Judge: Curtis A. Kin, Case: 24STLC05627, Date: 2024-11-19 Tentative Ruling

Case Number: 24STLC05627    Hearing Date: November 19, 2024    Dept: 86

APPLICATION FOR RIGHT TO ATTACH ORDER

Date:               11/19/24 (1:30 PM)

Case:                           Bolide Technology Group, Inc. v. Prinko Image Co. (USA), Inc. et al. (24STLC05627)

TENTATIVE RULING:

Plaintiff Bolide Technology Group, Inc.’s application for right to attach order with respect to defendant Prinko Image Co. (USA), Inc. is 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 Bolide Technology Group, Inc.’s claim is for amounts due under a written Promissory Note, whereby defendant Prinko Image Co. (USA), Inc. (“Prinko”) agreed to pay the principal in full by 5/8/24—six weeks from the 3/27/24 execution of the Note. (Liu Decl. ¶ 5 & Ex. A.) Prinko’s performance on the Note was guaranteed by defendant Chunming Chen. (Liu Decl. ¶ 5 & Ex. A.) According to plaintiff, a balance of $18,485.32 remains. (Liu Decl. ¶ 7.)

Defendants argue that plaintiff presented the law governing attachment without showing how plaintiff meets the requirements. That argument is without merit. After plaintiff sets forth the criteria for attachment, plaintiff states that “[p]laintiff meets these criteria as follows” (Memo at 3:12) and then proceeds to discuss such criteria in a section of the Memorandum of Points and Authorities entitled “Defendant’s acceptance of loan/failure to repay, Damages.” (Memo at 3:14-25.)  With respect to whether plaintiff’s claim is one upon which attachment may be issued, “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(a).) Plaintiff explains that the loan was evidenced by a promissory note attached to the supporting declaration as Exhibit A. (Memo. at 3:15-18.) With respect to whether plaintiff establishes the probable validity of its claim, whether the attachment is sought for a purpose other than recovery on its claim, and whether the amount to be secured is greater than zero, plaintiff explains that an unpaid balance of $18,485.32 remains, despite the loan having matured. (Memo at 3:18-21.)

Defendants next argue that plaintiff seeks a temporary protective order in Judicial Council Form AT-105 but did not address the temporary protective order in the memorandum of points and authorities. Defendant is correct. If plaintiff is entitled to a right to attach order, a temporary protective order may issue if plaintiffs “will suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary protective order is not issued.” (CCP § 486.020.) “Great or irreparable injury” is shown when “it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute.” (CCP § 485.010(b)(2).) Plaintiff has not shown that defendant Prinko is not generally paying its debts. Under the circumstances, the Court finds that a writ of attachment sufficiently protects plaintiff’s interests and that it would not be in the interest of justice to issue the temporary protective order as proposed. (CCP § 486.040.)

Defendants also argue that plaintiff asserted in the memorandum of points and authorities that a right to attach order is available against defendant Chen as a guarantor of the loan but plaintiff only seeks a right to attach order against Prinko in Form AT-105. Defendant also notes that plaintiff did not meet the requirements for attachment against a natural person, as set forth in CCP § 483.010(c). Defendant is correct. However, in the proposed right to attach order, defendant only seeks attachment as to Prinko. No right to attach order shall be issued as to defendant Chen.

Lastly, citing federal district court cases, defendants argue that, because plaintiff did not address defendants’ defenses, plaintiff did not demonstrate the probable validity of its claim. To begin with, federal district court opinions are not binding on this Court. (Qualified Patients Ass'n v. City of Anaheim (2010) 187 Cal.App.4th 734, 764 [lower federal court cases are not binding].) But even if this Court were to consider federal cases, the federal courts have said that, “[i]f an applicant fails to rebut a factually-supported defense that would defeat its claims, the applicant has not established probable validity.” (Studio 159, LLC v. Pophang, LLC (C.D. Cal., Dec. 21, 2012) 2012 WL 6675790 at *3, citing Intervest Mortgage Inv. Co. v. Skidmore (E.D. Cal. Dec. 19, 2008) 2008 WL 5385880 at *7.) Here, defendants’ answer contains boilerplate affirmative defenses without allegations of any facts supporting the defenses.  This is insufficient to undermine plaintiff’s showing of probable validity of its claims.

Lastly, the Court notes that the parties dispute the outstanding balance owed. Plaintiff maintains that an outstanding balance of $18,485.32 remains, whereas defendants maintain that the outstanding balance is $15,276.29. While defendants maintain that they made partial payments of $26,568.32, plaintiff did not provide evidence of the amount of defendants’ partial payments, which could be credited to the balance. (Chen Decl. ¶ 6; Liu Decl. ¶ 7.) As the moving party, it is plaintiff’s burden to set forth the basis upon which its damages can be computed. Plaintiff failed to fully satisfy this burden by not stating the amount of partial payments made, or how it calculated interest. Accordingly, plaintiff does not adequately support its claim of an outstanding balance of $18,485.32.  However, defendants admit that an outstanding balance of $15,276.29 remains and the loan has matured.  (Opp. at 3:14; Chen Decl. ¶ 6.)  Given such concession, a right to attach order in the amount of $15,276.29 shall issue.

Before any attachment order shall issue, plaintiff must post an undertaking in the amount of $10,000. (CCP § 489.220.)

The Court will sign the proposed right to attach order, electronically received 10/9/24, in accordance with the foregoing, including modification of the portion of the proposed order stating that Prinko shall transfer to the levying officer possession of all funds in its name in accounts at Chase Bank. Prinko shall transfer any funds in its accounts at Chase Bank in an amount not to exceed $15,276.29 – the amount of attachment.