This case was last updated from Los Angeles County Superior Courts on 01/25/2020 at 04:52:52 (UTC).

NORTH MILL EQUIPMENT FINANCE LLC, A LIMITED LIABILITY COMPANY AND SERVICING AGENT FOR NORTH MILL CREDIT TRUST FKA EFS CREDIT VS ANAHIT AMIRKHANYAN, ET AL.

Case Summary

On 08/21/2019 NORTH MILL EQUIPMENT FINANCE LLC, A LIMITED LIABILITY COMPANY AND SERVICING AGENT FOR NORTH MILL CREDIT TRUST FKA EFS CREDIT filed a Contract - Other Contract lawsuit against ANAHIT AMIRKHANYAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk 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:

    *******7763

  • Filing Date:

    08/21/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

NORTH MILL EQUIPMENT FINANCE LLC A LIMITED LIABILITY COMPANY AND SERVICING AGENT FOR NORTH MILL CREDIT TRUST FKA EFS CREDIT TRUST

Defendants

AMIRKHANYAN ANAHIT

OURJIAN RAZMIK

Attorney/Law Firm Details

Plaintiff Attorney

RYMSZA CHRISTINA

 

Court Documents

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

12/3/2019: Minute Order - Minute Order (Hearing on Application for Writ of Possession against Defenda...)

Notice of Hearing on Petition - Notice of Hearing on Petition

12/5/2019: Notice of Hearing on Petition - Notice of Hearing on Petition

Supplemental Declaration (name extension) - Supplemental Declaration of Ellen W. Miller in Support of Application for Writ of Possession

12/18/2019: Supplemental Declaration (name extension) - Supplemental Declaration of Ellen W. Miller in Support of Application for Writ of Possession

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

1/2/2020: Order for Writ of Possession (Claim and Delivery) - Order for Writ of Possession (Claim and Delivery)

Other - (name extension) - Other - Decision on application for writ of possession: granted

1/2/2020: Other - (name extension) - Other - Decision on application for writ of possession: granted

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

1/2/2020: Order for Writ of Possession (Claim and Delivery) - Order for Writ of Possession (Claim and Delivery)

Notice (name extension) - Notice of Entry of Judgment or Order

1/3/2020: Notice (name extension) - Notice of Entry of Judgment or Order

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

9/25/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

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

9/9/2019: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

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

9/9/2019: 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)

9/9/2019: Notice of Application and Hearing for Claim and Delivery (CCP 512.030) - Notice of Application and Hearing for Claim and Delivery (CCP 512.030)

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

9/9/2019: Application for Writ of Possession (Claim and Delivery) - Application for Writ of Possession (Claim and Delivery)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

9/9/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Civil Case Cover Sheet - Civil Case Cover Sheet

8/21/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

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

8/21/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

8/21/2019: First Amended Standing Order - First Amended Standing Order

Summons - Summons on Complaint

8/21/2019: Summons - Summons on Complaint

Complaint - Complaint

8/21/2019: Complaint - Complaint

9 More Documents Available

 

Docket Entries

  • 08/24/2022
  • Hearing08/24/2022 at 10:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 02/17/2021
  • Hearing02/17/2021 at 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 01/03/2020
  • DocketNotice of Entry of Judgment or Order; Filed by: NORTH MILL EQUIPMENT FINANCE LLC, a limited liability company and servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST (Plaintiff); As to: ANAHIT AMIRKHANYAN (Defendant); RAZMIK OURJIAN (Defendant)

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  • 01/02/2020
  • DocketOther - Decision on application for writ of possession: granted; Filed by: Clerk

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  • 01/02/2020
  • DocketOrder for Writ of Possession (Claim and Delivery); Signed and Filed by:

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  • 01/02/2020
  • DocketOrder for Writ of Possession (Claim and Delivery); Signed and Filed by:

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  • 01/02/2020
  • DocketMinute Order (Hearing on Application for Writ of Possession against Defenda...)

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  • 01/02/2020
  • DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 01/02/2020 at 09:30 AM in Stanley Mosk Courthouse at Department 85 updated: Result Date to 01/02/2020; Result Type to Held - Motion Granted

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  • 12/18/2019
  • DocketSupplemental Declaration of Ellen W. Miller in Support of Application for Writ of Possession; Filed by: NORTH MILL EQUIPMENT FINANCE LLC, a limited liability company and servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST (Plaintiff)

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  • 12/05/2019
  • DocketNotice of Hearing on Petition; Filed by: NORTH MILL EQUIPMENT FINANCE LLC, a limited liability company and servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST (Plaintiff)

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12 More Docket Entries
  • 09/09/2019
  • DocketHearing on Application for Writ of Possession (CCP 512.010) scheduled for 12/03/2019 at 01:30 PM in Stanley Mosk Courthouse at Department 85

