Judge: John J. Kralik, Case: 24NNCV03525, Date: 2024-11-08 Tentative Ruling
Case Number: 24NNCV03525 Hearing Date: November 8, 2024 Dept: NCB
North
Central District
|
mitsubishi
hc capital america, inc., as successor by merger to Engs
Commercial Finance Co., Plaintiff, v. smbat
tumanyan dba west to east trucking, Defendant. |
Case No.:
24NNCV03525 Hearing Date: November 8, 2024 [TENTATIVE] order RE: APPLICATION for writ of attachment |
BACKGROUND
A.
Allegations
Plaintiff Mitsubishi HC Capital America,
Inc. as successor by merger to Engs Commercial Finance Co. (“Plaintiff”)
alleges that on January 24, 2022, Defendant Smbat Tumanyan dba West to East
Trucking (“Defendant”) entered into a written Commercial Finance Agreement
#141286 (Agreement No. 1) with Plaintiff wherein Defendant leased a 2019 Volvo
VNL64T760 Sleeper Tractor from Plaintiff, which required 54 monthly payments in
the amount of $3,288.89. Plaintiff
alleges that on January 26, 2022, Defendant entered into a written Commercial
Finance Agreement #141430 (Agreement No. 2) with Plaintiff wherein Defendant
leased a 2015 Utility 53x102 Refrigerated Trailer and Thermo King Refrigeration
Unit 6001109995, which required 48 monthly payments in the amount of $1,589.49. Plaintiff alleges that on September 12, 2023,
Defendant defaulted on the Agreements by not making the payments when due.
Plaintiff alleges that the balance due on
Agreement No. 1 is $189,740.63.
Plaintiff alleges it repossessed and sold the 2019 Volvo VNL64T760
Sleeper Tractor for $15,000, such that the charges now due are $32,458.86. The prayer for damages seeks $207,199.49 on
Agreement No. 1.
Plaintiff alleges that the balance due on
Agreement No. 2 is $71,010.50. Plaintiff
alleges it repossessed and sold the 2015 Utility 53x102 Refrigerated Trailer
and Thermo King Refrigeration Unit for $5,000, such that the charges now due
are $250. (Compl., ¶¶20-22.) The prayer for damages seeks $66,260.50 on
Agreement No. 2.
The complaint, filed on August 13, 2024,
alleges causes of action for: (1) breach of finance agreement; (2) breach of
finance agreement; and (3) account stated.
B.
Motion
on Calendar
On August 15, 2024, Plaintiff filed an
application for writ of attachment.
The Court is not in receipt of an
opposition brief.
On October 29, 2024, the default of
Defendant was entered.
LEGAL
STANDARD
“Upon the filing of the complaint or at
any time thereafter, the plaintiff may apply pursuant to this article for a
right to attach order and a writ of attachment by filing an application for the
order and writ with the court in which the action is brought.” (CCP § 484.010.)
The application shall be executed under
oath and must include:
(1)
a statement showing that the attachment is sought to secure
the recovery on a claim upon which an attachment may be issued;
(2)
a statement of the amount to be secured by the attachment;
(3)
a statement that the attachment is not sought for a purpose
other than the recovery on the claim upon which the attachment is based;
(4)
a statement that the applicant has no information or belief
that the claim is discharged or that the prosecution of the action is stayed in
a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and
(5)
a description of the property to be attached under the writ
of attachment and a statement that the plaintiff is informed and believes that
such property is subject to attachment.
(CCP
§ 484.020.)
