1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 STEVEN L. LOMBARDO, et al., Case No. 20-cv-02153-BLF

8 Plaintiffs,

ORDER DENYING SECOND

9 v. APPLICATION FOR WRIT OF

REPLEVIN

10 MERCANTILE RESOURCE GROUP, INC, et al., 11 Defendants. 12 13 Before the Court is Plaintiff Steven Lombardo’s Application for a Writ of 14 Replevin/Possession. ECF No. 116 (“App.”); see also ECF No. 123 (“Reply”). Plaintiff asks the 15 Court to deliver disputed railroad bonds into the possession of Plaintiff Steven Lombardo. Id. 16 Defendant David Sanchez opposes the Application. ECF No. 121 (“Opp.”). The Court held a 17 hearing on the Application on December 15, 2022. See ECF No. 126. For the reasons stated 18 below, the Application is DENIED. 19 Federal Rule of Civil Procedure 64(a) provides that “every remedy is available that, under 20 the law of the state where the court is located, provides for seizing a person or property to secure 21 satisfaction of the potential judgment.” Among those remedies is a writ of replevin, which under 22 California law is called a writ of possession. Fed. R. Civ. P. 64(a); Cal. Civ. Proc. Code 23 § 512.010. The writ of possession is, “by its nature, temporary: title and right to possession are 24 determined by final judgment.” Wells Fargo Com. Distrib. Fin., LLC v. 6th Gear Holdings, No. 25 19-cv-4617-JSC, 2019 U.S. Dist. LEXIS 210969, at *11 (N.D. Cal. Dec. 6, 2019) (quoting Precise 26 Aero Mfg. v. MAG Aero Indus., LLC, No. 2:17-cv-01239-RGK-AJW, 2018 WL 3390154, at *3 27 (C.D. Cal. Jan. 10, 2018)). 1 of the basis of plaintiff's claims and that plaintiff is entitled to possession; (2) a showing that 2 || defendant is wrongfully detaining the property, the manner in which defendant came to possess 3 || the property, and, to the best of knowledge of plaintiff, of the reason for the detention; (3) a 4 || particular description of the property and its value; (4) a statement, to the best knowledge of 5 plaintiff, of the location of the property and, if the property is a private place needing to be entered 6 || to obtain possession, a showing that there is probable cause to believe the property is there; and 7 (5) a statement that the property has not been taken for a tax, assessment, or fine. Cal. Civ. Proc. 8 || Code § 512.010(b). A writ of possession shall issue after a hearing only if plaintiff has 9 || “established the probable validity of the plaintiffs claim to possession of the property” and an 10 || undertaking is posted or waived. Id. § 512.060. A claim has “probable validity” where “it is more 11 likely than not that the plaintiff will obtain a judgment against defendant on that claim.” Jd. 12 || § 511.090. 5 13 The Court finds the fourth factor dispositive. Plaintiff Lombardo states in his Application 14 || that “there is probabe cause to believe the property is located in defendant Sanchez’s home and 3 15 || place of business.” App. 41. But he has not submitted an affidavit or any other form of 16 || evidence to make a showing that there is probable cause to believe the property is at the identified 3 17 address. This is fatal to the Application. Accordingly, Plaintiff's Second Application for a Writ 18 || of Replevin/Possession is DENIED. 19 20 || Dated: December 15, 2022 fecuinfhacncan 21

BETH LABSON FREEMAN

22 United States District Judge 23 24 25 26 27 28