Re: ???????????????????????????? Hitachi Capital America Corp. v. Pandher
Court Case No. 17 CECG 03675
Hearing Date: ?????????? If Requested: December 21, 2017 @ 1:30 p.m. (Dept. 402)
Motion: ???????????????????? Writ of Possession
The application for a writ may be granted if the plaintiff shows (1) the basis of his claim and that the plaintiff is entitled to possession of the property claimed; (2) that the property is wrongfully detained by the defendant, the manner in which the defendant came into possession of the property, and (on information and belief) the reason for detention; (3) a particular description of the property and a statement of its value, (4) the location of the property.? (Code Civ. Proc., ? 512.010.)
??????????? 1. ??????? Basis of the Claim & Entitlement to Property
To obtain a writ of possession, plaintiff has to show it has the right to immediate possession of tangible personal property and that defendants are wrongfully withholding that property. (Code Civ. Proc., ? 512.010.)? A writ of possession may issue only if the plaintiff has established the probable validity of the plaintiff’s claim, i.e., that ?it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.? (Code Civ. Proc., ?? 511.090, 512.060, subd. (a)(1); Simms v. NPCK Enterprises, Inc. (2003) 109 Cal .App.4th 233, 242.) If plaintiff’s right to possession is based upon a written instrument (e.g., promissory note or security agreement), a copy of the instrument must be attached to the application. (Code Civ. Proc., ? 512.010, subd.,? (b)(1).)? The Agreement is not attached to the Application.? This is one ground for denying the Writ of possession.
At the hearing on the application for a writ of possession, the plaintiff must at least establish a prima facie case. If the defendant makes an appearance, the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.?? (Legislative Committee Comment to Civ. Proc. Code, ? 511.090.)? The burden of proof rests on the plaintiff to establish the probable validity of his or her claim. He or she will fail to satisfy this requirement if the defendant shows that there is a reasonable probability that he or she can assert a successful defense to the action.? (Legislative Committee Comment to Civ. Proc. Code, ? 512.060.)
Here, plaintiff relies on the declaration of Gary Gray, a Litigation and Bankruptcy Specialist for plaintiff.? Gray is one of the persons charged with the responsibility for handling the collection of certain credit transactions made by Plaintiff which have become delinquent.? He has custody and control of plaintiff?s business records.? He is required to know, and is very familiar with the jobs of plaintiff?s employees as they relate to making bookkeeping entries and maintaining other records.? He describes the process at some length.? Gray qualifies the records as business records under California?s Evidence Code section 1271.? Gray identifies and authenticates the Motor Vehicle Security Agreement attached to the verified Complaint.? Plaintiff fully performed under the contract.? Due to the default, the amount owing is $44,369.47.
If the failure to attach the required agreement is overlooked, plaintiff has established the probable validity of its claim.
- Wrongful Detention, Manner of Possession, Reason for Detention
Plaintiff next attempts to establish that defendants are wrongfully detaining the property.? The application checks the boxes that this information is in the verified complaint and in the ?attached declaration? (Gray?s Declaration is separate, not attached.)? These documents establish defendant had possession when the trailers were purchased.? Code of Civil Procedure section 516.030 provides that affidavits in support of writs of possession must set forth ?[t]he facts stated? ?with particularity.? ?Except where matters are specifically permitted by this chapter to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein.?? (Code Civ. Proc., ? 516.030.)
Gray states the defendant came into possession of the truck through the purchase of the truck by virtue of the Agreement.? This is sufficient.? (The manner the defendants came into possession of the property is an element which cannot be established on information and belief.? (Code Civ. Proc., ? 512.010, subd. (b)(2).))
However, no facts are incorporated which tend to show that Pandher remains in possession of the trailers in Item 5 of the Application, ?A showing that the property is wrongfully detained by the defendant? (Code Civ. Proc., ? 512.010, subd. (b)(2)) is not one of the factual showings that can be made on information and belief.
Although the reason for detention may be established on information and belief (Code Civ. Proc., ? 512.010, subd. (b)(2)), neither document offers any reason for the continued detention of the trailers.
- Description of the Property
The equipment is particularly described and valued at $39,000.? (Gray Decl. ? 15;
Application Item 4.)
- The Location of the Property
The Application simply states, at item 6, that the property may be found at: 5375 Ridgeline Pl. Rancho Cucamonga, CA 91739 and/or 5653 E. Christine Ave., Fresno, CA 93727.? Supporting facts are alleged to be found in the complaint or attached declaration. ?The complaint says nothing about where the property may be found, except the attached Agreement indicates the truck will be garaged at the Christine Avenue address.? Gray?s declaration states on information and belief that the property may be found at one of these two addresses.? While the location of the property may be shown ?according to the best knowledge, information, and belief of the plaintiff? (Code Civ. Proc., ? 512.010, subd. (b)(4)), if the property is a ?private place? ?probable cause? must be shown to believe the property is located there.? Given that the Christine Avenue address and the Ridgeline Place address are both allegedly residences per the Proof of Service, more needs to be shown that a Gray?s declaratory conclusion.
Accordingly, the application for writ of possession is denied without prejudice.
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary.? The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Issued By: ??????????????JYH???????????????????????????? on?????? 12/20/2017????????????????? .
??????????? ??????????? (Judge?s initials) ?????? ??????????? (Date)?