Judge: Virginia Keeny, Case: 22VECV01772, Date: 2023-02-01 Tentative Ruling

Case Number: 22VECV01772    Hearing Date: February 1, 2023    Dept: W

FINANCIAL SERVICES VEHICLE TRUST, BY AND THROUGH ITS SERVICER BMW FINANCIAL SERVICES NA, LLC v. FLORA KHODAGHOLIAN, et al.

plaintiff’s application for writ of possession

Date of Hearing:        February 1, 2023                               Trial Date:       None set.

Department:              W                                                        Case No.:        22VECV01772

Moving Party:            Plaintiff Financial Services Vehicle Trust, by and through its servicer BMW Financial Services NA, LLC

Responding Party:     No opposition

BACKGROUND

On October 27, 2022, Plaintiff Financial Services Vehicle Trust, by and through its servicer BMW Financial Services NA, LLC filed a complaint against Defendant Flora Khodagholian aka Floraand Khodagholian Malikian and Vorak Auto Repair asserting causes of action for (1) breach of contract; (2) common count; (3) claim & delivery; and (4) conversion. Plaintiff alleges Defendant Khodaghlian leased a 2019 BMW 8 series motor vehicle from Center BMW on December 9, 2019 and later defaulted on the terms of the agreement by failing to make the payments owed. Center BMW assigned the lease to Plaintiff.

[Tentative] Ruling

Plaintiff Financial Services Vehicle Trust, by and through its servicer BMW Financial Services NA, LLC Writ of Possession is GRANTED, conditionally.

DISCUSSION

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. (CCP §512.030.) 

The court file reflects proper service on Defendant Vorak Auto Repair. However, Plaintiff has not filed proof of service of the summons and complaint, Notice of Application, and copy of the Application on Defendant Khodagholian. As such, the court finds Plaintiff’s hearing on the Application for Writ of Possession premature.

They did attempt service on Khodagholian but learned that they do not reside at the address anymore. (See Due Diligence filed 12/29/22.

If Plaintiff is able to present proof of service for Defendant Khodagholian, the court finds Plaintiff’s application can be granted.

Pursuant to Code of Civil Procedure section 512.010(b), the application must be submitted under oath and include: 1) Plaintiff’s basis for the claim and entitlement to possession; 2) Defendant’s wrongful detention; 3) description of the property; 4) location of the property and probable cause to believe that such property is located there; and 5) the property has not been taken for a tax, assessment or fine or seized under an execution against the property. 

Plaintiff provides the declaration of Rebecca A. Caley and Sarah Phillips to establish the facts relevant to the writ application. Plaintiff has demonstrated an entitlement to possession of the property claimed due to Defendant Khodagholian’s default under the Agreement and the probable validity of Plaintiff’s claims for breach of contract. (Phillips Decl. ¶¶8-18.) The evidence demonstrates the existence of the Agreement between Plaintiff’s Assignor and Defendant. (Phillips Decl. ¶8, Exh. 1.) Exhibit 2 provides Plaintiff is the legal owner of the vehicle. (Phillips Decl. ¶11, Exh. 2.)

Plaintiff attests it has performed all of the conditions, covenants and promises required under the terms of the Agreement and Defendant Khodagholian defaulted in the terms, conditions and covenants of the Agreement by failing to make the payment then due and owing. (Phillips Decl. ¶¶15-16.) Plaintiff demanded payment from Defendant, which Defendant refused to pay. (Phillips Decl. ¶16.) Plaintiff believes the vehicle is in the control and possession of Defendant Vorak Auto, who became in possession of the vehicle when Defendant Khodagholian got into an accident on April 2, 2021. (Phillips Decl. ¶18.) Plaintiff attests they were informed the vehicle was towed to Defendant Vorak’s shop after the vehicle had bene in a substantial accident and was rendered a total loss. (Phillips Decl. ¶18.) Moreover, Defendant Khodagholian failed to notify Plaintiff that the vehicle was damaged in an accident pursuant to the Lease agreement. (Phillips Decl. ¶19.) The court finds Plaintiff has demonstrated it has been damaged by being deprived of possession of the vehicle.

Plaintiff has also provided a particular description of the property and the value of the property. (Phillips Decl. ¶¶8, 26.) Moreover, Plaintiff has provided that the vehicle 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. (Application ¶8.)

Plaintiff has met its burden in demonstrating their entitlement to a writ of possession. As a result, Plaintiff must file an undertaking “in an amount not less than twice the value of the defendant's interest in the property or in a greater amount” unless the court finds the defendant has no interest in the property. (CCP §515.010(a), (b).) “The value of the defendant's interest in the property 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.” (Id.)

Since Defendant Khodagholian owes more than the market value of the Vehicle, Defendant has no interest in the Vehicle pursuant to Code of Civil Procedure section 515.010. The court thus waives the requirement to file an undertaking for Defendant’s interest. The approximate value is $70,848.00. (Phillips Decl. ¶26 Exh. 4.) Plaintiff contends Defendant owes $85,841.64. (Phillips Decl., ¶16, Exh. 3.) 

Based on the foregoing, the application for writ of possession is GRANTED and Plaintiff is not required to submit an undertaking.  Pursuant to Code of Civil Procedure §515.020(b), Plaintiff requests that Defendant be required to post a re-delivery bond for the Vehicle in a sum equal to the fair market value of the vehicle. (Phillips Decl. ¶28.)

To the extent that the Defendant Vorak claims a lien, a repair shop cannot hold the car hostage from Plaintiff for the amount of repairs unless it can show that it personally served or sent by registered letter prior to commencing work on the car notice of the repairs and obtained actual consent of the legal owner or lessor. (Civ. Code §3068(c).)

Plaintiff contends it never authorized Vorak Auto to perform any repairs on the Vehicle nor did Plaintiff authorize Vorak Auto to store the Vehicle. (Phillips Decl. ¶22.) Moreover, counsel for Plaintiff contacted the Department of Motor Vehicles, who informed Plaintiff’s counsel there had not been any lien sale activity filed to date regarding the Vehicle. (Caley Decl. ¶8.) Because Vorak Auto did not properly give notice and failed to timely conduct a lien sale or file an action in the court, Defendant Vorak Auto is in wrongful possession of the vehicle. (Civ. Code §3068(b)(1)(A).)

As such, any lien by Defendant Vorak Auto is extinguished. The court notes, however, Defendant Vorak Auto is required to turn over possession of the vehicle “upon tender by the legal owner or lessor . . . of . . . the amount for storage, safekeeping, or parking space rental for the vehicle to which the person is entitled by [Section 3068(c)].” (Civ Code, § 3068(b)(2).) Section 3068(c)(1) requires the amount of $1,025 to be tendered “for any storage, safekeeping, or rental of parking space.” There is no evidence that Plaintiff has tendered this amount to Defendant Vorak Auto.