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This case was last updated from Los Angeles County Superior Courts on 03/27/2021 at 00:54:31 (UTC).

BRIDGECREST ACCEPTANCE CORPORATION, AN ARIZONA CORPORATION VS RACHEL NICOLE KING, AN INDIVIDUAL

Case Summary

On 10/20/2020 BRIDGECREST ACCEPTANCE CORPORATION, AN ARIZONA CORPORATION filed a Contract - Other Contract lawsuit against RACHEL NICOLE KING, AN INDIVIDUAL. 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 Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8871

  • Filing Date:

    10/20/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

BRIDGECREST ACCEPTANCE CORPORATION AN ARIZONA CORPORATION

Defendant

KING AN INDIVIDUAL RACHEL NICOLE

Attorney/Law Firm Details

Other Attorneys

COX PAMELA L.

 

Court Documents

Supplemental Declaration (name extension) - Supplemental Declaration of Jonathan Ochoa

3/23/2021: Supplemental Declaration (name extension) - Supplemental Declaration of Jonathan Ochoa

Declaration (name extension) - Declaration of Jonathan Ochoa in Support of Plaintiff's Application for Writ of Possession

3/23/2021: Declaration (name extension) - Declaration of Jonathan Ochoa in Support of Plaintiff's Application for Writ of Possession

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

3/23/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)

3/25/2021: Minute Order - Minute Order (Hearing on Application for Writ of Possession Against Defenda...)

Notice of Ruling - Notice of Ruling

3/25/2021: Notice of Ruling - Notice of Ruling

Order for Writ of Possession (Claim and Delivery) - Order for Writ of Possession (Claim and Delivery)

3/25/2021: Order for Writ of Possession (Claim and Delivery) - Order for Writ of Possession (Claim and Delivery)

Order (name extension) - Decision on application for writ of possession

3/25/2021: Order (name extension) - Decision on application for writ of possession

Writ of (name extension) - Writ of Possession After Hearing

3/25/2021: Writ of (name extension) - Writ of Possession After Hearing

Memorandum of Points & Authorities - Memorandum of Points & Authorities

1/8/2021: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)

1/8/2021: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)

Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

1/8/2021: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

Declaration (name extension) - Declaration of Jonathan Ochoa in Support of Plaintiff's Application for Writ of Possession

1/8/2021: Declaration (name extension) - Declaration of Jonathan Ochoa in Support of Plaintiff's Application for Writ of Possession

Proof of Service by Substituted Service - Proof of Service by Substituted Service

2/17/2021: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Summons - Summons on Complaint

10/20/2020: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

10/20/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

10/20/2020: Complaint - Complaint

First Amended Standing Order - First Amended Standing Order

10/20/2020: First Amended Standing Order - First Amended Standing Order

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

10/20/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

6 More Documents Available

 

Docket Entries

  • 10/24/2023
  • Hearing10/24/2023 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 04/19/2022
  • Hearing04/19/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 03/25/2021
  • DocketOrder for Writ of Possession (Claim and Delivery); Filed by:

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  • 03/25/2021
  • DocketDecision on application for writ of possession; Filed by: Clerk

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  • 03/25/2021
  • DocketMinute Order (Hearing on Application for Writ of Possession Against Defenda...)

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  • 03/25/2021
  • DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 03/25/2021 at 09:30 AM in Stanley Mosk Courthouse at Department 85 updated: Result Date to 03/25/2021; Result Type to Held

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  • 03/23/2021
  • DocketProof of Service (not Summons and Complaint); Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff); As to: RACHEL NICOLE KING, an individual (Defendant)

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  • 03/23/2021
  • DocketSupplemental Declaration of Jonathan Ochoa; Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff)

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  • 03/23/2021
  • DocketDeclaration of Jonathan Ochoa in Support of Plaintiff's Application for Writ of Possession; Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff)

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  • 02/17/2021
  • DocketProof of Service by Substituted Service; Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff); As to: RACHEL NICOLE KING, an individual (Defendant); Proof of Mailing Date: 02/05/2021; Service Cost: 219.18; Service Cost Waived: No

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4 More Docket Entries
  • 01/08/2021
  • DocketDeclaration of Jonathan Ochoa in Support of Plaintiff's Application for Writ of Possession; Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff)

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  • 01/08/2021
  • DocketNotice of Application and Hearing for Claim and Delivery (CCP 512.030); Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff)

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  • 10/20/2020
  • DocketComplaint; Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff); As to: RACHEL NICOLE KING, an individual (Defendant)

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  • 10/20/2020
  • DocketCivil Case Cover Sheet; Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff); As to: RACHEL NICOLE KING, an individual (Defendant)

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  • 10/20/2020
  • DocketSummons on Complaint; Issued and Filed by: BRIDGECREST ACCEPTANCE CORPORATION, an Arizona corporation (Plaintiff); As to: RACHEL NICOLE KING, an individual (Defendant)

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  • 10/20/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/20/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 10/20/2020
  • DocketNon-Jury Trial scheduled for 04/19/2022 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 10/20/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/24/2023 at 08:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 10/20/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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Tentative Rulings

Case Number: 20STLC08871    Hearing Date: March 25, 2021    Dept: 85

Bridgecrest Acceptance Corporation v. Rachel Nicole King, et al., 20STLC08871

Tentative decision on application for writ of possession: denied

Plaintiff Bridgecrest Acceptance Corporation (“Bridgecrest”) seeks a writ of possession against Defendant Rachel Nicole King (“King”) to recover a 2015 Kia Optima, VIN 5XXGM4A77FG450595 (“Vehicle”).

