Judge: Ashfaq G. Chowdhury, Case: 24NNCV03350, Date: 2024-10-17 Tentative Ruling
Case Number: 24NNCV03350 Hearing Date: October 17, 2024 Dept: E
Hearing Date: 10/17/2024 – 8:30am
Case No.¿ 24NNCV03350
Trial Date: UNSET
Case Name: AMUR EQUIPMENT FINANCE, INC., a Nebraska corporation, v. BORLAR,
INC., a California corporation; OLEG MOSSOUNOV, an individual; and DOES 1-20
inclusive
[WRIT
OF ATTACHMENT – Res ID 3352]¿
RELIEF REQUESTED
Plaintiff, Amur Equipment Finance, Inc., a Nebraska corporation, applies for a
right to attach order and writ of attachment against Defendant, Borlar, Inc., a
California corporation.
BACKGROUND
Plaintiff, Amur
Equipment Finance, Inc., filed a Complaint on 8/06/2024 alleging six causes of
action for: (1) Breach of Finance Agreement, (2) Breach of Guaranty, (3) Breach
of Lease Agreement, (4) Breach of Guaranty, (5) Claim and Delivery, and (6) Account
Stated.
The
first cause of action for breach of finance agreement is alleged against
Defendant Borlar. This cause of action stems from allegations that Borlar
defaulted on the Equipment Finance Agreement (Agreement #1010825, pertaining to
a 2020 Ford) by failing to make timely payments. The second cause of action for
breach of guaranty is alleged against Defendant Oleg Mossounov (Mossounov). The
second cause of action stems from allegations that Mossounov executed a
guaranty to Agreement #1010825 to guaranty Borlar’s obligations under Agreement
#1010825.
The
third cause of action for breach of lease agreement is alleged against
Defendant Borlar. This cause of action stems from allegations that Borlar
defaulted on the Lease Agreement (Agreement #1010464, pertaining to a 2020 Take
3) by failing to make timely payments. The fourth cause of action for breach of
guaranty is alleged against Defendant Mossounov. The fourth cause of action
stems from allegations that Mossounov executed a guaranty to Agreement #1010464
to guaranty Borlar’s obligations under Agreement #1010464.
The
fifth cause of action for claim and delivery and the sixth cause of action for
account stated are alleged against both Defendants – Borlar and Mossounov.
The
instant application only applies to Defendant Borlar, Inc., a California
corporation, as indicated on Plaintiff’s Notice of Application and Hearing For
Right to Attach Order and Order For Issuance of Writ of Attachment.
PROCEDURAL
Moving Party: Plaintiff, Amur Equipment
Finance, Inc., a Nebraska corporation (Plaintiff or Amur)
Responding Party: No opposition by Defendant, Borlar
Inc., a California corporation (Borlar or Defendant)
Moving Papers: Notice
of Application and Hearing For Right to Attach Order and Order for Issuance of
Writ of Attachment; Application for Right to Attach Order and Order for
Issuance of Writ of Attachment; Memorandum of Points and Authorities in Support
of Applications for Writ of Attachment and Writ of Possession [There are three
hearings on calendar in this matter for 10/17/2024. Two hearings are for writs
of attachment, and one is for a writ of possession; one memorandum was
submitted for all three of the hearings on calendar.]; Declaration of Karla
Beran [The declaration of Karla Beran also appears to be for the three hearings
because only one declaration of Karla Beran was submitted.]
Opposition Papers: No
Opposition by Defendant Borlar
Reply Papers: No Reply
Papers
Proof of
Service Timely Filed (CRC Rule 3.1300): No - “Proof of service of the moving papers must be filed no later
than five court days before the time appointed for the hearing.” (Cal Rules
of Court, Rule 3.1300(c).) Here, the
hearing is set for 10/17/2024. Five court days before the hearing would be
10/10/2024. As of the morning of 10/14/2024, no proof of service for any of the
moving papers has been submitted.
16/21 Court Days Lapsed (CCP § 1005(b)): No/Uncertain – In relevant part of CCP § 1005(b), “Unless otherwise
ordered or specifically provided by law, all moving and supporting papers shall
be served and filed at least 16 court days before the hearing.” Here, the Court
is unable to tell if the moving papers were timely served because no proof of
service was filed to indicate when, or if, the moving papers were served upon
Defendant. The moving papers were filed on 8/8/2024, which is timely. However,
the Court cannot tell if the moving papers were timely served due to the lack
of proof of service of the moving papers.
Proper Address (CCP § 1013, § 1013a, § 1013b)
: No/Uncertain – First, Plaintiff has not filed a proof of service for the
moving papers for the Court to be able to determine what address Plaintiff
served Defendant at. Second, the Court notes that it is unclear what the proper
service address is for Defendant. Defendant has not appeared in the action.
There is an Order to Show Cause Re: Failure to File Proof of Service currently
set for 10/21/2024.
LEGAL STANDARD
“Upon the filing of the complaint or at any time thereafter,
the plaintiff may apply pursuant to this article for a right to attach order
and a writ of attachment by filing an application for the order and writ with
the court in which the action is brought.” (CCP § 484.010.)
“The application shall be executed under oath and shall
include all of the following:
(a) A statement showing that the attachment is sought to
secure the recovery on a claim upon which an attachment may be issued.
(b) A statement of the amount to be secured by the attachment.
(c) A statement that the attachment is not sought for a purpose
other than the recovery on the claim upon which the attachment is based.
(d) A statement that the applicant has no information or belief
that the claim is discharged in a proceeding under Title 11 of the United
States Code (Bankruptcy) or that the prosecution of the action is stayed in a
proceeding under Title 11 of the United States Code (Bankruptcy).
(e) A description of the property to be attached under the writ
of attachment and a statement that the plaintiff is informed and believes that
such property is subject to attachment. Where the defendant is a corporation, a
reference to “all corporate property which is subject to attachment pursuant to
subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the
requirements of this subdivision. Where the defendant is a partnership or other
unincorporated association, a reference to “all property of the partnership or
other unincorporated association which is subject to attachment pursuant to
subdivision (b) of Code of Civil Procedure Section 487.010” satisfies the
requirements of this subdivision. Where the defendant is a natural person, the
description of the property shall be reasonably adequate to permit the
defendant to identify the specific property sought to be attached.”
(CCP § 484.020(a)-(e).)
“The application shall be supported by an affidavit showing
that the plaintiff on the facts presented would be entitled to a judgment on
the claim upon which the attachment is based.” (CCP § 484.030.)
“At the hearing, the court shall consider the showing made by
the parties appearing and shall issue a right to attach order, which shall
state the amount to be secured by the attachment determined by the court in
accordance with Section 483.015 or 483.020, if it finds all of the following:
(1) The claim upon which the attachment is based is one upon
which an attachment may be issued.
(2) The plaintiff has established the probable validity of the
claim upon which the attachment is based.
(3) The attachment is not sought for a purpose other than the
recovery on the claim upon which the attachment is based.
(4)
The amount to be secured by the attachment is
greater than zero.”
(CCP § 484.090(a)(1)-(4).)
TENTATIVE RULING
CCP §
1005(b)/CRC, Rule 3.1300
In
relevant part of CCP § 1005(b), “Unless otherwise ordered or specifically
provided by law, all moving and supporting papers shall be served and filed at
least 16 court days before the hearing.”
Here, the Court is unable to tell if the
moving papers were timely served because no proof of service was filed
to indicate when, or if, the moving papers were served upon Defendant.
The moving papers were filed on 8/8/2024, which is timely. However, the
Court cannot tell if the moving papers were timely served due to the
lack of proof of service of the moving papers.
“Proof of service of the moving papers must
be filed no later than five court days before the time appointed for the
hearing.” (Cal Rules of Court, Rule
3.1300(c).)
Here, the hearing is set for 10/17/2024. Five
court days before the hearing would be 10/10/2024. As of the morning of 10/14/2024,
no proof of service for any of the moving papers has been submitted.
Therefore, no proof of service has been
timely filed under CRC, Rule 3.1300(c), and the Court cannot tell if CCP §
1005(b) has been complied with because without a proof of service, the Court
cannot determine if the moving papers were served, and if those moving papers
were timely.
Additionally, the Court notes that since
Plaintiff has not filed a proof of service for the moving papers, the Court
cannot determine what address Plaintiff served Defendant at. Further, the Court
notes that it is unclear what the proper service address is for Defendant.
Defendant has not appeared in the action. There is an Order to Show Cause Re:
Failure to File Proof of Service currently set for 10/21/2024.
Service Under CCP § 484.040
Under CCP § 484.040:
No order or
writ shall be issued under this article except after a hearing. At the times
prescribed by subdivision (b) of Section 1005, the defendant shall be served
with all of the following:
(a) A
copy of the summons and complaint.
(b) A
notice of application and hearing.
(c) A
copy of the application and of any affidavit in support of the application.
(CCP §
484.040(a)-(c).)
Here, the
Court cannot determine if the requirements of CCP § 484.040(a)-(c) were met.
Not only was a proof of service not filed for the instant moving papers, but a
proof of service was not filed for the summons and complaint. An order to show
cause for failure to file proof of service is currently set for 10/21/2024.
Further, since
the Court cannot determine if the service requirements of CCP § 484.040(a)-(c)
were met, and since the Court cannot determine if CCP § 1005(b) was met, the
Court points the parties to CCP § 484.080:
(a) At
the time set for the hearing, the plaintiff shall be ready to proceed. If the
plaintiff is not ready, or if he has failed to comply with Section 484.040, the
court may either deny the application for the order or, for good cause shown,
grant the plaintiff a continuance for a reasonable period. If such a
continuance is granted, the effective period of any protective order issued
pursuant to Chapter 6 (commencing with Section 486.010) may be extended by the
court for a period ending not more than 10 days after the new hearing date if
the plaintiff shows a continuing need for such protective order.
