Judge: David B. Gelfound, Case: 23CHCV00439, Date: 2024-04-29 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
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Case Number: 23CHCV00439    Hearing Date: April 29, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

APPLICATION FOR WRIT OF POSSESSION

Motion filed: 3/1/23

MOVING PARTY: Plaintiff Launch Credit Union (“Plaintiff”)

RESPONDING PARTY: None

NOTICE: OK 

RELIEF REQUESTED: An order granting Plaintiff’s Application.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from an alleged breach of contract. Plaintiff seeks a writ of possession against Defendant Kevin Lombardo (“Defendant”) for a 2021 Toyota RAV4 motor vehicle.

On February 14, 2023, Plaintiff filed its Complaint against Defendant and Does 1-20, alleging the following causes of action: (1) Breach of Contract, (2) Common Count, (3) Breach of Contract, (4) Common Count, (5) Claim & Delivery, and (6) Conversion. Subsequently, on November 13, 2023, Defendant filed his Answer to the Complaint.

On March 1, 2023, Plaintiff filed the instant Application for Writ of Possession (the “Application”).

On December 11, 2023, Plaintiff dismissed all unserved Does 1-20 at Case Management Conference. (12/11/23 Minute Order.)

            No opposing papers have been received by the Court.

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 section 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.

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.)

“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.) 

Prior to the issuance of a writ of possession, the 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.”  (Code Civ. Proc., § 515.010(a).) 

A.    Notice

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing . . . . However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California[.]” (Code Civ. Proc., § 1005.)

The Court notes that Plaintiff served its Application by substituted service on October 12, 2023, and on the same day, Plaintiff also mailed the copies of the papers to Defendant at the substituted service address. (10/16/23 Proof of Service.).

Accordingly, the Court finds Plaintiff’s notice appears to be proper.

B.     Basis of Plaintiff’s Claim

Plaintiff submits evidence that on May 27, 2021, Defendant entered into Closed End Loan and Security Agreement #2 (the “Agreement”) with Plaintiff, in the State of Florida, for the purchase of a 2021 Toyota RAV 4 motor vehicle (the “Subject Vehicle”). (Fatu Decl., ¶ 8, Caley Decl., ¶ 3.) Plaintiff pleads that pursuant to the Agreement, it is entitled to repossess the Subject Vehicle upon Defendant’s failure to cure a default. (Compl., Ex. “2,” at p. 3.) In its verified Complaint, Plaintiff alleges that Defendant has defaulted since July 25, 2022, by failing to make the payment then due and owing under the terms of the Agreement. (Fatu Decl., ¶ 14.) Plaintiff asserts that Defendant owes now a principal balance owed of $28,379.74, unpaid interest of $130.62, and later charges in the amount of $50.00, totaling $28,560.36. (Fatu Decl., ¶ 16, Compl., ¶ 25.)

Here, Plaintiff has applied for a writ of possession of the Subject Vehicle. It has correctly executed the application under oath and has included a copy of the written Agreement in its verified Complaint. (Compl., Ex. “2.”) Defendant does not oppose the Application for Writ of Possession.

The Court determines that Plaintiff has made the requisite showings through its verified complaint and sworn declaration.

C.    Wrongful Detention

In accordance with Code of Civil Procedure section 512.010(b)(2), the Application must include “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.”

Plaintiff presents that Defendant breached the terms of the Agreement on July 25, 2022, by failing to make monthly loan payment. (Fatu Decl., ¶ 14.) Additionally, since the initial missed payment on July 25, 2022, Defendant has failed and continues to fail to make any subsequent payments. (Ibid.) Under the terms of the Agreement, Plaintiff has the right to repossess the vehicle in the event of default. (Fatu Decl., ¶ 17, Compl., Ex. “2.”) Plaintiff asserts that it demanded Defendant return the Subject Vehicle to Plaintiff, but Defendant refused to return, thus wrongfully detained the Subject Vehicle after defaulting on the Agreement. (Fatu Decl., ¶ 18.)

Therefore, Plaintiff has made requisite showing that the Defendant has wrongfully detained the Subject Vehicle.

D.    Description and Value of Property

Pursuant to Code of Civil Procedure section 512.010(b)(3), the Application must include a particular description of the property and a statement of its value.

Plaintiff has fulfilled this requirement by providing an explicit description of the equipment, including its make, model, model year, and VIN number, as well as stating its current value. (Fatu Decl., ¶¶ 8, 21).

Consequently, Plaintiff adheres to the mandates of Code of Civil Procedure section 512.010 subdivision (b)(3)

E.     Statutory Statements

Pursuant to Code of Civil Procedure section 512.010 subdivisions (b)(4) and (5), the application must include:

(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.

            Here, Plaintiff has provided a statement that the Subject Vehicle “has not been taken for a tax, assessment, or fine, pursuant to statute, and has not been seized under an execution against the plaintiff’s property.” (Appl., ¶ 8.)

            Furthermore, Plaintiff’s counsel attests that “subsequent to the filing of Plaintiff’s Application, I was made aware of the fact that Defendant had re-located once again to a new address at 11752 Debbie Lane, Garden Grove, CA 92840 (the “Debbie Lane address”).” (Caley Decl., ¶ 4.) Plaintiff believes the Subject Vehicle is located at this address, based on confirmation of Defendant’s current address via an Accurint Report. (Id., ¶¶ 5, 7.)  Consequently, Plaintiff requests the Court to grant its request to submit a revised Proposed Order to reflect the Debbie Lane address as the vehicle levy address. (Id., ¶ 7.) The Court notes that the Debbie Lane address was the same address where substituted service was made upon Defendant on October 12, 2023. (10/16/23 Proof of Service.).

            Accordingly, the Court determines that Plaintiff has satisfied the requirements for the statutory statements. Furthermore, the Court GRANTS Plaintiff’s request to file a revised Proposed Order.

F.     Undertaking

Pursuant to Code of Civil Procedure section 515.010, an undertaking must be filed before the writ issues in the amount of “not less than twice the value of the defendant’s interest in the property.” However, if “the court finds that the defendant has no interest in the property, the court “shall waive the requirement of ... undertaking[.]” (Code Civ. Proc., § 515.010, subd. (b).)

Here, Plaintiff provides evidence showing that the amount owed on the Subject Vehicle surpasses its market value, indicating that Defendants possess no equity in the equipment. (Fatu Decl. ¶ 16, 21, Mot., at p. 4.)

Consequently, based on this specific circumstance, the requirement for Plaintiff’s undertaking should be waived pursuant to Code of Civil Procedure section 515.010 subdivision (b). Furthermore, the Court GRANTS Plaintiff’s request to impose a re-delivery bond of $30,000 for Defendant, should Defendant intend to retake possession under Code Civ. Proc. § 515.20(b). 

Based on the foregoing, Plaintiff’s unopposed Application for Writ of Possession is GRANTED.

CONCLUSION

Plaintiff’s Application for Writ of Possession of the 2021 Toyota RAV4 is GRANTED.

Plaintiff’s October 11, 2023, Proposed Order to Replace Originally Submitted Order and Include New Address to Levy Vehicle is GRANTED.

Moving party to give notice.