On 08/22/2019 AMERICAN CREDIT ACCEPTANCE, LLC filed a Contract - Other Contract lawsuit against BURSHAY GUNN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Other.
Spring Street Courthouse
Los Angeles, California
JAMES E. BLANCARTE
AMERICAN CREDIT ACCEPTANCE LLC
HAGOPIAN SHANT HAROUT
4/9/2020: Request for Dismissal - Request for Dismissal
1/27/2020: Application for Issuance of Writ of Execution, Possession or Sale - Application for Issuance of Writ of Execution, Possession or Sale
1/16/2020: Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)
1/16/2020: Other - (name extension) - Other - Decision on application for writ of possession: granted
1/16/2020: Order for Writ of Possession (Claim and Delivery) - Order for Writ of Possession (Claim and Delivery)
1/24/2020: Notice of Ruling - Notice of Ruling
11/21/2019: Proof of Personal Service - Proof of Personal Service
10/28/2019: Notice (name extension) - Notice of Continuation of Hearing
10/23/2019: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
9/12/2019: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)
9/12/2019: Notice of Intent to Appear by Telephone - Notice of Intent to Appear by Telephone
9/12/2019: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)
8/22/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
8/22/2019: Summons - Summons on Complaint
8/22/2019: Complaint - Complaint
8/22/2019: First Amended Standing Order - First Amended Standing Order
8/22/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
DocketNon-Jury Trial scheduled for 02/18/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 04/10/2020Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/25/2022 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 04/10/2020Read MoreRead Less
DocketOn the Complaint filed by American Credit Acceptance, LLC on 08/22/2019, entered Request for Dismissal without prejudice filed by American Credit Acceptance, LLC as to the entire actionRead MoreRead Less
DocketAddress for Shant Harout Hagopian (Attorney) updatedRead MoreRead Less
DocketWrit - Request; Issued by: American Credit Acceptance, LLC (Plaintiff)Read MoreRead Less
DocketApplication for Issuance of Writ of Execution, Possession or Sale; Filed by: American Credit Acceptance, LLC (Plaintiff)Read MoreRead Less
DocketNotice of Ruling; Filed by: American Credit Acceptance, LLC (Plaintiff)Read MoreRead Less
DocketOther - Decision on application for writ of possession: granted; Filed by: ClerkRead MoreRead Less
DocketOrder for Writ of Possession (Claim and Delivery); Signed and Filed by: American Credit Acceptance, LLC (Plaintiff)Read MoreRead Less
DocketMinute Order (Hearing on Application for Writ of Possession Against Defenda...)Read MoreRead Less
DocketNotice of Intent to Appear by Telephone; Filed by: American Credit Acceptance, LLC (Plaintiff)Read MoreRead Less
DocketNotice of Application and Hearing for Claim and Delivery (CCP 512.030); Filed by: American Credit Acceptance, LLC (Plaintiff)Read MoreRead Less
DocketNon-Jury Trial scheduled for 02/18/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/25/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketComplaint; Filed by: American Credit Acceptance, LLC (Plaintiff); As to: Burshay Gunn (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: American Credit Acceptance, LLC (Plaintiff); As to: Burshay Gunn (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: American Credit Acceptance, LLC (Plaintiff); As to: Burshay Gunn (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
Case Number: 19STLC07833 Hearing Date: January 16, 2020 Dept: 85
American Credit Acceptance, LLC v. Bershay Gunn, et al., 19STLC07833
Tentative decision on application for writ of possession: granted
Plaintiff American Credit Acceptance, LLC (“ACA”) seeks a writ of possession against Defendant Bershay Gunn (“Gunn”) to recover a 2013 Harley Davidson FLHTC, VIN 1HD1FFM1 5DB669012 (“Vehicle”).
The court has read and considered the moving papers (no opposition was filed), and renders the following tentative decision.
A. Statement of the Case
Plaintiff ACA commenced this proceeding on August 22, 2019, alleging a cause of action for replevin (claim and delivery). The verified Complaint alleges in pertinent part as follows.
Prior to the commencement of this action, pursuant to an assignment in writing, ACA became the owner of a written contract (“Contract”) by which Gunn purchased the Vehicle from ACA’s assignor. ACA holds a perfected security interest in the Vehicle.
