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).
Tentative Ruling on Application for a Writ of Possession Novela v. Marzullo, Case No. 2018-22673 June 8, 2018, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture. This is a dispute between two gentlemen who formerly lived together. The relationship ended amid allegations of domestic violence, and there is a DV restraining order in which defendant is the protected party. Plaintiff filed his...
..d residence in Indianapolis. The court granted a limited TRO preventing disposition of the listed items of personal property, set the matter for hearing today at 1:30, and stressed to plaintiff the importance of prompt service of the summons, complaint and TRO. ROA 15-16. On June 5, 2018, plaintiff filed a proof of personal service of the summons and complaint, showing personal service of those it...
Jun 07, 2018
San Diego County, CA
Vivera Pharmaceuticals, Inc. v. Robert C. Blaine, et al., 19STCV05281 Tentative decision on application for writ of possession: denied Plaintiff Vivera Pharmaceuticals, Inc. (“Vivera”) applies for a writ of possession against Defendants Robert C. Blaine (“Blaine”), Blaine Laboratories, Inc., and Blaine Holding & Development, LLC (sometimes collectively, “Blaine Defendants”), to recover the items...
..l Value Products Corp., dba Hospital Pharmaceutical Consultants (“RVP”), and JM Logistical Services dba RX Logistical (“JM”). The operative pleading is the Second Amended Complaint (“SAC”) filed on May 10, 2019 and alleging causes of action for (1) breach of contract (Share Exchange Agreement), (2) breach of covenant of good faith and fair dealing, (3) money had and received, (4) unjust enrichment...
Oct 24, 2019
Los Angeles County, CA
Re: Ally Financial Inc. v. Marize Smaley, etc., et al. (KC068788) APPLICATION FOR WRIT OF POSSESSION AFTER HEARING AGAINST DEFENDANT MARIZE SMALEY Moving Party: Plaintiff Ally Financial Inc. Respondent: No timely opposition filed POS: Moving OK Plaintiff alleges that on or about 7/18/14, Marize Smaley (“Smaley”) and plaintiff’s assignor, Puente Hills Mitsubishi, entered into a Retail Installm...
..Contract A Case Management Conference is set for 3/6/17. Plaintiff Ally Financial Inc. (“plaintiff”) applies for a writ of possession after hearing pursuant to CCP § 512.010. Plaintiff seeks to recover collateral now in the possession of Defendant Marize Smaley (“Smaley”). On/about 7/18/14, Smaley and Puente Hills Mitsubishi entered into a Retail Installment Sales Contract (“Contract”), for S...
Feb 02, 2017
Los Angeles County, CA
Khue Trinh v. John Doe, et al., 19STCV09464 Tentative decision on application for writ of possession: denied Plaintiff Khue Trinh (“Trinh”) applies for a writ of possession against Defendant Jeffrey McKirdy (“McKirdy”) to recover Wilbur, a black-and-white male French bulldog, implanted with a locator chip bearing number 0A01453000. The court has read and considered the moving papers (no opposit...
..al distress, and (6) negligent infliction of emotional distress. The Complaint alleges in pertinent part as follows. At all times relevant Trinh was the legal owner of a male white-and-black French bulldog named Wilbur, which he purchased in November 2011. Trinh had a locater chip injected into Wilbur bearing chip number 0A01453000, which Trinh registered with HomeAgain, a pet microchip company. ...
Nov 26, 2019
Los Angeles County, CA
Erol Kozoglu, et al. v. Chill Spot, Inc., et al., BC 708632 Tentative decision on applications for writ of possession: granted in part Plaintiffs Erol Kozoglu (“Kozoglu”), Emabil Cooperation Limited, Inc. (“Emabil, Inc.”), and Emabil, LLC (“Emabil, LLC”) seek a writ of possession to recover ice cream equipment and inventory from Defendants Chill Spot, Inc. (“Chill Spot”), Anisim S. Shneyder (“A...
..e implied covenant of good faith and fair dealing, (6) claim and delivery, (7) replevin, (8) intentional interference with contract, (9) interference with prospective economic advantage, and (10) declaratory judgment. The Complaint alleges in pertinent part as follows. Kozoglu has been involved in the manufacture and sale of Turkish ice cream for the last 22 years. Kozoglu is the president of E...
Jul 10, 2018
Los Angeles County, CA
HEARING ON APPLICATION FOR WRIT OF POSSESSION FILED BY PLAINTIFFS * TENTATIVE RULING: * Plaintiffs Patrick Rodda, Jr. (individually and through a corporate entity) has filed this Application for a Writ of Possession against defendants Benjamin Valega and Robert Reid. In brief, Rodda sold a business to Valega and Reid, namely a gym located in Brentwood. Most of the purchase price was to be paid...
..dered to arbitration pursuant to ¶ 13 of the Purchase Agreement. And in a nominally separate but substantively related argument, he contends that the present claim is waived under that paragraph. Valega has filed a motion to compel arbitration, which is set for hearing on July 28. On Wednesday, June 14, 2017 he presented an ex parte application seeking to stay the present writ application pending...
Jun 16, 2017
Contra Costa County, CA
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Placer County, CA
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