Arabians, and Sandhu, not Arabians Trucking. Next, Cross-Defendant Ranjit Singh appears to have the following items: 2020 Kenworth T680 Tractor (VIN 1XKYDP9X3LJ307777), 2020 Kenworth T680 Tractor (VIN 1XKYDP9X7LJ307779, and 2019 Kenworth T680 (VIN# 1XKYDP9X2KJ285611). Sandhu and Arabians Trucking do not dispute possession of the collateral.

CBB’s Reply highlights that the wrong law is used by Sandhu and Arabians Trucking. CBB presents that the following collateral was inadvertently included and agrees to remove them:

As to the 2019 Kenworth T680 (VIN 1XKYDP9X2KJ285611), CBB presents that its loan was secured by this collateral and disputes that this collateral has been paid for by any third-party.

CBB has shown (1) a right to immediate possession of tangible personal property based on the promissory notes, the commercial security agreements, and the UCC-1 Financing Statement and Certificates of Title forms and (2) that the property remains in the possession of Defendants.

Accordingly, the Application for Writ of Possession is GRANTED. The following collateral are to be turned over to CBB:

Plaintiff Citizens Business Bank’s Application for Writ of Possession is GRANTED.

The following collateral is to be turned over from Defendants Balpal S. Sandhu and Sandhu Arabians, LLC to Plaintiff Citizens Business Bank under Cal. Code Civ. Proc. § 512.070:

[1] Generally, there is some notation that a party was erroneously sued under a different name; however, Dominguez changes Arabians to Arabians Trucking in the filed Answer and attempts to say they are two different companies in his Opposition to this Application.