This case was last updated from Los Angeles County Superior Courts on 02/04/2021 at 03:00:42 (UTC).

LINCOLN AUTOMOTIVE FINANCIAL SERVICES VS MARTINS SEDAN SERVICE INC., ET AL.

Case Summary

On 10/15/2020 LINCOLN AUTOMOTIVE FINANCIAL SERVICES filed a Contract - Other Contract lawsuit against MARTINS SEDAN SERVICE INC . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8764

  • Filing Date:

    10/15/2020

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

LINCOLN AUTOMOTIVE FINANCIAL SERVICES

Defendants

MINTZ BETTY

MARTINS SEDAN SERVICE INC.

SHELDON MARTIN

Attorney/Law Firm Details

Plaintiff Attorney

ERNEST STEVEN E

 

Court Documents

Request for Dismissal - Request for Dismissal

1/28/2021: Request for Dismissal - Request for Dismissal

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

12/7/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

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

12/7/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

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

12/7/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Memorandum of Points & Authorities - Memorandum of Points & Authorities

11/6/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Declaration (name extension) - Declaration DECLARATION

11/6/2020: Declaration (name extension) - Declaration DECLARATION

Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Writ of Attachment (CCP 484.040)

11/6/2020: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Writ of Attachment (CCP 484.040)

Application for Writ of Possession - Application for Writ of Possession

11/6/2020: Application for Writ of Possession - Application for Writ of Possession

Civil Case Cover Sheet - Civil Case Cover Sheet

10/15/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Summons - Summons on Complaint

10/15/2020: Summons - Summons on Complaint

Complaint - Complaint

10/15/2020: Complaint - Complaint

Declaration (name extension) - Declaration OF STEVEN E. ERNEST RE: VENUE PURSUANT TO CALIFORNIA CIVIL CODE 2984.4

10/15/2020: Declaration (name extension) - Declaration OF STEVEN E. ERNEST RE: VENUE PURSUANT TO CALIFORNIA CIVIL CODE 2984.4

First Amended Standing Order - First Amended Standing Order

10/15/2020: First Amended Standing Order - First Amended Standing Order

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

10/15/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

2 More Documents Available

 

Docket Entries

  • 01/29/2021
  • DocketAddress for Steven E Ernest, (Attorney) null

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  • 01/29/2021
  • DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 02/02/2021 at 01:30 PM in Stanley Mosk Courthouse at Department 85 Not Held - Vacated by Court on 01/29/2021

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  • 01/29/2021
  • DocketNon-Jury Trial scheduled for 04/14/2022 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/29/2021

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  • 01/29/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/19/2023 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/29/2021

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  • 01/28/2021
  • DocketOn the Complaint filed by LINCOLN AUTOMOTIVE FINANCIAL SERVICES on 10/15/2020, entered Request for Dismissal without prejudice filed by LINCOLN AUTOMOTIVE FINANCIAL SERVICES as to MARTINS SEDAN SERVICE INC., BETTY MINTZ, and MARTIN SHELDON

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  • 12/07/2020
  • DocketProof of Service by Substituted Service; Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff); As to: MARTIN SHELDON (Defendant); Proof of Mailing Date: 12/07/2020; Service Cost: 103.80; Service Cost Waived: No

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  • 12/07/2020
  • DocketProof of Service by Substituted Service; Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff); As to: MARTINS SEDAN SERVICE INC. (Defendant); Proof of Mailing Date: 12/07/2020; Service Cost: 103.80; Service Cost Waived: No

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  • 12/07/2020
  • DocketProof of Service by Substituted Service; Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff); As to: BETTY MINTZ (Defendant); Proof of Mailing Date: 12/07/2020; Service Cost: 267.80; Service Cost Waived: No

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  • 11/17/2020
  • DocketUpdated -- Notice of Application and Hearing for Claim and Delivery (CCP 512.030): Document changed from Notice of Application and Hearing for Writ of Attachment (CCP 484.040) to Notice of Application and Hearing for Claim and Delivery (CCP 512.030); As To Parties: removed

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  • 11/16/2020
  • DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 02/02/2021 at 01:30 PM in Stanley Mosk Courthouse at Department 85

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3 More Docket Entries
  • 11/06/2020
  • DocketMemorandum of Points & Authorities; Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff)

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  • 10/16/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/19/2023 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 10/16/2020
  • DocketNon-Jury Trial scheduled for 04/14/2022 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 10/16/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

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  • 10/15/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 10/15/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/15/2020
  • DocketSummons on Complaint; Issued and Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff); As to: MARTINS SEDAN SERVICE INC. (Defendant); BETTY MINTZ (Defendant); MARTIN SHELDON (Defendant)

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  • 10/15/2020
  • DocketDeclaration OF STEVEN E. ERNEST RE: VENUE PURSUANT TO CALIFORNIA CIVIL CODE 2984.4; Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff); As to: MARTINS SEDAN SERVICE INC. (Defendant); BETTY MINTZ (Defendant); MARTIN SHELDON (Defendant)

