2013-00146123-CU-CO

Alliance the Laundry Systems LLC vs. Kevin Saephan

Nature of Proceeding:   Writ of Possession

Filed By:  Perlman, Dana M.

This motion was continued to today’s date after the Tentative Ruling was posted. At
the hearing on that date, the Court vacated the tentative ruling and continued the
Application for a Writ of Possession to 12/9/13 at 2:00 p.m. in Department 53.
Plaintiff’s reply brief was due on or before 12/2/13. The Court having received and
considered the reply brief, now orders as follows.

Plaintiff’s Application for Writ of Possession is GRANTED. The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D).  Local Rules for the
Sacramento Superior Court are available on the Court’s website at
<http://www.saccourt.ca.gov/local-rules/local-rules.aspx> Counsel for moving party is
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).

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Plaintiff’s complaint alleges six causes of action against defendants: the 1   for breach
of promissory note; the 2nd for account stated; the 3rd for money had and received; the

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4   for money lent; the 5   for open book account; and the 6   for recovery of personal
property. The property is all the equipment of Launderland, washers, dryers, etc. more
specifically described in the Security Agreement attached to the complaint as Exh. B.

Plaintiff has shown that the defendant has defaulted under the Promissory Note and
Security Agreement by failing to make full payment due on April 14, 2012, and all
subsequent monthly payments.  Defendant has accelerated the balance due and
owing.

The contract documents between the parties reflect that: “MISCELLANEOUS
PROVISIONS: THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF
LAWS PROVISIONS) OF THE STATE OF WISCONSIN WHICH IS THE PRINCIPAL
PLACE OF BUSINESS OF LENDER AND THE PLACE WHERE THIS NOTE HAS
BEEN DELIVERED AND THE LOAN EVIDENCED BY THIS NOTE IS MADE,
EXCEPT THAT (NOTWITHSTANDING ANY RULES OF CONSTRUCTION TO THE
CONTRARY) THIS NOTE AND THE LOAN DOCUMENTS SHALL BE LIBERALLY
CONSTRUED IN FAVOR OF LENDER.” [Emphasis in the original.]

Additionally, defendant asserts that the venue provision reflects that “Borrower hereby
irrevocably submits to the personal jurisdiction of the Circuit Court of Fond du Lac
County, Wisconsin or the United States District Court for the Eastern District,
Wisconsin with respect to any action or proceeding relating to enforcement of this
Note, the Security Agreement or any other Loan Documents (an “Enforcement
Action”).”

The choice of venue has not been addressed by a motion for change of venue by the
opposing party defendant before the Presiding Judge of this Court; therefore this Court
need not address that issue.

No motion to quash the jurisdiction of this Court over these defendants has been filed
by the opposing parties.  The filing of their Answers on Oct. 10, 2013, operates as a
waiver of any jurisdictional challenge.

Opposing party asserts that the contractual choice of law provision should be
enforced, but the moving papers were devoid of any citation to Wisconsin law, but was
brought exclusively under California law.

The reply brief now attaches and cites to Wisconsin law.   Wis. Stat. sec. 810.01, et
seq. is comparable to California law.  In an action for replevin, the plaintiff may claim
the delivery of the property prior to final judgment. Wis. Stat. sec. 810.02 provides the
statutory basis for an order directing return of the property before final judgment, and is
very similar to C.C.P., sec. 512.010.

As the Court finds that the moving party is entitled to the writ of possession under both
Wisconsin and California law, and defendants have waived their right to object to the
jurisdiction of this Court, the application is granted.

No undertaking is required, as the defendants’ interest in the collateral is less than the
amount currently owed.  C.C.P. section 515.010. Here, more is owed than the
defendants’ equity in the collateral.

The Court will sign the formal order provided.