Judge Curtis A. Kin, Case Number: 25STCV11354, Date: 2025-06-12 Tentative Ruling

Plaintiffs Eco Couriers, Inc. and Medisupplies, Inc. (collectively “plaintiffs”) separately and jointly move for a right to attach order against defendant Biological Laboratory, Inc. in the amount of $274,040.15 and $783,948.55, respectively.[1]

On May 23, 2022, plaintiff Eco Couriers, Inc. (“Eco”) entered into a contract with defendant, pursuant to which Eco agreed to provide courier services for the purposes of transporting laboratory specimens. (Compl. ¶¶ 11-12 & Ex. 1.) Eco provided these services from 2022 through early 2025, and, based on the invoices provided, defendant has only paid half of them. (Compl. ¶ 13-14, Ex. 2.) Presently, defendant owes Eco $274,040.15. (Compl. ¶ 15.)

Between February 5, 2024 through March 3, 2025, defendant placed supply orders with plaintiff Medisupplies Inc., which were delivered to defendant. (Compl. ¶¶ 21-23 & Exs. 3-4.) The past due balance associated with these orders is $783,948.55. (Compl. ¶¶ 22, 25, Ex. 4.)

“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 must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. § 101, et seq.); and (5) 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. (CCP § 484.020.)

The Court shall consider the showing made by the parties, as well as the pleadings and other papers in the record. (CCP § 484.090(a), (d).) The Court shall issue a right to attach order 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)(1-4).) “The Attachment Law statutes are subject to strict construction….” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

As a preliminary matter, defendant claims that the application should be denied because plaintiffs have not identified any risk of irreparable harm pursuant to CCP § 485.010(b). (Opp. at 7-8.) This argument is unavailing because the cited statute only applies when a writ of attachment is sought on an ex parte basis, which is not the case here.

Plaintiffs’ evidentiary objections to the declarations of Amy Ha and Fannie David are OVERRULED. Defendants’ evidentiary objections to the declarations of Moe Tamary and Firas Tamary are OVERRULED.

“[A]n 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).)

The present applications are based on plaintiffs’ breach of contract claims against defendant. (Pl. Mem at 7:8-10.)

In opposition, defendant does not contest the existence of the contracts but contends that the contracts and invoices are put into question due to misconduct perpetrated by its former CEO, Jordan Wang. In this regard, defendant claims that Wang received kickbacks from Eco and Medisupplies Inc. for directing defendant to use their services. (Opp. at 3; David Decl. ¶ 10; Ha Decl. ¶ 6.) Thus, defendant asserts that Wang breached the fiduciary duty he owed to the company. (Opp. at 2, citing Daniel Oriface Fitting Co. v. Whalen (“Daniel Oriface”) (1962) 198 Cal.App.2d 791.) Due to this purported illicit dealing, defendant claims that the contracts at issue with plaintiffs are void per Civil Code § 1608. Defendant also argues that the amount sought is not fixed or readily ascertainable due to the alleged kickbacks received. (Opp. at 6.)

The Court is not persuaded to find the contracts are void or voidable as urged by defendant based on the evidence provided. In Daniel Oriface, the Court explained: “It is the established law that a director or officer of a corporation may not enter into a competing enterprise which cripples or injures the business of the corporation of which he is an officer or director.” (198 Cal.App.2d at 800.) Here, by contrast, the evidence submitted merely shows that Wang insisted that defendant use services and products from plaintiffs and that plaintiffs’ services and products were more expensive than other providers. (Ha Decl. ¶ 5; David Decl. ¶¶ 6-9.) These allegations are insufficient to establish fraud or misconduct sufficient to invalidate the invoices or contracts that defendant entered into with plaintiffs. Indeed, the two declarations submitted by defendant merely state that Wang “allegedly” perpetuated fraud and received kickbacks. (See Ha Decl. ¶ 6; David Decl. ¶ 10.) Such conclusory allegations are insufficient.

Accordingly, plaintiffs have demonstrated a valid basis for attachment pursuant to their breach of contract claims.

“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.) “If the defendant opposes the application, ‘the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.’ [Citations.]” (Pech v. Morgan (2021) 61 Cal.App.5th 841, 855.)

Here, plaintiffs assert that a writ of attachment against defendant is appropriate because they provided services and/or products in connection with orders placed by defendant. (Pl. Mem. at 7:24-27; Compl. ¶¶ 11-25 & Exs. 1-4.) As a result, defendant became indebted to Eco and Medisupplies Inc. in the amounts of $274,040.15 and $783,948.55, respectively.

In opposition, defendant asserts several arguments as to why plaintiffs are unable to establish the probable validity of their claims. First, they assert that the subject transactions are tainted by fraud and self-dealing due to Wang’s participation in a kickback scheme. (Opp. at 5:2-11.) As discussed above, however, defendant has not submitted sufficient evidence to support this assertion.

Second, defendant argues that plaintiffs’ evidence is unsupported and self-serving because they consist of self-prepared spreadsheets. However, plaintiffs are permitted to rely on their verified complaint. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. (CCP §482.040.) While defendant asserts that plaintiffs have failed to submit the actual invoices to support the amount they seek to attach, the verified complaint alleges that Eco provided its services pursuant to the underlying agreement (Compl. ¶ 13) and that Medisupplies Inc. delivered the supplies defendant had ordered. (Compl. ¶ 23.) Defendant does not dispute these allegations in their opposition or present any evidence of nonperformance.

Third, defendant contends that its defenses will prevent plaintiff from succeeding at trial, but defendant did not submit any evidence to support its claimed defenses. (CCP § 484.060)

For the foregoing reasons, plaintiffs have demonstrated through the submitted evidence a probable validity of their breach of contract claims against defendant.

The other required findings under CCP § 484.090 are that the “attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based” and that the “amount to be secured by the attachment is greater than zero.” (CCP § 484.090(a)(3), (a)(4).)

Plaintiffs declares that “[a]ttachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based.” (Apps. ¶ 4.) Plaintiffs also demonstrates that the amount to be secured by the attachment is greater than zero. (Apps. ¶ 8.)

Based on the foregoing, the Court finds that Eco is entitled to attachment against defendant in the amount of $274,040.15. The Court further finds that Medisupplies Inc. is entitled to attachment against defendant in the amount of $783,948.55.

CCP § 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. CCP § 489.220 provides for an undertaking in the amount of $10,000, unless, in accordance with subsection (b), the Court determines a greater undertaking should be required based on the “probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful.” Defendant contends that a bond of $10,000 is vastly disproportionate to the amounts that plaintiffs seek to attach and states without explanation that an undertaking equal to 10% of the amount sought to be attached should be required. Given the insufficiency of the explanation, the Court will require the statutorily prescribed $10,000 undertaking for each writ.

Plaintiff Eco Couriers Inc.’s application against defendant Biological Laboratory Inc. is GRANTED in the requested amount of $274,040.15. Plaintiff Medisupplies Inc.’s application against defendant Biological Laboratory, Inc. is GRANTED in the requested amount of $783,948.55. Writs of attachment shall not be issued until plaintiffs post an undertaking in support of their writ. The Court will sign the Proposed Right to Attach Orders, electronically received April 28, 2025, in accordance herewith.

[1] Plaintiffs filed their applications for writ of attachment with their prior ex parte applications for a temporary protective order on April 28, 2025. These filings contain one memorandum of points and authority and identical declarations from Moe Tamary, Firas Tamary, and Bryan Theis. Plaintiffs thus rely on the same evidence used to support their ex parte applications.