Judge: John C. Gastelum, Case: 21-01237069, Date: 2022-08-02 Tentative Ruling

Motion -- Other

Tentative Ruling:  Plaintiff Global Finance Group, Inc. (“Plaintiff”) moves for an order finding the counter-bond of Defendants Precision Forging Dies, Inc. and Dan Kloss (“Defendants”) is insufficient and ordering the levying officer to deliver the property to Plaintiff, or that Plaintiff shall retain possession if Plaintiff has previously been given possession of the property.  Plaintiff contends the counter-bond fails to comply with the requirements under Code of Civil Procedure sections 995.510 and 995.520.

Plaintiff’s Motion was timely filed under Code of Civil Procedure section 515.030(b).

The personal surety, Valeriu Darie, resides in La Habra Heights, California and he is the owner of real property located at 1436 Tangelo Lane, La Habra Heights, California 90631 (the “Property”).  (Affidavit of Valeriu Darie, ¶¶ 1, 3.)  The fair market value of the Property is $2,900,000.00 and Mr. Darie’s net worth, exclusive of property exempt from judgment, exceeds $805,000.  (Id., ¶¶ 2-3.)  In addition, Mr. Darie’s affidavit provides his occupation and business address.  The description of the Property is sufficient for identification, the address under which the Property is commonly known having been provided.  Mr. Darie owns the Property in fee simple and there are no charges, liens, or other impediments or clouds known to him against the Property.  (Darie Affidavit, ¶¶ 1, 4.) 

Plaintiff contends the Affidavit is insufficient and a more specific statement is required because publicly available real estate records show the Property is encumbered with deeds of trust securing mortgages and an equity line of credit recorded on 4-19-04.  Plaintiff’s Exhibit E is a “Property Detail Report” for the Property.  It does not appear to be an official record and Plaintiff states it was provided by CoreLogic but provides no detail as to what type of entity CoreLogic is or how CoreLogic came into possession of the document.  Further, the fact that it appears that a line of credit was taken out on the Property does not foreclose the possibility it has since been paid in full by Mr. Darie and his wife.  Exhibit E therefore does not necessarily negate Mr. Darie’s statement that there are no charges, liens, impediments, or clouds known to him against the Property.  Thus, it is unclear whether Exhibit E adequately demonstrates that the Affidavit is insufficient or requires more specificity.

Regardless, the Court need not decide the issue because the Court finds the counter-bond is defective on another ground not raised in Plaintiff’s Motion.  Code of Civil Procedure section 995.310 states: “Unless the statute providing for the bond requires execution by an admitted surety insurer, a bond shall be executed by two or more sufficient personal sureties or by one sufficient admitted surety insurer or by any combination of sufficient personal sureties and admitted surety insurers.”  This section requires Defendants’ counter-bond to be executed by at least two personal sureties or by one sufficient admitted surety insurer, or by a combination of sufficient personal sureties and admitted surety insurers.

The Court also notes that Defendants failed to serve a copy of the counter-bond on the levying officer.  When filing a counter-bond, a defendant must serve a copy of the undertaking to the levying officer.  (Code Civ. Proc., § 515.020(c).) 

Here, Defendants’ counter-bond is executed by only one personal surety.  The Court therefore finds the counter-bond to be insufficient under Code of Civil Procedure section 995.310.  Pursuant to Code of Civil Procedure section 995.960, the Court ORDERS that a counter-bond with sufficient sureties and in a sufficient amount be given within five days.  If a sufficient bond is not given within five days, all rights obtained by giving the bond immediately cease and the Court shall, upon ex parte motion, so order.

Plaintiff to give notice.