Judge James C. Chalfant, Case Number: 23STCV17523, Date: 2023-11-28 Tentative Ruling

Plaintiff Hughes-Nelson Painting, Inc., doing business as Apex Imaging Services (“Apex”) applies for right to attach orders against Defendants American Home Construction (“AHC”), Todd Mason (“Mason”), and Linda Garnier (“Linda”) jointly and severally in the amount of $138,352.80.

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

A. Statement of the Case

1. Complaint

Plaintiff Apex filed the Complaint against Defendants AHC, Mason, and Linda on July 26, 2023, alleging four counts of breach of written contract, two counts of money had and received, two counts of open-book account, and two counts of account stated. The Complaint alleges in pertinent part as follows.

On December 2, 2022, Apex and AHC entered into a written Master Subcontract Agreement (“MSA”) to govern all future subcontracts between them.

On March 16, 2023, Apex, AHC, Mason, and Linda entered into a written subcontract agreement (“Santa Maria Subcontract”) for construction work on a project at 2501 South Broadway, Santa Maria, CA 93455. On March 17, 2023, Apex, AHC, Mason, and Linda entered into a subcontract agreement (“Killeen Subcontract”) for construction work at 1612 Lowes Blvd. Killeen, TX 76542, a subcontract agreement (“Houston Subcontract”) for construction work at 11785 Westheimer Rd., Houston, TX 77077, and a subcontract agreement (“Eagle Pass Subcontract”) for construction work at 446 S. Texas Dr, Eagle Pass, TX 78852.

Defendants failed to perform under the Santa Maria and Killeen Subcontracts and were terminated from the projects. Apex also decided to preemptively terminate the Houston and Eagle Pass Subcontracts. Defendants are liable for all costs Apex then incurred to get the projects back completed.

Defendants received a $47,276 deposit in connection with their construction of the Houston project. They also received a $49,978 deposit intended for construction of the Eagle Pass project. These Subcontracts were terminated before work began and Defendants have not repaid these monies.

Apex seeks damages for breach of all four Subcontracts, the return of the $47,276 and $49,978 deposits with interest at the maximum legal rate, and costs.

2. Cross-Complaint

AHC, Mason, and Linda filed a Cross-Complaint against Apex on September 14, 2023, alleging (1) breach of written contract, (2) abuse of process via extortion, (3) defamation, and (4) common count. The Cross-Complaint alleges in pertinent part as follows.

After signing the Subcontracts, AHC worked constantly on each project and performed everything asked of it on time. Apex hired third-party assistance on the projects without informing AHC, which still worked alongside the new groups without confrontation.

Apex terminated AHC days into the Subcontracts and barred them from completing any of the projects without any explanation. AHC spent over $85,000 more than the deposit in labor and materials for the projects. Apex terminated the Subcontracts before AHC could invoice Apex for reimbursement.

In June 2023, Apex owner Hal Hargrove sent an email accusing AHC of abandoning the job instead of being terminated. The email contradicted itself by also saying AHC was forced off the job.

Apex employee Cherie Biles (“Biles”) emailed JVM Capital (“JVM”), the company AHC was going to use to finance receivables and falsely accused AHC of fraud. This defamation destroyed AHC’s relationship with JVM and cost AHC millions. Biles later told AHC it was a lie her superiors forced her to tell. She also suspected a racial component to AHC’s termination.

Defendants seek $85,000 plus prejudgment interest, interest, and attorney’s fees and costs.

3. Course of Proceedings

On August 8, 2023, Apex served Linda and AHC with the Complaint and Summons by substitute service, effective August 18, 2023.

On August 9, 2023, Apex served Mason with the Complaint and Summons by substitute service, effective August 19, 2023.

On September 14, 2023, AHC, Mason, and Linda filed an Answer and the Cross-Complaint and served Apex with them by email.

On October 18, 2023, Apex filed an Answer to the Cross-Complaint.

B. Applicable Law

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.

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).

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.

Where the defendant is a corporation, a general reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). A specific description of property is not required for corporations and partnerships as they generally have no exempt property. Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (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).

Except in unlawful detainer actions, 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.

Apex is in the business of providing general contracting services to retail businesses. Kassity Decl., ¶3. The projects at issue involve four buildouts of Sephora stores inside existing Kohl’s stores. Kassity Decl., ¶3.

AHC’s Contractor’s License lists it as a partnership. Murray Decl., ¶6, Ex. B. On December 2, 2022, Apex and AHC executed an MSA to govern all future Subcontracts between them. Kassity Decl., ¶4, Ex. 1. All MSA terms, provisions, and attachments were to be automatically integrated into any such Subcontract. Kassity Decl., ¶4, Ex. 1. Mason signed the agreement on AHC’s behalf. Kassity Decl., ¶4, Ex. 1.

Section II(N) required ACH to provide daily reports of its performance on any project to Apex’s designated project Team. Kassity Decl., ¶10, Ex. 1. ACH agreed in section V that time was of the essence, and it would conform to any Apex project schedule. Kassity Decl., ¶4, Ex. 1. ACH would also mobilize within 24 hours of notice from Apex. Kassity Decl., ¶4, Ex. 1.

Section IV waives Apex’s liability for any claim for any loss of efficiency, loss of productivity, delay, or disruption unless AHC gives notice via email of this delay within ten days of when the circumstances underlying the delay arrive. Kassity Decl., ¶4, Ex. 1. AHC must then provide additional notice every 30 days thereafter until the issue is resolved. Kassity Decl., ¶4, Ex. 1.

Under section VI, AHC would hold in trust as bailee any sums received from Apex for the express use of paying for all labor and material used in performance of the Subcontract. Kassity Decl., ¶4, Ex. 1. AHC would not receive title to any payment until it had paid in full for all labor and materials to date for that project. Kassity Decl., ¶4, Ex. 1. Section IX required AHC to comply with all applicable labor hiring and employment laws. Kassity Decl., ¶4, Ex. 1.