“The application [for a writ of
attachment] shall 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.) Statutory attachment procedures are purely
creations of the legislature and as such “are subject to ‘strict
construction.’” (Hobbs v. Weiss
(1999) 73 Cal.App.4th 76, 79 [citing Vershbow v. Reiner (1991) 231
Cal.App.3d 879, 882]; see also Nakasone v. Randall (1982) 129 Cal.App.3d
757, 761.) A judge does not have
authority to order any attachment that is not provided for by the attachment
statutes. (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29
Cal.App.4th 1459, 1466.) “The
declarations in the moving papers must contain evidentiary facts, stated ‘with particularity,’ and based on actual
personal knowledge with all documentary evidence properly identified and
authenticated.” (Hobbs, supra, 73
Cal.App.4th at 79–80 [citing CCP § 482.040].) “In contested applications, the court
must consider the relative merits of the positions of the respective parties
and make a determination of the probable outcome of the litigation.” (Id. at 80 [ellipses and quotation marks omitted].) “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.” (CCP §
481.190.)
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.
(CCP § 484.090(a).)
A claim of exemption must describe the
property to be exempted and specify the statute section supporting the
claim. (CCP § 484.070(c).) The plaintiff has the burden of opposing the
defendant’s claim of exemption, and if the plaintiff fails to oppose a claim of
exemption, “no right to attach order or writ of attachment shall be issued as
to the property claimed to be exempted.”
(CCP § 484.070(f).)
DISCUSSION
A.
Probable Validity of Plaintiff’s Claims
Plaintiff applies
for writ of attachment against Defendant.
“The standard elements of a claim for
breach of contract are: “(1) the contract, (2) plaintiff's performance or
excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff
therefrom. [Citation.]” (Wall
Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171,
1178.)
In support of the application, Plaintiff
provides the declaration of Nancy Dow, who is employed by Plaintiff as a Deficiency
Collections Manager and is responsible for collecting the obligation of
Defendant. (Dow Decl., ¶¶1.) Ms. Dow states that she is the custodian of
records. (Id., ¶¶1-2.) Ms. Dow states that on January 24, 2022,
Defendant entered into Agreement No. 1with Plaintiff wherein Defendant leased a
2019 Volvo VNL64T760 Sleeper Tractor from Plaintiff, which required 54 monthly
payments in the amount of $3,288.89. (Id.,
¶¶4-5.) She states that on September 12,
2023, Defendant defaulted on Agreement No. 1, such that Plaintiff declared the
entire balance due in the sum of $189,740.63 and repossessed and sold the
equipment for $15,000. (Id.,
¶¶6-8.) She states that the total amount
of charges now due and payable on Agreement No. 1 is $32,458.86, plus late
charges, such that Plaintiff has been damaged in the total amount of
$207,199.49 plus prejudgment interest at 10% per annum. (Id., ¶¶9-11.)
Ms. Dow states that on January 26, 2022,
Defendant entered into Agreement No. 2 with Plaintiff wherein Defendant leased
a 2015 Utility 53x102 Refrigerated Trailer and Thermo King Refrigeration Unit
6001109995 from Plaintiff, which required 48 monthly payments in the amount of
$1,589.49. (Id., ¶¶12-13.) She states that on September 12, 2023,
Defendant defaulted on Agreement No. 2, such that Plaintiff declared the entire
balance due in the sum of $71,010.50 and repossessed and sold the equipment for
$5,000. (Id., ¶¶14-16.) She states that the total amount of charges
now due and payable on Agreement No. 2 is $250, plus late charges, such that
Plaintiff has been damaged in the total amount of $66,260.50 plus prejudgment
interest at 10% per annum. (Id.,
¶¶17-19.)
Based on the declaration of Ms. Dow, the
Court finds that Plaintiff has established the probable validity of its claims
for breach of the underlying loan agreements.
Plaintiff has shown each of the elements of a breach of contract claims
by way of the declaration of Ms. Dow and the attached exhibits. The motion is not opposed and no
contradictory evidence has been presented.
Accordingly, Plaintiff has established the
probable validity of its claims upon which the attachment is based. However, the Court notes that the
calculations for how the figures now due and owing on Agreement No. 1 and
Agreement No. 2 are not provided. The
Court will inquire of Plaintiff at the hearing how the figures were
calculated.
B. Basis
of Attachment
The Court shall issue a right to attach order
if the claim upon which the attachment is based is one upon which an attachment
may be issued. (CCP § 484.090.) “[A]n 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.”
