Case Number: TC029001 Hearing Date: February 22, 2018 Dept: A

# 7. Acar Leasing Ltd. v. Renee Sweeney

Case No.: TC029001

Matter on calendar for: Hearing on unopposed application for writ of possession

Tentative ruling:

I. Background

This is an action for repossession of a vehicle, where Plaintiff Acar Leasing Ltd. claims that Defendant Renee Sweeney defaulted under the terms of an installment contract. (Complaint, Exhibit A; Clark Decl., Exh. A.) The contract entitles Plaintiff to repossess the vehicle upon Defendant’s default and wrongful withholding. (Id.) Defendant allegedly owes Plaintiff $28,600.33, and wrongfully withholds possession of the vehicle.

The Complaint asserts causes of action for possession of personal property, breach of contract, goods sold and delivered, book account, and account stated.

Proof of Service of Summons and Complaint was filed on January 17, 2018.

II. Analysis

To obtain a writ of possession, Plaintiff must show that it has the right to immediate possession of tangible personal property, and the property is being wrongfully withheld by Defendant. (CCP § 512.010; Englert v. IVAC Corp. (1979) 92 Cal.App.3d 178, 184.) Plaintiff must show the probable validity of its 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. (CCP § 511.090.) Plaintiff must also post a bond of twice the value of Defendant’s interest in the property, unless the Court finds that Defendant has no interest in the property, in which case no undertaking is required. (CCP § 515.010.)

Plaintiff must serve Defendant with the Summons and Complaint, Notice of Application and Hearing, and a copy of the application prior to the hearing. (CCP § 512.030.) Here, Plaintiff has complied with the notice and service requirements by substitute serving Defendant with the required documents on January 4, 2018. (See Proof of Service, January 17, 2018.)

Plaintiff’s application is meritorious. The Clark Declaration establishes that Defendant failed to make the April 8, 2016 installment payment to Plaintiff, and has refused to make any subsequent payments. (Clark Decl., ¶ 7.) Because of Defendant’s nonpayment, and refusal to surrender the vehicle, Plaintiff has exercised its option to accelerate the remaining unpaid balance due and owing under the terms of the agreement. (Id.)

“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.” (CCP § 515.010(a).) Here, Plaintiff establishes that the market value of the vehicle is roughly $16,145.00, yet the balance on the vehicle is $28,600.33. (Clark Decl., ¶ 9.) Accordingly, no undertaking is required, as Defendant owes more than the car is worth.

III. Ruling

The Court grants Plaintiff’s application for writ of possession. No undertaking is required.