If AHC failed to complete work for a Subcontract based on the progress schedule, or otherwise comply with the MSA, section VIII allowed Apex to either (1) perform or hire others to perform whatever portion of the work it determines necessary to avoid delay in progress of the work, deduct the cost of such work from the Subcontract price, and pursue recovery from AHC of any cost in excess of the Subcontract price; or (2) terminate the Subcontract and either complete the work itself or hire others to do so. Kassity Decl., ¶5, Ex. 1.

Apex would also have the right to take immediate title and possession of any AHC materials, tools, or equipment on the project site to complete the work or have others complete it. Kassity Decl., ¶5, Ex. 1. Apex could keep or sell any remaining material or tools. Kassity Decl., ¶5, Ex. 1. Apex must then credit their sale price less costs of completing any resale, or the fair market value of the materials if kept, against damages AHC owes. Kassity Decl., ¶5, Ex. 1.

Apex’s decision to terminate a Subcontract would not relieve AHC from liability for all damages, costs, and expenses Apex incurs due to the default. Kassity Decl., ¶5, Ex. 1. AHC will have no right to receive further payment after default until work on that project is completed and the full amount of damages is ascertained. Kassity Decl., ¶5, Ex. 1.

In any action for breach of the MSA or a Subcontract, section XIX permits the prevailing party to recover attorney’s fees, expert witness fees, and costs. Kassity Decl., ¶6, Ex. 1.

On March 17, 2023, Apex and AHC signed the Killeen Subcontract for construction work on the Killeen project. Kassity Decl., ¶8, Ex. 2. The Killeen Subcontract listed the total contract price as $196,991 and required Apex to post a 20% deposit. Kassity Decl., ¶¶ 8-9, Ex. 2.

On March 29, 2023, Apex paid AHC $144,805 as a deposit for three Subcontracts. Kassity Decl., ¶9, Ex. 3. Of this amount, $47,551 was for the deposit for the Killeen Subcontract. Kassity Decl., ¶9, Ex. 3.

The Killeen project schedule spread all tasks across three weeks, starting from “Sunday 3/7/22.” Kassity Decl., ¶11, Ex. 4. AHC soon fell behind, and it failed to provide the daily reports required under the MSA. Kassity Decl., ¶10. Apex therefore terminated the Killeen Subcontract. Kassity Decl., ¶11.

When Apex took over the Killeen project on May 15, 2023, AHC had been on site for eight days but only accomplished five days of work. Kassity Decl., ¶12. It had completed all the trenching, 80% of the demolition, 40% of the framing, and none of the electrical work. Kassity Decl., ¶12. Photographs of the Killeen project reflect 30-35% completion. Kassity Decl., ¶12, Ex. 5.

Apex hired a replacement subcontractor, Bright Bulbs Electric Co., Inc. (“Bright Bulbs”), and paid it $180,000 to finish the work. Kassity Decl., ¶15, Ex. 6. Apex also incurred $10,000 for its own staff’s work on the Killeen project. Kassity Decl., ¶16.

Apex’s costs for the Killeen project total $237,551: the $47,551 deposit to AHC, the $180,000 paid to Bright Bulbs, and the $10,000 for its own efforts. Kassity Decl., ¶¶ 15-16. After subtracting the $196,991 project cost under the Killeen Subcontract, damages for this project total $40,560. Kassity Decl., ¶¶ 16-17.

On March 16, 2023, Apex and AHC signed the Santa Maria Subcontract for construction work on the Santa Maria project. Kassity Decl., ¶18, Ex. 7. The Santa Maria Subcontract listed the total contract price as $185,350 but did not require a deposit. Kassity Decl., ¶¶ 18-19, Ex. 7.

The Santa Maria project schedule spread all tasks across three weeks, starting from “Sunday 3/7/22.” Kassity Decl., ¶21, Ex. 8. Ceiling demolition was set to finish in the first five days, or by “3/11/22.” Kassity Decl., ¶21, Ex. 8. Framing was set to finish by the fourth day, or “3/10/22,” and the rough inspection by the sixth day, or “3/12/22.” Kassity Decl., ¶21, Ex. 8.

AHC soon fell behind and failed to provide the daily reports required under the MSA. Kassity Decl., ¶20. Apex therefore terminated the Santa Maria Subcontract. Kassity Decl., ¶21.

When Apex took over the Santa Maria project, AHC had been on site for nine days but only accomplished five days of work. Kassity Decl., ¶22. It had completed all the trenching, 40% of the demolition, 40% of the framing, and 50% of the electrical work. Kassity Decl., ¶22. Photographs of the Santa Maria project reflect 30-35% completion. Kassity Decl., ¶22, Ex. 9.

Apex paid Bright Bulbs $103,450 to finish framing, tile, and electrical work. Kassity Decl., ¶24, Ex. 10. Apex also paid Bright Bulbs $950.01 for materials needed to complete the Santa Maria project. Kassity Decl., ¶24, Ex. 10. It paid South Pacific Flooring $20,450 for flooring demolition and carpet installation. Kassity Decl., ¶24, Ex. 10. It paid 4J Drywall $9,980 for painting and $58,511.67 for metal framing and drywall. Kassity Decl., ¶24, Ex. 10. Apex paid these subcontractors a total of $193,341.68. Kassity Decl., ¶24, Ex. 10. It also incurred $10,000 for its own staff’s work on the Santa Maria project, for a total cost of $203,341.68. Kassity Decl., ¶¶ 25-26.

Apex’s costs to complete the Santa Maria project after terminating the Subcontract exceed the contract price by $17,991.68. Kassity Decl., ¶26.

On March 17, 2023, Apex and AHC signed the Houston Subcontract for construction work on the Houston project. Kassity Decl., ¶28, Ex. 11. The Houston Subcontract listed the total contract price as $196,716 and required Apex to post a 20% deposit. Kassity Decl., ¶¶ 28-29, Ex. 11. The March Deposit included a $47,276 deposit for the Houston Subcontract. Kassity Decl., ¶29, Ex. 12.