(b) The
court may, in its discretion and for good cause shown, grant the defendant a
continuance for a reasonable period to enable him to oppose the issuance of the
right to attach order. If such a continuance is granted, the court shall extend
the effective period of any protective order issued pursuant to Chapter 6
(commencing with Section 486.010) for a period ending not more than 10 days
after the new hearing date unless the defendant shows pursuant to Section
486.100 that the protective order should be modified or vacated.
(CCP §
484.080(a)-(b).)
Therefore,
the Court will hear argument at the hearing as to: CCP § 1005(b), CRC, Rule
3.1300(c); the proper service address; and CCP § 484.040. Further, the Court
will hear argument as to the requirements of CCP § 482.070(a)-(f).
CCP § 484.020(a)-(e)
“The application shall be executed under oath and shall
include all of the following:
(a) A statement showing that the attachment is sought to
secure the recovery on a claim upon which an attachment may be issued.
(b) A statement of the amount to be secured by the attachment.
(c) A statement that the attachment is not sought for a
purpose other than the recovery on the claim upon which the attachment is
based.
(CCP § 484.020(a)-(e).)
484.020(a) – A statement showing that the
attachment is sought to secure the recovery on a claim upon which an attachment
may be issued
Here, Plaintiff’s application is signed by Nick I. Iezza,
Plaintiff’s attorney, and Karla Beran. The Karla Beran declaration submitted
with the moving papers indicates that Beran is a Legal Manager employed by
Plaintiff, Amur Equipment Finance, Inc., a Nebraska corporation
Paragraph three of Plaintiff’s application states,
“Attachment is sought to secure recovery on a claim upon which attachment may
issue under Code of Civil Procedure section 483.010.”
484.020(b) – A statement of the amount to be
secured by the attachment
Paragraph eight of the application states that the amount to
be secured by the attachment is $8,522.34, which
includes estimated costs of $675.00 and estimated allowable attorney fees of $450.92
484.020(c) – A statement that the attachment is not sought
for a purpose other than the recovery on the claim upon which the attachment is
based
Here, Paragraph 4 of
the application states that “Attachment is not sought for a purpose other than
the recovery on a claim upon which the attachment is based.”
484.020(d) – A statement that that the applicant has no
information or belief that the claim is discharged in a proceeding under Title
11 of the United States Code (Bankruptcy) or that the prosecution of the action
is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy)
Here, Paragraph 5 of
the application states, “Plaintiff has no information or belief that the claim
is discharged or the prosecution of the action is stayed in a proceeding under
title 11 of the United States Code (Bankruptcy).”
484.020(e) – A description of the property to be attached
under the writ of attachment and a statement that the plaintiff is informed and
believes that such property is subject to attachment. Where the defendant is a
corporation, a reference to “all corporate property which is subject to
attachment pursuant to subdivision (a) of Code of Civil Procedure Section
487.010” satisfies the requirements of this subdivision. Where the defendant is
a partnership or other unincorporated association, a reference to “all property
of the partnership or other unincorporated association which is subject to
attachment pursuant to subdivision (b) of Code of Civil Procedure Section
487.010” satisfies the requirements of this subdivision. Where the defendant is
a natural person, the description of the property shall be reasonably adequate
to permit the defendant to identify the specific property sought to be attached
Here, the Plaintiff
should be expected to address the following four issues below at the hearing.
First, the Court is not
entirely clear what the “description of the property to be attached under the
writ of attachment” is. The Plaintiff should be prepared to address this issue
because the Court does not see a description of the property to be attached
under the writ of attachment.
Second, Plaintiff
should be prepared to point to where in the application the Plaintiff addressed
the statement that the plaintiff is informed and believes that such property is
subject to attachment.
Third, Defendant,
Borlar, is a corporation as indicated in ¶ 2 of Plaintiff’s application. In
relevant part CCP § 484.020(e), “Where the defendant is a corporation, a
reference to “all corporate property which is subject to attachment pursuant to
subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the
requirements of this subdivision.” Here, Plaintiff did not refer to “all
corporate property which is subject to attachment pursuant to subdivision (a)
of Code of Civil Procedure Section 487.010.”
Fourth, Plaintiff
stated in Paragraph 9 of the Application, “Plaintiff is informed and believes
that the following property sought to be attached for which a method of levy is
provided is subject to attachment: Any property of a defendant who is not a
natural person.” Plaintiff should be prepared to address what Paragraph 9 in
the Application is addressing.
At the Hearing - CCP § 484.090(a)(1)-(4)
“At the hearing, the court shall consider the showing made by
the parties appearing and shall issue a right to attach order, which shall
state the amount to be secured by the attachment determined by the court in
accordance with Section 483.015 or 483.020, if it finds all of the following:
(1)
The claim upon which the attachment is based is
one upon which an attachment may be issued.
(2) The plaintiff has established the probable validity of the
claim upon which the attachment is based.
(4) The amount to be secured by the attachment is greater than
zero.”
(CCP §484.090(a)(1)-(4).)
484.090(a)(1) – The claim upon which attachment
is based is one upon which an attachment may be issued
As a preliminary matter Plaintiff’s Complaint alleges the
following four causes of action against Defendant Borlar: (1) Breach of Finance
Agreement, (3) Breach of Lease Agreement, (5) Claim and Delivery, and (6)
Account Stated.
Plaintiff’s moving papers do not indicate which of the claims
in the Complaint attachment is based. At the hearing, Plaintiff should be
prepared to address this issue.
Further, as stated in CCP § 483.010:
(a) Except
as otherwise provided by statute, an attachment may be issued only in an action
on a claim or claims for money, each of which is based upon a contract, express
or implied, where the total amount of the claim or claims is a fixed or readily
ascertainable amount not less than five hundred dollars ($500) exclusive of
costs, interest, and attorney’s fees.
(b) An
attachment may not be issued on a claim which is secured by any interest in
real property arising from agreement, statute, or other rule of law (including
any mortgage or deed of trust of realty and any statutory, common law, or
equitable lien on real property, but excluding any security interest in
fixtures subject to Division 9 (commencing with Section 9101) of the Commercial
Code). However, an attachment may be issued where the claim was originally so
secured but, without any act of the plaintiff or the person to whom the
security was given, the security has become valueless or has decreased in value
to less than the amount then owing on the claim, in which event the amount to
be secured by the attachment shall not exceed the lesser of the amount of the
decrease or the difference between the value of the security and the amount
then owing on the claim.
(c) If
the action is against a defendant who is a natural person, an attachment may be
issued only on a claim which arises out of the conduct by the defendant of a
trade, business, or profession. An attachment may not be issued on a claim
against a defendant who is a natural person if the claim is based on the sale
or lease of property, a license to use property, the furnishing of services, or
the loan of money where the property sold or leased, or licensed for use, the
services furnished, or the money loaned was used by the defendant primarily for
personal, family, or household purposes.
(d) An
attachment may be issued pursuant to this section whether or not other forms of
relief are demanded.
(CCP § 483.010(a)-(d).)
If the first cause of action (breach of finance agreement)
and the third cause of action (breach of lease agreement) are claims upon which
Plaintiff is basing attachment upon, then those two claims appear to be based
upon a contract under CCP § 483.010(a). However, 483.010(a) also indicates that
attachment may be issued only where the total amount of the claim or claims is
a fixed or readily ascertainable amount not less than five hundred dollars
exclusive of costs, interest, and attorney’s fees. At the hearing, Plaintiff
should be prepared to address the total amount the first cause of action seeks
and the total amount the third cause of action seeks.
The Court would like Plaintiff to address this issue because
it does not follow Plaintiff’s calculations or explanations for the amount each
claim seeks with respect to the first and third causes of action.
According to ¶ 16 of the Beran Declaration, as a result of Defendant’s
breach of finance agreement (first cause of action), Plaintiff was damaged in
the total amount of $58,001.90 together with interest at the rate of 18% per
annum from April 1, 2023.
Further, according to ¶ 19 of the Beran Declaration, as a
result of Defendant’s breach of the lease agreement (third cause of action),
Plaintiff was damaged in the total amount of $17,313.47 together with interest
at the rate of 18% per annum from April 15, 2023.
[The Court notes that $58,001.90 plus $17,313.47 equals
$75,315.37.]
Additionally, ¶ 30 of the Beran Declaration states,
“Therefore since the total fair market value of the Equipment is $69,300.00 and
the total amount owed to Plaintiff is $75,315.37, Plaintiff is unsecured in the
amount of $6,015.37.” (Beran Decl. ¶ 30.)
Paragraph 32 of the Beran Declaration then goes on to state
that Plaintiff is seeking a writ of attachment against Defendants, and each of
them for a total of $8,522.34.
Since 483.0101(a) states that attachment may be issued only
in an action based upon a contract where the total amount of the claim or
claims is a fixed or readily ascertainable amount, Plaintiff should be prepared
to address at the hearing the amount Plaintiff seeks for each cause of action,
the total amount for both causes of action, and how Plaintiff calculated those
amounts. The Court does not follow how Plaintiff is arriving at the total
amount that Plaintiff seeks to be secured by the attachment.
Additionally, if Plaintiff’s fifth cause of action for claim
and delivery and sixth cause of action for account stated are claims upon which
Plaintiff is basing attachment upon, Plaintiff needs to address at the hearing
if those two causes of action both a “claim or claims for money, each of which
is based upon a contract, express or implied” under CCP § 483.010(a).
Plaintiff’s memorandum states:
Contracts
implied in law to which an attachment may issue include quasi contract, and/or
written agreement. Klein v. Benaron (1967) 247 Cal.App.3d 607, 56
Cal.Rptr. 5
(Pl. Memo, p. 2.)
