Judge James C. Chalfant, Case Number: 23STCV16523, Date: 2025-02-06 Tentative Ruling

Rico’s Custom Sheet Metal Inc. v. Sahagun, et al., 23STCV16523

Tentative decision on application for right to attach order: denied

Plaintiff Rico’s Custom Sheet Metal, Inc. (“Rico”) applies for a right to attach order against Defendant Mike Sahagun, individually and dba Air Design Solutions (“Sahagun”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Plaintiff Rico filed the Complaint on July 14, 2023, alleging common counts against Defendant Sahagun for open book account, account stated, money had and received, goods sold and delivered, and work and labor done. Compl., ¶¶6-18. The Complaint alleges in pertinent part as follows.

Within the last four years, Sahagun became indebted to Rico on an open book account, money had and received for Sahagun’s use and benefit, for goods sold and delivered, and for work and labor done by Rico Sahagun’s request. Money is due from Sahagun in the sum of $83,215.10, plus interest thereon at the legal rate from the date hereof. Compl. ¶¶ 7, 10, 13, 16, 19. Neither the whole nor any part of the sum has been paid, although payment has been demanded. Compl., ¶¶8, 11, 14, 17, 20. Rico requests attorney’s fees pursuant to Code of Civil Procedure section 1717.5. Compl., p.4.

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP §481.010 et seq.) that meets the due process requirements set forth in Randone v. Appellate Department, (1971) 5 Cal.3d 536. See Western Steel & Ship Repair v. RMI, (12986) 176 Cal.App.3d 1108, 1115. As the attachment statutes are purely the creation of the Legislature, they are strictly construed. Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.

A writ of attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500). CCP §483.010(a). A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).

All property within California of a corporation, association, or partnership is subject to attachment if there is a method of levy for the property. CCP §487.010(a), (b). While a trustee is a natural person, a trust is not. Therefore, a trust’s property is subject to attachment on the same basis as a corporation or partnership. Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, supra, 197 Cal.App.3d at 4.

The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint. CCP §484.010. Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing. See ibid.

The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115). The application must 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. CCP §484.030.

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing. CCP §484.050(e). The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).

The plaintiff may file and serve a reply two court days prior to the date set for the hearing. CCP §484.060(c).

At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment. The defendant may appear the hearing. CCP §484.050(h). The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence. Bank of America, supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. CCP §482.040. The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed. See Bank of America, supra, at 271, 273.

The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP §484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP §484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP §484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP §484.090(a)(4)).

A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. CCP §481.190. In determining this issue, the court must consider the relative merits of the positions of the respective parties. Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484. The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order. CCP §484.050(b).

The amount to be secured by the attachment is the sum of (1) the amount of the defendant’s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys’ fees under CCP section 482.110. CCP §483.015(a); Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852. This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant’s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest’s value. CCP §483.015(b). A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a prima facie showing that the claim would result in an attachment against the plaintiff.

Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. CCP §489.210. The undertaking ordinarily is $10,000. CCP §489.220. If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment. CCP §489.220. The court also has inherent authority to increase the amount of the undertaking sua sponte. North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.

Rico is a commercial manufacturer of custom-made air conditioning, and Sahagun is a contractor and a regular customer of Rico. Gomez Decl., ¶4. Rico and Sahagun have been doing business together for several years prior to the instant lawsuit. Gomez Decl., ¶4.

In or about April 2020, Sahagun engaged Rico to perform custom-made sheet metal work for a project called “Maclay.” Gomez Decl. ¶4, Ex. 1. From April 2020 through October 2020, Rico performed and delivered a substantial amount of custom-made sheet metal work to Sahagun at his job site. Gomez Decl., ¶4, Ex. 1. Sahagun failed to make any payments on this debt. Gomez Decl. ¶5.

Sahagun’s account is beyond past due. Gomez Decl. ¶7, Ex. 2. After adjustments and credits, there is now due and owing from Sahagun to Rico the principal sum of $83,215.10. Gomez Decl., ¶7. Ex. 2.

This amount does not include interest, estimated attorney fees, or costs. Gomez Decl. ¶7. Rico took estimated attorney’s fees from the LASC Fee Schedule, which are not indicative of the actual attorney’s fees incurred in this case. Gomez Decl. ¶6.

Sahagun is the principal of Air Design Solutions (“ADS”), which specializes in providing HVAC services to general contractors, primarily school district projects. Sahagun Decl., ¶2. ADS hires subcontractors to assist with projects it secures through bidding. Sahagun Decl., ¶2. These subcontractors enter agreements specifying their work scope, after which they bill for their services and pre-lien the job. Sahagun Decl., ¶2. They are required to submit bills of lading and receipts signed by a foreman to document materials and work performed, along with invoices and conditional or unconditional releases for payments. Sahagun Decl., ¶2.

Rico did not meet these requirements. Sahagun Decl., ¶3. Sahagun has reviewed Gomez Exhibit 1, and he cannot determine whether ADS ordered the invoiced items, authorized them, or received them for the Maclay project. Sahagun Decl., ¶3. No receipts signed by a foreman or pre-lien documents are provided. Sahagun Decl. ¶3. Additionally, there is no agreement between ADS and Rico. Sahagun Decl., ¶3. Sahagun asked Rico to produce any agreements or estimates, and Rico declined to do so. Sahagun Decl. ¶3.