Because of AHC’s failure to complete the Killeen and Santa Maria projects, Apex chose to terminate AHC from the Houston project before it began. Kassity Decl., ¶30. AHC has not refunded the $47,276 deposit despite not having used any funds for this project. Kassity Decl., ¶31. This constitutes a breach of the Houston Subcontract. Kassity Decl., ¶32.

On March 17, 2023, Apex and AHC signed the Eagle Pass Subcontract for construction work on the Eagle Pass project. Kassity Decl., ¶33, Ex. 13. The Eagle Pass Subcontract listed the total contract price as $199,418 and required Apex to post a 20% deposit. Kassity Decl., ¶¶ 33-34, Ex. 13. The March Deposit included a $49,978 deposit for the Eagle Pass Subcontract. Kassity Decl., ¶34, Ex. 14.

Because of AHC’s failure to complete the Killeen and Santa Maria projects, Apex chose to terminate AHC from the Eagle Pass project before it began. Kassity Decl., ¶35. AHC has not refunded the $49,978 deposit despite not having used any funds for this project. Kassity Decl., ¶36. This constitutes a breach of the Eagle Pass Subcontract. Kassity Decl., ¶37.

The net principal owed under the four Subcontracts totals $40,560 - $22,008.32 + $47,276 + $49,978 = $115,805.68. Kassity Decl., ¶40. As of October 26, 2023, interest at the legal annual rate of 10% totals $6,763.32. Kassity Decl., ¶41; Murray Decl., ¶2, Ex. A.

Based on a partner rate of $400 per hour and an associate rate of $325, counsel expects to charge $15,000 in attorney’s fees for this action. Murray Decl., ¶5. Apex has already incurred $783.80 in costs. Murray Decl., ¶4.

Damages total $115,805.68 + $6,763.32 + $15,000 + $783.80 = $138,352.80. Kassity Decl., ¶43.

Although Linda’s spouse, Kevin (“Kevin”), is not on AHC’s license, he is one of its partners. Kevin Decl., ¶1.

Linda never visited a relevant project’s jobsite or was involved in the events underlying the action. Linda Decl., ¶2. She only signed any relevant Subcontract as a AHC general partner, not in a personal capacity. Linda Decl., ¶¶ 1-2.

Kevin worked at the Santa Maria worksite and never saw Kassity there. Kevin Decl., ¶2. Todd worked on some of the worksites but also never saw Kassity. Mason Decl., ¶2. Kassity has no personal knowledge of what happened on site. Kevin Decl., ¶18.

Kevin worked on the Santa Maria project from May 6 to 15, 2023. Kevin Decl., ¶3. When the project began, Apex Project Manager Steven Robles (“Robles”) incorrectly marked off the work area. Kevin Decl., ¶4. AHC had set up a giant barricade between the work area and the store. Kevin Decl., ¶4. Correcting this mistake cost three to five days. Kevin Decl., ¶¶ 4, 13, 19, 23. Robles admitted his mistake in a text message. Kevin Decl., ¶5, Ex. 1.

Apex Project Managers Robles and Albert Rocha (“Rocha”) directed all the work on the Santa Maria project. Kevin Decl., ¶6. They were on site from the start, not because AHC fell behind and forced Apex to bring managers in. Kevin Decl., ¶19. AHC had 15 workers on site at all times. Kevin Decl., ¶20. Rocha reassured AHC that “You guys are not behind” on the Santa Maria project. Kevin Decl., ¶4.

AHC finished 100% of the flooring demolition, not just 40%, and 100% of the trenching. Kevin Decl., ¶¶ 7, 21. The only outstanding item was a ceiling hung lighting soffit. Kevin Decl., ¶7. AHC also finished 100% of the framing with the help of three Apex employees, not just 40%. Kevin Decl., ¶¶ 7, 21. The Santa Maria project passed electrical and framing inspections on May 16, 2023. Kevin Decl., ¶¶ 7-8, 22, Exs. 2-3. By then AHC had also finished all the electrical work required to that point. Kevin Decl., ¶9. Apex was so impressed with this workthat it hired one of AHC’s electricians after it terminated the Santa Maria Subcontract. Kevin Decl., ¶¶ 9, 23.

Apex fired AHC without warning, reason, or an opportunity to fix the purported issues with the Santa Maria project. Kevin Decl., ¶20. Apex kept tools and other equipment belonging to AHC, totaling close to $100,000. Kevin Decl., ¶12.

For the Killeen Project, AHC’s project manager noticed the containment plans and construction drawings did not match the site. Mason Decl., ¶4. Kassity still ordered AHC to proceed with Apex’s illegal and dangerous containment plan. Mason Decl., ¶4.

On the second night, AHC began demolition pursuant to Apex’s air quality mitigation plan. Mason Decl., ¶5. On the third night, AHC noted that Apex’s air quality mitigation plan was not mitigating the threat of carbon monoxide poisoning. Mason Decl., ¶5. Carbon monoxide monitors kept going off, and each time the project was shut down until the air cleared. Mason Decl., ¶5. This delayed the job. Mason Decl., ¶5. Apex ignored AHC’s warnings about this. Mason Decl., ¶5.

AHC completed 99% of the demolition of the Killeen project. Mason Decl., ¶6. This accounts for 50% of the project as a whole. Mason Decl., ¶6. AHC also completed 90% of the framing except for a few incorrect bolts. Mason Decl., ¶6. Apex demolished this work without knowing the conditions of this framing. Mason Decl., ¶6.

