Judge Virginia Keeny, Case 22VECV00540 2022-08-18 Tentative Ruling

Judge: Virginia Keeny, Case: 22VECV00540, Date: 2022-08-18 Tentative Ruling

Case Number: 22VECV00540 Hearing Date: August 18, 2022 Dept: W

VW CREDIT INC. V. GOHAR SARGSYAN, ET AL.

APPLICATION FOR WRIT OF POSSESSION

Date of Hearing: August 18, 2022 Trial Date: None Set.

Department: W Case No.: 22VECV00540

Complaint Filed: April 15, 2022

Moving Party: Plaintiff VW Credit Inc.

Responding Party: Defendants Flawless Auto Body Inc. erroneously sued herein as Edgar Hovakimyan, individually and dba Flawless Auto Body, and Edgar Hovakimyan

BACKGROUND

Plaintiff VW Credit Inc alleges that it has always been the legal owner of the subject 2018 Volkswagen Atlas motor vehicle, Vehicle Identification No. 1V2MR2CA9JC562887, which Defendant Gohar Sargsyan (“Sargsyan”) had purchased from Plaintiff’s assignor. Pursuant to the subject vehicle’s purchase contract, Defendant Sargsyan was required to make monthly payments to Plaintiff in the amount of $750.74, and she is in default for failing to make those payments. Thus, the current unpaid balance owed to Plaintiff is $48,925.34. It is further alleged that Defendant Sargsyan delivered the subject vehicle to Defendants Flawless Auto Body, Inc. (“FAB”) and Edgar Hovakimyan (“Hovakimyan”) for repairs. Defendants FAB and Hovakimyan placed a mechanic’s lien on the subject vehicle and, consequently, began the process of a lien sale, which Plaintiff opposed.

On April 15, 2022 Plaintiff filed the operative Complaint for:

1. Claim and Delivery of Personal Property

2. Money Due on a Contract

3. Conversion

4. Quiet Title

5. Declaratory Relief

On May 16, 2022, Plaintiff filed the instant Application for Writ of Possession pursuant to Code of Civil Procedure § 512.010.

[TENTATIVE] RULING:

Plaintiff’s Application for Writ of Possession is DENIED.

ANALYSIS

“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 § 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.

“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.)

Notice

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.)

Here, the notice of application is directed to each of the named defendant. While Defendants FAB and Hovakimyan have been served with the required documents pursuant to Code of Civil Procedure § 512.030 (See Proofs of Service filed on June 15, 2022), there is no indication that Defendant Sargsyan has been served with any of the required documents. Thus, sufficient notice has not been provided to all of the named defendants.

Merit of Application

Code of Civil Procedure § 512.060 permits the Court to issue a writ of possession when the Court finds that: (1) plaintiff has established the probable validity of the plaintiff’s claims to possession of the property; and (2) the undertaking requirements of section 515.010 are satisfied.

Plaintiff submitted the declaration of Lucy Perez in support of its application for writ of possession. In paragraphs one through thirteen, Ms. Perez establishes facts to demonstrate that she is employed by Plaintiff to manage collections on Defendant Sargsyan’s account and has personal knowledge of the facts based on her review of the Plaintiff’s business records.

Plaintiff’s claim of possession arises from the allegation that Defendant Sargsyan breached the sales contract of the subject vehicle to which Plaintiff was the assignee. A copy of the sales contract is attached as Exhibit A to Ms. Perez’s declaration. Defendant agreed to pay regular monthly payments of $750.74, and this sales contract is currently in default. (Perez Decl. ¶¶ 7-8.) Pursuant to the sales contract, Plaintiff is entitled to immediate possession in the event of default and has provided proof of title, evidencing ownership. (Perez Decl. ¶¶ 7, 9, Exh. B.) Moreover, Plaintiff asserts that it opposed the lien sale that Defendants FAB and Hovakimyan initiated and attempted to negotiate with them by offering payment pursuant to Civil Code § 3068. (Perez Decl. ¶¶ 13.) Plaintiff further asserts that it communicated this offer on March 24, 2022 by email but Defendants FAB and Hovakimyan rejected the offer. (Id., Exh. C.)

In opposition, Defendants FAB and Hovakimyan assert that a lien sale was actually held on March 27, 2022, and despite being notified several times, Plaintiff did not take any formal steps to oppose the sale. (Opposition, Exhs. 1-3, 6; Alberts Decl. ¶¶ 4-6; Hovakimyan Decl. ¶¶ 6, 10, 12, 16.) They further assert that they complied with all of the notice requirements in order to hold the lien sale. (Hovakimyan ¶¶ 6, 10, 12, 16.) Because there was no qualifying bid, Defendant FAB became the buyer and is now the current owner of the subject vehicle. (Opposition, Exh. 4.) Also, with respect to Plaintiff’s letter pursuant to Civil Code § 3068, Defendants FAB and Hovakimyan contend they never received the letter, and thus, they argue that they never rejected the offer. (Opposition at pp. 4-5, Exh. 5; Hovakimayan Decl. ¶ 15.) Regardless, they argue that Plaintiff never tendered the statutory amount to extinguish Defendant FAB’s lien claim.

Based on the evidence presented, the Court finds that Plaintiff has failed to establish the probable validity of the its claims to possession of the property. First, the Court questions the veracity of Ms. Perez’s declaration. For instance, she alleges that Plaintiff opposed the lien sale. (Perez Decl. ¶ 11.) However, the evidence shows that Plaintiff never responded to the form provided by the DMV, and this information was corroborated by the DMV. (Opposition, Exh. 2; Alberts Decl. ¶ 6.) Otherwise, Defendant FAB would have been forestalled from proceeding with the lien sale, and it would have had to obtain a court judgment. (Civ. Code § 3071(d).) Also, Ms. Perez alleges that Defendants FAB and Hovakimyan rejected Plaintiff’s Civil Code § 3068 offer, but no evidence of this rejection has been submitted by Plaintiff. (Perez Decl. ¶ 13.) Instead, Defendant FAB and Hovakimyan contest this claim. (Hovakimyan Decl. ¶ 15, Exh. 5.)

Second, the evidence submitted does not sufficiently support that Plaintiff is entitled to possession of the subject vehicle. While the sales contract and the title submitted within Plaintiff’s application would normally establish ownership (Perez Decl. ¶ 7, Exhs. A-B), Defendants FAB and Hovakimyan have submitted competing evidence to show that a valid lien sale was held, making Defendant FAB the current owner of the subject vehicle. (Opposition, Exhs. 1-4, 6; Alberts Decl. ¶¶ 4-6; Hovakimyan Decl. ¶¶ 6, 10, 12, 16.) When pursuing a lien sale, the lienholder must apply through the DMV for authorization to conduct the lien sale and abide by the various notice requirements. (Civ. Code § 3071.) Because the notice requirements were met, a lien sale was held on March 27, 2022. (Opposition, Exh. 4.)

Based on the foregoing, Plaintiff has failed to meet its burden pursuant to Code of Civil Procedure § 512.060.

Based on the foregoing reasons, Plaintiff’s Application is DENIED.