Gunn defaulted under the Contract by failing to make the payment due and owing on May 28, 2016, or any payments thereafter. There is currently due to ACA the sum of $22,297.47. ACA has demanded that Gunn surrender the Vehicle, and Gunn has failed to do so.
2. Course of Proceedings
A proof of service on file shows that Gunn was personally served with the Summons, Complaint, and moving papers on October 9, 2019.
B. Applicable Law
A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. See Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1288. As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment.
A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. See CCP §1281.7.
Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession. Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding. (Judicial Council Forms CD-100 et seq.).
A plaintiff must make a written application for a writ of possession. CCP §512.010(a), (b); (Mandatory Form CD-100); CCP §512.010(a). A verified complaint alone is insufficient. 6 Witkin, California Procedure, (5th ed. 2008) §255, p.203. The application may be supported by declarations and/or a verified complaint. CCP §516.030. The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. Id.
The application must be executed 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 plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief. If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property. Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure. CCP §512.010(b).
2. The Hearing
Before noticing a hearing, the plaintiff must serve the defendant with all of the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration. CCP §512.030(a). If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint. CCP §512.030(b).
Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing. CCP §512.050. At the hearing, the court decides the merits of the application based on the pleadings and declarations. Id. Upon a showing of good cause, the court may receive and consider additional evidence and authority presented 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. Id.
The court may order issuance of a writ of possession if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) The undertaking requirements of CCP section 515.010 are satisfied. CCP §512.060(a). “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.” CCP §511.090. This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. Witkin, California Procedure, (5th ed. 2008) §261, p.208. A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it. RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.
No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there. CCP §512.060(b).
The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer. CCP §513.010(c).
The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120). The order must notify the defendant that failure to comply may subject him or her to contempt of court. CCP §512.070. The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession. See Edwards v Superior Court, (1991) 230 Cal.App.3d 173, 178.
3. The Plaintiff’s Undertaking
Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties). CCP §515.010(a). The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. Id. The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount. Id. 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.
However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP section 515.020(b). CCP §515.010(b).
Plaintiff ACA seeks a writ of possession against Gunn to recover the Vehicle. Gunn does not oppose.
ACA presents evidence that on February 26, 2015 Gunn entered into the Contract with non-party EagleRider Sales. to finance and purchase the Vehicle. Alexander Decl. Ex. 1. The Contract was subsequently assigned to ACA. Id. at 2. ACA holds a first priority perfected interest in the Vehicle. Alexander Decl. ¶6, Ex. 2.
Pursuant to the terms of the Contract, Gunn was required to make 72 monthly payments of $364.29, beginning on March 28, 2015. Alexander Decl. Ex. 1. Gunn last made a payment on the account on August 1, 2016, and the account is in default for the May 28, 2016 and forward, under the terms of the Financing Agreement. Alexander Decl. ¶7. Although ACA demanded return of the Vehicle, Gunn has refused to surrender it. Alexander Decl. ¶9.
According to ACA’s supporting declaration, the amount due under the Contract is $22,297.47. Alexander Decl. ¶11. However, the supporting exhibit shows the amount owed is $12,131.84 as of August 4, 2018. Alexander Decl. Ex. 3. The average value of the Vehicle is $7,145. Alexander Decl. ¶10, Ex. 4. Because the amount Gunn owes exceeds the value of the Vehicle, he has no legal interest in it. CCP §515.010(a). The need for an undertaking is therefore waived.
ACA’s application states that there is probable cause to believe that the location of the Vehicle is set forth in the verified complaint or supporting declaration. Neither does so; the address is listed only on the proposed writ of possession. However, the proposed order for writ of possession asserts that the Vehicle is located at Gunn’s residence, 41452 Yancey Lane, Lancaster CA 93536-2580, which is also where Gunn was personally served. The writ may direct the levying officer to enter the Yancey Lane location to take possession of the Vehicle. See CCP §512.060(b).
The application for a writ of possession is granted.
 Plaintiff’s exhibits suffer from printing issues and are barely legible. Plaintiff’s counsel is admonished to ensure that legible courtesy copies are provided to the court in the future.
 If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).