Case Number: 19CMCV00149 Hearing Date: September 19, 2019 Dept: A

# 7. Ally Bank v. Burke Bender

Case No.: 19CMCV00149

Matter on calendar for: Application for Writ of Possession

Tentative ruling:

I. Background

This is a collection case. Plaintiff Ally Bank seeks to recover from Defendant Burke Bender for failing to make the necessary payments under a vehicle purchase agreement. As of the filing of the action, $32,552.07 was claimed due and outstanding, together with additional costs related to the contract. The vehicle is a 2015 GMC Light Duty Sierra 3500 Crew Cab Denali 4WD.

Plaintiff now applies for a writ of possession. The application is unopposed. As discussed herein, the application is granted.

II. Standard

To obtain a writ of possession, a plaintiff must show they have the right to immediate possession of tangible personal property, and the property is being wrongfully withheld by the defendant. (C.C.P., § 512.010; Englert v. IVAC Corp. (1979) 92 Cal.App.3d 178, 184.) A plaintiff must show the probable validity of their 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. (C.C.P., § 511.090.)

The plaintiff must serve the defendant with the Summons and Complaint, Notice of Application and Hearing, and a copy of the application prior to the hearing. (C.C.P., § 512.030.) A plaintiff must also post a bond of twice the value of the defendant’s interest in the property, unless the Court finds that the defendant has no interest in the property, in which case no undertaking is required. (C.C.P., § 515.010.) “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.” (C.C.P., § 515.010(a).)

III. Analysis

In support of its application Plaintiff provides the Declaration of Blong Vang, its Replevin Specialist, who states Defendant failed to remit necessary payments under the contract and failed to surrender the vehicle upon Plaintiff’s demand. (Decl. Vong ¶¶ 5–6.) Attached to the declaration is the contract and an estimate of the vehicle’s current worth. (Decl. Vong, Exhs. A, C.) (Decl. Vong ¶ 10.) The declaration and attached contract show a probable validity of Plaintiff’s claim. The contract also allows for Plaintiff’s repossession of the vehicle upon Defendant’s default. (Decl. Vong, Exh. A, ¶ 3(d).) Accordingly, Plaintiff has a right to immediate possession and shown probable validity in its claim.

Defendant’s interest in the property is determined by subtracting the amount owed from the vehicle’s current value. (C.C.P., § 515.010(a).) Plaintiff’s required undertaking is twice Defendant’s interest. (Ibid.) Absent evidence to the contrary, the Court will utilize the clean retail value of the truck: $50,025. Minus the claimed $32,552.07 brings Defendant’s interest to $17,472.93, requiring an undertaking of $34,945.86.

IV. Ruling

The application for writ of possession is granted. Plaintiff to post a $34,945.86 undertaking.

Next date: 9-25-19, Case Management Conference, Dept. A 8:30 AM.

Notice: Plaintiff to give notice.