Judge: Brian F. Gasdia, Case: 24NWCV01319, Date: 2025-06-04 Tentative Ruling

Case Number: 24NWCV01319    Hearing Date: June 4, 2025    Dept: R

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ELEMAR INC. v. PACIFIC GRAIN & FOODS, LLC

CASE NO.:  24NWCV01319

HEARING:  Wednesday, June 4, 2025 at 10:30 a.m.

Plaintiff ELEMAR, INC.’s unopposed application for writ of attachment against Defendant PACIFIC GRAIN & FOODS, LLC is GRANTED.  An undertaking of $10,000.00 is ordered as provided for by statute.

Moving Party to give notice.

The Court notes that a Notice of Reassignment was filed in this case on May 2, 2025 which states that on June 2, 2025, this action was reassigned to Judge Brian F. Gasdia as an individual, direct calendaring judge for all purposes, including trial, in Dept. R.

This action for breach of contract was filed by Plaintiff ELEMAR, INC. (“Plaintiff”) against Defendants PACIFIC GRAIN & FOODS, LLC (“Pacific Grain”) and LEE G. PERKINS, JR. on April 26, 2024. 

Plaintiff now applies for a pre-judgment writ of attachment against Pacific Grain. The asset to be attached consists of the real property owned by Pacific Grain, which is located at 4539 E. Annadale Avenue, Fresno, CA 93725.  

Defendant Pacific Grain & Goods, LLC defaulted on June 25, 2024, and remains in default as of June 2, 2025.

No Opposition has been filed or lodged with the Court as of June 2, 2025.

“The application [for a writ of attachment] 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.) “The declarations in the moving papers must contain evidentiary facts, stated ‘with particularity’ and based on actual personal knowledge with all documentary evidence properly identified and authenticated.” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79-80.) “In contested applications, ‘the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” (Id. at 80.)

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.

(CCP § 484.090(a).) 

The court's determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of the additional evidence or points and authorities.  (CCP § 484.090(d).) 

CLAIM: 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. (CCP 483.010.) Plaintiff's claim against a natural person must arise out of the defendant's conduct of a trade, business or profession.  (CCP § 483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4. CCP 483.010.) The court has the power to determine disputed facts on the basis of preponderance of evidence as disclosed in the declarations. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) 

The claim is for money and based upon written agreements, whose total sums are more than $500.  The claim is supported by the declaration of Eliezer Hadad, attesting that Plaintiff and Defendant entered into various agreements for the sale of goods, that and that Defendant Pacific Grain is in default.  Plaintiff’s application indicates that the claim arises out of a debt owed by Defendant’s trade, business, or profession.  The claim is proper. 

PROBABLE VALIDITY:  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.  (CCP § 481.190.) 

Plaintiff has established probable validity of its claim by presenting evidence of the Invoices between the parties.

This application is unopposed.

Based on a preponderance of the evidence, the court finds Plaintiff’s claim has probable validity because it is “more likely than not” that Plaintiff will obtain a judgment. 

PURPOSE OF ATTACHMENT: The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. 

PROPERTY TO BE ATTACHED: Where the defendant is an individual, the application must specify the particular property sought to be attached. (See CCP §487.010.) Defendant must be able to identify the property that plaintiff seeks to attach, so that the defendant can determine whether he desires to make a claim of exemption as to that property.

All property within California held by a corporation, partnership or unincorporated association is subject to attachment is there is a statutory method of levy for the property. (CCP §487.010(a), (b).) By logical extension, this requirement also should apply to limited liability companies. (CCP §481.170.)

When a plaintiff notices a hearing on an attachment application, the defendant must assert any exemption claims for targeted personal property five days before the hearing or such claims are deemed waived, absent a change of circumstances. (CCP §484.070(a), (e).)

Plaintiff states in its Application for Writ of Attachment that it seeks to the attach the real properly belonging to Pacific Grain, located at 4539 E. Annadale Avenue, Fresno, CA 93725.  

UNDERTAKING: An undertaking is required. “Before issuance of a writ of attachment…, 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.” A flat amount of undertaking is provided for by statute: $10,000. (CCP §489.220(a).)  

As indicated, the Application is unopposed and Pacific Grain is in default.

The unopposed application for writ of possession is GRANTED. There being no objection, a $10,000.00 undertaking is required before the writ will issue.