A writ of possession permits a plaintiff to obtain possession of tangible personal property prior to trial. (Code of Civ. Proc., § 512.060; Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.) A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. (See Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1288.) As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment. (Id.)
A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. (See Code Civ. Proc., Sec. 1281.7.)
The court may order issuance of a writ of possession if both of the following are found:
(Code of Civ. Proc., § 512.060(a); see Englert v. IVAC Corp. (1979) 92 Cal.App.3d 178, 184; Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271 (holding that claim and delivery, i.e., a writ of possession, is a remedy by which a party with a superior right to a specific item of personal property may recover possession of that specific property before judgment.).)
“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code of Civ. Proc., § 511.090; RCA Service Co. v Superior Court (1982) 137 Cal.App.3d 1, 3.) This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. (Witkin, California Procedure, (5th ed. 2008) §261, p.208.) A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it. (RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.)
The declarations supporting a writ of possession application must set forth facts with particularity. (Code of Civ. Proc., § 516.030.) This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings; a recitation of conclusions without a foundation of evidentiary facts is insufficient. (Rodes v. Shannon, (1961) 194 Cal.App.2d 743, 749; Schessler v. Keck, (1956) 138 Cal.App.2d 663, 669.)
“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.” (Code Civ. Proc., Sec. 512.010(a).) The application must be executed under oath and include:
(Code of Civ. Proc., § 512.010(b); Simms v. NPCK Enterprises, Inc. (2003) 109 Cal .App.4th 233, 242.)
Before the hearing on the Writ of Possession, the Defendant must be served with:
“The writ will be issued if the court finds that the plaintiff’s claim is probably valid and the other requirements for issuing the writ are established.” (Code Civ. Proc., Sec. 512.040(b).) “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., Sec. 511.090.)
“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 Section 515.020.” (Code Civ. Proc., Sec. 512.040(c).)
The hearing is not for the purpose of determining whether the claim is actually valid. The determination of the actual validity of the claim will be made in subsequent proceedings in the action and will not be affected by the decision at the hearing on the application for the writ. (Civ. Code, Sec. 512.040.)
At the hearing, the court shall 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. (Civ. Code, Sec. 512.050.)
(Bedi v. McMullan (1984) 160 Cal.App.3d 272, 275; see also, Glass v. Najafi (2000) 78 Cal.App.4th 45, 51.)
Prior to the issuance of a writ of possession, the plaintiff must file an undertaking “in an amount not less than twice the value of the defendant’s interest in the property or in a greater amount.” (Code Civ. Proc., Sec. 515.010(a).) “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.” (Id.) “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff’s undertaking and shall include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Code Civ. Proc., Sec. 515.010(b).)
Under California law, when plaintiff is secured party, they have a special interest with a right of possession only if there is a default and the security agreement allows plaintiffs to take possession. (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 410.)
Where defendant fails to file any opposition to the application for writ of possession, the court is entitled to consider that lack of opposition to be an admission the application is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) By failing to oppose the application, defendant fails to preserve for appeal a challenge to the granting of the application. (In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.)
A writ of possession may issue ex parte if “[t]he defendant acquired possession of the property in the ordinary course of his trade or business for commercial purposes and:
(Code of Civ. Proc., § 512.020(b)(3).)
After entry of a judgment of possession in an unlawful detainer action, the landlord is entitled to immediate issuance of a writ of possession. Code of Civil Procedure §1170.5
Occupants of the premises not named in the unlawful detainer action or in the writ of possession (and never served with a prejudgment claim of right to possession by the landlord, pursuant to Code of Civil Procedure §415.46) may contest enforcement of the writ of possession if they claim a right to possession predating the commencement of the unlawful detainer action. Code of Civil Procedure Secs. 715.020(d) and 1174.3(a).
To object to enforcement of the writ of possession, the occupants must file with the levying officer a “claim of right to possession.” Civ. Code, Sec. 1174.3(a) and (h).
The claim may be filed with the levying officer at any time after service or posting of the writ of possession, but no later than the time at which the levying officer returns to effect actual eviction under the writ (i.e., the sixth day after service of the writ). Civ. Code, Sec. 1174.3(a).
If a timely claim of right to possession is made, the levying officer must deliver the claim to the court and obtain a hearing date to determine the validity of the claim. Civ. Code, Sec. 1174.3(b). The levying officer must then notify the claimant and the landlord of the date of the hearing. Civ. Code, Sec. 1174.3(c).
No authority is cited allowing the court to issue a writ of possession after the appeal has been perfected. Weiss also did not file a cross-complaint so it appears he cannot apply for a writ of possession. Conclusion: Weiss’ Motion for the Issuance of a Writ of Possession is DENIED.