First, Plaintiff gave an incorrect citation. The case can be
found at 247 Cal.App.2d 607. Second, Plaintiff did not cite to a specific page
in the case. Upon the Court’s perusal of that case, the Court does not find
exactly what Plaintiff is arguing. At the hearing, Plaintiff should be prepared
to address whether causes of action for claim and delivery and account stated
are a “claim or claims for money, each of which is based upon a contract,
express or implied” under CCP § 483.010(a). The Court does not see anything in
the case cited by the Plaintiff about actions for claim and delivery and
account stated. Further, 483.010(a) also indicates that attachment may be
issued only where the total amount of the claim or claims is a fixed or readily
ascertainable amount not less than five hundred dollars exclusive of costs,
interest, and attorney’s fees. At the hearing, Plaintiff should be prepared to
address the total amount the fifth and sixth causes of action seek and how
Plaintiff arrived at those numbers.
Further, the Court would like Plaintiff to address ¶ 6 in its
application. Plaintiff checks box 6a in the application to indicate that
Plaintiff’s claim or claims arise out of conduct by the defendant who is a
natural person of a trade, business, or profession.
Here, the Defendant is a corporation and not a natural
person. The Court would like Plaintiff to address this issue.
484.090(a)(2)
– The plaintiff has established the probable validity of the
claim upon which the attachment is based
“The application shall
be supported by an affidavit showing that the plaintiff on the facts presented
would be entitled to a judgment on the claim upon which the attachment is
based.” (CCP § 484.030.)
As a preliminary
matter, Plaintiff does not indicate which claims in the Complaint upon which
the attachment is being sought.
If Plaintiff is basing
attachment on all claims asserted against Borlar – (1) Breach of Finance
Agreement, (3) Breach of Lease Agreement, (5) Claim and Delivery, and (6)
Account Stated – Plaintiff should be prepared to address at the hearing how it
established the probable validity of each claim.
Although Plaintiff
attached the declaration of Karla Beran, neither Plaintiff’s memorandum, nor
the Beran Declaration, indicate what the elements are for a breach of contract
cause of action, what the elements are for a cause of action for claim and
delivery, and what the elements are for a cause of action for account stated.
Not only does Plaintiff not indicate what the elements are for each cause of
action, but Plaintiff does not indicate which paragraphs in the Beran
declaration satisfy each element for each cause of action. Thus, at the
hearing, Plaintiff should be prepared to come forward with authority as to what
the elements are for each claim it bases its attachment on and what evidence satisfies
each element of the causes of action. Additionally at the hearing, Plaintiff
should be prepared to address the issue that the Court pointed out in the Writ
of Possession hearing that implicates the first cause of action for breach of
finance agreement and the Plaintiff’s lack of signature on the assignment.
484.090(a)(3) – The attachment is not sought
for a purpose other than the recovery on the claim upon which the attachment is
based
Here, Plaintiff’s application states in Paragraph 4,
“Attachment is not sought for a purpose other than the recovery on a claim upon
which the attachment is based.”
484.090(a)(4) - The amount to be secured by the
attachment is greater than zero
Here, Plaintiff’s
application at ¶ 8 indicates the amount to be secured by the attachment is
$8,522.34, which includes estimated costs of $675.00 and estimated allowable
attorney fees of $450.92.
Further, the Court
cites to CCP § 482.110:
(a) The
plaintiff’s application for a right to attach order and a writ of attachment
pursuant to this title may include an estimate of the costs and allowable
attorney’s fees.
(b) In
the discretion of the court, the amount to be secured by the attachment may
include an estimated amount for costs and allowable attorney’s fees.
(CCP § 482.110(a)-(b).)
No
Opposition
No Opposition was submitted by Defendant, but
as previously indicated, the Court could not determine if Plaintiff served the
moving papers upon Defendant.
As stated in CCP §
484.060:
(a) If
the defendant desires to oppose the issuance of the right to attach order
sought by plaintiff or objects to the amount sought to be secured by the
attachment, the defendant shall file and serve upon the plaintiff no later than
five court days prior to the date set for the hearing a notice of opposition.
The notice shall state the grounds on which the defendant opposes the issuance
of the order or objects to the amount sought to be secured by the attachment
and shall be accompanied by an affidavit supporting any factual issues raised
and points and authorities supporting any legal issues raised. If the defendant
fails to file a notice of opposition within the time prescribed, the defendant
shall not be permitted to oppose the issuance of the order.
(b) If
a defendant filing a notice of opposition desires to make any claim of
exemption as provided in Section 484.070, the defendant may include that claim
in the notice of opposition filed pursuant to this section.
(c) The
plaintiff may file and serve upon the opposing party a reply two court days
prior to the date set for the hearing.
(CCP § 484.060(a)-(c).)
Here, five court days prior to the hearing would 10/10/2024, and no
Opposition has been received as of the morning of 10/14/2024; therefore, any
opposition would be late. However, as the Court previously explained, it is
unclear if the moving papers were served on Defendant.
Undertaking
“Before issuance of a writ of attachment, a temporary
protective order, or an order under subdivision (b) of Section 491.415, the
plaintiff shall file an undertaking to pay the defendant any amount the
defendant may recover for any wrongful attachment by the plaintiff in the
action.” (CCP § 489.210.)
Here, Plaintiff did not file an undertaking. Plaintiff
should address this issue at the hearing.
Under CCP § 489.220:
(a) Except as provided in subdivision
(b), the amount of an undertaking filed pursuant to this article shall be ten
thousand dollars ($10,000).
(b) If, upon objection to the
undertaking, the court determines that the probable recovery for wrongful
attachment exceeds the amount of the undertaking, it shall order the amount of
the undertaking increased to the amount it determines to be the probable
recovery for wrongful attachment if it is ultimately determined that the
attachment was wrongful.
(CCP § 489.220(a)-(b).)
Here, Plaintiff should be
prepared to address CCP § 489.220 at the hearing.
“The notice of attachment shall include a statement,
in a form adopted by the Judicial Council, advising the defendant that the
undertaking has been filed and informing the defendant of the right to object
to the undertaking.” (CCP § 489.230(a).)
Here, Plaintiff’s notice of attachment does include
the aforementioned statement under 489.230(a).
Further, the application indicates at ¶ 15 that
Plaintiff has not filed an undertaking.
Plaintiff should be prepared to address these issues
at the hearing.
If the Court Grants this Writ of
Attachment
Under
CCP § 483.015:
(a) Subject to subdivision (b) and to
Section 483.020, the amount to be secured by an attachment is the sum of the
following:
(1) The amount of the defendant’s
indebtedness claimed by the plaintiff.
(2) Any additional amount included by
the court under Section 482.110.
(b) The amount described in
subdivision (a) shall be reduced by the sum of the following:
(1) The amount of any money judgment
in favor of the defendant and against the plaintiff that remains unsatisfied
and is enforceable.
(2) The amount of any indebtedness of
the plaintiff that the defendant has claimed in a cross-complaint filed in the
action if the defendant’s claim is one upon which an attachment could be
issued.
(3) The amount of any claim of the
defendant asserted as a defense in the answer pursuant to Section 431.70 if the
defendant’s claim is one upon which an attachment could be issued had an action
been brought on the claim when it was not barred by the statute of limitations.
(4) The value of any security
interest in the property of the defendant held by the plaintiff to secure the
defendant’s indebtedness claimed by the plaintiff, together with the amount by
which the value of the security interest has decreased due to the act of the
plaintiff or a prior holder of the security interest.
(CCP § 483.015(a)-(b).)
If the Court grants the
writ of attachment, the Court will hear argument as to these requirements.
Hearing Date: 10/17/2024 – 8:30am
Case No.¿ 24NNCV03350
Trial Date: UNSET
Case Name: AMUR EQUIPMENT FINANCE, INC., a Nebraska corporation, v. BORLAR,
INC., a California corporation; OLEG MOSSOUNOV, an individual; and DOES 1-20
inclusive
[WRIT
OF ATTACHMENT – Res ID 6019]¿
RELIEF REQUESTED
Plaintiff, Amur Equipment Finance, Inc., a Nebraska corporation, applies for a
right to attach order and writ of attachment against Defendant, Oleg Mossounov,
an individual.
BACKGROUND
Plaintiff, Amur
Equipment Finance, Inc., filed a Complaint on 8/06/2024 alleging six causes of
action for: (1) Breach of Finance Agreement, (2) Breach of Guaranty, (3) Breach
of Lease Agreement, (4) Breach of Guaranty, (5) Claim and Delivery, and (6) Account
Stated.
The
first cause of action for breach of finance agreement is alleged against
Defendant Borlar. This cause of action stems from allegations that Borlar
defaulted on the Equipment Finance Agreement (Agreement #1010825, pertaining to
a 2020 Ford) by failing to make timely payments. The second cause of action for
breach of guaranty is alleged against Defendant Oleg Mossounov (Mossounov). The
second cause of action stems from allegations that Mossounov executed a
guaranty to Agreement #1010825 to guaranty Borlar’s obligations under Agreement
#1010825.
The
third cause of action for breach of lease agreement is alleged against
Defendant Borlar. This cause of action stems from allegations that Borlar
defaulted on the Lease Agreement (Agreement #1010464, pertaining to a 2020 Take
3) by failing to make timely payments. The fourth cause of action for breach of
guaranty is alleged against Defendant Mossounov. The fourth cause of action
stems from allegations that Mossounov executed a guaranty to Agreement #1010464
to guaranty Borlar’s obligations under Agreement #1010464.
The
fifth cause of action for claim and delivery and the sixth cause of action for
account stated are alleged against both Defendants – Borlar and Mossounov.
