Case Number: 18PSCV00046 Hearing Date: March 06, 2019 Dept: J

RE: Geneva Capital, LLC v. Sunga (18PSCV00046)

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Plaintiff Geneva Capital, LLC’s APPLICATION FOR WRIT OF POSSESSION AFTER

HEARING AGAINST RAINIER SUNGA AKA RAINIER I. SUNGA AKA RAINIER

INOCENCIO SUNGA INDIVIDUALLY AND DBA SPIRIT LANE

Responding Party: None (unopposed, as of 2/26/19, 3:42 p.m.)

Tentative Ruling

The hearing on Plaintiff Geneva Capital, LLC’s Application for Writ of Possession Against

Rainier Sunga aka Rainier I. Sunga aka Rainier Inocencio Sunga Individually and dba

Spirit Lane is CONTINUED to March 21, 2019. Plaintiff is instructed to file and serve a declaration substantiating the current market value of Collateral #1-#3 at least 10 days before the continued hearing date.

Background

Plaintiff Geneva Capital, LLC (“Plaintiff”) alleges that on or about April 2, 2014, Plaintiff entered into a written Master Equipment Lease Agreement (“Agreement #1”) with Defendant Rainier Sunga aka Rainier I. Sunga aka Rainier Inocencio Sunga individually and dba Spirit Lane (“Sunga”) for the lease of two color (2 Hoppers) Automatic Rhinestone Machine, Serial Number CAMS1V2P130434 and other equipment described therein (“Collateral #1”). Sunga executed a personal guaranty (“Personal Guaranty #1”) in Plaintiff’s favor. Plaintiff alleges that, on or about May 20, 2018, Sunga failed defaulted in making payments under Agreement #1. Plaintiff alleges that on or about September 11, 2014, Plaintiff and Sunga entered into a written Master Equipment Lease Agreement Supplement (“Agreement #2”) for the lease of one used CAMS IV-2P Hotfix Rhinestone Setting Machine, Geo Knight Heat Press and Table (“Collateral #2”). Sunga executed a personal guaranty (“Personal Guaranty #2”) in Plaintiff’s favor. Plaintiff alleges that, on or about May 10, 2018, Sunga failed defaulted in making payments under Agreement #2. Plaintiff alleges that, on or about January 6, 2015, Plaintiff and Sunga entered into a written Master Equipment Lease Agreement Supplement (“Agreement #3”) for the lease of one 300 Cutter and HighlandHM/D-1501C 15 Needle, 1 head embroidery machine (“Collateral #3”). Sunga executed a personal guaranty (“Personal Guaranty #3”) in Plaintiff’s favor. Plaintiff alleges that, on or about June 1, 2018, Sunga failed defaulted in making payments under Agreement #3. On October 25, 2018, Plaintiff filed a complaint, asserting causes of action against Sunga and Does 1-100 for:

Breach of Lease Agreement

Claim and Delivery

Breach of Personal Guaranty

Breach of Lease Agreement

Claim and Delivery

Breach of Personal Guaranty

Breach of Lease Agreement

Claim and Delivery

Breach of Personal Guaranty

Account Stated

Open Book

Unjust Enrichment

On February 13, 2019, Sunga’s default was entered. A Case Management Conference is set for March 21, 2019.

Discussion

Plaintiff applies for a writ of possession after hearing pursuant to CCP § 512.010 et seq. Plaintiff

seeks to recover collateral now in the possession of Sunga.

“Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment. (See current § 511.010 et seq. [Claim and Delivery of Personal Property].)” (Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.)

Procedural Considerations: No writ of attachment may issue, except after a hearing on a noticed motion (CCP § 512.020(a)) or by ex parte application satisfying the conditions of CCP § 512.020(b). Accordingly, prior to the CCP § 512.020 hearing, the defendant must be served with all of the following: (a) A copy of the summons and complaint; (b) A Notice of Application and Hearing; (c) A copy of the application and any affidavit in support thereof. (CCP § 512.030.) The “Notice of Application and Hearing” must inform the defendant of all of the following: (a) A hearing will be held at a place and at a time, to be specified in the notice, on plaintiff’s application for a writ of possession; (b) The writ will be issued if the court finds that the plaintiff’s claim is probably (not actually) valid and the other requirements for issuing the writ are established; (c) If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff’s right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with CCP § 515.020; (d) The notice must contain the following statement: “If you believe the plaintiff may not be entitled to possession of the property claimed, you may wish to seek the advice of an attorney. Such attorney should be consulted promptly so that he may assist you before the time set for the hearing.” (CCP § 512.040.)