AHC has calculated the labor and transportation costs for the Santa Maria Project (“L&T Calculations”). Kevin Decl., ¶16, Ex. 5. Eleven workers accrued labor costs of $58,661.75, including $12,206 for Jose Serrano (“Serrano”) and $11,500 for project manager David Jacquet (“Jacquet”). Kevin Decl., ¶16, Ex. 5. The L&T Calculations show Serrano worked 247 hours. Kevin Decl., ¶16, Ex. 5. Every other employee earned between $2,925 and $4,627.50 for 105 to 125 hours of work. Kevin Decl., ¶16, Ex. 5.

The L&T Calculations also list Lodging costs of $342.35 and $4,691 and “per diem” expenses of $7,326. Kevin Decl., ¶16, Ex. 5. The total expenses for the L&T Calculations are $71,021.10. Kevin Decl., ¶16, Ex. 5.

AHC spent $125,000 on the Santa Maria project. Kevin Decl., ¶10. When it tried to submit invoices for these expenses, AHC said this should have been taken from the deposit. Kevin Decl., ¶10. Yet, AHC had already spent this deposit in Texas. Kevin Decl., ¶10. AHC also asked to see Apex’s receipts, but Apex refused. Kevin Decl., ¶10.

In a June 2, 2023 email, Apex asserted damages from the Kileen and Santa Maria Subcontracts of $20,000 each, for a total of $40,000. Kevin Decl., ¶10. This is half the amount Apex now says it cost to finish the Killeen Project. Kevin Decl., ¶11.

Apex never paid any of the money owed for the Santa Maria Subcontract. Kevin Decl., ¶3. AHC paid for 100% of the materials needed for that project. Kevin Decl., ¶12. AHC left tools on the project site that Apex will not let it retrieve. Kevin Decl., ¶17, Ex. 6. AHC has taken photographs of some of these tools. Kevin Decl., ¶17, Ex. 6. AHC estimates their total value is $50,000, which should offset any damages Apex alleges in this action. Kevin Decl., ¶17, Ex. 6.

Between labor, materials, and equipment, Apex owes AHC $160,000 for the Santa Maria Project. Kevin Decl., ¶13. AHC has receipts for $150,000 in labor, materials, and tools Apex has taken. Kevin Decl., ¶24.

Apex had the replacement subcontractors in this action lined up before it fired AHC. Kevin Decl., ¶13. Apex managers received kickbacks from these companies for jobs Apex hired them to do. Kevin Decl., ¶13. The managers set AHC up to fail so it could bring in outside help and profit from these kickbacks. Kevin Decl., ¶13. Several current and former Apex employees will testify to this. Kevin Decl., ¶13.

When Apex terminated AHC without warning, it put AHC in a position to not pay for labor. Kevin Decl., ¶¶ 14-15. Apex tried to convince AHC workers to file a claim with the Labor Board against AHC. Kevin Decl., ¶14. Apex knew that it was responsible for paying laborers and vendors as the prime contractor. Kevin Decl., ¶14.

AHC explained to their laborers that it could not pay them right away because Apex did not give any money for California projects,. Kevin Decl., ¶15. The workers understood and agreed to be paid in installments. Kevin Decl., ¶15.

Apex’s construction director Jay Kassity sent the workers copies of the deposits for the Texas projects. Kevin Decl., ¶¶ 15, 25. He falsely asserted those deposits were for the California projects as well and that if AHC did not pay the workers, it must have spent that money on itself. Kevin Decl., ¶¶ 15, 25. Nine AHC workers will testify to this. Kevin Decl., ¶15.

Hal Hargrave (“Hargrave”) has threatened criminal action against AHC if it does not return money already spent on the Santa Maria project. Kevin Decl., ¶27. This is extortion, and the damages for this should offset any damages against AHC. Kevin Decl., ¶27.

Apex employee Biles has emailed JVM, the company AHC was going to use to finance receivables, to falsely accuse AHC of fraud. Kevin Decl., ¶28. This defamation destroyed AHC’s relationship with JVM and cost AHC millions. Kevin Decl., ¶28. Biles later told AHC it was a lie her superiors forced her to tell. Kevin Decl., ¶28. She also suspected a racial component to AHC’s termination. Kevin Decl., ¶28.

Between May 1 and October 1, 2023, AHC had $188,625 in total revenue and $305,231.77 in expenses, a total deficit of $186,606.77. Kevin Decl., ¶26, Ex. 7. As of October 16, 2023, AHC has no assets and $71,021.10 in liabilities. Kevin Decl., ¶26, Ex. 7. Any attachment would subject AHC to grave hardship. Kevin Decl., ¶26, Ex. 7.

Linda’s personal financial statement lists assets of $1,000 in checking accounts, $500 in savings accounts, and $6,500 in vehicles, a total of $8,000. Linda Decl., ¶3, Ex. 1. Liabilities total $407,819. Linda Decl., ¶3, Ex. 1. Linda’s net worth is $8,000 - $407,819 = -$399,819. Linda Decl., ¶3, Ex. 1. Linda’s only monthly income is $5,837 in wages. Linda Decl., ¶3, Ex. 1. Monthly liabilities total $7,020. Linda Decl., ¶3, Ex. 1.

Mason’s personal financial statement lists assets of $100 in checking accounts, $300 in savings accounts, and $3,000 in vehicles. Mason Decl., ¶7, Ex. 1. Liabilities include $4,950 from credit cards and $11,000 from unspecified sources. Mason Decl., ¶7, Ex. 1. Mason’s only monthly income is $2,000 from nondescript sources. Mason Decl., ¶7, Ex. 1. Monthly liabilities include $280 for groceries, $300 for healthcare, $225 for auto insurance, $100 in life insurance, and $97 from credit cards. Mason Decl., ¶7, Ex. 1.

Despite these numbers, Mason’s personal finance statement lists total Asset Value, Liabilities, and Monthly Income Asset as $0 each and his total Monthly Expense Liability as $100. Mason Decl., ¶7, Ex. 1. He lists his total Net Worth as $0. Mason Decl., ¶7, Ex. 1.