The
instant application only applies to Defendant Oleg Mossounov, an individual, as
indicated on Plaintiff’s Notice of Application and Hearing For Right to Attach
Order and Order For Issuance of Writ of Attachment.
PROCEDURAL
Moving Party: Plaintiff, Amur Equipment
Finance, Inc., a Nebraska corporation (Plaintiff or Amur)
Responding Party: No opposition by Defendant, Oleg
Mossounov, an individual (Mossounov or Defendant)
Moving Papers: Notice
of Application and Hearing For Right to Attach Order and Order for Issuance of
Writ of Attachment; Application for Right to Attach Order and Order for
Issuance of Writ of Attachment; Memorandum of Points and Authorities in Support
of Applications for Writ of Attachment and Writ of Possession [There are three
hearings on calendar in this matter for 10/17/2024. Two hearings are for writs
of attachment, and one is for a writ of possession; one memorandum was
submitted for all three of the hearings on calendar.]; Declaration of Karla
Beran [The declaration of Karla Beran also appears to be for the three hearings
because only one declaration of Karla Beran was submitted.]
Opposition Papers: No
Opposition by Defendant Mossounov
Reply Papers: No Reply
Papers
Proof of
Service Timely Filed (CRC Rule 3.1300): No - “Proof of service of the moving papers must be filed no later
than five court days before the time appointed for the hearing.” (Cal Rules
of Court, Rule 3.1300(c).) Here, the
hearing is set for 10/17/2024. Five court days before the hearing would be
10/10/2024. As of the morning of 10/14/2024, no proof of service for any of the
moving papers has been submitted.
16/21 Court Days Lapsed (CCP § 1005(b)): No/Uncertain – In relevant part of CCP § 1005(b), “Unless otherwise
ordered or specifically provided by law, all moving and supporting papers shall
be served and filed at least 16 court days before the hearing.” Here, the Court
is unable to tell if the moving papers were timely served because no proof of
service was filed to indicate when, or if, the moving papers were served upon
Defendant. The moving papers were filed on 8/8/2024, which is timely. However,
the Court cannot tell if the moving papers were timely served due to the lack
of proof of service of the moving papers.
Proper Address (CCP § 1013, § 1013a, § 1013b)
: No/Uncertain – First, Plaintiff has not filed a proof of service for the
moving papers for the Court to be able to determine what address Plaintiff
served Defendant at. Second, the Court notes that it is unclear what the proper
service address is for Defendant. Defendant has not appeared in the action.
There is an Order to Show Cause Re: Failure to File Proof of Service currently
set for 10/21/2024.
LEGAL STANDARD
“Upon the filing of the complaint or at any time thereafter,
the plaintiff may apply pursuant to this article for a right to attach order
and a writ of attachment by filing an application for the order and writ with
the court in which the action is brought.” (CCP § 484.010.)
“The application shall be executed under oath and shall
include all of the following:
(a) A statement showing that the attachment is sought to
secure the recovery on a claim upon which an attachment may be issued.
(b) A statement of the amount to be secured by the attachment.
(c) A statement that the attachment is not sought for a
purpose other than the recovery on the claim upon which the attachment is
based.
(d) A statement that the applicant has no information or belief
that the claim is discharged in a proceeding under Title 11 of the United
States Code (Bankruptcy) or that the prosecution of the action is stayed in a
proceeding under Title 11 of the United States Code (Bankruptcy).
(e) A description of the property to be attached under the writ
of attachment and a statement that the plaintiff is informed and believes that
such property is subject to attachment. Where the defendant is a corporation, a
reference to “all corporate property which is subject to attachment pursuant to
subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the
requirements of this subdivision. Where the defendant is a partnership or other
unincorporated association, a reference to “all property of the partnership or
other unincorporated association which is subject to attachment pursuant to
subdivision (b) of Code of Civil Procedure Section 487.010” satisfies the
requirements of this subdivision. Where the defendant is a natural person, the
description of the property shall be reasonably adequate to permit the
defendant to identify the specific property sought to be attached.”
(CCP § 484.020(a)-(e).)
“The application shall be supported by an affidavit showing
that the plaintiff on the facts presented would be entitled to a judgment on
the claim upon which the attachment is based.” (CCP § 484.030.)
“At the hearing, the court shall consider the showing made by
the parties appearing and shall issue a right to attach order, which shall
state the amount to be secured by the attachment determined by the court in
accordance with Section 483.015 or 483.020, if it finds all of the following:
(1) The claim upon which the attachment is based is one upon
which an attachment may be issued.
(2) The plaintiff has established the probable validity of the
claim upon which the attachment is based.
(3) The attachment is not sought for a purpose other than the
recovery on the claim upon which the attachment is based.
(4)
The amount to be secured by the attachment is
greater than zero.”
(CCP § 484.090(a)(1)-(4).)
TENTATIVE RULING
CCP §
1005(b)/CRC, Rule 3.1300
In
relevant part of CCP § 1005(b), “Unless otherwise ordered or specifically
provided by law, all moving and supporting papers shall be served and filed at
least 16 court days before the hearing.”
Here, the Court is unable to tell if the
moving papers were timely served because no proof of service was filed
to indicate when, or if, the moving papers were served upon Defendant.
The moving papers were filed on 8/8/2024, which is timely. However, the
Court cannot tell if the moving papers were timely served due to the
lack of proof of service of the moving papers.
“Proof of service of the moving papers must
be filed no later than five court days before the time appointed for the
hearing.” (Cal Rules of Court, Rule
3.1300(c).)
Here, the hearing is set for 10/17/2024. Five
court days before the hearing would be 10/10/2024. As of the morning of
10/14/2024, no proof of service for any of the moving papers has been
submitted.
Therefore, no proof of service has been
timely filed under CRC, Rule 3.1300(c), and the Court cannot tell if CCP §
1005(b) has been complied with because without a proof of service, the Court
cannot determine if the moving papers were served, and if those moving papers
were timely.
Additionally, the Court notes that since
Plaintiff has not filed a proof of service for the moving papers, the Court
cannot determine what address Plaintiff served Defendant at. Further, the Court
notes that it is unclear what the proper service address is for Defendant.
Defendant has not appeared in the action. There is an Order to Show Cause Re:
Failure to File Proof of Service currently set for 10/21/2024.
Service Under CCP § 484.040
Under CCP § 484.040:
No order or
writ shall be issued under this article except after a hearing. At the times
prescribed by subdivision (b) of Section 1005, the defendant shall be served
with all of the following:
(a) A
copy of the summons and complaint.
(b) A
notice of application and hearing.
(c) A
copy of the application and of any affidavit in support of the application.
(CCP §
484.040(a)-(c).)
Here, the
Court cannot determine if the requirements of CCP § 484.040(a)-(c) were met.
Not only was a proof of service not filed for the instant moving papers, but a
proof of service was not filed for the summons and complaint. An order to show
cause for failure to file proof of service is currently set for 10/21/2024.
Further,
since the Court cannot determine if the service requirements of CCP §
484.040(a)-(c) were met, and since the Court cannot determine if CCP § 1005(b)
was met, the Court points the parties to CCP § 484.080:
(a) At
the time set for the hearing, the plaintiff shall be ready to proceed. If the
plaintiff is not ready, or if he has failed to comply with Section 484.040, the
court may either deny the application for the order or, for good cause shown,
grant the plaintiff a continuance for a reasonable period. If such a
continuance is granted, the effective period of any protective order issued
pursuant to Chapter 6 (commencing with Section 486.010) may be extended by the
court for a period ending not more than 10 days after the new hearing date if
the plaintiff shows a continuing need for such protective order.
(b) The
court may, in its discretion and for good cause shown, grant the defendant a
continuance for a reasonable period to enable him to oppose the issuance of the
right to attach order. If such a continuance is granted, the court shall extend
the effective period of any protective order issued pursuant to Chapter 6
(commencing with Section 486.010) for a period ending not more than 10 days
after the new hearing date unless the defendant shows pursuant to Section
486.100 that the protective order should be modified or vacated.
(CCP §
484.080(a)-(b).)
Therefore,
the Court will hear argument at the hearing as to: CCP § 1005(b), CRC, Rule
3.1300(c); the proper service address; and CCP § 484.040. Further, the Court
will hear argument as to the requirements of CCP § 482.070(a)-(f).
CCP § 484.020(a)-(e)
“The application shall be executed under oath and shall
include all of the following:
(a) A statement showing that the attachment is sought to
secure the recovery on a claim upon which an attachment may be issued.
(b) A statement of the amount to be secured by the attachment.
(c) A statement that the attachment is not sought for a
purpose other than the recovery on the claim upon which the attachment is
based.
(CCP § 484.020(a)-(e).)
484.020(a) – A statement showing that the
attachment is sought to secure the recovery on a claim upon which an attachment
may be issued
Here, Plaintiff’s application is signed by Nick I. Iezza,
Plaintiff’s attorney, and Karla Beran. The Karla Beran declaration submitted
with the moving papers indicates that Beran is a Legal Manager employed by
Plaintiff, Amur Equipment Finance, Inc., a Nebraska corporation
Paragraph three of Plaintiff’s application states,
“Attachment is sought to secure recovery on a claim upon which attachment may
issue under Code of Civil Procedure section 483.010.”
484.020(b) – A statement of the amount to be
secured by the attachment
Paragraph eight of the application states that the amount to
be secured by the attachment is $8,522.34, which
includes estimated costs of $675.00 and estimated allowable attorney fees of
$450.92
484.020(c) – A statement that the attachment is not sought
for a purpose other than the recovery on the claim upon which the attachment is
based
Here, Paragraph 4 of
the application states that “Attachment is not sought for a purpose other than
the recovery on a claim upon which the attachment is based.”
