VW CREDIT INC., A CORPORATION VS IAMMELROSE, LLC, A LIMITED LIABILITY COMPANY, ET AL.

Tentative Rulings

Case Number: 20STLC03099    Hearing Date: December 08, 2020    Dept: 82

Plaintiff Ally Financial, Inc. (“Plaintiff”) seeks a writ of possession against Defendants Iammelrose, LLC, and Dashone D. Stanley (“Defendants”), and the California Department of Motor Vehicles (“DMV”) over the following property: 2019 Volkswagen Jetta, motor vehicle, Vehicle Identification Number 3VWC57BU3KM178828 (“Vehicle”).

Statement of the Case

According to Scott Ellefson, an employee of Plaintiff responsible for collection of the account of Iammelrose, LLC and Dashone Stanley, Defendants entered into an Agreement regarding lease of the Vehicle on or about May 22, 2019. Defendants failed to make payments required by the Agreement starting November 6, 2019. Defendants are in default under the Agreement, and Plaintiff seeks possession of the Vehicle after making demand for Defendants to surrender the Vehicle. (Ellefson Decl. ¶¶ 4-6, Exh. A-B.)

Procedural History

Plaintiff filed its complaint on April 6, 2020. Plaintiff filed its applications for writ of possession on July 14, 2020.

On May 18, 2020, the court entered a stipulation, acceptance of service, and order re: waiver of appearance by and monetary recovery against Defendant California Department of Motor Vehicles.

On July 14, 2020, Plaintiff personally served Defendant Stanley with the summons, complaint, application for writ of possession, and notice of hearing.

On July 27, 2020, Plaintiff sub-served Defendant Iammelrose, LLC with the summons, complaint, application for writ of possession, and notice of hearing.

On November 20, 2020, the court entered Plaintiff’s request for dismissal of Defendant Helios Automotive and Does 1-10.

On November 20, 2020, the court entered defaults of Iammelrose, LLC and Stanley, and also apparently of DMV.

On November 30, 2020, the court rejected Plaintiff’s application for entry of default judgment

No opposition has been received.

Summary of 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.” (CCP, § 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 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. (Id., § 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.” (Id., § 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., § 511.090.)

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.” (Id., § 515.010, subd. (a).)

Analysis

1. Notice

Notice is adequate as stated above.

2. Basis of Plaintiff’s Claim

Plaintiff seeks a writ of possession based on its claims for claim and delivery and money due on a contract. Ellefson represents that Plaintiff is the owner of the Agreement pursuant to an assignment. (Ellefson Decl. ¶ 4, Exh. A.) The lease agreement states that the lessor assigned the lease to Plaintiff, apparently on May 22, 2019, when the lease was executed. (Ibid.) Ellefson, an employee of Plaintiff, declares that Defendants Iammelrose, LLC and Stanley failed to make payments owing November 6, 2019, and that Defendants presently owe $23,101.55. (Id. ¶ 5.)

Based on the foregoing, Plaintiff appears to show a probable validity claim against Defendants for breach of the lease agreement. However, Plaintiff has not satisfied other requirements for writ of possession, as analyzed below.

3. Description and Value of Property

Pursuant to Code of Civil Procedure section 512.010, subdivision (b)(3), the application must include a particular description of the property and a statement of its value.

Plaintiff has provided a particular description of the property, by make, model, and VIN number. Plaintiff has also given a statement as to value. (Appl. ¶ 4; Ellefson Decl. ¶¶ 4-9.) Plaintiff therefore satisfies section 512.010, subdivision (b)(3).

5. Statutory Statements

Pursuant to Code of Civil Procedure section 512.010, subdivision (b)(4)-(5), the application must include:

(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.

Plaintiff has provided a statement that the property has not been taken for a tax, assessment, or fine, pursuant to statute and has not been seized under an execution against the Plaintiff’s property.

With regard to the location of the vehicle, Ellefson declares: “Prior to the commencement of this action, Defendants Iammelrose, Dashone Stanley, and each of them, transferred the subject vehicle to defendant Body shop to repair/ store the subject vehicle. Plaintiff is informed and believed and thereon alleges that some repairs were made, and that there may be accrued storage fees. Defendants Iammelrose, Dashone Stanley, and each of them, never retrieved the subject vehicle from defendant Body shop.” (Ellefson Decl. ¶ 8.) The “Body Shop” refers to Defendant Helios Automotive, which was dismissed from this action on November 20, 2020.

Ellefson further declares: “The file at Plaintiff reflects that defendant Iammelrose , LLC has its principal place of business at 7353 Melrose Ave., Suite C, Los Angeles, CA 90046. Dashone Stanley resides at 9379 W. Olympic Blvd., Beverly Hills, CA 90212. Defendant Body Shop has its principal place of business at Helios Automotive at 8418 S. Main St., Los Angeles, CA 90003. In reliance upon the information contained in the file and computer system of Plaintiff pertaining to the subject motor vehicle, to the best of my knowledge, information and belief, the current location of the subject motor vehicle is as follows: 7353 Melrose Ave., Suite C, Los Angeles, CA 90046 or 9379 W. Olympic Blvd., Beverly Hills, CA 90212 or 8418 S. Main St., Los Angeles, CA 90003.” (Id. ¶ 15.)

Because the application asks for an order permitting a levying officer to enter the Property and take possession of the Vehicle, Plaintiff must establish “probable cause” to believe that the Vehicle is located at the Property. (See CCP §§ 512.010, subd. (b)(4), 512.080.) Plaintiff has not submitted a declaration of any agents or repossessors that spotted the Vehicle at the stated locations. Furthermore, Ellefson declares that Defendants “Iammelrose, Dashone Stanley, and each of them, never retrieved the subject vehicle from defendant Body shop.” (Ellefson Decl. ¶ 8.) Thus, Plaintiff does not show probable cause to believe the Vehicle is located at the business of Iammelrose or residence of Stanley.

Because Helios Automotive has been dismissed from this action, Plaintiff cannot obtain a writ of possession against Helios Automotive or an order entering private property of Helios Automotive. In addition, because Helios Automotive was dismissed, the court does not analyze Plaintiff’s arguments for obtaining a writ of possession against Helios Automotive, including that Helios “waived its right to a statutory lien” under Civil Code section 3068. (See Mot. 4-5.)

Based on the foregoing, the applications for writ of possession are DENIED.

Request to Take Evidence at Hearing

Plaintiff contends that there is good cause for oral testimony or other evidence at the hearing to show probable cause for the Vehicle’s location. (Points and Authorities 3, citing CCP § 512.050.) The court denies this request. Plaintiff does not show good cause to take oral testimony for the reasons stated above.

Conclusion

The applications are DENIED.