Case Number: EC062082 Hearing Date: June 06, 2014 Dept: A

GE Capital Commercial v John

APPLICATION FOR WRIT OF POSSESSION

Calendar: 7
Case No: EC062082
Date: 6/6/14

MP: Plaintiff, GE Capital
RP: Defendant, Rodney Johnson

RELIEF REQUESTED:
1. Writ of Possession for Bobcat S570
2. Writ of Possession for Zieman 1165 Trailer

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendant, Rodney Johnson, has breached a written agreement to repay a note for $49,640.81
At this hearing, the Plaintiff requests a writ of possession in order to obtain possession of equipment that the Defendant used as security for the note. The writ of possession is a statutory remedy that permits a plaintiff to obtain possession of tangible personal property prior to trial when the defendant has wrongful possession of the property. 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 the declaration of Rick Tyler to provide the facts in support of its application. Mr. Tyler states facts in paragraphs 1 to 2 to demonstrate that he is a Litigation Specialist for the Plaintiff and that he has personal knowledge of the facts in the documents for the case.
The Plaintiff’s claim of possession arises from the allegation that the Defendant, Rodney Johnson, breached an agreement to repay a note for $49,640.81. A copy of the contract is attached as exhibit 1 to Mr. Tyler’s declaration. Under the contract, the Defendant agreed to make monthly payments to repay the note. Further, the Defendant agreed to use a Bobcat and Zieman 1165 Trailer as security for the note.
Mr. Tyler states in paragraph 5 that the Defendant is in default because the Defendant failed to pay the monthly payments from December 5, 2013 to the present. A review of the poorly photocopied note reveals that it includes a provision in paragraph 11 on page 2 of the contract that the Plaintiff may take possession of the collateral in the event of a default. Mr. Tyler states in paragraph 13 that the Defendant refused to transfer the collateral when the Plaintiff demanded it.
In addition, Mr. Tyler states that the equipment is at 3833 Lilac Canyon, Altadena, CA 91001. This is the address for the Defendant in the note.

This evidence establishes the probable validity of the Plaintiff’s claim to possession of the equipment because it shows that the Plaintiff has the right to take immediate possession of the equipment under the note since the Defendant is in default. In addition, this evidence shows that the Defendant has wrongful possession of the property because the Defendant has refused to transfer the equipment to the Plaintiff despite agreeing in the note to permit the Plaintiff to take possession if the Defendant was in default. Accordingly, the Plaintiff has met its burden of showing that the probable validity of 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. As noted above, Mr. Tyler provides facts to demonstrate that the equipment is at 3833 Lilac Canyon, Altadena, CA 91001. These facts are sufficient to satisfy CCP section 512.010(b)(4).

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. Tyler provides facts in paragraphs 8 and 19 of his declaration to show that the Defendant owes $44,511.83 on the note and that the value of the equipment is $32,432. These facts show that the Defendant owes $44,511.83 and that the security has a value of $32,432. Since the Defendant owes more than the equipment is worth, the Defendant does not have any interest in the property, as defined by CCP section 515.010.
Accordingly, under CCP section 515.010(b), the Court will waive the requirement for the Plaintiff to file an undertaking because the Defendant does not have any interest in the motor vehicle.

In addition, if the Defendant seeks to retain possession of the property, CCP section 515.010(b) permits the Defendant to file an undertaking and retain the equipment. As discussed above, the Plaintiff shows that the value of the equipment is $32,432 with the facts in the declaration of Mr. Tyler. This is the value of the Plaintiff’s interest in the property because this is the value that the Plaintiff will lose if the Plaintiff does not recover the equipment. Accordingly, the Court will set the Defendant’s undertaking to retain the motor vehicle at $32,432.
Therefore, the Court will grant the application and issue the requested writ of possession for the equipment. In addition, the Court will waive the requirement for the Plaintiff to file an undertaking. Finally, the Court will set the value of Defendant’s undertaking to keep or regain possession at $32,432.

RULING:
Grant Plaintiff’s application and issue a writ of possession for the equipment.
Waive requirement for Plaintiff to file an undertaking.
Set Defendant’s undertaking to retain possession at $32,432.00.