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  • 10/15/2020
  • DocketCivil Case Cover Sheet; Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff); As to: MARTINS SEDAN SERVICE INC. (Defendant); BETTY MINTZ (Defendant); MARTIN SHELDON (Defendant)

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  • 10/15/2020
  • DocketComplaint; Filed by: LINCOLN AUTOMOTIVE FINANCIAL SERVICES (Plaintiff); As to: MARTINS SEDAN SERVICE INC. (Defendant); BETTY MINTZ (Defendant); MARTIN SHELDON (Defendant)

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Tentative Rulings

Case Number: 20STLC08764    Hearing Date: February 02, 2021    Dept: 85

Lincoln Automotive Financial Services v. Martins Sedan Service, Inc., et al., 20STLC08764

Tentative decision on application for writ of possession: denied

Plaintiff Lincoln Automotive Financial Services (“Lincoln Financial”) seeks writs of possession against Defendants Martins Sedan Service, Inc. (“MSS”), Betty Mintz (“Mintz”), and Martin Sheldon (“Sheldon”) to recover a 2016 Lincoln Navigator, VIN 5LMJJ3HT5GEL06148, (“Vehicle”).

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

A. Statement of the Case

1. Complaint

Plaintiff Lincoln Financial commenced this proceeding on October 15, 2020, alleging causes of action for (1) possession of personal property, (2) breach of contract and damages, and (3) common counts. The Complaint alleges in pertinent part as follows.

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

Defendants defaulted under the Contract by failing to make the payment due and owing on March 18, 2020, or any payments thereafter. There is currently due to Lincoln Financial the sum of $20,084.26 together with other charges provided in the Contract. Lincoln Financial has demanded that Defendants surrender the Vehicle, and they have failed to do so.

2. Course of Proceedings

According to proofs of service on file Defendants were served with the Summons, Complaint, and moving papers via substituted service on December 3, 2020, after personal service was attempted Defendants Mintz and Sheldon on November 19, 20, and 24, 2020. The documents were thereafter mailed the same day.

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 Lincoln Financial seeks a writ of possession against Defendants MSS, Mintz, and Sheldon[3] to recover the Vehicle. Defendants do not oppose.

Lincoln Financial presents evidence that on March 4, 2016, Defendants entered into the Contract with non-party South Bay Ford, Inc. to purchase the Vehicle. Woodward Decl. Ex. A. The Contract was subsequently assigned to Lincoln Financial. Ibid. p. 2. Lincoln ELT, K17, and Lincoln Financial hold interests in the Vehicle. Woodward Decl. ¶5, Ex. B.[4]

Pursuant to the terms of the Contract, Defendants were required to make 47 monthly payments of $1,390.31, beginning on April 18, 2016. Woodward Decl. Ex. A. Defendants breached the Contract by failing to make the payment due and owing on March 18, 2020, or any payments thereafter. Woodward Decl. ¶7. Pursuant to the Contract, Lincoln Financial has exercised its right to accelerate the payments and demand surrender of the Vehicle. Woodward Decl. ¶7.

According to Lincoln Financial’s supporting declaration, the amount due under the Contract is $20,084.26. Woodward Decl. ¶9. However, Lincoln Financial 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 retail market value of the Vehicle is $30,025. Woodward Decl. ¶, Ex. C. Defendants therefore has equity in the Vehicle in the amount of $9,940.74.[5] Under CCP section 515.010(a), Lincoln Financial’s undertaking must be set at twice the value of Defendants’ interest, or $19,881.48. An undertaking from Defendants to prevent Lincoln Financial from taking possession will be in the same amount of $19,881.48. See CCP §515.010(a).

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

Lincoln asserts that the Vehicle is located at Defendants’ last known business address, located at 11912 Riverside Drive 16, Valley Village, CA 91607 or 4804 Laurel Canyon Boulevard, Suite 1106, Valley Village, CA 91607. Woodward Decl., ¶12. The Riverside Drive address is listed as Defendants’ address on the Contract and the Laurel Canyon address is where Defendants were served with process. Any writ may direct the levying officer to enter these addresses to take possession of the Vehicle. See CCP §512.060(b).

The application for a writ of possession is denied. If Lincoln Financial provides supporting documentary evidence of the debt before the hearing, the application will be granted. In that circumstance, Lincoln Financial would 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] Lincoln Financial fails to provide tabs for all 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] Lincoln submitted a single application for writ of possession listing all Defendants. This is improper. A separate application is required for each Defendant. The Judicial Council form is mandatory and it clearly provides spaces for the listing of the “Defendant” in the singular form. As Defendants have not opposed, the court will not deny the application on this ground.

[4] There is no showing of the relationship between Lincoln Financial and Lincoln ELT and K17.

[5] Lincoln Financial’s memorandum contradicts its supporting declaration and incorrectly states that Defendants have no equity in the Vehicle because the amount owed exceeds the market value. App. at 4.

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