Sea Rail Truckloads, Inc. v. Pullman, Inc.

California Court of Appeal May 6, 1982 No. Civ. 61850Published

Before: Bobb

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Holding. The court held that the trial court erred in issuing an ex parte writ of possession because the respondent failed to demonstrate the exigent circumstances required by statute, specifically failing to show an immediate danger of property loss or impairment or that less intrusive remedies would be ineffective.

Issues

Whether the respondent presented sufficient evidence to warrant the issuance of an ex parte writ of possession under Code of Civil Procedure section 512.020.
Whether the trial court erred in refusing to quash the writ of possession issued to a party in default.

Disposition. reversed

Quotations verified verbatim against the opinion

“An ex parte writ of possession is a drastic remedy which is disfavored except in the narrowly drawn, exigent circumstances set forth in this statute.”

“The burden was on respondent to show that there was an immediate danger of the vans being transferred, concealed or removed. It failed to meet that burden.”

“Code of Civil Procedure section 512.020, subdivision (b), permits transfer of possession of property only when less intrusive remedies would be ineffective.”

[513]

Opinion

BOBB, J.

Appellants, Pullman, Inc. and Pullman Trailmobile Division, appeal from an order for issuance of an ex parte prejudgment writ of possession and an order denying their application to recall the order for issuance of the writ of possession.

This case arises out of the unusual circumstance of a debtor trying to repossess collateral from his creditor by means of an ex parte writ of possession. Between December 12, 1979, and February 14, 1980, respondent, Sea Rail Truckloads, Inc., leased 20 trailer vans pursuant to written rental agreements, and purchased 10 other trailer vans from appellants pursuant to an installment sales contract and security agreement. The rental agreements provided that respondent would lease the vans for four years for a monthly rental charge. The retail installment sales contract and security agreement provided that: (i) respondent would purchase from appellants 10 used trailer vans for a sum to be paid in 48 monthly installments; (ii) respondent would have possession of the vans for so long as it performed all its obligations to appellants; and (iii) in the event that respondent defaulted in any obligation to appellants, appellants could sell the vans and obtain the deficiency from respondent.

Several months later respondent concluded that it could no longer afford the monthly rental and installment sales payments. Accordingly, between June 23, 1980, and July 24, 1980, respondent returned the 30 vans to appellant. Having failed to make some earlier payments, respondent stopped making payments altogether after June 1980. Appellants construed this conduct as a voluntary repossession of the vans and orally informed respondent that they were considering selling the vans pursuant to the security agreement.

On September 5, 1980, respondent applied for an ex parte writ of possession for the 10 trailer vans which were being purchased pursuant to the installment sales contract.

In addition to the above facts the trial court had before it the following evidence: Respondent returned the 10 vans to appellants on July 24, 1980, pursuant to its understanding that appellants would attempt to find another buyer at the original sales price. A week later, respondent

Sea Rail Truckloads, Inc. v. Pullman, Inc.

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BOBB, J.

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