Jan 27, 2021
Los Angeles County, CA
On November 24, 2020, the Court issued writ of possession. On December 11, 2020, the Court denied Jacqueline Momoli’s ex parte application to stay the lockout. On December 22, 2020, Plaintiff filed the instant motion for $10,462.50 in attorney fees. The motion is unopposed. For the reasons set forth below, the Court denies the motion.
Jan 26, 2021
Maurice A. Leiter or Salvatore Sirna
Los Angeles County, CA
Plaintiff CAHP Credit Union’s (“Plaintiff”) application for writ of possession as against defendants Aaron Reich and Steve Reich is DENIED without prejudice. As for defendant Aaron Reich the case is stayed. As for defendant Steve Reich, default was entered on 10/7/2020 (ROA 27). Because defendant Steve Reich is in default, he is barred from taking any action in the court other than seeking relief from said default. (See Devlin vs. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal. App. 3d 381.)
Jan 25, 2021
Orange County, CA
Plaintiff’s application for writ of possession. No opposition. Application denied, without prejudice. (See Code Civ. Proc. § 512.010.) Plaintiff failed to make the required evidentiary showing. A plaintiff moving for a prejudgment writ of possession must submit admissible evidence of: (1) A right to possession of the personal property to be seized under the writ (Code Civ.
Jan 22, 2021
Orange County, CA
UNOPPOSED application for writ of possession is GRANTED. The Court finds that plaintiff has established the probable validity of its claim to possession of the property. No bond required for issuance of the writ inasmuch as the amount owed exceeds the market value of the vehicle. CCP §515.010. (Market value $23,725.00; Amount owed $26,606.07).
Jan 22, 2021
Collections
Promisory Note
Los Angeles County, CA
Compare CCP §516.030 (requirements for writ of possession). This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings. A recitation of conclusions without a foundation of evidentiary facts is insufficient. See Rodes v. Shannon, (1961) 194 Cal.App.2d 743, 749 (declaration containing conclusions inadequate for summary judgment); Schessler v. Keck, (1956) 138 Cal.App.2d 663, 669 (same).
Jan 21, 2021
Contract
Breach
Los Angeles County, CA
Compare CCP §516.030 (requirements for writ of possession). This means that the plaintiff must show evidentiary facts rather than the ultimate facts commonly found in pleadings. A recitation of conclusions without a foundation of evidentiary facts is insufficient. See Rodes v. Shannon, (1961) 194 Cal.App.2d 743, 749 (declaration containing conclusions inadequate for summary judgment); Schessler v. Keck, (1956) 138 Cal.App.2d 663, 669 (same).
Jan 21, 2021
Contract
Breach
Los Angeles County, CA
The entry of default and writ of possession appear to be a product of defendant’s excusable neglect. Default was entered against defendant on December 2, 2020 and a writ of possession was issued against defendant on December 4, 2020. Defendant had until January 31, 2021 to file a § 473(b) motion to vacate the entry of default and until February 2, 2021 to file a § 473(b) motion to quash/set aside the writ of possession.
Jan 21, 2021
Maurice A. Leiter or Salvatore Sirna
Los Angeles County, CA
The Receivers Application for Writ of Possession is GRANTED. The Receiver is entitled to full and complete possession and control over the Subject Property located at 9137 Belmont Street, Bellflower, California 90706 (“Property”), including the tangible and intangible personal property located in or about the Property. The Receiver is entitled to sole possession of the Property and to remove any occupants therefrom.
Jan 20, 2021
Real Property
other
Lori Ann Fournier or Olivia Rosales
Los Angeles County, CA
No proof of service for the application for writ of possession and supporting papers has been filed and there is no response to the application. See CRC 3.1300(c).
Jan 20, 2021
Contract
Breach
Los Angeles County, CA
Plaintiff seeks a Writ of Possession against Defendant repossess the 2016 Mercedes Benz S600X. [Tentative] Ruling Plaintiff’s Application for Writ of Possession is DENIED. DISCUSSION Before the hearing on the Writ of Possession, the Defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. (CCP §512.030.)
Jan 20, 2021
Real Property
Landlord Tenant
Los Angeles County, CA
Application for Writ of Possession. TENTATIVE RULING # 5: UPON REQUEST OF THE APPLICANT/PLAINTIFF, THIS MATTER IS DROPPED FROM THE CALENDAR DUE TO THE INABILITY TO SERVE THE RESPONDENT/DEFENDANT.
Jan 15, 2021
El Dorado County, CA
UNOPPOSED application for writ of possession is granted. The Court finds that plaintiff has established the probable validity of its claim to possession of the property. No bond required for issuance of the writ inasmuch as the amount owed exceeds the market value of the vehicle. CCP §515.010. (Market value $20,500; Amount owed $25,340.49).