484.020(d) – A statement that that the applicant has no
information or belief that the claim is discharged in a proceeding under Title
11 of the United States Code (Bankruptcy) or that the prosecution of the action
is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy)
Here, Paragraph 5 of
the application states, “Plaintiff has no information or belief that the claim
is discharged or the prosecution of the action is stayed in a proceeding under
title 11 of the United States Code (Bankruptcy).”
484.020(e) – A description of the property to be attached
under the writ of attachment and a statement that the plaintiff is informed and
believes that such property is subject to attachment. Where the defendant is a
corporation, a reference to “all corporate property which is subject to
attachment pursuant to subdivision (a) of Code of Civil Procedure Section
487.010” satisfies the requirements of this subdivision. Where the defendant is
a partnership or other unincorporated association, a reference to “all property
of the partnership or other unincorporated association which is subject to
attachment pursuant to subdivision (b) of Code of Civil Procedure Section
487.010” satisfies the requirements of this subdivision. Where the defendant is
a natural person, the description of the property shall be reasonably adequate
to permit the defendant to identify the specific property sought to be attached
Here, Defendant is a
natural person.
“Where the defendant is
a natural person, the description of the property shall be reasonably adequate
to permit the defendant to identify the specific property sought to be
attached.”(CCP § 484.020(e).)
Plaintiff’s application
at ¶ 9 states, “Plaintiff is informed and believes that the following property
sought to be attached for which a method of levy is provided is subject to
attachment: Property of a defendant who is a natural person that is subject to
attachment under Code of Civil Procedure section 487.010 (specify): 1. Property
including equipment and inventory of a going business pursuant to CCP Sections
488.375 and 488.395; 2. All vehicles of a going business pursuant to CCP
section 488.385; 3. Deposit accounts thereof pursuant to CCP section 488.455;
and 4. Any accounts receivable or general intangibles pursuant to CCP section
488.470.”
Here, the Court will
hear argument. The Court has concerns about the description of the property
because it fails to see how this description is reasonably adequate to permit
the Defendant to identify what the specific property sought to be attached is.
Further, the Court is unclear how the numerous code sections that Plaintiff
cites help identify what the specific property sought to be attached is.
The Court also notes the
form application that Platintiff filled out checks the box of Paragraph 9c
which states “Property of a defendant who is a natural person that is subject
to attachment under Code of Civil Procedure section 487.010 (specify):”
The Court will hear
argument as to if Plaintiff was supposed to specify the property described
under the statutory section of 487.010.
Under CCP § 487.010,
the following property of the defendant is subject to attachment:
(c) Where the defendant is a
natural person, all of the following property:
(1) Interests in real property except leasehold
estates with unexpired terms of less than one year.
(2) Accounts receivable, chattel paper, and general
intangibles arising out of the conduct by the defendant of a trade, business,
or profession, except any such individual claim with a principal balance of
less than one hundred fifty dollars ($150).
(3) Equipment.
(4) Farm products.
(5) Inventory.
(6) Final money judgments arising out of the conduct
by the defendant of a trade, business, or profession.
(7) Money on the premises where a trade, business,
or profession is conducted by the defendant and, except for the first one
thousand dollars ($1,000), money located elsewhere than on such premises and
deposit accounts, but, if the defendant has more than one deposit account or
has at least one deposit account and money located elsewhere than on the
premises where a trade, business, or profession is conducted by the defendant,
the court, upon application of the plaintiff, may order that the writ of
attachment be levied so that an aggregate amount of one thousand dollars
($1,000) in the form of such money and in such accounts remains free of levy.
(8) Negotiable documents of title.
(9) Instruments.
(10) Securities.
(11) Minerals or the like (including oil and gas) to
be extracted.
(d) In the case of a defendant
described in subdivision (c), community property of a type described in
subdivision (c) is subject to attachment if the community property would be
subject to enforcement of the judgment obtained in the action in which the
attachment is sought. Unless the provision or context otherwise requires, if
community property that is subject to attachment is sought to be attached:
(1) Any provision of this title that applies to the
property of the defendant or to obligations owed to the defendant also applies
to the community property interest of the spouse of the defendant and to
obligations owed to either spouse that are community property.
(2) Any provision of this title that applies to
property in the possession or under the control of the defendant also applies
to community property in the possession or under the control of the spouse of
the defendant.
(CCP § 487.010(c)-(d).)
At the Hearing - CCP §
484.090(a)(1)-(4)
“At the hearing, the court shall consider the showing made by
the parties appearing and shall issue a right to attach order, which shall
state the amount to be secured by the attachment determined by the court in
accordance with Section 483.015 or 483.020, if it finds all of the following:
(1) The claim upon which the attachment is based is one upon
which an attachment may be issued.
(2) The plaintiff has established the probable validity of the
claim upon which the attachment is based.
(4) The amount to be secured by the attachment is greater than
zero.”
(CCP §484.090(a)(1)-(4).)
484.090(a)(1) – The claim upon which attachment
is based is one upon which an attachment may be issued
As a preliminary matter Plaintiff’s Complaint alleges the
following four causes of action against Defendant Mossounov: (2) Breach of Guaranty,
(4) Breach of Guaranty, (5) Claim and Delivery, and (6) Account Stated.
Plaintiff’s moving papers do not indicate which of the claims
in the Complaint attachment is based. At the hearing, Plaintiff should be
prepared to address this issue.
Further, as stated in CCP § 483.010:
(a) Except
as otherwise provided by statute, an attachment may be issued only in an action
on a claim or claims for money, each of which is based upon a contract, express
or implied, where the total amount of the claim or claims is a fixed or readily
ascertainable amount not less than five hundred dollars ($500) exclusive of
costs, interest, and attorney’s fees.
(b) An
attachment may not be issued on a claim which is secured by any interest in
real property arising from agreement, statute, or other rule of law (including
any mortgage or deed of trust of realty and any statutory, common law, or
equitable lien on real property, but excluding any security interest in
fixtures subject to Division 9 (commencing with Section 9101) of the Commercial
Code). However, an attachment may be issued where the claim was originally so
secured but, without any act of the plaintiff or the person to whom the
security was given, the security has become valueless or has decreased in value
to less than the amount then owing on the claim, in which event the amount to
be secured by the attachment shall not exceed the lesser of the amount of the
decrease or the difference between the value of the security and the amount
then owing on the claim.
(c) If
the action is against a defendant who is a natural person, an attachment may be
issued only on a claim which arises out of the conduct by the defendant of a
trade, business, or profession. An attachment may not be issued on a claim
against a defendant who is a natural person if the claim is based on the sale
or lease of property, a license to use property, the furnishing of services, or
the loan of money where the property sold or leased, or licensed for use, the
services furnished, or the money loaned was used by the defendant primarily for
personal, family, or household purposes.
(d) An
attachment may be issued pursuant to this section whether or not other forms of
relief are demanded.
(CCP §
483.010(a)-(d).)
In Paragraph 6a of Plaintiff’s application, Plaintiff states
that “Plaintiff’s claim or claims arise of out of conduct by the defendant who
is a natural person of a trade, business, or profession. The claim or claims
are not based on the sale or lease of property, a license to use property, the
furnishing of services, or the loan of money where any of the foregoing was
used by the defendant primarily for personal, family, or household purposes.”
Here, Paragraph 6a appears to be satisfying the requirements
of 483.010(c).
Further, at the hearing, Plaintiff should be prepared to
address if and how the claims alleged against Defendant Mossounov – (2) Breach
of Guaranty, (4) Breach of Guaranty, (5) Claim and Delivery, and (6) Account
Stated) – satisfy the requirements of CCP § 483.010(a) as to whether these
claims are considered claims for money, each of which is based upon a contract,
express or implied.
CCP 483.010(a) also indicates that attachment may be issued
only where the total amount of the claim or claims is a fixed or readily
ascertainable amount not less than five hundred dollars exclusive of costs,
interest, and attorney’s fees. At the hearing, Plaintiff should be prepared to
address the total amount each cause of action alleged against Mossounov seeks.
484.090(a)(2)
– The plaintiff has established the probable validity of the
claim upon which the attachment is based
“The application shall
be supported by an affidavit showing that the plaintiff on the facts presented
would be entitled to a judgment on the claim upon which the attachment is
based.” (CCP § 484.030.)
As a preliminary
matter, Plaintiff does not indicate which claims in the Complaint upon which
the attachment is being sought.
If Plaintiff is basing
attachment on all claims asserted against Mossounov – (2) Breach of Guaranty, (4)
Breach of Guaranty, (5) Claim and Delivery, and (6) Account Stated – Plaintiff
should be prepared to address at the hearing how it established the probable
validity of each claim.
At the hearing,
Plaintiff should be prepared to come forward with authority as to what the
elements are for each claim it bases its attachment on and what evidence
satisfies each element of the causes of action. Additionally at the hearing,
Plaintiff should be prepared to address the issue that the Court pointed out in
the Writ of Possession hearing that implicates the first cause of action for
breach of finance agreement and the Plaintiff’s lack of signature on the
assignment (this would implicate the second cause of action for breach of
guaranty).
484.090(a)(3) – The attachment is not sought
for a purpose other than the recovery on the claim upon which the attachment is
based
Here, Plaintiff’s application states in Paragraph 4,
“Attachment is not sought for a purpose other than the recovery on a claim upon
which the attachment is based.”
484.090(a)(4) - The amount to be secured by the
attachment is greater than zero
Here, Plaintiff’s
application at ¶ 8 indicates the amount to be secured by the attachment is
$8,522.34, which includes estimated costs of $675.00 and estimated allowable
attorney fees of $450.92.
Further, the Court
cites to CCP § 482.110:
(a) The
plaintiff’s application for a right to attach order and a writ of attachment
pursuant to this title may include an estimate of the costs and allowable
attorney’s fees.
