Judge: Craig Griffin, Case: "Prelude Systems, Inc. v. Med Legal, LLC", Date: 2022-08-08 Tentative Ruling

Plaintiff, Prelude Systems, Inc.’s (“Plaintiff”) Application for Right to Attach Order/Writ of Attachment is CONTINUED to September 26, 2022, at 2:00 p.m. in this department.

“Attachment is a prejudgment remedy which requires a court to make a preliminary determination of the merits of a dispute.”  (Lorber Industries v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.)  “‘[A]ttachment procedures are solely creatures of statute and ... such statutes must be strictly construed.’”  (Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270, citing Arcata Publications Group v. Beverly Hills Publishing Co. (1984) 154 Cal.App.3d 276, 279.)

It is Plaintiff’s burden to show “(1) that [its] claim is one upon which an attachment may be issued and (2) the probable validity of such claim.”  (Bank of America, 207 Cal.App.3d at 271.)  “An application for a right to attach order must be supported by an affidavit or declaration showing that the applicant, on the facts presented, would be entitled to a judgment on the claim upon which the attachment is based.”  (Lydig Construction, Inc. v. Martinez Steel Corporation (2015) 234 Cal.App.4th 937, 944; Code Civ. Proc. § 484.030.)  “The affidavit or declaration must state the facts ‘with particularity.’”  (Lydig, 234 Cal.App.4th at 944; Code Civ. Proc., § 482.040.)

There are several problems with Plaintiff’s Application and supporting papers.  First, the application does not state the amount to be secured by the attachment as required by Code Civ. Proc., § 484.020.  Paragraph 8 of the application, where the moving party is to list the amount to be secured by the attachment and any estimated costs and attorney fees, was left blank.  (See ROA 21, pg. 2, para. 8.) 

Second, the proof of service of the Notice of Hearing and Application appears defective.  Defendant’s address as reflected in the Notice of Hearing is 955 Overland Ct, Suite 200, San Dimas, CA 91773.  However, the address listed for Defendant in the proof of service does not include Defendant’s suite number.  (See ROA 17.)

Third and most importantly, the application is not supported by sufficient evidence to establish the probable validity of Plaintiff’s claim.  The declaration of Plaintiff’s CEO states that a copy of the Master Services Agreement, a copy of the Record Review Service Agreement and copies of the outstanding unpaid invoices between Plaintiff and Defendant are attached to the declaration as Exhibits 1, 2 and 3, respectively.  However, there are no exhibits attached to the declaration or to any of the moving papers.  In addition, neither the Master Services Agreement nor the Record Review Service Agreement attached to the Complaint contains any mention of the $441,000 amount allegedly due to Plaintiff.  Further, the Chandra declaration contains no details regarding how Plaintiff arrived at the $441,000 amount.  For instance, there is no description of the services that were provided pursuant to the invoices, the dates or amounts of the invoices or when the invoices became due.  Thus, the Court is unable to determine the basis for Plaintiff’s claims and whether it is more likely than not that Plaintiff will obtain a judgment against the Defendant on those claims.

Therefore, the Court continues the hearing to the above date and time to permit Plaintiff an opportunity to correct the above deficiencies.

Plaintiff is to file and serve an amended Notice of Hearing, Application and supporting papers pursuant to code.  (See Code Civ. Proc. § 484.040.)  A proof of service of same is to be filed at least 5 court days prior to the continued hearing.

Moving party to give notice.