VW CREDIT INC., A CORPORATION VS ASTGHIK ASATRYAN, AN INDIVIDUAL, ET AL.

Tentative Rulings

Case Number: 20STLC06775    Hearing Date: February 26, 2021    Dept: 86

VW CREDIT INC. v. ASATRYAN

Case Number: 20STLC06775

Hearing Date: February 26, 2021

[Tentative] ORDER GRANTING THE APPLICATION FOR WRIT OF POSSESSION

Plaintiff, VW Credit Inc., seeks a writ of possession against Defendants, Astghik Asatryan and Hakop Navasardian (individually and doing business as Liberty Collision Center), over the following property: 2019 Volkswagen Jetta (VIN 3VWCB7BU8KM135773) (the Vehicle). Neither Defendant submitted an opposition.

The application for writ of possession is granted.

APPLICABLE LAW

“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, subd. (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 application for 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.” (Code Civ. Proc. § 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.” (Code Civ. Proc. § 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.” (Code Civ. Proc. § 515.010, subd. (b).)

ANALYSIS

Probable Validity of its Claim

A plaintiff seeking a writ of possession must make a showing that “the plaintiff is entitled to possession of the property claimed.” (Code Civ. Proc. § 512.010, subd. (b).) “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.)

Here, Plaintiff submits the declaration of Scott Ellefson, an employee with Plaintiff in support of this application for writ of possession. The evidence shows Plaintiff’s assignor, on the one hand, and Defendant Asatryan, on the other hand, entered into a lease agreement for the Vehicle. (Ellefson Decl., ¶ 6, Ex. A.) Pursuant to the lease agreement, Defendant Asatryan agreed to make monthly payments in the amount of $258.11. (Ellefson Decl., ¶ 7.) However, Defendant Asatryan defaulted by failing to make the payment due on February 1, 2020, or any monthly payment thereafter. (Ellefson Decl., ¶ 7.) As of the filing of this declaration, Plaintiff represents $18,187.90 is now owed on the contract. (Ellefson Decl., ¶ 7.)

Plaintiff also submits evidence that prior to the filing of this action, Defendant Asatryan transferred the Vehicle to Defendant Navasardian, who operates a body shop, to repair/store the Vehicle. (Ellefson Decl., ¶ 8.) Plaintiff contacted Defendant Navasardian on July 10, 2020 and he confirmed that they still had possession of the Vehicle but claimed that a tow bill of $475 and storage fees in excess of $13,500 had accrued. Defendant Navasardian had contacted the Department of Motor Vehicles (DMV) for approval to conduct a lien sale.[1] Petitioner in an attempt to resolve this matter offered the maximum amounts for repair and storage pursuant to Civil Code Section 3068, subdivision (c). (Ellefson Decl., ¶ 11, Ex. C.) Defendant rejected the offer. (Ellefson Decl., ¶ 11.)

The court finds Plaintiff has shown a probable validity of its claim.

Plaintiff Submits Evidence Showing the Vehicle’s Probable Location

A plaintiff seeking a writ of possession over property located “within a private place which may have to be entered to take possession,” must “sho[w] that there is probable cause to believe that such property is located there.” (Code Civ. Proc. §§ 512.010(b)(4), 512.080; see also Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 242-43.)

Based on the evidence, Plaintiff has demonstrated a probable cause to believe the Vehicle is currently in the possession of Defendants at either: 1140 Cactus Dr., Palmdale, CA 93551 (Defendant Asatryan’s residence) or 1218 E. 1st St., Los Angeles, CA 90033 (body shop location). (Ellefson Decl., ¶ 16.)

Plaintiff Has Established All Requirements for Issuance of a Writ

Pursuant to Code of Civil Procedure section 512.010, Plaintiff has (1) shown it is entitled to possession of the Vehicle; (2) shown the Vehicle is wrongfully detained by Defendants; (3) described the Vehicle and stated that the value of the Vehicle is between $15,919.00 and $17,984.00; (4) submitted evidence the Vehicle is located at either 1140 Cactus Dr., Palmdale, CA 93551 or 1218 E. 1st St., Los Angeles, CA 90033; and (5) declared the property has not been taken for a tax, assessment or fine or seized under execution (Form CD-100 ¶ 8).

CONCLUSION

For the foregoing reasons, Plaintiff’s application for a writ of possession is granted.[2]

IT IS SO ORDERED.

February 26, 2021 ________________________________

Hon. Mitchell Beckloff

Judge of the Superior Court