Judge: H. Jay Ford, III, Case: 21SMCV00830, Date: 2024-03-21 Tentative Ruling

Case Number: 21SMCV00830    Hearing Date: March 21, 2024    Dept: O

  Case Name:  Brunsten v. Carmi Flavor and Fragrance Co., Inc.

SUBJECT:                APPLICATION FOR WRIT OF ATTACHMENT

MOVING PARTY:   Plaintiff William S. Brunsten, P.C.

RESP. PARTY:         Defendant Carmi Flavor and Fragrance Co., Inc.

TENTATIVE RULING

Plaintiff William S. Brunsten, P.C.’s Application for Writ of Attachment as to Defendant Carmi Flavor and Fragrance Company, Inc. is GRANTED. Plaintiff seeks a writ as to the Defendant in the amount of $455.077.69.  Plaintiff is ordered to post an undertaking in the amount of $10,000. 

1.  The Claim: The money claim must be for a “fixed or readily ascertainable amount” of not less than $500 (excluding costs, interest, and attorney fees).  CCP § 483.010(a).  “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.”  CCP §483.010(c).  CCP §483.010(c)).  “A purpose of the attachment statutes is to confine attachments to commercial situations and to prohibit them in consumer transactions.”  (Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4.)

The damages need not be liquidated. But they must be measurable by reference to the contract itself and the basis for computing damages must be reasonable and certain.  (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541 [master lease and corresponding lease schedules provided clear formula for computation of damages: monthly rent multiplied by unexpired term].) 

Plaintiff William S. Brunsten (“Brunsten”) claims Defendant Carmi Flavor and Fragrance Co., Inc. (“Carmi”) owes Brunsten $455,077.69 in legal fees, including $248,212.80 in unpaid invoices, $98,753.82 in late fees, $98,783.82 in prejudgment interest, $5,498.80 in litigation expenses, and $3.798.45 in legal fees and costs charged to Plaintiff by Parker Shaffie LLP in this case paid by Brunsten. (Brunsten Decl., ¶¶ 8–11, Ex. 3, 4.) Brunsten establishes Carmi’s unpaid invoices from 11-1-19 to 12-3-20 totaling $248,212.80. (Brunsten Decl., ¶ 8, Ex. 4.) Brunsten establishes claimed late fees and claimed prejudgment interest at 10% annum applied to each of the invoices not paid by Carmi when due, totaling $197,507.64. (Brunsten Decl., ¶ 9, Ex. 3.) Brunsten establishes litigation expenses in this case at $5,498.80 based on the Case Summary from First Legal. (Brunsten Decl., ¶ 10, Ex. 4.) Brunsten establishes Parker Shaffie LLP attorney’s fees and costs of $3,798.45 paid by Brunsten. (Brunsten Decl., ¶ 11.)

2.  Probable Validity of the Claim: Is the claim supported and/or does the defendant have a viable argument in opposition to the claim?  If the application is unopposed, that appears to be a basis for finding that plaintiff has met his/her burden.  "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.). 

The court has the power to determine disputed facts on the basis of a preponderance of the evidence as disclosed in the affidavits and declarations (unlike summary judgment motions, for example, in which the court has no power to weigh the evidence).  See Hobbs v. Weiss (1999) 73 Cal. App.4th 76, 80 (court must “consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation”).  The trial court is not required to accept as true the sworn testimony of any witness or undisputed affidavit testimony. It may make contrary findings based on inferences drawn from other evidence.  See Bank of America v. Salinas Nissan (1989) 207 Cal.App.3d 260, 273.

            The Court finds that Plaintiff has proved the probable validity of its claim for unpaid attorney’s fees and late fees in the principal amount of  $373,784.31.  In accordance with the unanimous consent of the directors of Carmi, and under the terms of the engagement agreement between the SLC and Brunsten and the “stipulation” with Carmi, the payment of those fees due was authorized and approved by Jason Carmi.  (Dec. of Jason Carmi (signed 3-10-2022), ¶¶8-10. 12-13, ex E thereto.   The Court rejects Carmi’s arguments that Brunston must now prove his fees were reasonable, or that the engagement with Carmi is void.

            The Court is not persuaded that the amounts sought for prejudgment interest or other litigation expenses should be included in the amount the Court finds is appropriate for prejudgment attachment.

3.  Undertaking:  An undertaking is required pursuant to CCP §489.210 which provides that, "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."  A flat amount of undertaking is provided for by statute: $10,000 (CCP §489.220(a)).  The Court may set a higher amount pursuant to CCP §489.220(b) if there is an objection to the undertaking.

No undertaking provided.  Plaintiff is ordered to provide a $10,000 undertaking.