Tentative Ruling

Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
North Mill Equipment Finance LLC vs Daniel Robert Woerner Sarena
Case No: 19CV03753
Hearing Date: Wed Oct 23, 2019 9:30

Nature of Proceedings: Writ of Possession

TENTATIVE RULING: Plaintiff’s application for writ of possession is granted. Defendant is ordered to turn over immediate possession of the claimed property to plaintiff.

BACKGROUND:

This is an action for breach of a loan and security agreement. On August 31, 2016, plaintiff North Mill Equipment Finance, LLC loaned the principal sum of $39,876.84 to defendant Daniel Robert Sarena dba ECO Cast to purchase a 2008 International 4200 Diesel Flatbed Truck. The truck served as collateral for the loan. On February 1, 2019, defendant failed to make the payment then due on the loan. Currently, there is due and owing from defendant to plaintiff the principal sum of $9,969.21, plus interest. Pursuant to the terms of the loan and security agreement, plaintiff is entitled to immediate possession of the collateral. Plaintiff has made demand upon defendant to turn over possession of the vehicle, but defendant has refused.

On July 19, 2019, plaintiff filed its complaint for (1) breach of contract, (2) claim and delivery, (3) open book account, (4) account stated, (5) unjust enrichment, and (6) breach of personal guaranty. Plaintiff now applies for a writ of possession, directing defendant to turn over possession of the vehicle to plaintiff. There is no filed opposition to the application.

ANALYSIS:

The provisional remedy of claim and delivery may be sought by anyone who has a right to immediate and exclusive possession of tangible personal property that is the subject of the action. Code of Civil Procedure Section 512.010 provides:

“(a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.

“(b) The application shall be executed under oath and shall include all of the following:

“(1) A showing of the basis of the plaintiff’s claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff’s claim is a written instrument, a copy of the instrument shall be attached.

“(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.

“(3) A particular description of the property and a statement of its value.

“(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.

“(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.

“(c) The requirements of subdivision (b) may be satisfied by one or more affidavits filed with the application.”

Because claim and delivery is a possessory remedy, it may be obtained by a person entitled to possession even though he or she is not vested with legal title. Feigin v. Kutchor (1951) 105 Cal.App.2d 744, 747.

In the immediate case, plaintiff has submitted admissible evidence entitling it to a writ of possession with respect to the subject vehicle. As set forth in the declaration of Ellen W. Miller, Assistant Vice President of North Mill Equipment Finance, LLC and duly authorized custodian of plaintiff’s business records, on August 31, 2016, plaintiff and defendant entered into a loan and security agreement whereby plaintiff agreed to loan the sum of $39,876.84 to defendant to purchase a 2008 International 4200 Diesel Flatbed Truck, which served as collateral for the loan. (Miller Dec., ¶¶ 1, 2, 3, 4, Ex. 1.) Plaintiff performed all of the terms and conditions of the agreement. (Miller Dec., ¶5.) On February 1, 2019, defendant failed to make the payment then due and owing and since then he has failed to become current in the payments due under the agreement. (Miller Dec., ¶6.) The amount currently due, owing, and unpaid from defendant to plaintiff is the principal sum of $9,969.21, together with interest at the rate of 18% per annum. (Miller Dec., ¶7, Ex. 1, ¶8.)

Plaintiff is informed and believes that the collateral for the loan (2008 International 4200 Diesel Flatbed Truck, VIN No. 1HTMPAFP88H544882) is in the possession of defendant. (Miller Dec., ¶13.) The business address listed for defendant in the security agreement is 3905 State Street, Unit 314, Santa Barbara, California 93105. (Miller Dec., ¶14, Ex. 1.) Under the terms of the agreement, plaintiff is entitled to immediate possession of the collateral by virtue of defendant’s default. (Miller Dec., ¶15, Ex. 1, ¶8.) Plaintiff has made demand upon defendant to turn over possession of the collateral, but he has failed and refused to do so. (Miller Dec., ¶¶ 15, 16.) Plaintiff has no information to indicate that the collateral has been taken for a tax assessment or fine, or seized pursuant to an execution order against the property. (Miller Dec., ¶16.) Plaintiff has no other collateral or security for the loan. (Miller Dec., ¶28.) The fair market value of the collateral is approximately $10,000.00. (Miller Dec., ¶32, Ex. 2.)

The summons and complaint, together with the notice of application for writ of possession, application for writ of possession, declaration of Ellen W. Miller, and memorandum of points and authorities in support of application for writ of possession, were served by substituted service on defendant on September 13, 2019, at his business address at 3905 State Street, Unit 314, Santa Barbara, California 93105. (Proof of Service, ¶¶ 2, 3, 4, 5, filed 9-26-19.) The physical address is a UPS store and the documents were left with Samantha Kakol, the UPS store manager, after she was told the general nature of the papers. Copies of the documents were thereafter mailed to defendant at the same UPS address. (Proof of Service, ¶5(b)(4).) Substituted service was effected only after the process server was unable on two previous occasions to deliver the papers personally to defendant. (Proof of Service, Declaration of Due Diligence, dated 9-23-19.)

Based on the foregoing, the court finds that plaintiff is entitled to immediate possession of the claimed property and will grant plaintiff’s application for writ of possession. Defendant is ordered to turn over possession of the vehicle to plaintiff.