Judge: Wesley L. Hsu, Case: 22PSCV01789, Date: 2023-03-28 Tentative Ruling
Case Number: 22PSCV01789 Hearing Date: March 28, 2023 Dept: L
Plaintiff VW Credit, Inc.’s Application for
Writ of Possession After Hearing is GRANTED,
with no bond.
Background
Plaintiff VW Credit, Inc.
(“Plaintiff”) alleges as follows: Plaintiff was dba Audi Financial Services. On
May 30, 2022, Defendant Yinhai Ren (“Defendant”) entered into a Retail
Installment Sales Contract (“Agreement”) with Plaintiff’s assignor, Audi
Ontario (“Assignor”), wherein Assignor agreed to lease a new 2022 Audi e-tron
Sportback, VIN #WA12AAGE0NB030716 (“subject vehicle”) to Defendant in exchange
for Defendant’s payments. On July 14, 2022, Defendant failed to make the
monthly payment then due and owing. Defendant has failed to become current in
the payments under the Agreement.
On November
14, 2022, Plaintiff filed a complaint, asserting causes of action against
Defendant and Does 1-100 for:
1.
Claim & Delivery
2.
Conversion
On January 24, 2023, Defendant’s default was entered.
A Case Management Conference is set for March 28, 2023.
Discussion
Plaintiff applies for a writ of possession
after hearing pursuant to Code of Civil Procedure
sections 512.010 et seq. Plaintiff seeks to recover the Audi
e-tron Sportback, VIN
#WA12AAGE0NB030716
now in the possession of Defendant.
“Claim and
delivery is a remedy by which a party with a superior right to a specific item
of personal property (created, most commonly, by a contractual lien) may
recover possession of that specific property before judgment. (See current §
511.010 et seq. [Claim
and Delivery of Personal Property].)” (Waffer
Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.)
Procedural Considerations: No writ of possession may issue,
except after a hearing on a noticed motion (Code Civ. Proc., § 512.020, subd. (a))
or by ex parte application satisfying the conditions of section 512.020,
subdivision (b). Prior to the section 512.020
hearing, the defendant must be served with all of the following: (a) A copy of
the summons and complaint; (b) A Notice of Application and Hearing; (c) A copy
of the application and any affidavit in support thereof. (Code Civ. Proc., § 512.030, subd. (a).) “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 under this title, service
shall be made in the same manner as a summons is served under Chapter 4
(commencing with Section 413.10) of Title 5.” (Code Civ. Proc., § 512.030,
subd. (b).)
The "Notice of Application
and Hearing" must inform the defendant of all of the following: (a) A
hearing will be held at a place and at a time, to be specified in the notice,
on plaintiff's application for a writ of possession; (b) The writ will be
issued if the court finds that the plaintiff's claim is probably (not actually)
valid and the other requirements for issuing the writ are established; (c) If
the defendant desires to oppose the issuance of the writ, he must file with the
court either an affidavit providing evidence sufficient to defeat the
plaintiff's right to issuance of the writ or an undertaking to stay the
delivery of the property in accordance with section 515.020; (d) The notice
must contain the following statement: “If you believe the plaintiff may not be
entitled to possession of the property claimed, you may wish to seek the advice
of an attorney. Such attorney should be consulted promptly so that he may
assist you before the time set for the hearing.” (Code Civ. Proc., § 512.040.)
On January 3, 2023, Plaintiff
filed a proof of service, which reflected that Defendant was substitute served on
December 12, 2022 with, inter alia, the summons, complaint, Notice of
Application for Writ of Possession and Hearing, Application for Writ of
Possession, Memorandum of Points and Authorities, Declaration in Support of
Application for Writ of Possession and [Proposed] Order for Writ of Possession.
The court determines
that adequate notice was provided to Defendant.
MERITS: As for
the merits of the application, the court must make its determinations upon the
basis of the pleadings and other papers in the record; but, upon good cause
shown, the court may receive and consider additional evidence and authority
produced at the hearing or may continue the hearing for the production of such
additional evidence, oral or documentary, or the filing of other affidavits or
points and authorities. (Code Civ. Proc., § 512.050.) The court must issue writ
of possession if the plaintiff establishes “the probable validity of his claim”
to possession of the property and the undertaking requirements of section 515.010
are satisfied. (Code Civ. Proc., § 512.060; RCA
Service Co. v. Superior Court (1982) 137 Cal.App.3d 1, 3.) “Probable
validity” exists 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;
RCA Service Co., supra, 137
Cal.App.3d at 3.)
Probable
validity, in this case, has been established pursuant to the application, which
is
executed under
penalty of perjury by Plaintiff’s Recovery Vendor Support Analyst James Lynch
(“Lynch”) and the
exhibits attached thereto. Lynch attests, in relevant part, as follows: At all
times mentioned
herein, Plaintiff was doing business as Audi Financial Services. (Lynch Decl.,
¶
1). On May 30,
2022, Defendant entered into a Retail Installment Sales Contract (hereinafter,
“Agreement”) with
Plaintiff's Assignor, Audi Ontario (hereinafter, “Plaintiff’s Assignor”),
wherein
Plaintiff’s Assignor agreed to lease the Audi e-tron Sportback, VIN
#WA12AAGE0NB030716
(“Collateral”) subject vehicle to Defendant in exchange for
Defendant’s $5,750.00 down payment and 72 monthly payments
of $1,616.96 commencing on July 14, 2022, and continuing on the 14th day of
each month thereafter until the entire balance was paid in full. (Id., ¶
3, Exh. 1.) Plaintiff’s Assignor then transferred all of its rights, title and
interest in and to the Agreement as well as the Collateral securing said
Agreement to Plaintiff. (Id., ¶ 4.) Plaintiff and Plaintiff’s Assignor
performed all of the terms and conditions of the Agreement required to be
performed by them. (Id., ¶ 5.) Plaintiff perfected Title to the
Collateral with the State of California as a lienholder, thereby perfecting its
ownership interest in the subject Collateral. (Id., ¶ 5, Exh. 2.)
On July 14, 2022,
Defendant failed to make the monthly payment then due and owing. (Id., ¶
6.)
Defendant has
failed to become current in the payments under the Agreement. (Id.) Plaintiff
has
made demand upon
Defendant for the return of the Collateral to Plaintiff. (Id., ¶ 13.) The court
notes that Paragraph 3 of the Agreement allows
for repossession of the Collateral in the event of
default. The Collateral has a fair market
value of $68,149.00, based upon the Kelley Blue Book
Appraisal Guide. (Id., ¶ 17, Exh. 3.) The
balance owed to Plaintiff is $101,497.66, plus other
expenses according to proof at the time of
trial, interest and attorney’s fees. (Id., ¶¶ 8 and 9.)
Plaintiff is informed and believes that the
Collateral was, at the commencement of this action,
located at 2124 Cantaria Ave., Rowland
Heights, CA 91748 (i.e., Defendant’s physical home
address as located by Plaintiff via skip
tracing), or at such other location known to Defendant.
Id., ¶ 11.) Defendant’s address provided on the Agreement (i.e., 18351
Colima Road, Rowland
Heights, #133, CA 91748) is located at a
private mailbox store and is a mailing address. (Id.) The
Collateral was
not taken from Plaintiff for a tax, assessment, or fine, pursuant to statute,
and has
not been seized
under an execution against Plaintiff. (Id., ¶ 14.)