Jan 15, 2021
Collections
Promisory Note
Los Angeles County, CA
Chris Ositi Drati, et al. 20TRCV00546 TENTATIVE RULING Santander Consumer USA, Inc.’s Application for Writ of Possession is granted. CCP § 512.010 sets forth the requirements in an application for writ of possession. CCP § 512.010(b) states: “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.
Jan 14, 2021
Collections
Promisory Note
Los Angeles County, CA
On February 13, 2020, a writ of possession of real property was issued. On March 18, 2020, Plaintiffs filed a first amended complaint against Defendant for breach of lease for failure to pay rent. On November 16, 2020, the Court granted Plaintiffs’ motion to reclassify case from an unlawful detainer to an unlimited jurisdiction civil case. On November 20, 2020, default was entered as to Defendant Bolt Mobility California, LLC.
Jan 14, 2021
Los Angeles County, CA
HEARING ON APPLCIATION FOR WRIT OF POSSESSION ( PARMVIR SIDHU) * TENTATIVE RULING: * The motion is denied without prejudice due to a failure to file a proof of service.
Jan 13, 2021
Contra Costa County, CA
HEARING ON APPLICATION FOR WRIT OF POSSESSION ( PSS TRUCKING) * TENTATIVE RULING: * The motion is denied without prejudice due to a failure to file a proof of service.
Jan 13, 2021
Contra Costa County, CA
.: 20NWCV00647 HEARING: 1/13/21 @ 1:30 PM #4 TENTATIVE ORDER Plaintiff Americredit Financial Services, Inc.’s application for writ of possession is GRANTED. No bond. Moving Party to give NOTICE. Plaintiff Americredit Financial Services, Inc. applies for a writ of possession pursuant to CCP § 512.010 et seq.
Jan 13, 2021
Lori Ann Fournier or Olivia Rosales
Los Angeles County, CA
Motion granted. No opposition filed. The court sets amount of counter-bond at $8,448. (Code Civ. Proc., § 515.010, subd. (b).) Plaintiff must prepare formal order for the court....
Jan 13, 2021
Riverside County, CA
Hearing Date: January 12, 2021 Moving Parties: Plaintiff Ally Bank Responding Party: None Application for Writ of Possession The court considered the moving papers. RULING The application for writ of possession is GRANTED. See Order on CD-120 to be submitted by plaintiff. BACKGROUND On February 27, 2020, plaintiff Ally Bank filed a complaint against defendant Mark S.
Jan 12, 2021
Collections
Promisory Note
Los Angeles County, CA
Four Applications for Writ of Possession Moving Party: Plaintiff Hardin Automotive Responding Party: Defendants (1) Elite Partners, LLC, (2) Jose Alfredo Salcido, (3) Ryan Kralman and (4) California Department of Motor Vehicles Ruling: Plaintiff Hardin Automotive’s Application for a Writ of Possession is GRANTED as to Defendants (1) Elite Partners, LLC, (2) Jose Alfredo Salcido and (3) Ryan Kralman.
Jan 11, 2021
Orange County, CA
Four Applications for Writ of Possession Moving Party: Plaintiff Hardin Automotive Responding Party: Defendants (1) Elite Partners, LLC, (2) Jose Alfredo Salcido, (3) Ryan Kralman and (4) California Department of Motor Vehicles Ruling: Plaintiff Hardin Automotive’s Application for a Writ of Possession is GRANTED as to Defendants (1) Elite Partners, LLC, (2) Jose Alfredo Salcido and (3) Ryan Kralman.
Jan 11, 2021
Orange County, CA
NEWHALL, CA 91321; for the Court to direct the Court Clerk to issue a Writ of Possession forthwith; for entry of a money judgment against all Defendants for money for the sum daily rental value in the amount of $86.67 per day multiplied by the number of days that have passed from September 1, 2019 up until the entry of this judgment, attorney fees, and for costs of suit after entry of a Memorandum of Costs and added to any money judgment. (See Thompson Decl. ¶8).
Jan 08, 2021
Los Angeles County, CA
On February 28, 2020, the Court granted Plaintiff’s ex parte motion for writ of possession relating to that flash drive and temporary restraining order. (See 2/28/2020 Minute Order.) On June 16, 2020, Plaintiff dismissed this action without prejudice. (See 06/16/2020 Request.) On August 13, 2020, Defendant filed a motion for attorney’s fees in the amount of $87,672.44, which includes the fees incurred to date and in connection with the submission of this instant motion and motion against the bond.
Jan 08, 2021
Real Property
Landlord Tenant
Los Angeles County, CA
Ruling The applications for writ of possession are denied without prejudice. Next dates: Notice:
Jan 07, 2021
Maurice A. Leiter or Salvatore Sirna
Los Angeles County, CA
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