Case Number: TC029037 Hearing Date: June 14, 2018 Dept: A

# 12. Harley-Davidson Credit Corp. v. Steven McIntosh

Case No.: TC029037

Matter on calendar for: Hearing on Application for writ of possession

Tentative ruling:

I. Background

This is an action for repossession of a vehicle. Plaintiff Harley-Davidson Credit Corp. claims that Defendant Steven McIntosh defaulted under a Promissory Note and Security Agreement. (Complaint, Exh. A; Svoboda Decl. Exh. A.) The Agreement entitles Plaintiff to repossess the vehicle upon Defendant’s default. (Id.at ¶ 15.) Defendant allegedly owes $29,935.63, and has wrongfully withheld possession of the vehicle by storing it inside a structure or locking it behind a gate within a garage. (Decl. Svoboda pg. 2.)

The complaint asserts causes of action for claim and delivery, breach of contract, and common count—money lent.

Proof of Service of Summons and Complaint was filed on April 30, 2018.

II. Standard

To obtain a writ of possession, Plaintiff must show that it has the right to immediate possession of tangible personal property, and the property is being wrongfully withheld by Defendant. (CCP § 512.010; Englert v. IVAC Corp. (1979) 92 Cal.App.3d 178, 184.) Plaintiff must show the probable validity of its claim to possession of the property. A claim has “probable validity” where it is more likely than not that Plaintiff will obtain a judgment against Defendant on that claim. (CCP § 511.090.) Plaintiff must also post a bond of twice the value of Defendant’s interest in the property, unless the Court finds that Defendant has no interest in the property, in which case no undertaking is required. (CCP § 515.010.)

Plaintiff must serve Defendant with the Summons and Complaint, Notice of Application and Hearing, and a copy of the application prior to the hearing. (CCP § 512.030.)

“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. 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.” (CCP § 515.010(a).)

III. Analysis

Here, Plaintiff has complied with the notice and service requirements by substitute-serving Defendant with the required documents on 4/22/18 (See Proof of Service, April 30, 2018.)

Plaintiff’s application is meritorious. The Svoboda Declaration establishes that Defendant failed to make his June 30, 3017 payment to Plaintiff, and has failed to make any subsequent payments. (Svoboda Decl. ¶ 5.) Plaintiff has exercised its option to accelerate the remaining unpaid balance due and owing under the terms of the agreement. (Svoboda Decl. Exh. A, ¶ 15.) Plaintiff has established that the market value of the vehicle is roughly $18,905–$21,025, yet the balance owed on the vehicle is $29,935.63. (Id. pg. 2.). Accordingly, no undertaking is required.

IV. Ruling

The Court grants Plaintiff’s application for writ of possession. No undertaking is required.

Next Dates: Case management conference 7/11/18