On February 13, 2019, Plaintiff filed a proof of service, which reflects that Sunga was personally served on November 8, 2018 with, inter alia, the summons, complaint, notice of application for writ of possession after hearing, application, points and authorities, and declarations.

MERITS: As for the merits of the application, the court must make its determinations upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider additional evidence and authority produced at the hearing or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities. CCP § 512.050. The court must issue writ of possession if the plaintiff establishes “the probable validity of his claim” to possession of the property and provides an undertaking, pursuant to CCP § 515.010. (CCP § 512.060; RCA Service Co. v. Superior Court (1982) 137 Cal.App.3d 1, 3.) “Probable validity” exists where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (CCP § 511.090; RCA Service Co., supra, 137 Cal.App.3d at 3.)

Probable validity, in this case, has been established pursuant to the Declaration of Doug Houska

(“Houska”) and the accompanying exhibits. Houska lays the foundation for his testimony as

Plaintiff’s Chief Operating Officer. Houska attests that he is the custodian of records for Plaintiff

and, as such, has authority to certify said records, that the entries upon Sunga’s account were and

are made in the regular course of business at or about the time of the actual transaction, and that

he has personal knowledge of this account. (Houska Decl., ¶2.) Houska attests that he has

personally examined each document attached as an exhibit to his declaration, and that each

document was removed by him from his file for Sunger’s account and copied by him, and that

each copy is a true and correct copy of its original. (Id., ¶3.) Houska authenticates Agreements

#1-#3, the “Delivery, Acceptance and Reaffirmation Certificate for Agreements #1-#3 and

Personal Guarantees #1-#3. (Id., ¶¶ 4, 5, 20, 23, 24, 39, 42, 43 and 58, Exhibits 1, 3 and 5.)

Houska also authenticates UCC-1 statements filed with the California Secretary of State relating

to Collateral #1-#3. (Id., ¶¶6, 25, and 44, Exhibits 2, 4 and 6.)

Houska attests that “Plaintiff performed all of the terms and conditions of the Agreement #1[/#2/#3] required to be performed by it,” that Sunger defaulted in making payments owed under each of the aforesaid agreements and that, per the terms of the aforesaid agreements, Plaintiff has declared the entire balance owed under the aforesaid agreements immediately due and payable. (Id., ¶¶7, 8, 26, 27, 45 and 46). Houska attests that the unpaid Agreement #1 balance is the principal sum of $5,638.81, together with interest thereon at the rate of 8.00%/annum from May 20, 2018, including the purchase option in the amount of $1,643.50, plus late charges of $307.37, personal property taxes of $188.37 and repossession fees of $85.00. (Id., ¶¶9-11.) Houska attests that the unpaid Agreement #2 balance is the principal sum of $2,361.36, together with interest thereon at the rate of 8.00%/annum from May 10, 2018, including the purchase option in the amount of $907.50, plus late charges of $200.29, personal property taxes of $134.28 and sales tax of $136.29. (Id., ¶¶28-30.) Houska attests that the unpaid Agreement #3 balance is the principal sum of $7,973.00, together with interest thereon at the rate of 8.00%/annum from June 1, 2018, including the purchase option in the amount of $1,520.50, plus late charges of $245.86, personal property taxes of $184.22, insurance fees of $253.95 and sales tax of $450.64. (Id., ¶¶47-49.) Houska attests that Collateral #1-#3 was, at the commencement of this action, located at 664 Shoppers Lane, Covina, CA 91723. (Id., ¶¶ 15, 34 and 53.)

Houska attests that Plaintiff has made demand upon Sunger for the return of Collateral #1-#3. (Id., ¶¶17, 36 and 55.)

Undertaking: A bond must be posted as part of the undertaking unless the court finds that the defendant has no interest in the property. (CCP § 515.010(b).) The undertaking must be in an amount equal to twice the value of the defendant’s interest in the property (market value less all liens, etc.). (CCP § 515.010.) Defendant’s interest is based on the market value of the property less (1) any amount due and owing on any conditional sales contract or security agreement, (2) all liens and encumbrances on the property, and (3) any other factors to determine the defendant’s interest in the property. (CCP § 515.010(a).)

Plaintiff has failed to provide the court with any evidence regarding the current market value of Collateral #1-#3. Plaintiff has not addressed the bond issue in its points and authorities. Accordingly, the court elects to CONTINUE the hearing on the application to March 21, 2019 at 8:30 a.m. and instructs Plaintiff to file and serve a declaration substantiating the current market value of Collateral #1-#3 at least 10 days before the continued hearing date.