    Read MoreRead Less
  • 09/09/2019
  • DocketApplication for Writ of Possession (Claim and Delivery); Filed by: NORTH MILL EQUIPMENT FINANCE LLC, a limited liability company and servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST (Plaintiff); As to: ANAHIT AMIRKHANYAN (Defendant)

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  • 08/21/2019
  • DocketNon-Jury Trial scheduled for 02/17/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 08/21/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/24/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 08/21/2019
  • DocketComplaint; Filed by: NORTH MILL EQUIPMENT FINANCE LLC, a limited liability company and servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST (Plaintiff); As to: ANAHIT AMIRKHANYAN (Defendant); RAZMIK OURJIAN (Defendant)

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  • 08/21/2019
  • DocketSummons on Complaint; Issued and Filed by: NORTH MILL EQUIPMENT FINANCE LLC, a limited liability company and servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST (Plaintiff); As to: ANAHIT AMIRKHANYAN (Defendant); RAZMIK OURJIAN (Defendant)

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  • 08/21/2019
  • DocketCivil Case Cover Sheet; Filed by: NORTH MILL EQUIPMENT FINANCE LLC, a limited liability company and servicing agent for NORTH MILL CREDIT TRUST fka EFS CREDIT TRUST (Plaintiff); As to: ANAHIT AMIRKHANYAN (Defendant); RAZMIK OURJIAN (Defendant)

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  • 08/21/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/21/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

    Read MoreRead Less
  • 08/21/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

Case Number: 19STLC07763    Hearing Date: January 02, 2020    Dept: 85

North Mill Equipment Finance LLC v. Anahit Amirkhanyan, et al., 19STLC07763

Tentative decision on application for writ of possession: granted

Plaintiff North Mill Equipment Finance LLC (“North Mill”), a servicing agent for North Mill Credit Trust fka EFS Credit, applies for a writ of possession against Defendants Anahit Amirkhanyan (“Amirkhanyan”) and Razmik Ourjian (“Ourjian”) to repossess a 2011 International Prostar Truck, VIN 3HSCUAPR0BN196499 (“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

North Mill commenced this proceeding on August 21, 2019, alleging causes of action for (1) breach of written security agreement, (2) claim and delivery, (3) open book account, (4) account stated, (5) unjust enrichment, and (6) breach of personal guaranty. The Complaint alleges in pertinent part as follows.

Prior to the commencement of this action, North Mill and Amirkhanyan entered into a written security agreement (“Contract”) in which the Vehicle was secured collateral.

Amirkhanyan defaulted under the Contract by failing to make the payment due and owing on July 15, 2019, or any payments thereafter. There is currently due to North Mill the sum of $18,268.42 together with other charges provided in the Contract. North Mill has demanded that Amirkhanyan surrender the Vehicle, and he has failed to do so.

2. Course of Proceedings

Proofs of service on file shows that Amirkhanyan and Ourjian were served with the Summons, Complaint, and moving papers via substituted service on September 19, 2019, after personal service was attempted on September 15 and 17, 2019. The documents were thereafter mailed on September 20, 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.

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 North Mill seeks a writ of possession against Defendants Amirkhanyan and Ourjian[3] to repossess the Vehicle. Amirkhanyan does not oppose.

North Mill presents evidence that on July 6, 2015, Amirkhanyan entered into the Contract with EFS Credit Trust, with the Vehicle as secured collateral. Miller Decl. Ex. 1. North Mill is the servicing agent for North Mill Credit Trust, fka EFS Credit Trust. Miller Decl. ¶2.

Pursuant to the terms of the Contract, Amirkhanyan was required to make 54 monthly payments of $1,307.51. Miller Decl. Ex. 1. Amirkhanyan breached the Contract by failing to make the payment due on May 15, 2019, or any payment thereafter. Miller Decl. ¶6. Although North Mill demanded return of the Vehicle, Amirkhanyan has refused to surrender it. Miller Decl. ¶16. North Mill subsequently exercised its right to accelerate the debt due under the Contract. Miller Decl. ¶12.

North Mill claims that the amount due under the lease is $18,268.42. Miller Decl. ¶11. North Mill does not provide any documentary evidence supporting this amount, relying solely on the declarant’s conclusion. This is insufficient to establish the amount in default. The supporting 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 Vehicle is not subject to a Kelly Blue Book-type analysis. North Mill presents opinion evidence that the value of the Vehicle is $10,000, which would be less than the amount owed if it were established. See CCP §525.020(a).

Although North Mill states that it believes the Vehicle is located at 449 Vine Street #201, Glendale CA 91204 (the “Glendale Address”) (Miller Decl. ¶14) -- which is Defendant’s location on the Contract -- North Mill gives no indication whether this address is a private place. North Mill has therefore not satisfied CCP section 512.010(a)(4) and the levying officer would not be permitted to make entry if the address is a private place.

The applications for writs of possession are denied.