(CCP § 483.010(a).) “If the
action is against a defendant who is a natural person, an attachment may be
issued only on a claim which arises out of the conduct by the defendant of a
trade, business, or profession.” (CCP §
483.010(c).)
This first requirement has been met.
Plaintiff’s claim is based on Defendant’s default of the agreements and his
outstanding debt owed to Plaintiff as a result of breaches of the agreements. The amount Plaintiff seeks to be secured by
the attachment is $303,543.8 (which includes $273,459.99 in the unsecured
amount, $24,124.24 for interest at 10% from September 12, 2023 to July 30,
2024, $675 in costs, and $5,284.60 in attorney’s fees), which is greater than
$500.00. (See AT-105, §8; Dow Decl.,
¶24.)
C.
Purpose
and Amount of Attachment
CCP §
484.090(a)(3)-(4) states that the Court shall issue a right to attach order if
“the attachment is not sought for a purpose other than the recovery on the
claim upon which the attachment is based . . . [and] the amount to be secured
by the attachment is greater than zero.”
In this case, Plaintiff attests on Form
AT-105 that the attachment is not sought for a purpose other than the recovery
on a claim upon which the attachment is based.
(AT-105, §4.) Also, it is clear
from the evidence presented that the amount to be secured is greater than
zero. There is no indication that the
application is sought for any other purpose, and Defendant does not argue that
the action is brought for any other purpose.
Accordingly, the Court determines that Plaintiff has complied with CCP
§§ 484.020 and 484.090.
D. Subject
Property
CCP § 484.020(e) provides, as follows:
Where the defendant is a corporation,
a reference to “all corporate property which is subject to attachment pursuant
to subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the
requirements of this subdivision. 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” satisfies the requirements of this
subdivision. Where the defendant is a natural person, the
description of the property shall be reasonably adequate to permit the
defendant to identify the specific property sought to be attached.
(CCP
§ 484.020(e).)
Plaintiff seeks the following property
from Defendant, a natural person pursuant to CCP § 487.010. (AT-105, ¶9(c).) Plaintiff seeks: “1. Property including
equipment and inventory of a going business pursuant to CCP Sections 488.375
and 488.395; 2. All vehicles of a going business pursuant to CCP section
488.385; 3. Deposit accounts thereof pursuant to CCP section 488.455; and 4.
Any accounts receivable or general intangibles pursuant to CCP section 488.470.
The specific property sought is listed in Schedule A of the application papers.” (Id.)
Plaintiff has properly described the
property sought to be attached. (See CCP § 487.010.)
E.
Exemptions
As the motion is
not opposed, Defendant has not stated whether he is claiming an entitlement to
any exemptions. Accordingly, the Court
finds that Defendant is not entitled to any exemptions.
CONCLUSION
AND ORDER
The Court is inclined to grant Plaintiff’s
application for writ of attachment against Defendant. Plaintiff’s counsel is ordered to attend the
hearing so that counsel may explain the calculations for the amounts due and
owing on the agreements. Alternatively,
Plaintiff’s counsel may file a supplemental brief explaining the calculations
prior to or immediately after the hearing.
Upon a satisfactory showing, the Court is inclined to grant the
motion.
CCP § 489.210 requires the plaintiff to
file an undertaking before issuance of a writ of attachment. CCP § 489.220 provides that “the amount of an
undertaking filed pursuant to this article shall be ten thousand dollars
($10,000).” The Court may increase this
amount “to the amount it determines to be the probable recovery for wrongful
attachment if it is ultimately determined that the attachment was wrongful.” (CCP § 489.220(b).) Accordingly, upon granting the application,
Plaintiff is ordered to post an undertaking in the amount of $10,000.00 prior
to the issuance of the writ of attachment against Defendant.
A Case Management Conference is scheduled
for February 6, 2025, at 8:30 a.m.
Plaintiff shall
provide notice of this order.
DATED: November 1, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court