Judge: Helen Zukin, Case: 22SMCV01237, Date: 2022-09-30 Tentative Ruling

Case Number: 22SMCV01237    Hearing Date: September 30, 2022    Dept: 207

Background

Plaintiff Justin Kohanoff (“Plaintiff”) brings this action to collect on two loans to Defendant Hacopian Design & Development Group, LLC (collectively with Defendant Ando Hacopian “Defendants”) which Plaintiff alleges were never repaid. Plaintiff filed his Complaint on July 28, 2022, alleging causes of action against Defendants 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].)

Plaintiff’s application was originally set for hearing on September 14. In advance of the hearing the Court posted a tentative ruling denying Plaintiff’s application because Plaintiff’s moving papers did not demonstrate Defendants had been properly served with the application and related documents as required by Code Civ. Proc. § 484.040. The Court’s tentative ruling denied Plaintiff’s application without prejudice to be refiled upon a showing of proper service. The application came on for hearing on September 14. When no party appeared, the Court issued a minute order noting the non-appearance and placing the matter off calendar. On September 15, 2022, Plaintiff filed two proofs of service, apparently in response to the Court’s tentative ruling. Plaintiff has not otherwise supplemented or refiled his original application.

The two proofs of service filed by Plaintiff purport to establish service on both Defendants on August 26, 2022. The Court questions whether the Defendants were properly served on August 26. Plaintiff attempted to serve both Defendants at 3206 Los Olivos Lane, La Crescenta, California 91214. Each proof of service contains notations from the process server indicating Defendants’ names were not on the mailbox for the property, and the occupant of the address informed the process server that Defendants do not reside there. Plaintiff attempted to serve Defendant Hacopian Design & Development Group, LLC (“HDDG”) through its registered agent for service of process, Defendant Ando Hacopian. The Court notes in its 2020 and 2022 filings with the California Secretary of State, HDDG designated 2376 Kimridge Road, Beverly Hills, CA as the address for its registered agent, as well as its principal and mailing addresses. The purported agreements attached to Plaintiff’s moving papers similarly indicate HDDG’s address is the Kimridge Road address listed on their filings with the Secretary of State.

Plaintiff’s moving papers are silent as to issue of service. Plaintiff makes no showing as to why service at the Los Olivos Lane address was proper. The Court thus has before it nothing which would indicate Defendants were properly served via substitute service at 3206 Los Olivos Lane. Indeed, the only evidence before the Court are the proofs of service themselves, which indicate 3206 Los Olivos Lane is occupied by a third party and not either of Defendants.

As set forth above, the attachment statutes must be strictly construed, and Plaintiff must satisfy the safeguards in place to ensure Defendants receive full and fair notice of Plaintiff’s application and hearing date. The Court finds Plaintiff’s application falls short of establishing the service requirements imposed by Code Civ. Proc. § 484.040 have been satisfied here. Accordingly, Plaintiff’s application is DENIED without prejudice to refile the application establishing proper notice was provided to Defendants in advance of the hearing.

Conclusion

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