Judge Cynthia A Freeland, Case Number: 37-2023-00054366-CU-BC-NC, Date: 2024-06-21 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00054366-CU-BC-NC, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 20, 2024

06/21/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00054366-CU-BC-NC HOCKENBERRY VS CPR CLASSIC SALES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Application for Right to Attach Order, Temporary Protective Order,

Etc., 02/02/2024 Plaintiff Robert Hockenberry ('Plaintiff')'s application for a right to attach order and for issuance of a writ of attachment is granted.

Plaintiff's request for judicial notice is granted.

An attachment is a prejudgment remedy that allows a creditor to obtain a lien on the debtor's assets until the matter can be finally adjudicated. See Cal. Code Civ. P. �� 481.010 et seq. An attachment may issue only if the claim sued upon is: (1) based on a contract, express or implied; (2) for a fixed or readily ascertainable amount not less than $500.00; (3) either unsecured or secured by personal property, not real property; and (4) is a commercial claim. See Cal. Code Civ. P. � 483.010; Goldstein v. Barak Construction (2008) 164 Cal. App. 4th 845, 852. While the damages sought need not be liquidated, they must be measurable by reference to the contract itself and the basis for computing damages must be reasonable and certain. See CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal. App. 4th 537, 541. To obtain a writ of attachment, the moving party must establish: (1) that the claim upon which attachment is sought is one upon which an attachment may issue; (2) the probable validity of the claim; (3) the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based; and (4) that the amount to be secured by the attachment is greater than zero.

See Cal. Code Civ. P. � 484.090(a). 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.' Cal. Code Civ. P. � 481.190.

The court construes Defendant Andrea Doherty-Culver ('Defendant')'s lack of opposition as a concession of the application's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the court finds that Plaintiff has satisfied the procedural and substantive requirements for issuance of a right to attach order and order for writ of attachment. The uncontroverted evidence establishes that on April 20, 2022, Plaintiff and Defendant CPR Classic Sales ('CPR'), through Defendant, entered into a Consignment Agreement (the 'Agreement') under which CPR agreed to sell, on consignment, Plaintiff's 1973 Porsche 911E Targa (the 'Porsche') with an asking price of between $210,000.00 and $215,000.00 with CPR retaining a 10% commission of the sales proceeds. See Hockenberry Decl., �� 2-6, Exs. 1-2. On June 20, 2023, Defendant informed Plaintiff that CPR had sold the Porsche for $200,000.00, thus entitling CPR to a 10% commission, or $20,000.00, with the $180,000.00 balance owed to Plaintiff. Ibid., � 7. On June 20, 2023, Plaintiff executed a Vehicle/Vessel Transfer and Reassignment Form transferring title of the Porsche to CPR for the benefit of the third-party purchaser.

Ibid., � 8, Ex. 3. On June 27, 2023, CPR, through Defendant, issued a check to Plaintiff in the amount of $180,000.00. Ibid., � 9, Ex. 4. Plaintiff subsequently attempted to cash the check on several occasions; Calendar No.: Event ID: TENTATIVE RULINGS

3083937 CASE NUMBER: CASE TITLE: HOCKENBERRY VS CPR CLASSIC SALES [IMAGED] 37-2023-00054366-CU-BC-NC however, the check was returned for insufficient funds. Ibid., �� 11-12. To date, Plaintiff has not received payment as required by the Agreement. Ibid., � 20. Based on the foregoing, the court finds that Plaintiff has established: (1) that his claim is one upon which an attachment may issue; (2) that his claims for breach of contract and common counts as set forth in his December 15, 2023 Complaint (see ROA No.

1) are probably valid; (3) the attachment is not being sought for a purpose other than recovery of the claims upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Consequently, the court will issue a writ of attachment in the amount of $232,743.24 (the $180,000.00 outstanding balance under the Agreement + $45,000.00 in estimated attorney's fees + $7,743.24 in accrued interest from June 27, 2023 through January 31, 2024).

To the extent Plaintiff seeks a preliminary injunction, such request is denied. To start, the request is procedurally deficient as Plaintiff failed to provide Defendant with the appropriate notice that he would be seeking a preliminary injunction. See Cal. Code Civ. P. � 527(a). Moreover, Plaintiff, on the current record, has not made the requisite evidentiary showing that the relative balance of harms favors the issuance of a preliminary injunction. See, e.g., White v. Davis (2003) 30 Cal. 4th 528, 554.

In light of the foregoing, the court grants the application. A writ of attachment shall issue in the amount of $232,743.24 to be secured by the nonexempt assets identified in the application, subject to Plaintiff filing a $10,000.00 undertaking. See Cal. Code Civ. P. �� 484.090(b), 487.010, 487.020, 489.210, 489.220(a).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, June 21, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of June 21, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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