Judge Curtis A. Kin, Case Number: 24STCV21154, Date: 2025-03-20 Tentative Ruling

Judge: Curtis A. Kin, Case: 24STCV21154, Date: 2025-03-20 Tentative Ruling

Case Number: 24STCV21154 Hearing Date: March 20, 2025 Dept: 86

APPLICATIONS (2) FOR

RIGHT TO ATTACH ORDERS

Date: 3/20/25 (1:30 PM)

Case: PNG Builders v. GT Commercial Concrete Inc. (24STCV21154)

TENTATIVE RULING:

Plaintiff PNG Builders’ applications for right to attach order with respect to defendants GT Commercial Concrete and Todd Hand are GRANTED.

Pursuant to CCP §484.090, the Court finds:

1) the claim is one upon which attachment may be issued;

2) plaintiff has established the probable validity of the claim;

3) attachment is not sought for any purpose other than recovery on the claim; and

4) the amount to be attached is greater than zero.

Plaintiff PNG Builders’ claim is for amounts due under a written agreement whereby defendant GT Commercial Concrete Inc. (“GT”) agreed to provide and pay for the rebar materials in connection with a construction project located in Malibu, California the “Subcontract”). (Mathison Decls. ¶ 6 & Ex. 1 at pp. 31, 33.) Defendant Todd Hand (“Hand”) personally guaranteed defendant GT Commercial Concrete Inc.’s obligations by executing a personal guarantee contained within the Subcontract. (Mathison Decls. at ¶ 7.) On 9/22/23, defendant GT issued payment application #2 to plaintiff pursuant to the Subcontract, which concerned GT’s purported purchase and payment for rebar materials from Vista Steel Company. (Mathison Decls. at ¶ 8 & Ex. 2.) GT sought payment from plaintiff in the total sum of $146,177.10. (Ibid.) Thereafter, on 11/9/23, plaintiff issued an electronic payment to defendant GT in the sum of $146,177.10. (Mathison Decls. at ¶ 9 & Ex. 3.) Under the Subcontract, defendant GT was obligated to deliver this payment to Vista Steel Company but did not do so. (Mathison Decls. at ¶ 10.) On 4/11/24, plaintiff discovered that defendant GT had not paid Vista Steel Company, and it was discovered that defendant GT’s pay application #2 was fraudulent. (Mathison Decls. at ¶¶ 11-12; Zappulla Decls. ¶ 4 & Ex. 4.) Due to defendant GT’s conduct, plaintiff was forced to issue a second payment for the subject rebar directly to Vista Steel Company in the correct amount of $88,227. (Mathison Decls. ¶ 13 & Ex. 13; Zapulla Decls. ¶ 5 & Ex. 7.) Consequently, plaintiff terminated the Subcontract on 4/15/24. (Mathison Decls. ¶ 15.) On 7/11/24, plaintiff sent a written demand letter to defendant GT for reimbursement of the original payment, but defendant GT failed to comply. (Mathison Decls. at ¶ 14 & Ex. 6.)

Due to defendant GT’s breach, plaintiff has incurred damages in the minimum principal sum of $146,177.10, which GT does not contest or oppose. Nor does defendant Hand. Hand’s only opposition to the issuance of a writ of attachment is his claim that his “alleged personal guarantee is unenforceable as a sham guarantee under California law.” (Hand Opp. at 4.) While it may be true that a personal guarantee is unenforceable where the guarantor is also the principal (see River Bank America v. Diller (1995) 38 Cal.App.4th 1400, 1422-23), Hand is not both principal and guarantor. The principal under the Subcontract is GT. (Mathison Decls. Ex. 1 at pg. 1 [defining Agreement as between “PNG BUILDER” as “the Contractor” and “GT Commercial Concrete, Inc.” as “the Subcontractor”].) Hand, however, is the guarantor under the Subcontract. As provided in paragraph 20.1 of the Subcontract, “the signature of any person to this Agreement on behalf of Subcontractor shall be deemed a personal warranty and continuing guaranty by that person of all obligations of Subcontractor under this Agreement.” (Mathison Decls. Ex. 1 at 12.) Hand, who signed the Subcontract on behalf of GT as its President, became the guarantor of GT’s performance pursuant to paragraph 20.1 (Mathison Decls. Ex 1 at 16.) To argue that Hand is both principal and guarantor under the Subcontract is to concede that GT and Hand are one and the same, in which case a writ of attachment against GT would be fully enforceable against Hand as its alter ego in any event.

Based on the foregoing, the applications will be granted in the amount of $150,672.10 ($146,177.10 outstanding balance + $495 costs + $4,000 in attorney fees) as to both defendants GT and Hand. In this regard, the Court notes that it finds reasonable plaintiff’s request for $495 in costs and $4,000 in attorney fees.

Writs of Attachment shall issue upon the posting of bond in the amount of $10,000 as to each defendant. (CCP § 489.220.) By no later than 3/25/25, plaintiff shall submit proposed orders on the appropriate Judicial Council form that comports with the ruling herein.