Judge: Virginia Keeny, Case: 23VECV00625, Date: 2023-04-27 Tentative Ruling

Case Number: 23VECV00625    Hearing Date: April 27, 2023    Dept: W

MERCEDES-BENZ FINANCIAL SERVICES USA, LLC v. matinyan

plaintiff’s application for writ of possession

Date of Hearing:        April 27, 2023                                     Trial Date:       None set.

Department:              W                                                        Case No.:        23VECV00625

Moving Party:             Plaintiff Mercedes-Benz Financial Services USA, LLC  

Responding Party:     No opposition.

BACKGROUND

Plaintiff alleges Defendant Ala Matinyan entered into a written Retail Installment Sale Contract with Plaintiff’s assignor for a 2018 Mercedes Benz S450 motor vehicle. Plaintiff alleges that Defendant Matinyan then defaulted on the terms of the Agreement by failing to make the monthly payment and has since failed and refused to make any further payments due thereunder. At the time of filing, the total unpaid amount was $73,899.34.

Plaintiff filed the complaint on February 9, 2023, alleging: (1) Breach of Contract; (2) Common Count; (3) Claim & Delivery; and (4) Conversion.

Plaintiff seeks a Writ of Possession against Defendant repossess the 2018 Mercedes Benz S450.

[Tentative] Ruling

Plaintiff’s Application for Writ of Possession is GRANTED.

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 of the summons, complaint, notice of application, and application upon Defendants Matinyan and Three Brothers Autobody, Inc., aka Three Brothers Autobody. As a result, the court addresses the merits of the application below.

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 Maduabuchi Azubogu, an authorized signatory of Plaintiff, to establish the facts relevant to the writ application. Plaintiff has demonstrated an entitlement to possession of the property claimed due to Defendant’s default under the Agreement and the probable validity of Plaintiff’s claims for breach of contract. (Azubogu Decl. ¶¶11-15.) The evidence demonstrates the existence of the Agreement between Plaintiff’s Assignor and Defendant. (Azubogu Decl. ¶13, Exh. 1.) Pursuant to the terms of the Agreement, Plaintiff’s lienholder interest was perfected with the California Department of Motor Vehicles. (Azubogu Decl. ¶13, Exh. 2.)

Plaintiff attests Plaintiff and Plaintiffs Assignor performed or was excused from performing, all terms and conditions under the Agreement required to be performed by it and Defendant Matinyan breached the Agreement by failing to make payments. (Azubogu Decl. ¶¶14, 15.) Plaintiff demanded payment from Defendant Matinyan, which Defendant refused to pay. (Azubogu Decl. ¶15.) Accordingly, 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. (Azubogu Decl. ¶¶11.) 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 further claims Defendant Three Brothers Autobody, Inc. (“TBA”) is in possession of the vehicle for repairs following a collision on March 21, 2022. (Azubogu Decl. ¶19.)

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.)

The approximate value is $41,175.00 (Azubogu Decl. Exh. 5.) Plaintiff contends Defendant owes $73,899.34. Since Defendant Matinyan owes more than the market value of the Vehicle, Defendant Matinyan 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.

Plaintiff also asserts that the redelivery bond should be $41,175.00 should Defendant TBA seek to prevent Plaintiff from taking possession of the Vehicle. If Plaintiff is relying on Code of Civil Procedure section 515.020(a), then there would be no undertaking because Plaintiff owes no undertaking. However, if the court finds that the defendant has no interest in the property, a defendant’s redelivery undertaking shall state that if the plaintiff recovers judgment on the action, the defendant shall pay all costs awarded to the plaintiff and all damages that the plaintiff may sustain by reason of the loss of possession of the property.  (CCP §§ 515.010(b), 515.020(b).) $41,175.00 is the average fair market value of the Vehicle. (Azubogu Decl. ¶30.) The redelivery bond shall be such if Defendant TBA does not turn over the Vehicle.

To the extent that TBA 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 nor consented to the subject vehicle being towed, stored, or repaired. Further, Plaintiff contends that it has offered TBA the maximum amounts for which it could be held liable, but Defendant TBA has refused its offer. (Azubogu Decl. ¶¶21, 23; Domin Decl. ¶¶5-7; See Civ. Code §3068.)

Because they rejected the statutory offer, Plaintiff states any claim by TBA is extinguished and void by operation of law and moreover, Plaintiff claims TBA failed to timely apply with the DMV to conduct the lien sale. (Domin Decl. ¶10.) The court agrees and finds because Defendant TBA did not properly give notice, Defendant TBA is in wrongful possession of the vehicle. (Civ. Code §3068(b)(1)(A).) Defendant TBA has waived their right to a statutory lien of up to $2,750.00. (See Universal C.I.T. Credit Corp. v. Rater (1963) 214 Cal.App.2d 493, 495.)

As such, Defendant TBA’s lien is extinguished. The court notes, however, Defendant TBA 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 TBA.  

The application for writ of possession is granted.