(b) In
the discretion of the court, the amount to be secured by the attachment may
include an estimated amount for costs and allowable attorney’s fees.
(CCP § 482.110(a)-(b).)
No
Opposition
No Opposition was submitted by Defendant, but
as previously indicated, the Court could not determine if Plaintiff served the
moving papers upon Defendant.
As stated in CCP §
484.060:
(a) If
the defendant desires to oppose the issuance of the right to attach order
sought by plaintiff or objects to the amount sought to be secured by the
attachment, the defendant shall file and serve upon the plaintiff no later than
five court days prior to the date set for the hearing a notice of opposition.
The notice shall state the grounds on which the defendant opposes the issuance
of the order or objects to the amount sought to be secured by the attachment
and shall be accompanied by an affidavit supporting any factual issues raised
and points and authorities supporting any legal issues raised. If the defendant
fails to file a notice of opposition within the time prescribed, the defendant
shall not be permitted to oppose the issuance of the order.
(b) If
a defendant filing a notice of opposition desires to make any claim of
exemption as provided in Section 484.070, the defendant may include that claim
in the notice of opposition filed pursuant to this section.
(c) The
plaintiff may file and serve upon the opposing party a reply two court days
prior to the date set for the hearing.
(CCP § 484.060(a)-(c).)
Here, five court days prior to the hearing would 10/10/2024, and no
Opposition has been received as of the morning of 10/14/2024; therefore, any
opposition would be late. However, as the Court previously explained, it is
unclear if the moving papers were served on Defendant.
Undertaking
“Before issuance of a writ of attachment, a temporary
protective order, or an order under subdivision (b) of Section 491.415, the
plaintiff shall file an undertaking to pay the defendant any amount the
defendant may recover for any wrongful attachment by the plaintiff in the
action.” (CCP § 489.210.)
Here, Plaintiff did not file an undertaking. Plaintiff
should address this issue at the hearing.
Under CCP § 489.220:
(a) Except as provided in subdivision
(b), the amount of an undertaking filed pursuant to this article shall be ten
thousand dollars ($10,000).
(b) If, upon objection to the
undertaking, the court determines that the probable recovery for wrongful
attachment exceeds the amount of the undertaking, it shall order the amount of
the undertaking increased to the amount it determines to be the probable
recovery for wrongful attachment if it is ultimately determined that the
attachment was wrongful.
(CCP § 489.220(a)-(b).)
Here, Plaintiff should be
prepared to address CCP § 489.220 at the hearing.
“The notice of attachment shall include a statement,
in a form adopted by the Judicial Council, advising the defendant that the
undertaking has been filed and informing the defendant of the right to object
to the undertaking.” (CCP § 489.230(a).)
Here, Plaintiff’s notice of attachment does include
the aforementioned statement under 489.230(a).
Further, the application indicates at ¶ 15 that
Plaintiff has not filed an undertaking.
Plaintiff should be prepared to address these issues
at the hearing.
If the Court Grants this Writ of
Attachment
Under
CCP § 483.015:
(a) Subject to subdivision (b) and to
Section 483.020, the amount to be secured by an attachment is the sum of the
following:
(1) The amount of the defendant’s
indebtedness claimed by the plaintiff.
(2) Any additional amount included by
the court under Section 482.110.
(b) The amount described in
subdivision (a) shall be reduced by the sum of the following:
(1) The amount of any money judgment
in favor of the defendant and against the plaintiff that remains unsatisfied
and is enforceable.
(2) The amount of any indebtedness of
the plaintiff that the defendant has claimed in a cross-complaint filed in the
action if the defendant’s claim is one upon which an attachment could be
issued.
(3) The amount of any claim of the
defendant asserted as a defense in the answer pursuant to Section 431.70 if the
defendant’s claim is one upon which an attachment could be issued had an action
been brought on the claim when it was not barred by the statute of limitations.
(4) The value of any security
interest in the property of the defendant held by the plaintiff to secure the
defendant’s indebtedness claimed by the plaintiff, together with the amount by
which the value of the security interest has decreased due to the act of the
plaintiff or a prior holder of the security interest.
(CCP § 483.015(a)-(b).)
If the Court grants the
writ of attachment, the Court will hear argument as to these requirements.
Hearing Date: 10/17/2024 – 8:30am
Case No. 24NNCV03350
Trial Date: UNSET
Case Name: AMUR EQUIPMENT FINANCE, INC.,
a Nebraska corporation, v. BORLAR, INC., a California corporation; OLEG
MOSSOUNOV, an individual; and DOES 1-20 inclusive
WRIT
OF POSSESSION – Res ID 1808
RELIEF REQUESTED
Plaintiff, Amur Equipment Finance, Inc., a Nebraska corporation, applies for a
writ of possession after hearing (CCP § 512.010) against Defendant, Borlar,
Inc., a California corporation, (Defendant or Borlar).
BACKGROUND
Plaintiff, Amur
Equipment Finance, Inc., filed a Complaint on 8/06/2024 alleging six causes of
action for: (1) Breach of Finance Agreement, (2) Breach of Guaranty, (3) Breach
of Lease Agreement, (4) Breach of Guaranty, (5) Claim and Delivery, and (6)
Account Stated.
The
first cause of action for breach of finance agreement is alleged against
Defendant Borlar. This cause of action stems from allegations that Borlar
defaulted on the Equipment Finance Agreement (Agreement #1010825, pertaining to
a 2020 Ford) by failing to make timely payments. The second cause of action for
breach of guaranty is alleged against Defendant Oleg Mossounov (Mossounov). The
second cause of action stems from allegations that Mossounov executed a guaranty
to Agreement #1010825 to guaranty Borlar’s obligations under Agreement
#1010825.
The
third cause of action for breach of lease agreement is alleged against
Defendant Borlar. This cause of action stems from allegations that Borlar
defaulted on the Lease Agreement (Agreement #1010464, pertaining to a 2020 Take
3) by failing to make timely payments. The fourth cause of action for breach of
guaranty is alleged against Defendant Mossounov. The fourth cause of action
stems from allegations that Mossounov executed a guaranty to Agreement #1010464
to guaranty Borlar’s obligations under Agreement #1010464.
The
fifth cause of action for claim and delivery and the sixth cause of action for
account stated are alleged against both Defendants – Borlar and Mossounov.
The
instant writ of possession only applies to Defendant Borlar as indicated on
Plaintiff’s Notice of Application for Writ of Possession and Hearing.
PROCEDURAL
Moving Party: Plaintiff, Amur Equipment
Finance, Inc., a Nebraska corporation (Plaintiff or Amur)
Responding Party: No opposition by Defendant, Borlar
Inc., a California corporation (Borlar or Defendant)
Moving Papers: Notice
of Application for Writ of Possession and Hearing; Application for Writ of
Possession After Hearing; Memorandum of Points and Authorities in Support of
Applications for Writ of Attachment and Writ of Possession [There are three
hearings on calendar in this matter for 10/17/2024. Two hearings are for writs
of attachment, and one is for a writ of possession; one memorandum was
submitted for all three of the hearings on calendar.]; Declaration of Karla
Beran [The declaration of Karla Beran also appears to be for the three hearings
because only one declaration of Karla Beran was submitted.]
Opposition Papers: No
Opposition
Reply Papers: No Reply
Papers
Proof of Service
Timely Filed (CRC Rule 3.1300): No - “Proof of service of the
moving papers must be filed no later than five court days before the time
appointed for the hearing.” (Cal Rules of
Court, Rule 3.1300(c).) Here, the hearing is set for 10/17/2024. Five
court days before the hearing would be 10/10/2024. As of the morning of 10/14/2024,
no proof of service for any of the moving papers has been submitted.
16/21 Court Days Lapsed (CCP § 1005(b)): No/Uncertain – In relevant part of CCP § 1005(b), “Unless otherwise
ordered or specifically provided by law, all moving and supporting papers shall
be served and filed at least 16 court days before the hearing.” Here, the Court
is unable to tell if the moving papers were timely served because no proof of
service was filed to indicate when, or if, the moving papers were served upon
Defendant. The moving papers were filed on 8/8/2024, which is timely. However,
the Court cannot tell if the moving papers were timely served due to the lack
of proof of service of the moving papers.
Proper Address (CCP § 1013, § 1013a, § 1013b)
: No/Uncertain – First, Plaintiff has not filed a proof of service for the
moving papers for the Court to be able to determine what address Plaintiff
served Defendant at. Second, the Court notes that it is unclear what the proper
service address is for Defendant. Defendant has not appeared in the action.
There is an Order to Show Cause Re: Failure to File Proof of Service currently
set for 10/21/2024.
Legal Standard Writ of Possession
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.)
“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.” (CCP § 512.010(a).)
(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 basis of the plaintiff’s claim is a written
instrument, a copy of the instrument shall be attached.
(2) A showing that the
property is wrongfully detained by the defendant, of the manner in which the
defendant came into possession of the property, and, according to the best
knowledge, information, and belief of the plaintiff, of the reason for the
detention.
(3) A particular
description of the property and a statement of its value.
(4) A statement,
according to the best knowledge, information, and belief of the plaintiff, of
the location of the property and, if the property, or some part of it, is
within a private place which may have to be entered to take possession, a
showing that there is probable cause to believe that such property is located
there.
(5) A statement that
the property has not been taken for a tax, assessment, or fine, pursuant to a
statute; or seized under an execution against the property of the plaintiff;
or, if so seized, that it is by statute exempt from such seizure.
(CCP § 512.010(b)(1)-(5).)
“The requirements of subdivision (b) may be
satisfied by one or more affidavits filed with the application.” (CCP §
512.010(c).)
(1) A copy of the
summons and complaint.
(2) A Notice of
Application and Hearing.
(3) A copy of the
application and any affidavit in support thereof.
(CCP § 512.030(a).)
