Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This action arises from a breach of promissory notes.  Plaintiff A&M Engineering Inc. made three short-term loans to two Defendants, Global Automotive Solutions LLC (“GAS”) and GAS’s successor in interest, Stelaro LLC (“Stelaro”).  The loans total $14 million, only $1 million of which Plaintiff claims has been repaid.  The loans were purportedly used to buy cars in Mexico which were re-sold for a profit in other countries.   

Defendant Christopher Klein served as the CEO of GAS and Stelaro.  Defendant Alondra Group, LLC is the sole shareholder of Stelaro.  Plaintiff has sued other corporate defendants who it claims are the alter egos of Klein, including Christopher Klein Enterprises LLC (“CKE”), Executive Auto Rentals, LLC (“EAR”), and Luxury Lift, LLC (“Luxury”).  Plaintiff has also sued Instant Infosystems, Inc. (“Instant”) which it claims received fraudulent transfers from Stelaro.       

Plaintiff filed the instant action alleging ten causes of action for (1) breach of contract, (2) fraud-misrepresentation, (3) fraud-concealment, (4) negligent misrepresentation, (5) receiving stolen property – Penal Code § 496(a), (c); (6) fraudulent transfer – Civ. Code § 3439 et seq.; (7) breach of fiduciary duty, (8) unfair competition – Bus. & Prof. Code § 17200; (9) constructive trust, and (10) unjust enrichment.   

This hearing is on Plaintiff’s applications for writ of attachment.  The Court previously denied the motions on the ground that the applications were verified by counsel rather than Plaintiff and Plaintiff also failed to show it had a probability of prevailing on its alter ego claims.  Plaintiff is now renewing its applications pursuant to §1008.   

LEGAL STANDARD 

“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.”¿ (Code Civ. Proc. § 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. section 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.¿ (Code Civ. Proc. § 484.020.)¿¿ 

“The application [for a writ of attachment] shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”¿ (Code Civ. Proc. § 484.030.)¿¿¿ 

The Court shall issue a right to attach order if the Court 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.¿ 

 

(4) The amount to be secured by the attachment is greater than zero.¿ 

CCP § 484.090.¿ 

 

“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.”¿ (Code Civ. Proc. § 481.190.)  In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”¿ (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)¿¿ 

At the times prescribed by Code Civ. Proc. § 1005(b), the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence.¿ (Code Civ. Proc. § 484.040.)¿¿¿ 

Attachment is a drastic remedy in that it provides for the collection of a debt by seizure in advance of trial and judgment, as security for the eventual satisfaction of the judgment.  Thus, under California law, attachment is a purely statutory remedy, subject to strict construction.  (Epstein v. Abrams¿(1997) 57 Cal.App.4th 1159, 1168.)  

ANALYSIS 

 

Plaintiff is renewing its applications for writ of attachment pursuant to Code Civ. Proc. §1008.  (Dunn Decl. ¶5.)  Under §1008, a motion for reconsideration must be based on “new or different facts, circumstances or law.”  (Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499 (a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law”).)¿¿  

There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence, different facts, or law earlier.¿ (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.)¿ A motion for reconsideration is properly denied when it is based on evidence that could have been presented in connection with the original motion.¿ (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460;¿Hennigan v. White (2011) 199 Cal.App.4th 395, 406.)   

“Section 1008’s purpose is to conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over, or move for reconsideration of every adverse order and then appeal the denial of the motion to reconsider.”  (Even Zohar Constr. & Remodeling Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839-840.)  

Here, Plaintiff claims new or different facts based on the Declaration of David Klein filed in opposition to Plaintiff’s earlier applications for writ, and “the Court’s position with respect to the method of certification of the previous application[s], neither of which were in [Plaintiff’s] possession when it filed its earlier application[s].”  (Dunn Decl. ¶5.)  Neither of these “facts” are new or different.   

Klein’s declaration was filed in opposition to Plaintiff’s earlier applications for writ and was therefore before the Court and not a “new or different fact.”  Plaintiff also had the declaration before it filed its reply and could have addressed the declaration in its reply papers or at the hearing on its original applications.   

As to the Court’s “position” on the “method of certification”, Plaintiff is charged with knowledge of the law, and its ignorance of the law cannot create a basis for renewal.  (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670 (mistake based on ignorance of the law “not a proper basis” for Section 1008 motion).)  If it were otherwise, every disappointed litigant could bring a §1008 claim based on law it failed to consider or cite.   

Accordingly, because Plaintiff has not identified any new or different facts, the Court denies its §1008 motion.  Given this ruling, the Court declines to consider the evidentiary objections raised by Alondra, Stelaro and Instant, and Instant’s request for judicial notice.   

CONCLUSION 

For the foregoing reasons, the Court DENIES Plaintiff A&M Engineering, Inc.’s applications for a prejudgment writ of attachment against Christopher Klein, Stelaro, LLC, Instant Infosystems, Inc. Alondra Group LLC, Luxury Lifts LLC and Executive Auto Rentals, LLC.   

 

IT IS SO ORDERED. 

 

DATED: February 2, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court