Judge: Joel L. Lofton, Case: 23AHCV00552, Date: 2023-08-29 Tentative Ruling

Case Number: 23AHCV00552    Hearing Date: August 29, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     August 29, 2023                                              TRIAL DATE: No date set.

CASE:                         JR STEEL REINFORCING CONSTRUCTION SERVICES, INC., a California corporation, v. ZWICK CONSTRUCTION COMPANY, a Utah corporation; APPA COLORADO, LLC, a Delaware limited liability company; SOUTHWEST CONCRETE STRUCTURES, INC., a California corporation, ZURICH AMERICAN INSURANCE COMPANY, INC., a New York corporation; and DOES 1 through 25, inclusive.

CASE NO.:                 23AHCV00552

APPLICATION FOR WRIT OF ATTACHMENT

MOVING PARTY:               Plaintiff JR Steel Reinforcing Construction Services, Inc.

RESPONDING PARTY:      Defendant Southwest Concrete Structures, Inc. (“SCSI”)

SERVICE:                              Filed July 28, 2023

OPPOSITION:                       Untimely filed August 23, 2023

RELIEF REQUESTED

             Plaintiff applies for a writ of attachment.

BACKGROUND

             This case arises out of Plaintiff JR Steel Reinforcing Construction Services, Inc.’s (“Plaintiff”) claim that it provided subcontracting services but did not receive payment for the services rendered. Plaintiff filed this complaint on March 13, 2023, alleging six causes of action for (1) breach of contract, 92) common counts, (3) account stated, (4) quantum meruit, (5) foreclosure of mechanics lien, and (6) action on contractor’s bond.

TENTATIVE RULING

            Plaintiff’s application for writ of attachment is DENIED.

LEGAL STANDARD

            “A writ of attachment allows a plaintiff, in certain prescribed instances, to obtain a pretrial seizure of the property of a defendant-debtor.” (Whitehouse v. Six Corp. (1995) 40 Cal.App.4th 527, 533.) “Except as otherwise provided by statute, an 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) exclusive of costs, interest, and attorney’s fees.” (Code Civ. Proc. section 483.010, subd. (a).)

DISCUSSION

            Plaintiff applies for a writ of attachment. In opposition, SCSI argues that the writ of attachment should be denied because the claim is already secured by a surety bond for the release of a mechanics lien and because Plaintiff has failed to establish probable validity.

            The Court shall issue a right to attach order if the Court finds all of the following: [¶] (1) The claim upon which the attachment is based is one upon which an attachment may be issued. [¶] (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. [¶] (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. [¶] (4) The amount to be secured by the attachment is greater than zero. (Code Civ. Proc. § 484.090.)

            SCSI first argues that the bond negates Plaintiff’s application for writ of attachment.

            Code of Civil Procedure section 483.010, subdivision (b), provides, in part: “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 (including any mortgage or deed of trust of realty and any statutory, common law, or equitable lien on real property, but excluding any security interest in fixtures subject to Division 9 (commencing with Section 9101) of the Commercial Code).”

            However, the language of the bond in Exhibit 1 provides that the purpose of the bond is “to enable the real property above described to be freed from the effect of said claim of mechanics lien and any action brought to foreclose said lien.” Section 483.010, subdivision (b), provides attachment may not be issued on a claim “secured by any interest in real property”. SCSI does not establish that the claim is secured by any interest in real property either through the bond or through another interest.

            SCSI also argues that Plaintiff has failed to demonstrate probable validity.

            “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc section 481.190.)

            As a preliminary note, Plaintiff’s memorandum in support of its application does not identify what claim it is asserting it has demonstrated probable validity for. The memorandum also does not cite evidence or legal authority. Plaintiff merely asserts that “[a] review of Plaintiffs (sic) Application and Declaration in Support of said Application reveals that Plaintiff has established each fact necessary to obtain judgment against this Defendant.” (Memorandum at p. 6:3-6.) However, California Rules of Court, Rule 3.1113, subdivision (b), provides: “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” Plaintiff has failed to do so here.

Further, Plaintiff has failed to substantively demonstrate probable validity it will obtain judgment. The essential elements of a breach of contract are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damages to the plaintiff. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th. 425, 433.) In support of its application, Plaintiff provides that it entered into a contract on June 1, 2020, for subcontracting services. (Rauch Decl. ¶ 8.) Plaintiff then details a variety of invoices it charged. (Id. ¶¶ 10-26.) Plaintiff fails to demonstrate that it performed or was excused from performing. Thus, Plaintiff has failed to establish probable validity.

CONCLUSION

            Plaintiff’s application for writ of attachment is DENIED.

            Moving Party to give notice.

Dated:   August 29, 2023                                ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court