Judge: Donald F. Gaffney, Case: Hanley v. Speier, Date: 2023-05-17 Tentative Ruling
TENTATIVE RULING:
Defendant James Stephen Bosley, Successor Trustee of the Deborah N. Speier Revocable Trust Dated April 3, 1995, and Restated March 16, 1997, demurs to the Second Cause of Action of the First Amended Complaint of Plaintiff William B. Hanley. For the following reasons, the demurrer is SUSTAINED with leave to amend.
Second Cause of Action
The second cause of action alleges that Defendant Bosley, as successor trustee of the Steven M. Speier Revocable Living Trust and successor trustee of the Deborah N. Speier Revocable Trust, in entering into escrow to sell the Newport Beach Property, aided and abetted Speier’s relatives in avoiding the obligations owed to Plaintiff. (FAC ¶¶ 21-23.)
The elements for adding and abetting a civil tort are: (i) Defendant’s knowledge of a tort to be committed against Plaintiff by third party; (ii) Defendant’s giving assistance or substantial encouragement to the third party; (iii) that Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1140-1141.)
Here, the FAC does not allege sufficient facts to support the claim. Plaintiff contends the underlying tort is interference with an attorney’s contractual lien (Opp. at 4:9-15), but neither the allegations in the FAC nor the attached Attorney-Client Fee Agreement support the existence of any contractual lien or interference therewith. The agreement provides that a “lien will attach to any recovery you obtain.” (FAC, Ex. 1 at ¶ 7.) The FAC concedes that there was no recovery obtained by Defendant Speier; instead, Plaintiff’s claim against Speier is based on “debt forgiveness.” (See FAC ¶¶ 15-16.)
Defendant Bosley’s request for judicial notice is denied, as it is unnecessary to ask the court to take judicial notice of materials previously filed in this case.
Moving Defendant to give notice.
TENTATIVE RULING:
Application for Right to Attach Order (Defendant Speier)
Plaintiff William B. Hanley applies for a right to attach order and writ of attachment in the amount of $1,200,000 against the property of Defendant Steven M. Speier. For the following reasons, the motion is DENIED.
Upon the filing of a complaint or at any time thereafter, the plaintiff may apply for a right to attach order (“RTAO”) and writ of attachment by filing an application for the order and writ with the court in which the action is brought. (Code Civ. Proc., § 484.010.) To obtain an RTAO, Plaintiff has the burden of proving: (1) the claim is one on which an attachment order may be issued; (2) the probable validity of the claim; and (3) that the attachment is not sought for any other purpose than to secure recovery on the claim. (See Code Civ. Proc., § 484.090.) An attachment may be issued only if the claim sued upon is: (1) a claim for money based upon a contract, “express or implied”; (2) of a fixed or readily ascertainable amount not less than $500; (3) that is either unsecured or secured by personal property, not real property; and (4) that is a commercial claim. (Code Civ. Proc. § 483.010.)
Specifically, Code of Civil Procedure Section 483.010(c) provides in relevant part:
If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession. An attachment may not be issued on a claim against a defendant who is a natural person if the claim is based on . . . the furnishing of services . . . used by the defendant primarily for personal, family, or household purposes.”
In other words, specific to individuals, attachment may issue only where the claim is against an individual arising out of his conduct of a trade, business, or profession. (Code Civ. Proc. § 483.010, subd. (c).) Generally, this means an activity carried on for the purpose of livelihood or profit on a continuing basis. (Nakasone v. Randall (1982) 129 Cal.App.3d 757, 764 [reversing trial court’s denial of motion to quash prejudgment writ of attachment, on claim involving the sale of defendant real estate broker’s personal home]; see also Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4 [in dicta].) “A purpose of the attachment statutes is to confine attachments to commercial situations and to prohibit them in consumer transactions. The language, ‘trade, business or profession,’ in section 483.010, subdivision (c) fulfills that purpose by limiting the use of attachments to ‘commercial transactions’ and precluding them in ‘consumer transactions.’ [Citation.]” (Ibid.)