The court has read and considered the moving papers[1] (no opposition has been filed), and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Bridgecrest filed this action on October 20, 2020, alleging causes of action for (1) breach of written agreement, (2) claim and delivery, (3) conversion, and (4) goods sold and delivered. The Complaint alleges in pertinent part as follows.

Prior to the commencement of this action, pursuant to an assignment in writing, Bridgecrest became the owner of a written contract (“Contract”) by which King purchased the Vehicle from Bridgecrest’s assignor. Bridgecrest holds a perfected security interest in the Vehicle.

King defaulted under the Contract by failing to make the payments due and owing after December 3, 2019. There is currently due to Bridgecrest the sum of $17,300.43 together with other charges provided in the Contract. Bridgecrest has demanded that King surrender the Vehicle, and she has failed to do so.

2. Course of Proceedings

A proof of service on file shows that King was served with the Summons, Complaint, and moving papers via substituted service on February 1, 2021, after personal service was attempted on January 12, 14, 16, 18, 20, 23, 26, and 29, 2021. The documents thereafter mailed on February 5, 2021.

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.

1. Procedure

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.[2] 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).

C. Analysis

Plaintiff Bridgecrest seeks a writ of possession against King to recover the Vehicle. King does not oppose.

Bridgecrest presents evidence that on March 24, 2017, King entered into the Contract with non-party Drivetime Carsales Company, LLC to to purchase the Vehicle. Ochoa Decl. Ex. 1. The Contract was assigned to Bridgecrest. Ochoa Decl. ¶4, Ex. 1, p. 5. Bridgecrest perfected its interest in the Vehicle by obtaining a Certificate of Title for the Vehicle. Ochoa Decl. ¶5, Ex. 2.

Pursuant to the terms of the Contract, King was required to make 156 bi-weekly payments of $220.28, beginning on April 22, 2017 and a final payment of $217.73 on April 15, 2023. Ochoa Decl. Ex. 1. King last paid on the account on December 3, 2019 and breached the Contract by failing to make any payments thereafter. Ochoa Decl. ¶6. Pursuant to the terms of the Contract, Bridgecrest elected to accelerate the balance due thereunder. Ochoa Decl., ¶7. Although Bridgecrest demanded return of the Vehicle, King has refused to surrender it. Ochoa Decl. ¶13.

According to Bridgecrest’s supporting declaration, the amount due under the Contract is $17,300.43. Ochoa Decl. ¶6. However, Bridgecrest fails to provide any documentary evidence in support of this amount. The declaration must be set forth with particularity. CCP §516.030. This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings. A recitation of conclusions without a foundation of evidentiary facts is insufficient. See Rodes v. Shannon, (1961) 194 Cal.App.2d 743, 749 (declaration containing conclusions inadequate for summary judgment); Schessler v. Keck, (1956) 138 Cal.App.2d 663, 669 (same).

The average wholesale value of the Vehicle is $4,146-$10,600. Ochoa Decl. Ex. 3.[3] Because the amount King owes exceeds the value of the Vehicle, King has no legal interest in it. CCP §515.010(a). The need for an undertaking is therefore waived.

Bridgecrest seeks a turnover order pursuant to CCP section 512.070. Any writ will include a direction to turn the Vehicle over to Bridgecrest.

Bridgecrest asserts on information and belief that the Vehicle is located at 813 E. 88th Place, Los Angeles, California 90002. Ochoa Decl. ¶11. This address is also where King was served with process. Bridgecrest does not explain whether this is a private or business address and, if a private place, whether there is probable cause to believe it is there.  As a result, the court cannot determine whether there is probable cause to enter a private place.  CCP §512.010(a)(4).  Absent compliance with this provision, the court will not direct the levying officer to enter a private place to recover the Vehicle.

The application for writ of possession is denied. If Bridgecrest provides supporting documentary evidence of the debt at the hearing, the application will be granted. However, the levying officer may not enter the E. 88th Place address to recover the Vehicle if it is a private place.  If the application is granted, Bridgecrest will be ordered to submit a proposed writ of possession order on the appropriate Judicial Council form within two court days after the hearing or the writ will be deemed as waived.


[1] Bridgecrest fails to provide tabs for its courtesy copy exhibits and its counsel is admonished to do so for all future filings.

[2] If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).

[3] Bridgecrest did not provide evidence of the retail market value of the Vehicle.

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