Attachment of Linda and Mason’s personal assets would create a grave hardship in meeting their financial obligations. Linda Decl., ¶3; Mason Decl., ¶7.

Rocha was an Apex project manager for the Santa Maria project. Rocha Decl., ¶2. He never said AHC was “not behind.” Rocha Decl., ¶3. He repeatedly told AHC what it needed to do to get back on schedule, but AHC never complied. Rocha Decl., ¶3.

Apex has installed numerous barriers like the one on the Santa Maria project site. Rocha Decl., ¶4. It takes six people about four hours to install it. Rocha Decl., ¶4.

Apex’s claims are based on the four Subcontracts, including terms of the MSA integrated into all Subcontracts. Kassity Decl., Exs. 1, 2, 7, 11, 13. The damages under the Subcontracts, and the net damages, exceed $500. Kassity Decl., ¶¶ 16-17, 27, 32, 37, 40. Apex has claims on which to base attachment.

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).

Under section VIII of the MSA, if AHC failed to complete work for a Subcontract based on the progress schedule, or otherwise defaulted, Apex could perform or hire others to perform whatever portion of the work it determines necessary to avoid delay in progress of the work, deduct the cost of such work from the Subcontract price, and pursue recovery from AHC of any cost in excess of the Subcontract price. Kassity Decl., ¶5, Ex. 1.

The Killeen Subcontract listed the total contract price as $196,991 and required Apex to post a 20% deposit. Kassity Decl., ¶¶ 8-9, Ex. 2. Apex paid the $47,551 deposit for the Killeen Subcontract. Kassity Decl., ¶9, Ex. 3. Apex incurred $10,000 in expenses for its own employees to work on the Killeen project. Kassity Decl., ¶16. Apex paid Bright Bulbs $180,000 to finish the work. Kassity Decl., ¶15, Ex. 6. Apex’s costs for the Killeen project total $237,551. Kassity Decl., ¶¶ 15-16. After subtracting the $196,991 project cost under the Killeen Subcontract, damages for this project total $40,560. Kassity Decl., ¶¶ 16-17.

The Santa Maria Subcontract listed the total contract price as $185,350. Kassity Decl., Ex. 7. Apex presents evidence that it paid other subcontractors $193,341.68 after it terminated the Santa Maria Subcontract. Kassity Decl., ¶24, Ex. 10. Apex also incurred $10,000 in expenses for its employees to work on the Santa Maria project, a total cost of $203,341.68. Kassity Decl., ¶¶ 25-26. Apex’s costs to complete the Santa Maria project after terminating the Subcontract exceed the contract price by $17,991.68. Kassity Decl., ¶26.

Apex calculates its damages from the Kileen and Santa Maria Subcontracts as $40,560 - $22,008.32 = $18,551.68. However, Apex makes no showing or argument that these damages are readily ascertainable from the Subcontracts. Apex had the contractual right to complete the two projects after terminating the Subcontracts, or to hire someone else to do so. Kassity Decl., ¶5, Ex. 1. There is nothing in the Subcontracts that enables the court or Defendants to ascertain the value of Apex’s own work or the value of AHC’s work on either project.[2]

The Houston Subcontract listed the total contract price as $196,716 and required Apex to post a 20% deposit. Kassity Decl., ¶¶ 28-29, Ex. 11. The Eagle Pass Subcontract listed the total contract price as $199,418 and required Apex to post a 20% deposit. Kassity Decl., ¶¶ 33-34, Ex. 13. The March Deposit included the $47,276 and $49,978 deposits, respectively. Kassity Decl., ¶¶ 29, 34, Exs. 12, 14. Apex terminated both Subcontracts before any work was performed. Kassity Decl., ¶¶ 30, 35. Apex seeks return of these deposits as damages for AHC’s breach of these two Subcontracts. Mot. at 6-7; Kassity Decl., ¶¶ 31-32, 36-37.

Whether Apex relies on its right to restitution on its money had and received claims, or a Subcontract provision, for the return of these monies is unclear. Under section VI of the MSA, AHC was required to hold in trust as bailee any sums received from Apex for the express use of paying for all labor and material used in performance of the Subcontract. Kassity Decl., ¶4, Ex. 1. AHC would not receive title to any payment until it paid all labor and materials costs to date for that project. Kassity Decl., ¶4, Ex. 1. Since AHC never finished any construction work for these projects, no title to payment vested. Apex has both a common law right to restitution and a contractual right for the return of these monies.

If a contract entered into after January 1, 1986, does not stipulate a legal rate of interest, an obligation bears interest at an annual rate of 10% after a breach. Civil Code §3289(b). Apex has calculated the accrued interest as $6,763.32 as of October 26, 2023. Kassity Decl., ¶41; Murray Decl., ¶2, Ex. A. This amount cannot be awarded for the $18,551.68 that was disallowed and Apex does not break down the interest by Subcontract. Therefore, the entire $6,763.32 in interest is disallowed.

In any legal action for breach of the MSA or a Subcontract, section XIX of the MSA permits the prevailing party to recover attorney’s fees, expert witness fees, and costs. Kassity Decl., ¶6, Ex. 1.

Based on a partner rate of $400 per hour and an associate rate of $325, Apex’s counsel expects to charge $15,000 in attorney’s fees for this action. Murray Decl., ¶5. Apex has already incurred $783.80 in costs. Murray Decl., ¶4.

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, (“Kadison”) (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

Linda asserts that she was never involved in any of the projects or events underlying the action. Linda Decl., ¶2. She only signed any relevant Subcontract as an AHC general partner, not in a personal capacity. Linda Decl., ¶¶ 1-2. AHC asserts that attachment is not proper against either natural person because neither one signed a guaranty for the amount owed. Opp. at 10.

A guaranty is not necessary. AHC’s Contractor’s License lists it as a partnership. Murray Decl., ¶6, Ex. B. Corporations Code section 16306 provides that all general partners are jointly and severally liable for all obligations of a partnership except in select circumstances. Mot. at 11. Linda’s liability arises out of her status as a general partner in AHC.

There remains the possibility that Linda’s liability as a general partner does not arise out of her engagement in a trade, business, or profession. Opp. at 10. The purpose of the attachment statutes is to confine attachment to commercial situations and prohibit their use in consumer transactions. Kadison, supra, 197 Cal.App.3d at 4. These terms encompass almost any activity engaged in for profit with “frequency and continuity”. Advance Transformer Co. v. Superior Court, (1974) 44 Cal.App.3d 127, 134, 139, 144.

There is no doubt that AHC, whose business was construction contractor, engaged in multiple commercial Subcontracts. Mason signed the MSA as owner and Apex’s claim clearly arose out of his conduct of a commercial transaction. Kassity Decl., Ex. 1.

However, Apex fails to address Linda’s role in the general partnership. Although Apex addresses Linda’s personal liability as a general partner (Mem. at 11), liability and the conduct of a trade, business, or profession are two different concepts. Apex does not show that Linda signed the MSA or any Subcontract or performed any role in their performance; her liability is based solely on her status as general partner. General partner status may suffice for attachment (see Advance Transformer, supra, 44 Cal.App.3d at 144 (guarantee of commercial transaction by retired person with no financial stake is insufficient for attachment), but the court need not decide that issue because Apex fails to address it.

Apex’s action against Mason arises out of his conduct of a business or profession. The same has not been shown true for Linda.[3]

On December 2, 2022, Apex and AHC signed an MSA to govern all future Subcontracts between them. Kassity Decl., ¶4, Ex. 1. In March 2023, Apex and AHC signed four Subcontracts for different projects. Kassity Decl., Exs. 2, 7, 11, 13.

The only issue is breach of the Houston and Eagle Pass Subcontracts, which in turn is based on breach of the Killeen and Santa Maria Subcontracts. Kassity Decl., ¶¶ 30, 35.

AHC asserts that Rocha reassured AHC that it was not behind on the Santa Maria project. Opp. at 5; Kevin Decl., ¶4. Rocha denies this, and AHC provides no documentary evidence of this statement. Rocha Decl., ¶3.

AHC then asserts that Apex understates the level of work AHC finished on the Santa Maria project. Kevin worked on the Santa Maria project between May 6 and 15, 2023. Kevin Decl., ¶3. In that time, AHC finished 100% of the flooring demolition and 100% of the trenching. Kevin Decl., ¶¶ 7, 21. The only outstanding item was a ceiling hung lighting soffit. Kevin Decl., ¶7. AHC also finished 100% of the framing with the help of three Apex employees, not just 40%. Kevin Decl., ¶¶ 7, 21. The Santa Maria project passed electrical and framing inspections on May 16, 2023, 11 days after work began. Kevin Decl., ¶¶ 7-8, 22, Exs. 2-3.

AHC asserts that to the extent it was behind, Apex caused this delay when it installed the barricade in the wrong place. Kevin Decl., ¶4. Apex Project Manager Robles admitted his mistake in a text message. Kevin Decl., ¶5, Ex. 1.

AHC asserts this barricade cost AHC anywhere from three to five days. Kevin Decl., ¶¶ 4, 13, 19, 23. Apex disputes how much of a delay the barricade caused, providing evidence that it takes six people about four hours to install it. Rocha Decl., ¶4. AHC should not have taken more than one day to move the barrier. Robles’ text admits the barrier was misplaced, but it does not suggest this would delay the project by several days. Kevin Decl., ¶5, Ex. 1. Reply at 4.

Even if, arguendo, the barrier caused three to five days of delay, the MSA bars this argument. Reply at 4. Section IV of the MSA waives Apex’s liability for any claim for any loss of efficiency, loss of productivity, delay, or disruption unless AHC gives notice via email of this delay within ten days of when the circumstances underlying the delay arrive. Kassity Decl., ¶4, Ex. 1. AHC must then provide additional notice every 30 days thereafter until the issue is resolved. Kassity Decl., ¶4, Ex. 1. AHC provides no evidence that it provided email notice of the delay in compliance with Section IV of the MSA. Kassity Decl., ¶4, Ex. 1. Reply at 4.

Additionally, AHC admits that by May 15, 2023, ten days into the project, construction of a ceiling hung light soffit remained. Kevin Decl., ¶7. AHC should have finished all ceiling demolition, including this soffit, within five days. Reply at 3, 8; Kassity Decl., ¶21, Ex. 8. Even if the barricade delayed the project by five days, AHC failed to finish the ceiling demolition on time.

Apex has shown a probability of success that AHC breached the Santa Maria Subcontract, and therefore the Houston and Eagle Pass Subcontracts. The court need not address breach of the Killeen Subcontract.

Any amount to be secured by the attachment must be reduced by the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff. 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.

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. All documentary evidence, including contracts and canceled checks, must be presented in admissible form, and admissibility as non-hearsay evidence or exception to the hearsay rule, such as the business records exception. Lydig Construction, Inc. v. Martinez Steel Corp., (2015) 234 Cal.App.4^th 937, 944; Pos-A-Traction, Inc., v. Kepplly-Springfield Tire Co., (C.D. Cal. 2000) 112 F.Supp.2d, 1178, 1182.

After a Subcontract’s termination, the MSA allows Apex to take immediate title and possession of any AHC materials, tools, or equipment on the project site to complete the work or have others complete it. Kassity Decl., ¶5, Ex. 1. Apex could keep or sell any remaining material or tools. Kassity Decl., ¶5, Ex. 1. Apex must then credit their sale price, less costs of completing any resale, or the fair market value of the materials if kept, against damages AHC owes. Kassity Decl., ¶5, Ex. 1.

AHC asserts Apex has refused to let it recover the tools left on the project site. Kevin Decl., ¶17, Ex. 6. AHC estimates that these tools have a value of $50,000, which should offset any damages Apex alleges in this action. Opp. at 9; Kevin Decl., ¶17, Ex. 6.

Apex asserts the MSA allows them to retain the tools and equipment to complete the project. Reply at 7; Kassity Decl., ¶5, Ex. 1. However, the MSA still requires Apex to deduct the value of these tools, whether their market value or their resale price after expenses, from any amounts AHC would owe. Kassity Decl., ¶5, Ex. 1.

Apex argues that AHC fails to show that it prevented AHC from recovering tools. Reply at 6-7. AHC fails to provide any communications where Apex denied access or said it was taking the tools, merely providing pictures of some of the tools and an estimate as to their value without explanation. Kevin Decl., ¶17, Ex. 6. AHC fails to demonstrate Apex owes it for withheld tools and materials.

AHC asserts that it has receipts for $150,000 in labor, materials, and tools for the Santa Maria Project. Kevin Decl., ¶24. Opp. at 9. Apex points out that AHC fails to provide any of these receipts. Reply at 7. The court need not discuss Apex’s addition argument that expenses totaling over two-thirds of the Santa Maria Subcontract price are unreasonable. Reply at 7-8.

AHC asserts two cross-claims for tortious misconduct. Opp. at 9-10. First, Hargrave has threatened criminal action against AHC if it does not return money already spent on the Santa Maria project. Kevin Decl., ¶27. AHC asserts that the damages for this extortion should offset Apex’s claim. Opp. at 10. Second, an Apex employee has emailed JVM false accusations of fraud by AHC, destroying the latter’s relationship with JVM. Opp. at 9; Kevin Decl., ¶28. AHC asserts this defamation cost it millions. Opp. at 9; Kevin Decl., ¶28.

AHC does not provide documentary evidence of either claim beyond Kevin’s own assertions. Nor is either claim a contract based clam that can be used for offset of attachment.

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). Apex seeks attachment for a proper purpose.

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. The requirement of specificity avoids unnecessary hearings where an individual defendant is willing to concede that the described property is subject to attachment. Ibid. A general list of categories - e.g., “real property, personal property, equipment, motor vehicles, chattel paper, negotiable and other instruments, securities, deposit accounts, safe-deposit boxes, accounts receivable, general intangibles, property subject to pending actions, final money judgments, and personal property in decedents’ estates” – is sufficient. Ibid.

For Mason and Linda, Apex seeks to attach interests in real property except leasehold estates with unexpired terms of less than one year; accounts receivable; chattel paper; equipment; farm products; inventory; general intangibles and final money judgments arising out of the conduct by the defendant of a trade, business, or profession; money on the premises where a trade, business, or profession is conducted and elsewhere; deposit accounts; negotiable documents of title; instruments; securities; minerals or the like to be extracted; and any community property that would be subject to enforcement of judgment obtained in this case. The description of attachable property is adequate.

The property exempt from attachment consists of (a) all property exempt from enforcement of a money judgment,[4] (b) property which is necessary for the support of a defendant who is a natural person or the family of such defendant supported in whole or in part by the defendant, (c) “earnings” as defined by CCP section 706.011, and (d) all property not subject to attachment pursuant to CCP section 487.010. CCP §487.020.

If the defendant claims that any personal property described in the application is exempt from attachment, the defendant may include that claim in the notice of opposition to the right to attach order (CCP §484.060(a)), or may file and serve a separate claim of exemption for the property (CCP §484.070(b)). If the defendant does not do either, the claim of exemption will be barred in the absence of a showing of a change in circumstances occurring after the expiration of the time for claiming exemptions. CCP §484.070(a); Bank of America, supra, 207 Cal.App.3d at 268 (plaintiff’s failure to oppose exemption claim concedes its propriety). This waiver applies only to personal property. Thus, a homestead exemption for a dwelling is not waived by failing to make a claim for exemption. Martom v. Aboyan, (1983) 148 Cal.App.3d 826, 831.

The defendant also may obtain a determination at the hearing whether real or personal property not described in the application or real property described in the application is exempt from attachment by including an exemption claim for such property in the notice of opposition/separate claim of exemption. The defendant’s failure to claim such property as exempt does not preclude the defendant from raising the issue at a later time. CCP §484.070(b). The claim of exemption shall (1) describe the property claimed to be exempt, and (2) specify the statute section supporting the claim. CCP §484.070(c). The claim of exemption shall be accompanied by an affidavit supporting any factual issues raised by the claim and points and authorities supporting any legal issues raised. CCP §484.070(d). The defendant must file and serve the claim of exemption and supporting papers not less than five court days before the date set for the hearing. CCP §484.070(e).

AHC, Linda, and Mason all seek exemptions. Opp. at 11. The court need not address AHC’s request because exemption is only available to natural persons. The court need not address Linda’s exemption claim because Apex has failed to demonstrate attachment against Linda is proper.

A homestead exemption exists under certain conditions. “Homestead” means the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor’s spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead. CCP §704.710(c). The amount of the homestead exemption is the greater of (1) the countywide median sale price for a single-family home in the calendar year prior to the current calendar year, not to exceed $600,000, or (2) $300,000. CCP §704.730(a).

Defendant Mason seeks an exemption for his homestead. Opp. at 11. He does not present evidence of their primary dwellings or their value. The exemption is denied without prejudice.

Property which is necessary for the support of a defendant who is a natural person or the family of such defendant supported in whole or in part by the defendant may be exempt. CCP §487.020(b). All property of the defendant is considered when determining the needs of the defendant, his spouse, and his dependents. CCP §703.115. Where property is claimed exempt pursuant to a provision exempting property necessary of the support of the claimant and the claimant’s family, “the claim of exemption shall include a financial statement” which “shall be executed under oath by the [claimant]…” CCP §703.530. The financial statement must detail the names, ages, relationships, earnings, income, assets, and outstanding obligations of all members of the family. CCP §703.530.

Mason’s personal assets include $100 in checking accounts, $300 in savings accounts, and $3,000 in unspecified vehicles. Mason Decl., ¶7, Ex. 1. Liabilities include $4,950 from credit cards and $11,000 from unspecified sources. Mason Decl., ¶7, Ex. 1. Mason’s only monthly income is $2,000 from unspecified sources. Mason Decl., ¶7, Ex. 1. Monthly liabilities include $280 for groceries, $300 for healthcare, $225 for auto insurance, $100 in life insurance, and $97 from credit cards. Mason Decl., ¶7, Ex. 1.

In contraction, Mason’s personal finance statement lists total Asset Value, Liabilities, and Monthly Income Asset as $0 each and his total Monthly Expense Liability as $100. Mason Decl., ¶7, Ex. 1. He lists his total Net Worth as $0. Mason Decl., ¶7, Ex. 1. Because these totals do not reflect the items listed, his statement as a whole is not credible. His financial statement also is not sufficiently specific as to income.

Mason’s request for exemptions based on amounts necessary to support a family is denied.

As of January 1, 2023, the aggregate equity in motor vehicles is exempt up to $7,500. CCP §704.010(a).

Mason seeks a exemption for vehicles valued at $3,000. Mason Decl., ¶7, Ex. 1. Mason does not identify his vehicles or provide any other information to confirm their value. The exemption is denied.

A defendant may elect to exempt interest, not to exceed $725 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments, that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. CCP §703.140(b)(3).

Mason claims an exemption for furnishings. Opp. at 11. Although he has not identified the furniture and household items at issue, the nature of these items is such that the exemption is granted.

When a defendant is a natural person, a plaintiff can seek to attach (1) interests in real property except leasehold estates with unexpired terms of less than one year; (2) accounts receivable, chattel paper, and general intangibles arising out of the conduct by the defendant of a trade, business, or profession, except any such individual claim with a principal balance of less than one hundred fifty dollars ($150); (3) equipment; (4) farm products; (5) inventory; (6) final money judgments arising out of the conduct by the defendant of a trade, business, or profession; (7) money on the premises where a trade, business, or profession is conducted by the defendant and, except for the first one thousand dollars ($1,000), money located elsewhere than on such premises and deposit accounts, but, if the defendant has more than one deposit account or has at least one deposit account and money located elsewhere than on the premises where a trade, business, or profession is conducted by the defendant, the court, upon application of the plaintiff, may order that the writ of attachment be levied so that an aggregate amount of one thousand dollars ($1,000) in the form of such money and in such accounts remains free of levy; (8) negotiable documents of title; (9) instruments, (10) securities, and (11) minerals or the like (including oil and gas) to be extracted. CCP §487.010(c).

Mason seeks an exemption for personal property but does not specify what that property is. Opp. at 11. Even if Mason has no property related to AHC’s business, Apex can attach the property listed in CCP section 487.010(c).

Tools, implements, instruments, materials, uniforms, furnishings, books, equipment, one commercial motor vehicle, one vessel, and other personal property are exempt to the extent that the aggregate equity therein does not exceed (1) $8,725, if reasonably necessary to and actually used by the judgment debtor in the exercise of the trade, business, or profession by which the judgment debtor or (2) his or her spouse earns a livelihood; or (3) twice that amount if reasonably necessary to and actually used by the judgment debtor and spouse in the same trade, business, or profession by which both earn a livelihood. CCP § 704.060(a).

Mason seeks an exemption for tools of the trade but does not specify what they are or their value. Opp. at 11. The exemption is denied.

The applications for right to attach orders are granted against Defendants AHC and Mason only in the amount of $113,037.80. Mason’s request for an exemption for household furnishings is granted in the amount of $725. His other exemption requests are denied. No writ shall issue for either Defendant until Apex posts a $10,000 undertaking for that Defendant.

[1] The court has ruled on Defendants’ written objections to Apex’s evidence, sometimes overruling a objection under Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, Seelworkers of America, AFL-CIO, (1964) 227 Cal.App.2d 675, 712 (court may overruled objection if any portion of objected to material is admissible).

[2] Apex states that AHC’s opposition does not contest the amount owed on the Kileen Subcontract. Reply at 2. But AHC’s evidence does. See Mason Decl., ¶¶ 5-6.

For the Santa Maria Subcontract, Apex cites AHC’s L&T Calculations, which asserts labor costs of $58,661.75 for 11 employees on the Santa Maria Subcontract. Reply at 9; Kevin Decl., ¶16, Ex. 5. This includes $12,206 for 247 hours of work by Serrano and $11,500 for the project manager Jacquet. Kevin Decl., ¶16, Ex. 5. Apex asserts that these two employees’ fees are unreasonable. AHC admits that Apex terminated the Santa Maria Subcontract after only ten days. Kevin Decl., ¶3; Kassity Decl., ¶22. Serrano could not have worked 247 hours even if he worked nonstop for those ten days. Reply at 8-9. The court agrees.

Apex makes the same argument for Jacquet. Reply at 9. Because Jacquet’s stated earnings are only slightly less than Serrano’s earnings, Apex assumes that AHC asserts a similar number of hours. Id.; Kevin Decl., ¶16, Ex. 5. Unlike Serrano, however, Jacquet was a project manager who worked an undisclosed number of hours. Kevin Decl., ¶16, Ex. 5. He may have had a higher hourly rate than Serrano for the same number of hours. The court need not address whether AHC improperly included lodging costs and per diem in its expenses. Kevin Decl., ¶16, Ex. 5. Reply at 9.

[3] Although Linda and Mason contend that attachment would be a personal hardship (Linda Decl., ¶3; Mason Decl., ¶7), that is not a ground on which attachment can be avoided.

[4] The property exempt from enforcement of a money judgment is listed in CCP section 704.010 et seq.