Evidence proffered in support of, or in opposition to, an application for an RTAO must be set forth with particularity, admissible, competent, and under oath by declarants with personal knowledge of the facts proffered. (See Code Civ. Proc., §§ 482.040, 484.020, 484.030; Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1390.) The party seeking the attachment at all times bears the burden of proving the facts essential to support the attachment sought. (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1115-1116.)
The FAC pleads a single cause of action against Defendant Speier for Breach of Contract. (See FAC ¶¶ 1-19.)
Here, Plaintiff does not show the breach of contract claim to arise out of Defendant Speier’s conduct of a trade, business, or profession. Defendant Speier was sued in an initial action and arbitration, wherein Defendant Speier was found liable for actions taken in his profession as a court-appointed manager of certain funds. (See Hanley Supp. Decl. ¶¶ 3-4, 7.) That arbitration resulted in a personal judgment entered against Defendant. (See id. at ¶ 8.) Thereafter, Defendant Speier entered a consumer transaction, wherein he retained attorneys, including Plaintiff, to file a breach of contract action against third parties who had previously agreed to pay Defendant’s personal judgment. (See id. at ¶ 9.) As such, the breach of contract claim sued upon here arises from that consumer transaction.
Plaintiff’s request for judicial notice (ROA 78) is granted. (Evid. Code, § 452(d), (h).)
Defendant Speier to give notice.
Application for Right to Attach Order (Defendant Bosley)
Plaintiff William B. Hanley applies for a right to attach order and writ of attachment in the amount of $1,200,000 against the property of Defendant James Steven Bosley. For the following reasons, the application is DENIED.
Upon the filing of a complaint or at any time thereafter, the plaintiff may apply for a right to attach order (“RTAO”) and writ of attachment by filing an application for the order and writ with the court in which the action is brought. (Code Civ. Proc., § 484.010.) To obtain an RTAO, Plaintiff has the burden of proving: (1) the claim is one on which an attachment order may be issued; (2) the probable validity of the claim; and (3) that the attachment is not sought for any other purpose than to secure recovery on the claim. (See Code Civ. Proc., § 484.090.) An attachment may be issued only if the claim sued upon is: (1) a claim for money based upon a contract, “express or implied”; (2) of a fixed or readily ascertainable amount not less than $500; (3) that is either unsecured or secured by personal property, not real property; and (4) that is a commercial claim. (Code Civ. Proc. § 483.010.) Specifically, Code of Civil Procedure Section 483.010(a) provides in relevant part: “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 . . . .”
Evidence proffered in support of, or in opposition to, an application for an RTAO must be set forth with particularity, admissible, competent, and under oath by declarants with personal knowledge of the facts proffered. (See Code Civ. Proc., §§ 482.040, 484.020, 484.030; Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1390.) The party seeking the attachment at all times bears the burden of proving the facts essential to support the attachment sought. (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1115-1116.)
The FAC pleads a single cause of action against Defendant Bosley for Aiding and Abetting Transfer of Property. (See FAC ¶¶ 20-25.) Aiding and abetting is not a contractual claim. (See CACI 3610; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574.)
On 04/19/2023, this court continued the hearing for supplemental briefing on whether a contractual relationship was needed between Plaintiff and Defendant Trustee Bosley. In his supplemental briefing, Plaintiff contends that no contractual relationship is needed, as “[t]he only contractual relationship necessary is the one between Plaintiff and Defendant Speier.” (Pltf.’s Supp. Br. at 3:20.) Plaintiff cites no relevant authority to support of that contention, and this court is aware of none. While a contractual relationship between Plaintiff and Defendant Bosley may not be necessary to attach trust assets otherwise subject to attachment on a claim against Defendant Speier (see Code Civ. Proc., § 700.040), the contractual relationship is indispensable for any attachment order to issue against Defendant Trustee Bosley (Code Civ. Proc., § 483.010(a)).
Plaintiff’s request for judicial notice (ROA 78) is granted. (Evid. Code, § 452(d), (h).)
Defendant Bosley’s request for judicial notice (ROA 91) is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. (See Weil & Brown, Cal. Prac. Guide: Civil Proc. Before Trial (The Rutter Group 2022) ¶ 9.53.1a.) The court record shows no “Exhibit 15” concurrently filed with the request and as such, the court must deny the request to take judicial notice of that purported document.
Defendant Bosley to give notice.