“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., § 511.090.)
“No
writ directing the levying officer to enter a private place to take possession
of any property shall be issued unless the plaintiff has established that there
is probable cause to believe that the property is located there.” (CCP §
512.060(b).)
“Except
as provided in subdivision (b), the court shall not issue a temporary
restraining order or a writ of possession until the plaintiff has filed an
undertaking with the court . The undertaking shall provide that the sureties
are bound to the defendant for the return of the property to the defendant, if
return of the property is ordered, and for the payment to the defendant of any
sum recovered against the plaintiff. The undertaking shall be in an amount not
less than twice the value of the defendant’s interest in the property or in a
greater amount. 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.” (CCP § 515.010(a).)
“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.”
(CCP § 515.010(b).)
TENTATIVE RULING
CCP § 1005(b)/CRC, Rule 3.1300
In relevant part of CCP § 1005(b), “Unless
otherwise ordered or specifically provided by law, all moving and supporting
papers shall be served and filed at least 16 court days before the hearing.”
Here, the Court is unable to tell if the
moving papers were timely served because no proof of service was filed
to indicate when, or if, the moving papers were served upon Defendant.
The moving papers were filed on 8/8/2024, which is timely. However, the
Court cannot tell if the moving papers were timely served due to the
lack of proof of service of the moving papers.
“Proof of service of the moving papers must
be filed no later than five court days before the time appointed for the
hearing.” (Cal Rules of Court, Rule
3.1300(c).)
Here, the hearing is set for 10/17/2024. Five
court days before the hearing would be 10/10/2024. As of the morning of 10/14/2024, no proof of service for any of the
moving papers has been submitted.
Therefore, since the Court cannot tell when,
or if, the moving papers were timely served, this appears to be grounds to DENY
Plaintiff’s Writ of Possession.
Additionally, the Court notes that since Plaintiff
has not filed a proof of service for the moving papers, the Court cannot
determine what address Plaintiff served Defendant at. Further, the Court notes
that it is unclear what the proper service address is for Defendant. Defendant
has not appeared in the action. There is an Order to Show Cause Re: Failure to
File Proof of Service currently set for 10/21/2024.
Service Under 512.030
Prior
to the hearing required by CCP § 512.020(a), the defendant shall be served with
all of the following:
(1) A copy of the summons and complaint.
(2) A Notice of Application and Hearing.
(3) A copy of the application and any
affidavit in support thereof.
(CCP § 512.030(a).)
“If the defendant has not appeared in the
action, and a writ, notice, order, or other paper is required to be personally
served on the defendant under this title, service shall be made in the same
manner as a summons is served under Chapter 4 (commencing with Section 413.10)
of Title 5.” (CCP § 512.030(b).)
Here, the Court cannot determine if the
requirements of CCP § 512.030(a)(1)-(3) were met. Not only was a proof of
service not filed for the instant moving papers, but a proof of service was not
filed for the summons and complaint. An order to show cause for failure to file
proof of service is currently set for 10/21/2024.
Therefore, Plaintiff’s failure to comply with
CCP § 512.030(a)(1)-(3) appears to be grounds to DENY Plaintiff’s Writ of
Possession.
Other Service Rules
“Each
party shall file with the court and serve upon the other party within the time
prescribed by rule any affidavits and points and authorities intended to be
relied upon at the hearing. 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.” (CCP § 512.050.)
As previously mentioned, no proof of service
was filed for the moving papers; therefore, it is unclear what documents were
served upon Defendant.
Requirements of 512.010(b)
Pursuant to CCP § 512.010(b), the application shall be executed under oath and
shall include the following:
(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 basis of the plaintiff’s claim is a written
instrument, a copy of the instrument shall be attached.
(2) A showing that the property is
wrongfully detained by the defendant, of the manner in which the defendant came
into possession of the property, and, according to the best knowledge,
information, and belief of the plaintiff, of the reason for the detention.
(3) A particular description of the
property and a statement of its value.
(CCP § 512.010(b)(1)-(5).)
“The requirements of subdivision (b) may be
satisfied by one or more affidavits filed with the application.” (CCP §
512.010(c).)
Here, Plaintiff’s Application for Writ of
Possession indicates that the basis of the Plaintiff’s claim and right to
possession of the claimed property is specified in the verified complaint and
the attached declaration.
Plaintiff’s Application for Writ of
Possession also indicates that the claimed property is a (1) 2020 Ford, VIN # 1FT8W3DT8LEE17414
and a (2) 2020 Take 3, S/N # 1T9LS5315LB540181.
Plaintiff has also submitted the declaration
of Karla Beran who is a Legal Manager employed by Plaintiff, Amur Equipment
Finance, Inc., a Nebraska corporation. Karla states that she is the custodian
of Plaintiff’s records and reviewed those records and declares that said
records reflect the facts as set forth in her declaration. (See Beran Decl. ¶
2.)
512.010(b)(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 basis of the plaintiff’s
claim is a written instrument, a copy of the instrument shall be attached.”
(CCP § 512.010(b)(1).)
As to the Equipment Finance
Agreement # 1010825 (pertaining to the 2020 Ford, VIN # 1FT8W3DT8LEE17414), a
summarization of the relevant parts of the Beran Declaration include the
following:
On or about February 3,
2021, Borlar entered into a written Equipment Finance Agreement #1010825 with
Alliance Funding Group, Inc., a California corporation wherein Borlar leased
certain equipment from Plaintiff. A true and correct copy of the Agreement and
any amendments are attached as Exhibit 1. (See Beran Decl. ¶ 6.)
Under the Agreement, the
equipment is more fully described as a 2020 Ford, VIN # 1FT8W3DT8LEE17414 and
required 72 monthly payments in the amount of $1,462.48. (See Beran Decl. ¶ 7.)
Defendant, Oleg Mossounov,
an individual, executed in writing a Guaranty to the Agreement 1010825, to
guaranty Borlar’s obligations under the Agreement 1010825. A true and correct
copy of the Guaranty 1010825 is attached as Exhibit 1. (See Beran Decl.
¶ 8.)
On or about February 3,
2021, Alliance Funding Group, Inc. sold, assigned, and conveyed all rights,
title, and interest under Agreement 1010825 and Guaranty 1010825 to Amur
Equipment Finance, Inc., a Nebraska corporation as indicated in the Assignment
attached as Exhibit 2. (See Beran Decl. ¶ 9.)
In accordance with
Agreement 1010825, and as a proximate result of Borlar’s default, Plaintiff has
declared the entire balance of the payments under Agreement 1010825 to be
immediately due and payable to Plaintiff. Pursuant to Agreement 1010825, there
became due the sum of $58,001.90 exclusive of prejudgment interest, attorney’s
fees and costs, no portion of which sum has been paid by Borlar. (See Beran
Decl. ¶ 15.)
Plaintiff has performed all
of its obligations under the terms of Agreement 1010825, except as excused or
prevented by the conduct of Borlar. As a proximate result of Borlar’s breach of
Agreement 1010825, Plaintiff has been damaged in the amount of $58,001.90
together with interest at the rate of 18% per annum from April 1, 2023. A true
and correct copy of the Statement of Account is attached as Exhibit 5.
(See Beran Decl. ¶ 16.) [The Court notes that the Statement of Account that indicated
a total amount due of $58,001.90 is attached to the Beran Declaration at
Exhibit 3 and not Exhibit 5 as the Beran Declaration states in ¶
16.]
(See Beran Declaration, ¶¶ 6-9, 14-16.)
As to Lease Agreement #1010464
(pertaining to the 2020 Take 3, S/N #1T9LS5315LB540181), a summarization of the
relevant parts of the Beran Declaration include the following:
On or about April 23, 2021, Borlar entered
into a written Lease Agreement #1010464 with Alliance Funding Group, Inc., a California
corporation wherein Borlar leased certain equipment from Plaintiff. A true and
correct copy of Agreement 1010464 and any amendment is attached as Exhibit 3.
(See Beran Decl. ¶ 10.) [The Court notes that Lease Agreement 1010464 appears
to be Exhibit 4 attached to the Beran Declaration and not Exhibit
3 as the Beran Declaration states in ¶ 10.]
Under Agreement 1010464, the equipment is
more fully described as a 2020 Take 3, S/N #1T9LS5315LB540181 and required 48
monthly payments in the amount of $646.23. (See Beran Decl. ¶ 11.)
Defendant, Oleg Mossounov, an individual,
executed in writing a Guaranty to Agreement 1010464, to guaranty Borlar’s
obligations under Agreement 1010464. A true and correct copy of Guaranty
1010464 is attached hereto as Exhibit 3. (See Beran Decl. ¶ 12.) [The
Court notes that the Guaranty to Agreement 1010464 appears to be Exhibit 4
attached to the Beran Declaration and not Exhibit 3 as the Beran
Declaration states in ¶ 12.]
On or about April 27, 2021, Alliance Funding
Group, Inc. sold, assigned, and conveyed all rights, title, and interest under
Agreement 1010464 and Guaranty 1010464 to Amur Equipment Finance, Inc., a
Nebraska corporation as indicated in the Assignment attached as Exhibit 4.
(See Beran Decl. ¶ 13.) [The Court notes that the Assignment appears to be
Exhibit 5 attached to the Beran Declaration and not Exhibit 4 as
the Beran Declaration states in ¶ 13.]
On or about April 15, 2023, Borlar defaulted
pursuant to the terms of Agreement 1010464 by not making the payment then due,
nor any payments due thereafter. Failure to make timely payments is an event of
default under the terms of Agreement 1010464. The last payment Borlar made was
on or about May 10, 2023. Therefore, Borlar has been in default since April 15,
2023, and currently delinquent of Agreement 1010464. (See Beran Decl. ¶ 17.)
