Scope and Purpose of Applicable Law

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.)

Legal Standard

The court may order issuance of a writ of possession if both of the following are found:

1. The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and
2. The undertaking requirements of CCP section 515.010 are satisfied.

(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.)

Application Procedure

“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:

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 plaintiff's claim is based on a written instrument, a copy of it must be attached;
2. A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief;
3. A specific description of the property and statement of its value;
4. The location of the property according to the plaintiff’s best knowledge, information, and belief. If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and
5. A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property. Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure.

(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:

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.

Trial Court Determination Requirements

“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.)

Issue of Writ

1. The court clerk issues the writ by signing and dating the completed writ form (Judicial Council Form EJ-130) and affixing the court’s seal. The writ is then served by the levying officer (the county sheriff) on the tenant, either by personal service or by posting and mailing if the tenant cannot be located. Code of Civil Procedure §715.020(a) and
2. Following proper service of the writ of possession, the tenant has five days to vacate the premises. Civ. Code, Sec. 715.020(c). If the tenant fails to vacate the premises within five days, he or she may be forcibly removed by the levying officer.

(Bedi v. McMullan (1984) 160 Cal.App.3d 272, 275; see also, Glass v. Najafi (2000) 78 Cal.App.4th 45, 51.)

Bond/Undertaking Requirement

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).)

Secured Party - Plaintiff

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.)

Defendant's Failure to File Opposition

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.)

Ex Parte

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:

1. The property is not necessary for the support of the defendant or his family; and
2. There is an immediate danger that the property will become unavailable to levy by reason of being transferred, concealed, or removed from the state or will become substantially impaired in value by acts of destruction or by failure to take care of the property in a reasonable manner; and
3. The ex parte issuance of a writ of possession is necessary to protect the property.”

(Code of Civ. Proc., § 512.020(b)(3).)

Real Property — After Unlawful Detainer Action

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

Exception

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).