Furthermore, Rico’s did not produce any documentation regarding the transmission of invoices, receipts, pre-lien filings, or item authorization. Sahagun Decl. ¶4. Invoice Nos. 14864, 15150, 15730, and 16796, lack any proof of shipment, authorization, or delivery to ADS. Sahagun Decl., ¶5. There is no evidence that “GARRY” had authorization to order the items. Sahagun Decl., ¶5. Invoice Nos. 15235, 15637, 15727, and 15780 similarly fail to include receipts or authorization, raising further doubts about their legitimacy. Sahagun Decl., ¶6.

Given the absence of receipts, bills of lading, and bonding company submissions, it remains unclear whether ADS actually ordered or received these materials. Sahagun Decl., ¶7. Sahagun has served requests for document production and interrogatories, but Rico’s responses contain only objections rather than substantive answers. Sahagun Decl., ¶¶ 8-11, Exs 1-4.

Plaintiff Rico seeks a right to attach order against Sahagun in the amount of $89,415.10, which includes an estimated $5000 in attorney fees and $1200 in estimated costs.[2]

Rico’s claim for attachment is based on a partly written contract between the parties and exceeds $500.

A claim is “readily ascertainable” where the damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41. The fact that the damages are unliquidated is not determinative. Id. But the contract must furnish a standard by which the amount may be ascertained and there must be a basis by which the damages can be determined by proof. Id. (citations omitted).

From April 2020 through October 2020, Rico performed and delivered a substantial amount of custom-made sheet metal work to Sahagun at his job site. Gomez Decl., ¶4, Ex. 1. Sahagun failed to make any payments on this debt. Gomez Decl. ¶5. Rico’s claim is based on its invoices (Ex.1) and Statement of Account. Gomez Decl. ¶7, Ex. 2. The principal sum due of $83,215.10 is readily ascertainable. Gomez Decl., ¶7. Ex. 2.

Rico’s estimated attorney’s fees are from the LASC Attorney Fee Schedule LASC 3.214, and are readily ascertainable. Gomez Decl. ¶6. Rico’s estimated costs of $1200 are not supported by an attorney declaration and are disallowed.

Rico presents evidence that, in or about April 2020, Sahagun engaged Rico to perform custom-made sheet metal work for a project called “Maclay.” Gomez Decl. ¶4, Ex. 1. From April 2020 through October 2020, Rico performed and delivered a substantial amount of custom-made sheet metal work to Sahagun at his job site. Gomez Decl., ¶4, Ex. 1. Sahagun failed to make any payments on this debt. Gomez Decl. ¶5. Sahagun’s account is beyond past due. Gomez Decl. ¶7, Ex. 2. After adjustments and credits, there is now due and owing from Sahagun to Rico the principal sum of $83,215.10. Gomez Decl., ¶7. Ex. 2.

Sahagun responds that he hires subcontractors to assist with projects and those subcontractors enter agreements specifying their work scope, after which they bill for their services. Sahagun Decl., ¶2. They are required to submit bills of lading and receipts signed by a foreman to document materials and work performed, along with invoices and conditional or unconditional releases for payments. Sahagun Decl., ¶2.

Rico did not meet these requirements. Sahagun Decl., ¶3. Sahagun cannot determine whether ADS ordered the invoiced items in Exhibit 1, authorized them, or received them for the Maclay project. Sahagun Decl., ¶3. No receipts signed by a foreman or pre-lien documents are provided. Sahagun Decl. ¶3. Invoice Nos. 14864, 15150, 15730, and 16796, lack any proof of shipment, authorization, or delivery to ADS. Sahagun Decl., ¶5. There is no evidence that “GARRY” had authorization to order the items. Sahagun Decl., ¶5. Invoice Nos. 15235, 15637, 15727, and 15780 similarly fail to include receipts or authorization, raising further doubts about their legitimacy. Sahagun Decl., ¶6. Given the absence of receipts, bills of lading, and bonding company submissions, it remains unclear whether ADS actually ordered or received these materials. Sahagun Decl., ¶7.

The court agrees. Strict compliance is required with statutory requirements for affidavits for attachment (Anaheim National Bank v. Kraemer, (1932) 120 Cal.App. 63, 65), and the facts stated in an affidavit must be set forth with particularity. CCP §482.040; Witchell v. Korne, (1986) 179 Cal.App.3d 965, 975. The court must apply the same evidentiary standard to the declarations in an attachment hearing as to a case tried on oral testimony. VFS Financing, Inc. v. CHF Express, LLC, (2009) (C.D. Cal.) 620 F.Supp.2d 1092, 1096-97. The declarant must show personal knowledge of the relevant facts, and such evidence must be admissible and not objectionable. Id.

Rico has shown that Sahagun engaged Rico to perform custom-made sheet metal work for a project called “Maclay” and that it sent him invoices. It does not show that Sahagun ordered the product or that it was received. This is insufficient. Rico has not shown a probability of success.

Attachment must not be sought for a purpose other than the recovery on the claim upon which attachment is based.¿ CCP §484.090(a)(3). Rico seeks attachment for a proper purpose.

[1] The court has ruled on Sahagun’s written evidentiary objections, placing “O” for “overruled” and “S” for “sustained” next to the objection, once sustaining an objection in part. The clerk is directed to scan and electronically file the court’s rulings.

[2] Sahagun argues that the application is defective because it was signed by Rico’s attorney without a showing that he has personal knowledge of the facts therein. Opp. at 5. There is no such requirement.