Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County Super. Ct. No. 07CC09525, Clay M. Smith, Judge. Petition granted.
Law Offices of Paula S. Teske & Associates and Doug McFarland for Petitioner.
No appearance for Respondent.
Adorno Yoss Alvarado & Smith and Theodore E. Bacon for Real Party in Interest.
Before Sills, P. J., Aronson, J., and Ikola, J.
OPINION
The superior court denied petitioner’s application for a writ of possession of certain consigned airplane parts on the ground petitioner had not demonstrated a probability of success on the merits. The court’s conclusion was based on real party in interest’s assertion it had not breached the consignment agreements and was legally permitted to withhold payments due under these agreements as a set-off for a claim it was asserting against petitioner in a matter involving the sale of other airplane parts that were subject to a separate agreement. A claim for damages in another dispute between the parties cannot defeat petitioner’s right to possession of its property. (RCA Service Co. v. Superior Court (Bullock) (1982) 137 Cal.App.3d 1, 3.) Accordingly, the petition for writ of mandate will be granted.
I
Petitioner Compania Mexicana de Aviacion, S.A. de C.V. (Mexicana Airlines) entered into two consignment agreements with real party in interest Jetpower Support, Inc. (Jetpower). The written agreements provide that petitioner is the owner of certain consigned airplane parts worth over $7 million and Jetpower agrees to sell those parts and remit to petitioner a specified percentage of the sales price. The consigned parts are to be stored by Jetpower at its facilities in Orange County.
A dispute arose between the parties and, pursuant to the terms of the agreements, Mexicana Airlines sent a notice of termination claiming Jetpower had failed to perform. Among the many claims made in the letter of termination was that, “The most outrageous intentional failure to pay the money legally due to Mexicana was in May 2006, when Jet Power purposely failed to send $55,000.00 resulting from the sale of the parts listed in the March monthly report. Mr. Edmundo Hernandez brought this situation to the attention of Ms. Salvatierra who replied that the monies were being kept by Jet Power on the account of another transaction that is unrelated to the Agreement. According to Section 24.1 of the Agreement if either party refuses, neglects or fails to perform, any of the covenants, agreements, terms or conditions, and such refusal, neglect or failure continues for a period of ten (10) days, the party not in default shall have the right to immediately terminate the Agreement. On October 2, 2006, Mr. Bedrosian responding to an e-mail inquiring the date for payment of this amount confirmed that Jet Power was refusing to pay the money. A few months have passed since that date, so Jet Power has had plenty of opportunity to cure this blatant breach and has purposely failed to do it.”
Jetpower responded that, “We believe the Consignment Agreement and the purchase order for the Boeing 727 are related transactions and, as such, your demand and proposal that the consigned goods be released prior to the resolution of the Boeing 727 matter is unreasonable.” It concluded by saying that it “will not release the inventory until the [sic] all disputes between the parties are negotiated and resolved.”
Mexicana then filed the underlying action against Jetpower for return of the property and damages and made application for a writ of possession of the consigned airplane parts. In its opposition to the application, Jetpower submitted a declaration from its president, Elias Francisco. Most of the declaration claims that Mexicana Airlines breached the separate agreement for the sale of certain Boeing 727 parts. He concedes, however, that “Jetpower did withhold $55,000.00 which was the price of one part under the Original consignment agreement as a result of Mexicana’s failure to honor its promise to resolve the 727 Inventories issue discussed previously. However, aside from the one part, Jetpower has fully performed under the terms of the consignment agreements including reports, and payments [] on the sales under the agreements.”
The superior court denied the application stating in its minute order: “An essential prerequisite to the issuance of a writ of possession is that Plaintiff has demonstrated a probability of success on the merits. Plaintiff has not met this burden. Based on the evidence presented, the Court cannot conclude that Plaintiff has demonstrated by a preponderance of the evidence that Defendant has breached the consignment agreements.”
The superior court and the parties seem to assume that petitioner must demonstrate a breach of the consignment agreement in order to obtain a writ of possession. It is uncertain why this is so, but given Jetpower effectively concedes it breached the terms of the agreements we will, solely for the purposes of this proceeding, assume petitioner must show only a breach of the consignment agreements in order to obtain the writ of possession.
II
Code of Civil Procedure section 512.060, subdivision (a), provides that a writ of possession shall issue if the plaintiff establishes the probable validity of his claim to possession of the property. Here, Mexicana Airlines is the undisputed owner of the airline parts that are subject to the consignment agreements. Jetpower, moreover, does not claim any past, present, or future possessory interest in that property. Rather, its sole argument is the dispute over sale of the Boeing 727 parts is somehow “related” and this gives it the right to withhold possession of the consignment parts until the separate dispute is resolved.
A similar argument was made and rejected in RCA Service Co. v. Superior Court, supra. There, the petitioner leased telephone equipment to the real party in interest. When petitioner filed an application for a writ of possession real party in interest defended, and the trial court denied the application, on the ground the equipment was defective. In issuing a writ of mandate, the appellate court pointed out that, “The facts of the instant case establish the ‘probable validity’ of petitioner’s claim for possession. Petitioner did not sell, but merely leased, equipment to real party. Whatever real party’s right may be to damages for the alleged defects in the equipment, it cannot defeat petitioner’s ownership rights and right to reclaim the equipment. The claim for possession and the claim for damages are unrelated. Real party does not contend that either the contract or any legal theory establishes that the lessee may obtain ownership rights in the leased equipment in lieu of damages.” (Id. at p. 3.)
Similarly, Jetpower does not explain here why these two disputes are “related” and it is difficult to see how they could be. One involved a claim for return of the parts turned over pursuant to consignment agreements and the other involved the separate sale of parts from a Boeing 727. As the appellate court in RCA Service recognized, “Real party no doubt would prefer to retain possession as a bargaining tool or to insure easy access to petitioner’s assets in the event of a money judgment in favor of real party.” (Ibid.) Here, there is no need to speculate as to Jetpower’s preferences: it specifically states it will not turn over the consignment property until the Boeing 727 dispute is resolved.
Given the evidence in the record supports Mexicana Airlines’ claim Jetpower breached the consignment agreements, the superior court’s refusal to issue the writ of possession on the unsupported conclusion that Jetpower had not breached the agreements was clearly wrong. And given no other ground was relied upon to deny the application, the writ of possession should have issued. (Code Civ. Proc., § 512.060, subd. (a) [“writ of possession shall issue” if court finds “plaintiff has established the probable validity of the plaintiff’s claim to possession of the property”].)
III
Mexicana Airlines filed the instant petition for writ of mandate and requested issuance of a peremptory writ of mandate. It appearing from the record and the briefs filed by the parties that a writ of mandate should issue, that no further briefing or argument will add anything to the presentation, and that issuance of an alternative writ or an order to show cause would simply delay issuance of the writ of possession, we will issue a peremptory writ of mandate without first issuing an alternative writ of mandate or order to show cause or providing for oral argument. (Lempert v. Superior Court (Campbell) (2003) 112 Cal.App.4th 1161, 1175.)
Accordingly, let a peremptory writ of mandate issue commanding the superior court to set aside and vacate its order of November 2, 2007, and to issue a new order granting the application for a writ of possession subject to any bonding or other requirements of the rules governing issuance of such writs. (Code Civ. Proc., § 512.010 et seq.) In the interests of justice, the decision is final in this court immediately upon its filing. (Cal. Rules of Court, rule 8.264(b)(3).) Petitioner shall recover its costs in this proceeding. (Cal. Rules of Court, rule 8.276(a)(1).)