Case Number: EC067227 Hearing Date: January 12, 2018 Dept: NCB

8. EC067227

GARY ALGIER v GEORGE RICHARD REYES JR.

Petition for Writ of Attachment

This case arises from the Plaintiff’s claim that the Defendant breached a written purchase agreement by failing to pay a monthly payment on the sale of a boat.

This hearing concerns the Plaintiff’s applications for writs of possession by which it seeks to regain the vessel, which is a motorboat. The writ of possession will permit the Plaintiff to obtain possession of the tangible personal property prior to trial. CCP section 512.060 permits the Court to issue a writ of possession when the Court finds the following:

1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property.

2) The undertaking requirements of Section 515.010 are satisfied.

The Plaintiff provides facts in his own declaration in support of his application. Gary Algier states facts in paragraph 1 to demonstrate that he is responsible for the Defendant’s account that he has personal knowledge of the facts in the documents concerning the Defendant.

The Plaintiff’s claim of possession arises from the allegation that the Defendant has wrongful possession of the vessel because the Defendant is in default on the purchase agreement by which he obtained possession of the vessel. Mr. Algier states in paragraph 4 that the Defendant entered into a purchase agreement and that a copy is attached as exhibit A. In paragraph 5, Mr. Algier states that the Defendant is in default because he has failed to make the payments due on the agreement since March

2, 2011.

Mr. Algier states that the purchase agreement authorizes the Plaintiff to recover possession in the event of default. A review of the purchase agreement in exhibit A reveals that the page on which this provision appears is illegible. The first through fourth pages of the photocopied contract are legible and clear. However, the fourth and fifth pages are dark, smeared, and blurred. Many portions are wholly illegible. The section labeled “IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES” on the left column of the fourth page is partially legible; however, the legible portion does not contain any right to repossess the vessel. Since the legible portions do not contain the term, it appears that the right to repossession is in the smeared and blurred section.

A review of exhibits B and C in the Plaintiff’s motion reveals that they also contain illegible copies due to blurring and smears on the photocopy. Accordingly, the Court continued the hearing and ordered the Plaintiff to submit new copies of the documents in exhibits A, B, and C and ensure that the new copies contain legible pages. The Plaintiff then filed a legible copy of the documents and a review of paragraph 3(d), which is on page 6 of the exhibit, reveals that the parties agreed that the vessel could be repossessed in the event of default.

Mr. Algier states in paragraph 5 that the Plaintiff has demanded the return of the vehicle and that the Defendant refused to return the vehicle.

This evidence establishes the probable validity of the Plaintiff’s claim to possession of the vessel because it shows that the Plaintiff have the right to take immediate possession of the vessel since the Defendant is in default on the agreement and the Plaintiff has the right to take possession in the event of default. In addition, this evidence shows that the Defendant has wrongful possession of the vessel because he is withholding it from the Plaintiff. Accordingly, the Plaintiff has met its burden of showing the probable validity of the Plaintiff’s claim to possession.

Under CCP section 512.010(b)(4), the Plaintiff must provide evidence of the location of the property. Further, if the property is within a private place which may have to be entered to take possession, section (b)(4) requires there to be a showing that there is probable cause to believe that the property is located there.

Mr. Algier states in paragraph 11 that the file for the Defendant includes facts showing that the Defendant resides at 10344 Valley View Ave., Whittier, CA 90604. Mr. Algier also states in paragraph 11 that the Defendant’s driver’s license shows that his residence is at 15725 Arbela Dr., Whittier, CA 90603. These facts are sufficient to identify the location of the vessel at these addresses.

Finally, CCP section 512.060 requires that an undertaking be filed before a writ of possession may be issued. CCP section 515.010 states that the undertaking shall be set at an amount not less than twice the value of the defendant’s interest in the property. In addition, CCP section 515.010 defines the value of the defendant’s interest in the property as 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. When a defendant does not have any interest in the property, CCP section 515.010(b) permits the Court to waive the requirement of the plaintiff’s undertaking and set an undertaking for the defendant to keep possession or regain possession.

Mr. Algier states in paragraph 7 that the approximate wholesale value of the vessel is $25,315 based on the NADA Vessel Guide Report for August 2017. A copy of the applicable page is in exhibit C to his declaration and it is nearly illegible due to the poor photocopy.

In paragraph 5, Mr. Algier states that the Defendant owes $41,221.27. Since the Defendant owes $41,221.27 on a vessel with a market value of $25,315, the Defendant owes more than the market value of the vessel and, for the purposes of CCP section 515.010, has no interest in the vessel. As a result, the Court waives the requirement for the Plaintiff to file an undertaking.

Finally, if the Defendant seeks to retain possession of the vessel, CCP section 515.010(b) permits the Defendant to file an undertaking and retain the vehicle. As noted above, Mr. Algier states in paragraph 7 that the wholesale value of the vessel is $25,315. This is the value of the Plaintiff’s interest in the vessel because this is the value that the Plaintiff will lose if the Plaintiff does not recover the vessel. Accordingly, the Court sets the Defendant’s undertakings to retain the vessel at $25,315.

The Court grants the application and issues the requested writ of possession. In addition, the Court waives the requirement for the Plaintiff to file an undertaking because the Defendant has no interest in the vessel, as defined by CCP section 515.010. Finally, the Court sets the value of Defendant’s undertaking to keep or regain possession at $25,315.