Judge: Frank M. Tavelman, Case: 23BBCV00826, Date: 2023-09-01 Tentative Ruling

Case Number: 23BBCV00826    Hearing Date: September 1, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

APPLICATION FOR WRIT OF ATTACHMENT

ALLEGATIONS: 

F&W Distribution, LLC dba F&W Food Services (“Plaintiff”) brings this action against Golden Living, Inc. dba Golden Living of Point Loma and Golden Living (“Defendant”) for breach of contract.  Plaintiff now applies for a writ of attachment in the amount of $303,610.12, which comprises the balance owed across three accounts Defendant allegedly maintained with Plaintiff. Defendant opposes the application and Plaintiff replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

Writ of Attachment

Code of Civil Procedure (“C.C.P.”) § 484.010 provides “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.” 

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.  (C.C.P. § 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.”  (C.C.P. § 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. 

(C.C.P. § 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.”  (C.C.P. § 481.190.) 

II.                 MERITS

Relief Sought

Plaintiff seeks a writ of attachment in the amount of $303,610.12, including $2,000 in estimated costs. (App. ¶ 8.) The writ is sought as against “any property of a defendant who is not a natural person.” (App. ¶ 9.)

Breach of Contract Claim

Defendant argues Plaintiff’s writ of attachment must fail because Plaintiff has not demonstrated probable validity of the claim for breach of contract. Specifically, Defendant argues Plaintiff has not shown a valid contract exists between the parties.

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)

To show probable validity of its claim, Plaintiff offers the declaration of its president David Finkelstein. Finkelstein states that Plaintiff entered into an agreement with Defendant to provide goods consisting of food and non-food products in March of 2012. (Finkelstein Decl. ¶2.) Finkelstein attaches a copy of the alleged agreement, consisting of a credit application and invoices, between the parties as Exhibit A. A review of the credit application reveals that none of the information is filled out regarding the accounts except for the name and address of Defendant. No substantive terms are laid out and no signature is present from any party. Finkelstein’s declaration does not aver as to who entered into this agreement, only that the agreement provided Plaintiff would provide goods to Defendant from time to time. (Finkelstein Decl. ¶ 2.) By itself, the credit application which Plaintiff claims to be part of the agreement is insufficient to establish a contract between the parties.

However, Plaintiff submits voluminous invoices in connection with the agreement showing that goods were delivered to Defendant. (Finkelstein Decl. Exh. B.) These invoices contain a detailed accounting of the items delivered, the dates they were delivered, and the costs associated with them (Id.) Finkelstein states these invoices were rendered in connection with three separate accounts Defendant maintained with Plaintiff. (Finkelstein Decl ¶ 4.) The Court finds these invoices, in connection with the statement of Finkelstein, are sufficient to demonstrate the legal effect of a contract between the parties. It is clear from Plaintiff’s submissions that Defendant agreed to accept goods from Plaintiff in exchange for payment. Defendant submits no other arguments or facts in contravention of Plaintiff’s claim for breach of contract.  As such, Plaintiffs application is GRANTED.

Undertaking

“Before issuance of a writ of attachment … the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.” (C.C.P. § 489.210.) A flat amount of $10,000 is provided for by statute. (C.C.P. § 489.220(a).) A writ of attachment issued without the mandated bond is void. A defendant whose damages would be larger than the statutory amount may object, supported by declarations showing why the statutory amount is insufficient. If the court is convinced, it may order the undertaking increased to the “probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful.” (C.C.P. § 489.220(b).)

Here, Plaintiff has yet to post an undertaking. (App. ¶ 15.) As such, Plaintiff is to post bond in the statutory amount of $10,000. Defendant submits no arguments in its moving papers why this amount is insufficient, should the application be granted. Should Defendant believe this amount insufficient, it may produce arguments to this effect at oral argument.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

F&W Distribution, LLC’s Application for Writ of Attachment came on regularly for hearing on September 1, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE APPLICATION FOR WRIT OF ATTACHMENT IS GRANTED CONDITIONED UPON THE FILING OF A $10,000 UNDERTAKING.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  September 1, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles