Judge James C. Chalfant, Case Number: 23STCV20972, Date: 2024-09-17 Tentative Ruling

Norfleet Transportation, et al. v. Trident Industry Inc., 23STCV20972

Tentative decision on application for right to attach order: mostly granted

Plaintiff Norfleet Transportation and Logistics LLC (“Norfleet”) applies for right to attach order against Defendant Trident Industry Inc. (“Trident”).

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following tentative decision.

Plaintiff Norfleet filed the Complaint against Defendant Trident on August 30, 2023, alleging causes of action for: (1) goods and services sold and delivered; (2) account stated; (3) open book account; (4) breach of contract – Uniform Commercial Code. The Complaint alleges in pertinent part as follows.

Defendant Trident became indebted to Plaintiff Norfleet in the sum of $300,999.31 within the last four years for goods and services rendered. Compl., ¶8. Defendant Trident agreed to pay the sum of $300,999.31 and, although Norfleet has demanded payment, Trident has not paid these monies. Compl., ¶¶ 8-9.

The terms which governed the sale of these goods and services by Norfleet are indicated on each invoice submitted to Trident. Compl., ¶18, Ex. 1. The last page of the invoices specifies the additional terms of purchase which formed the basis for the terms of sale pursuant to the Commercial Code. Compl., ¶18.

Norfleet has performed all the conditions, promises, and covenants on its part to be performed in accordance with the terms of the parties Agreement or has been excused from full performance by the acts of Trident. Compl., ¶19. On or about June 30, 2022, Defendant defaulted in their payments under the agreement. Compl., ¶20.

The agreement provides that Trident will pay all costs and disbursements including reasonable attorney’s fees incurred by Norfleet. Compl., ¶21.

Plaintiff Norfleet seeks (1) the sum of $300,999.31 plus interest at the maximum rate from June 30, 2022, (2) all costs and reasonable attorney’s fees, and (3) other and further relief as the court deems just and proper.

Plaintiff Norfleet initially applied for a right to attach order for a hearing on July 23, 2024. Although the court’s tentative ruling was to grant, it had not seen the timely filed opposition. Plaintiff Norfleet failed to appear at the hearing and the application was taken off calendar.

On August 1, 2024, Plaintiff Norfleet again filed its application for a right to attach order with a hearing on the instant date. Trident has opposed but no reply has been filed.

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., (“CIT”) (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.

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); see also CCP §483.010(b) (“an attachment may not be issued on a claim which is secured by any interest in real property arising from agreement, statute, or other rule of law…However, an attachment may be issued where the claim was originally so secured but, without any act of the plaintiff or the person to whom the security was given, the security has become valueless or has decreased in value to less than the amount then owing on the claim). 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.

Plaintiff Norfleet is in the business of providing freight forwarding services to its customers. Jackson Decl., ¶5. When a customer needs to move product from one location to another location, it will contact Norfleet by phone or email, or both, to request a quote for hiring a freight transportation company to transport its product. Jackson Decl., ¶5. Once an inquiry is made, the customer will send Norfleet the necessary information for Norfleet to communicate and retain an available transportation provider in a position to meet the requirements requested by the customer. Jackson Decl., ¶6.

The transportation provider then picks up the product and delivers it to the location as directed. Jackson Decl., ¶7. Typically, these are called “loads.” Jackson Decl., ¶7. The transportation company sends invoices to Norfleet for the services rendered, and Norfleet sends its own invoices to the customer for payment. Jackson Decl., ¶7. The charges for the cost of transportation are based upon the wait-time that drivers have to spend to pick up and offload the loads as required by the customer. Jackson Decl., ¶7. The customer is aware of the various charges associated with the process and agrees to pay the charges Norfleet incurs in providing the services requested. Jackson Decl., ¶7.

The invoices sent to the customers of Norfleet require timely payment for the services rendered, and among other things, indicate the consequences that will arise from non-payment, including attorney fees should legal assistance be required in effectuating payment. Jackson Decl., ¶8.

Defendant Trident was a customer of Norfleet, requested the services described above, and followed the procedure for Norfleet to arrange the pickup and delivery of loads. Jackson Decl., ¶9. Most of the loads to be picked up were arriving from overseas with delivery to the Long Beach Harbor. Jackson Decl., ¶9. Trident paid in accordance with the invoices provided for the initial services by Norfleet. Jackson Decl., ¶10.

On or about June 5, 2022, Defendant Trident requested various loads to be picked up primarily from Long Beach Harbor and delivered to various locations. Jackson Decl., ¶11. Quotes were sent as to what the associated cost would be for the services requested. Jackson Decl., ¶11. Samples of quotes made to Trident for requested services are attached as Exhibit 1. Jackson Decl., ¶11. After approval of the cost of services was received, Norfleet made arrangements with the available carriers to pick up the requested loads and deliver them as requested. Jackson Decl., ¶11. Once Norfleet received notice and billings from the carriers used to transport Trident’s loads, it submitted invoices to Trident for the services provided. Jackson Decl., ¶12, Attached as Exhibit 2 are copies of the invoices submitted to Trident for payment. Jackson Decl., ¶12. Attached as Exhibit 3 are aging statements reflecting a summary of all invoices submitted to Trident for services rendered. Jackson Decl., ¶12.

Between June 1, 2022 and March 2, 2023, Norfleet provided services to Trident and submitted invoices totaling in excess of the sum of $300,99.31. Jackson Decl., ¶13. The terms and conditions were, in part, described on each of the invoices and the backup which was provided to Trident after the services were provided. Jackson Decl., ¶13. Each of the invoices included additional terms of purchase, which formed the basis for providing the services as set forth in the Commercial Code. Jackson Decl., ¶13. Trident agreed to pay for the services provided by Norfleet. Jackson Decl., ¶13. The Agreement provides for reasonable attorney fees to the prevailing party in this action. Jackson Decl., ¶14.

On June 30, 2022, Trident defaulted under the terms of the Agreement. Jackson Decl., ¶14. Trident claims that there are reasons why it has not paid for the services provided but has failed to provide any evidence to support this claim. Jackson Decl., ¶15.

Despite demand, Trident has refused to pay the sums due, and the principal sum of $300,999.31 plus interest, fees, and costs is now due and owing. Jackson Decl., ¶16. The transaction described herein are commercial in nature and do not involve any consumer issues. Jackson Decl., ¶17. Norfleet requests a right to attach order for the principal sum of $300,999.31 at an interest rate of 18% per annum for $101,531.60, fees in the sum of $17,500.00, and costs in the sum of $1,000.00 for a total amount of $421,031.91. Jackson Decl., ¶18, Ex. 4.

Plaintiff Norfleet applies for a right to attach order against Defendant Trident in the amount of $421,031.91.

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 damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite.¿ CIT, supra, 115 Cal.App.4th at 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).¿

Norfleet’s claim is based on a partly oral, partly written agreement involving quotations and invoices. This is a contract claim on which attachment may be based.

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, supra, 115 Cal.App.4th at 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 ca be determined by proof. Id. (citations omitted).

Norfleet presents evidence that between June 1, 2022 and March 2, 2023, Norfleet provided services to Trident and submitted invoices totaling in excess of the sum of $300,99.31. Jackson Decl., ¶13. The terms and conditions were, in part, described on each of the invoices and the backup which was provided to Trident after the services were provided. Jackson Decl., ¶13. Each of the invoices included additional terms of purchase, which formed the basis for providing the services as set forth in the Commercial Code. Jackson Decl., ¶13. Trident agreed to pay for the services provided by Norfleet. Jackson Decl., ¶13.

Trident’s opposition argues that Norfleet’s claim is not readily ascertainable because Norfleet has not submitted a spreadsheet summarizing the invoices and even admits that the invoices provided are “samples”. There is no showing that Trident agreed to them or reflect Trident’s offset for damages from Norfleet’s withholding of Trident’s property. Opp. at 3.

Trident is incorrect that the invoices in Exhibit 2 are samples. Rather, they are all the invoices submitted by Norfleet to Trident. Jackson Decl., ¶12. It is the quotations to Trident for requested services in Exhibit 1 that are samples. Jackson Decl., ¶11. Norfleet is not required to attach each quotation for each invoice in order to show the amount that is readily ascertainable. The submission of invoices to Trident as part of the parties’ course of dealing, and to which Trident did not object, is a sufficient basis to show their agreement and also is circumstantial evidence that the requested services were performed.

Of course, some of the invoices were paid. Exhibit 3 lists the outstanding amount owed, apparently organized by delivery location of the loads. While this exhibit could have been better organized or explained, it is a sufficient basis for the amount readily ascertainable from the parties’ agreement. The invoices and Exhibit 3 furnish a standard by which the amount owed may be ascertained. CIT, supra, 115 Cal.App.4th at 540-41.

Finally, a defendant may raise a claim of offset for any indebtedness of the plaintiff to the defendant raised in a cross-complaint or affirmative defense in an answer. CCP §483.015(b)(2), (3). The defendant’s offset claim under CCP section 483.015(b)(2) or (3) must be supported by sufficient evidence to prove a prima facie case of attachment in its own right. Lydig Construction, Inc. v. Martinez Steel, (2015) 234 Cal.App.4th 937; Pos-A-Traction, Inc. v. Kelly Springfield, (C.D. Cal. 1999) 112 F.Supp.2d 1178, 1183. Trident has failed to provide any evidence supporting its claim that it sustained damage from Norfleet withholding its property.

Norfleet seeks interest at 18%, attorney fees, and costs, contending that Trident owes $101,531.60 in interest, $17,500 in estimated fees, and $1000 in costs. The Agreement provides for reasonable attorney fees to the prevailing party in this action. Jackson Decl., ¶14. The attorney fees and costs are not supported by an attorney declaration. The requested interest is not supported by any document or calculation from the date each of the invoices became overdue. As such, they are disallowed.

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, supra, 146 Cal.App.4th at 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).

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).

Plaintiff Norfleet’s application for a right to attach order against Defendant Trident is granted in the amount of $300,999.31.