D. Supplemental Analysis

At the hearing on December 3, 2019, the court continued the hearing to the instant date for North Mill to file a supplemental declaration establishing the calculation of the debt and the location of the Vehicle by December 23, 2019. North Mill filed a supplemental declaration on December 18, 2019.

North Mill provides the Statement of Account and Pay Off Sheet for Amirkhanyan, which show that the amount due and owing to North Mill is $18,268.42. Miller Supp. Decl. Exs. 2, 3.

North Mill claims it believes the Vehicle is located at the Glendale Address because Amirkhanyan listed the address as the Vehicle’s location on the Contract, Amirkhanyan was served at this address, and a Westlaw search indicates the Glendale Address is Amirkhanyan’s last known address. Miller Supp. Decl. Exs. 1, 5. North Mill also provides evidence demonstrating the Glendale Address is a residential property and therefore a private place. Miller Supp. Decl. Ex. 4. North Mill has satisfied the requirement of CCP section 512.010(a)(4) and the writ may direct the levying officer to enter the Glendale Address to take possession of the Vehicle. See CCP §512.060(b).

The applications for writs of possession are granted.


[1] North Mill failed to lodge a courtesy copy of their application in violation of the Presiding Judge’s General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies in 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] Although North Mill filed applications for both Amirkhanyan and Ourjian, North Mill’s supporting evidence only refers to Amirkhanyan.

Case Number: 19STLC07763    Hearing Date: December 03, 2019    Dept: 85

North Mill Equipment Finance LLC v. Anahit Amirkhanyan, et al., 19STLC07763

Tentative decision on application for writ of possession: denied

Plaintiff North Mill Equipment Finance LLC (“North Mill”), a servicing agent for North Mill Credit Trust fka EFS Credit, applies for a writ of possession against Defendants Anahit Amirkhanyan (“Amirkhanyan”) and Razmik Ourjian (“Ourjian”) to repossess a 2011 International Prostar Truck, VIN 3HSCUAPR0BN196499 (“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

North Mill commenced this proceeding on August 21, 2019, alleging causes of action for (1) breach of written security agreement, (2) claim and delivery, (3) open book account, (4) account stated, (5) unjust enrichment, and (6) breach of personal guaranty. The Complaint alleges in pertinent part as follows.

Prior to the commencement of this action, North Mill and Amirkhanyan entered into a written security agreement (“Contract”) in which the Vehicle was secured collateral.

Amirkhanyan defaulted under the Contract by failing to make the payment due and owing on July 15, 2019, or any payments thereafter. There is currently due to North Mill the sum of $18,268.42 together with other charges provided in the Contract. North Mill has demanded that Amirkhanyan surrender the Vehicle, and he has failed to do so.

2. Course of Proceedings

Proofs of service on file shows that Amirkhanyan and Ourjian were served with the Summons, Complaint, and moving papers via substituted service on September 19, 2019, after personal service was attempted on September 15 and 17, 2019. The documents were thereafter mailed on September 20, 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.

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 North Mill seeks a writ of possession against Defendants Amirkhanyan and Ourjian[3] to repossess the Vehicle. Amirkhanyan does not oppose.

North Mill presents evidence that on July 6, 2015, Amirkhanyan entered into the Contract with EFS Credit Trust, with the Vehicle as secured collateral. Miller Decl. Ex. 1. North Mill is the servicing agent for North Mill Credit Trust, fka EFS Credit Trust. Miller Decl. ¶2.

Pursuant to the terms of the Contract, Amirkhanyan was required to make 54 monthly payments of $1,307.51. Miller Decl. Ex. 1. Amirkhanyan breached the Contract by failing to make the payment due on May 15, 2019, or any payment thereafter. Miller Decl. ¶6. Although North Mill demanded return of the Vehicle, Amirkhanyan has refused to surrender it. Miller Decl. ¶16. North Mill subsequently exercised its right to accelerate the debt due under the Contract. Miller Decl. ¶12.

North Mill claims that the amount due under the lease is $18,268.42. Miller Decl. ¶11. North Mill does not provide any documentary evidence supporting this amount, relying solely on the declarant’s conclusion. This is insufficient to establish the amount in default. The supporting 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 Vehicle is not subject to a Kelly Blue Book-type analysis. North Mill presents opinion evidence that the value of the Vehicle is $10,000, which would be less than the amount owed if it were established. See CCP §525.020(a).

Although North Mill states that it believes the Vehicle is located at 449 Vine Street #201, Glendale CA 91204 (Miller Decl. ¶14) -- which is Defendant’s location on the Contract -- North Mill gives no indication whether this address is a private place. North Mill has therefore not satisfied CCP section 512.010(a)(4) and the levying officer would not be permitted to make entry if the address is a private place.

The applications for writs of possession are denied.


[1] North Mill failed to lodge a courtesy copy of their application in violation of the Presiding Judge’s General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies in 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] Although North Mill filed applications for both Amirkhanyan and Ourjian, North Mill’s supporting evidence only refers to Amirkhanyan.