AMERICAN CREDIT ACCEPTANCE, LLC VS JOAN BONTIN

Tentative Rulings

Case Number: 19STLC04856    Hearing Date: October 02, 2020    Dept: 86

AMERICAN CREDIT ACCEPTANCE, LLC v. BONTIN

Case No. 19STLC04856

Hearing Date: October 2, 2020

[TENTATIVE] ORDER DENYING AMENDED APPLICATION FOR WRIT OF POSSESSION

Plaintiff, American Credit Acceptance, LLC, seeks a writ of possession over a 2012 Mercedes-Benz GL450 allegedly in the possession of Defendant, Joan Bontin.

The application is opposed. Defendant filed evidentiary objections. Plaintiff did not file a reply or respond to the evidentiary objections.

Rulings on Evidentiary Objections: Sustained – 3, 4, 8, 9, 10, 11, 12, 13, 14, 15 and 17. The remaining objections are overruled except objection 5 which is overruled as to “Plaintiff perfected its security interest . . . .Title was assigned to Plaintiff” only.

Based on the evidentiary objections, the application is denied. The court has no evidence of the contract allegedly between Plaintiff’s predecessor in interest and Defendant. Plaintiff’s declarant, Sonya Davis, has no foundation to testify as to the contract entered into by Car Max Auto Superstores California LLC and Defendant. Defendant persuasively argues the contract has not been authenticated.

While Defendant’s declaration provides evidence of the underlying transaction, on the basis of the admissible evidence introduced by Plaintiff, Plaintiff never shifted the burden on its application for a writ of possession to Defendant. This lawsuit has been pending for almost 18 months. This is the second application for a writ of possession filed by Plaintiff. (Plaintiff took that application set for hearing exactly one year ago off calendar.)

“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, subdivision (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, subd. (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.” (Id. at § 511.090.) “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.” (Id. at § 512.040, subd. (c).)

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, subd. (a).) “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.) “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff's undertaking and shall include in the order for issuance of the writ the amount of the defendant's undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Id. at § 515.010, subd. (b).)

Requirement of Proof of Service: The court has no evidence in the file Plaintiff served Defendant with the summons and complain in this matter. Defendant, however, has made a general appearance through her opposition. The court also notes notice of the hearing continuance from June 3, 2020 (due to COVID-19) to October 2, 2020. There is no proof of service in the file indicating Plaintiff served any moving papers on Defendant.

Probable Validity of Claim: Plaintiff has not established the probable validity of its claims based on the evidentiary objections made by Defendant. Additionally, the court agrees with Defendant, the accounting attached to the moving papers is difficult to understand and needs some narrative for explanation.

(The court also notes in its review of the file in this matter, Plaintiff submitted an identical declaration (as paragraphs 1 through 12) from Matt Alexander to support its claim of a probability validity. The substantively identical declarations provide further support to Defendant’s evidentiary objections on foundation and authentication.)

CONCLUSION

Based on the foregoing, the application is denied.

Dated: October 2, 2020

Hon. Mitchell Beckloff

Superior Court Judge