Judge: Michael E. Whitaker, Case: 24SMCV01264, Date: 2024-04-29 Tentative Ruling

Case Number: 24SMCV01264    Hearing Date: April 29, 2024    Dept: 207

TENTATIVE RULING

APPLICATIONS

On February 16, 2024, Plaintiff Eastern Funding LLC (“Plaintiff”) filed a complaint against Defendants Y&S Pine Bluff, LLC (“Y&S”) and Shahrokh Steve Javidzad aka Shahrokh Javidzad aka Steve Javidzad (“Javidzad”) (together, “Defendants”) alleging six causes of action for (1) breach of written agreement; (2) breach of personal guaranty; (3) money lent; (4) indebtedness; (5) conversion; and (6) claim and delivery stemming from Plaintiff’s loan to Defendants for the purchase of various business equipment, which Defendants allegedly failed to repay.

Plaintiff now applies for a writ of possession against each Defendant.  Plaintiff’s applications are unopposed.

LEGAL STANDARD

            “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, subd. (a).) 

The application shall be submitted under oath and shall include all of the following:

(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.

(Id. at subd. (b).)

            Prior to the hearing, the defendant shall be served with (1) a copy of the summons and complaint; (2) the Notice of Application and Hearing; (3) 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[.]”  (Id. at subd. (b).)

The “Notice of Application and Hearing” shall 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 valid and the other requirements for issuing the writ are established. The hearing is not for the purpose of determining whether the claim is actually valid. The determination of the actual validity of the claim will be made in subsequent proceedings in the action and will not be affected by the decision at the hearing on the application for the writ.

(c) If the defendant desires to oppose the issuance of the writ, he shall 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 shall 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.)

            At the hearing, a writ of possession shall issue if (1) plaintiff establishes the probable validity of plaintiff’s claim to possession of the property; and (2) the undertaking requirements of Section 515.010 are satisfied.  (Code Civ. Proc. § 512.060.)

Unless the court finds the defendant has no interest in the property, the court shall not issue a writ of possession until the plaintiff has filed an undertaking with the court in an amount not less than twice the value of the defendant’s interest in the property.  (Code Civ. Proc., § 515.010.)

ANALYSIS

            As a threshold matter, Plaintiff has not provided any proof of service in this case, indicating that the summons and complaint were served on either Defendant, or that the applications for writ of possession and supporting papers were served on either Defendant.  Therefore, the Court cannot issue the requested writs of possession.  (Code Civ. Proc., § 512.030, subd. (b).)       

            Substantively, Plaintiff has proffered the Declaration of Karen Tennant to support the request.  Attached to the Tennant Declaration are (1) the promissory note, signed by Javidzad on behalf of Y&S and personally guaranteed by Javidzad, which lists the property Plaintiff seeks as security for the $99,663 promissory note; (2) the invoice for the property sought; (3) an equipment shipping authorization form signed by Javidzad, authorizing the purchase and delivery of the equipment; (4) the financing statement; (5) Plaintiff’s Notice of Default and Demand for Payment letter dated 10/27/2023, listing the total amount due as $112,840.35; and (6) Defendants’ default payoff statement, showing an outstanding defaulted balance of $125,578.71 due as of February 7, 2024. 

            The Tennant Declaration further indicates that Defendants failed to make the loan payment that was due on April 19, 2023, or any payment thereafter.  (Tennant Decl. ¶ 12.)  Tennant further declares, that based on her experience as Vice President of Risk Management, the estimated auction resale value of the property is approximately $30,100.  (Tennant Decl. ¶ 35.)

            Plaintiff seeks a writ directing the levying officer to seize the property from the following locations:

i. 10435 Santa Monica Boulevard, Los Angeles, CA 90025;

ii. 221 E. 12th Street #300, Los Angeles CA 90015;

iii. 508 N. Foothill Road, Beverly Hills, CA 90210; or

iv. Another address known to Defendants.

            The first two addresses (Santa Monica Blvd. and E. 12^th Street) are listed on the promissory note as Y&S’s principal place of business, and another location where Y&S conducts business, respectively.  (Ex. 1 to Tennant Decl.)  Moreover, the second address is apparently the address where the items were shipped to, according to the invoice (Ex. 2 to Tennant Decl.)  Therefore, both these addresses appear to be public businesses and the likely locations of the property. 

            However, the Foothill Road address appears to be a private residence.  In order to direct the levying officer to seize property from a private place, Plaintiff must first show probable cause that the property is located there.  (Code Civ. Proc., § 512.010, subd. (b)(4); § 512.060, subd. (b).)  But here, Plaintiff does not specify why it believes the equipment is located at the Foothill Road address. 

            Therefore, the Court cannot issue a writ directing seizure of the property at the Foothill Road address.  Similarly, the Court cannot issue a writ for the levying officer to seize property from “another address known to Defendants,” as this location lacks specificity for the Court to determine whether it is a private place, or what probable cause Plaintiff has for believing the property is located there.

CONCLUSION AND ORDER

For the reasons stated, the Court denies without prejudice Plaintiff’s Applications for Writ of Possession.

Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.

DATED:  April 29, 2024                                                        ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court