Judge: Helen Zukin, Case: 22SMCV01237, Date: 2022-09-14 Tentative Ruling

Case Number: 22SMCV01237    Hearing Date: September 14, 2022    Dept: 207

Background

Plaintiff Justin Kohanoff (“Plaintiff”) brings this action to collect on two loans to Defendant Hacopian Design & Development Group, LLC (“Defendant”) which Plaintiff alleges were never repaid. Plaintiff filed his Complaint on July 28, 2022, alleging causes of action against Defendant for breach of contract, fraud and deceit, unjust enrichment, and common count. Plaintiff now brings an application for writ of attachment on his cause of action for breach of contract in the amount of $176,200.

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.” (C.C.P. § 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. (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.)

To obtain a writ of attachment, the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence by the times prescribed by Code Civ. Proc. § 1005(b). (C.C.P. § 484.040.)

Analysis

“The Attachment Law statutes are subject to strict construction.”¿(Epstein v. Abrams¿(1997) 57 Cal.App.4th 1159, 1168.) The Legislature enacted the current attachment statutes in response to the Court’s landmark holding in Randone v. Appellate Department (1971) 5 Cal. 3d 536, which “involved the attachment, without notice or hearing, of a bank account of the owners of a trucking company to satisfy an outstanding bill for legal services.” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79.) As a result, the attachment statutes set forth “a variety of safeguards, including the requirement of a noticed hearing to prevent the evil of depriving debtors of ‘much-needed assets for protracted periods of time during possibly meritless litigation.’” (Id. [quoting Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal. App. 3d 1108, 1115].)

Upon review of Plaintiff’s moving papers, the Court finds Plaintiff has not shown he has satisfied the service requirement set forth at Code Civ. Proc. § 484.040. Under section 484.040, Plaintiff had to serve Defendant with copies of the summons and complaint, notice of application and hearing, and the application and supporting evidence by the deadlines set forth in Code Civ. Proc. § 1005(b) governing service of motions where not otherwise specified by statute. Under section 1005(b), Plaintiff had to serve defendant with these documents at least 16 court days before the hearing on Plaintiff’s application for writ of attachment. Plaintiff has not filed proofs of service showing Defendant has been served with any of the materials required by section 484.040. Accordingly, Plaintiff’s application is DENIED without prejudice to refile the application establishing proper notice was provided to Defendant in advance of the hearing.

Conclusion

Plaintiff’s application for a writ of attachment as to Defendant Hacopian Design & Development Group, LLC is DENIED without prejudice.