In accordance with Agreement 1010464, and as
a proximate result of Borlar’s default thereunder, Plaintiff has declared the
entire balance of the payments under Agreement 1010464 to be immediately due
and payable to Plaintiff. Pursuant to Agreement 1010464, there became due the
sum of $17,313.47 exclusive of prejudgment interest, attorney’s fees and costs,
no portion of which sum has been paid by Borlar. (See Borlar Decl. ¶ 18.)
Plaintiff has performed all of its
obligations under Agreement 1010464, except as excused or prevented by the
conduct of Borlar. As a proximate result of Borlar’s breach of Agreement
1010464, Plaintiff has been damaged in the total amount of $17,313.47 together
with interest at the rate of 18% per annum from April 15, 2023. A true and
correct copy of the Statement of Account is attached hereto as Exhibit 6.
(See Boran Decl. ¶ 19.)
(See Beran Decl. ¶¶ 10-13, 17-19.)
Here, the Court will hear
argument as to if the requirements of CCP § 512.010(b)(1) have been met.
“A showing of the
basis of the plaintiff’s claim and that the plaintiff is entitled to possession
of the property claimed. If the basis of the plaintiff’s claim is a written
instrument, a copy of the instrument shall be attached.” (CCP § 512.010(b)(1).)
The Court will
hear argument as to CCP § 512.010(b)(1) for several reasons.
First, as to both
agreements, the Plaintiff should be prepared to point the Court to the specific
pages/paragraphs of the agreements that indicate that upon default the
Plaintiff can take possession.
Second, as to
Plaintiff alleging that Exhibit 2 assigns Alliance’s rights to Agreement
1010825 to Plaintiff, Amur, Plaintiff should be prepared to address how Exhibit
2 does not contain a signature by Plaintiff, Amur.
Third, Beran
states in ¶ 14 of her declaration that on or about April 1, 2023, Borlar
defaulted pursuant to the terms of Agreement 1010825 by not making the payment
then due, nor any payments due thereafter. What is confusing about this
statement is that even though Beran states that Borlar defaulted on April 1,
2023 by not making payment then due, “nor any payments due thereafter,” Beran
seems to contradict that statement by stating that the last payment made was on
or about April 27, 2023. Or to phrase it differently, Beran stated that no
payments were made after April 1, 2023, yet somehow then goes on to state that
a payment was made on or about April 27, 2023, which is after April 1, 2023.
Plaintiff should be prepared to address this issue.
Fourth, as to both
assignments (at Exhibits 2 and 5), the Court would like Plaintiff to explain
these assignments. The Court would like Plaintiff to point to specific pages
and paragraphs in the assignments that indicate what the assignment is
assigning to Plaintiff. The Court does not see, in any clear terms, what
exactly is being assigned in each assignment. For example, the “Contract
Number” on the initial page of Exhibits 2 and 5 at the top left corners are
left blank. Further, the Court is confused as to the significance of the “Master
Discounting Agreement” “dated as of January 29, 2016” that is referenced on
page 1 in both Exhibits 2 and 5 in the second paragraph of these exhibits. The Plaintiff
should be prepared to address the significance of the Master Discounting
Agreement and how it is not attached to the Beran Declaration.
Fifth, Beran
states in ¶ 17 of her declaration that on or about April 15, 2023, Borlar
defaulted pursuant to the terms of Agreement 1010464 by not making the payment
then due, nor any payments due thereafter. What is confusing about this
statement is that even though Beran states that Borlar defaulted on April 15,
2023 by not making payment then due, “nor any payments due thereafter,” Beran
seems to contradict that statement by stating that the last payment made was on
or about May 10, 2023. Or to phrase it differently, Beran stated that no
payments were made after April 15, 2023, yet somehow then goes on to state that
a payment was made on or about May 10, 2023, which is after April 15, 2023.
Plaintiff should be prepared to address this issue.
512.010(b)(2)
“A showing that the property is wrongfully detained by
the defendant, of the manner in which the defendant came into possession of the
property, and, according to the best knowledge, information, and belief of the
plaintiff, of the reason for the detention.” (CCP § 512.010(b)(2).)
Here, the Court will hear argument.
The Beran declaration states:
Pursuant to the Agreements, the Equipment
is, and at all times shall remain, the sole and exclusive personal property of
Plaintiff. No right, title or interest in the Equipment shall pass to
Defendants, or any of them, other than the right to maintain possession and use
of the Equipment for the full agreements terms. Upon expiration of the
agreements terms, Defendants, and each of them, agreed to immediately return
the Equipment, in as good of condition as received, to Plaintiff. Defendants,
and each of them, refuse, and continue to refuse, to return the Equipment. As a
consequence thereof, Plaintiff is entitled to a sum equal to the fair market
value of the Equipment at the end of the lease term. Plaintiff is informed and
believes and thereon alleges said value to be $69,300.00.
(Beran Decl. ¶ 22.)
As previously mentioned in regard to 512.010(b)(1),
the Court would like Plaintiff to cite to specific portions of the Agreements
that indicate that upon default, Plaintiff obtains the right of possession.
Further, the Court would like an explanation as to how Defendant defaulted
under each agreement because the Statement of Accounts (for both Agreements,
located at Exhibits 3 and 6) are confusing to decipher.
512.010(b)(3)
“A particular description of the property and a statement of its value.”
Here, Plaintiff’s
Application for Writ of Possession indicates in ¶ 4 that the claimed property
is a: (1) 2020 Ford, VIN # 1FT8W3DT8LEE17414 with a fair market value of
$47,000.00 and a (2) 2020 Take 3, S/N # 1T9LS5315LB540181 with a fair market
value of $22,300.00.
Therefore, Plaintiff appears
to have successfully addressed the requirements of CCP § 512.010(b)(3).
512.010(b)(4)
“A statement, according to
the best knowledge, information, and belief of the plaintiff, of the location
of the property and, if the property, or some part of it, is within a private
place which may have to be entered to take possession, a showing that there is
probable cause to believe that such property is located there.” (CCP §
512.010(b)(4).)
Beran’s declaration states,
“Plaintiff alleges that the leased Equipment was, at the commencement of this
action, located at 11134 Wicks Street, Sun Valley, CA 91352.” (Beran Decl. ¶
26.)
At the hearing, Plaintiff
should be prepared to address the probable cause requirement because
Plaintiff’s Application for Writ of Possession at ¶ 7 indicates that the
claimed property is located in a private place.
“No writ directing the
levying officer to enter a private place to take possession of any property
shall be issued unless the plaintiff has established that there is probable
cause to believe that the property is located there.” (CCP § 512.060(b).)
512.010(b)(5)
“A statement that the
property has not been taken for a tax, assessment, or fine, pursuant to a
statute; or seized under an execution against the property of the plaintiff;
or, if so seized, that it is by statute exempt from such seizure.” (CCP §
512.010(b)(5).)
Here, Plaintiff’s
Application for Writ of Possession at ¶8 does not check a box. Further, the
Court doesn’t see the statement required under 512.010(b)(5) in the Beran
Declaration. Plaintiff is to address this issue at the hearing.
512.060 and 515.10
“At the hearing, a writ of possession shall issue 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. (2) The
undertaking requirements of Section 515.010 are satisfied.” (CCP §
512.060(a)(1)-(2).)
Probable
Validity/512.060(a)(1)
“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., § 511.090.)
Here the Court will hear argument. Whether Plaintiff has
established the probable validity of the Plaintiff’s claim to possession of the
property will depend on the issues that the Court addressed above.
Undertaking/512.060(a)(2)
“At the hearing, a writ of possession shall issue 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. (2) The undertaking
requirements of Section 515.010 are satisfied.” (CCP § 512.060(a)(1)-(2).)
“Except as provided in subdivision (b), the court shall
not issue a temporary restraining order or a writ of possession until the
plaintiff has filed an undertaking with the court . The undertaking shall
provide that the sureties are bound to the defendant for the return of the
property to the defendant, if return of the property is ordered, and for the
payment to the defendant of any sum recovered against the plaintiff. The
undertaking shall be in an amount not less than twice the value of the
defendant’s interest in the property or in a greater amount. 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.”
(CCP § 515.010(a).)
“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.” (CCP § 515.010(b).)
Here the Court will hear argument as to the undertaking
requirements. Plaintiff does not appear to address the undertaking
requirements; Plaintiff should be prepared to address any interest that
Defendant has in the property based on any payments made to Plaintiff.
No Opposition
While
there is currently no Opposition, if Defendant argues that Plaintiff should not
take possession, the Court cites the following:
(a) The defendant may prevent the
plaintiff from taking possession of property pursuant to a writ of possession
or regain possession of property so taken by filing with the court in which the
action was brought an undertaking in an amount equal to the amount of the
plaintiff’s undertaking pursuant to subdivision (a) of Section 515.010 or in
the amount determined by the court pursuant to subdivision (b) of Section
515.010.
(b) The undertaking shall state that, if
the plaintiff recovers judgment on the action, the defendant shall pay all
costs awarded to the plaintiff and all damages that the plaintiff may sustain
by reason of the loss of possession of the property. The damages recoverable by
the plaintiff pursuant to this section shall include all damages proximately
caused by the plaintiff’s failure to gain or retain possession.
(c) The defendant’s undertaking may be
filed at any time before or after levy of the writ of possession. A copy of the
undertaking shall be mailed to the levying officer.
(d) If an undertaking for redelivery is
filed and the defendant’s undertaking is not objected to, the levying officer
shall deliver the property to the defendant, or, if the plaintiff has
previously been given possession of the property, the plaintiff shall deliver
the property to the defendant. If an undertaking for redelivery is filed and
the defendant’s undertaking is objected to, the provisions of Section 515.030
apply.
(CCP § 515.020(a)-(d).)