Judge Kerry Bensinger, Case Number: BC704624, Date: 2024-08-08 Tentative Ruling

EX PARTE APPLICATION FOR RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT (NONRESIDENT) PER CCP § 492.010

MOVING PARTY: Defendants/Cross-Complainants Dragon Dream LLC and Mingyong Huang

This is a consolidated action concerning the commercial property located at 16839 Gale Ave., Los Angeles, California (the “Property”). The Property was owned by Dragon Dream, LLC. Dragon Dream, LLC was wholly owned by Mingyong Huang. In 2017, Plaintiffs Hong Jin and Ming Zhou (collectively, “Plaintiffs”) were approached by their real estate agent Angela Xu (Xu) about an investment opportunity to acquire an ownership interest in the Property. Zu represented that her business partner (and husband), Bo Wang (Wang), owned the Property but wanted to sell a 25% interest due to financial distress. In October 2017, Plaintiffs entered into an agreement with Bo Wang and Dragon Dream, LLC to acquire 25% interest in the Property. Pursuant to the agreement, Plaintiffs wired $1,500,000 renminbi (Chinese currency) to a bank account in China. In March 2018, Plaintiffs looked closer at the agreement and realized it was not an agreement to acquire a 25% interest in the Property but was instead a Membership Interest Purchase Agreement. Plaintiffs alleged they entered into the agreement based on fraudulent misrepresentations.

On May 11, 2018, Plaintiffs filed this action against Defendants Dragon Dream, LLC and Mingyong Huang (collectively, “Defendants”), among others. Defendants cross-complained against Plaintiffs.

On March 17, 2022, Plaintiffs filed a new action against Defendants in Case No. 22STCV09428. There, Plaintiffs asserted they were assignees of Bo Wang, who Plaintiffs originally claimed defrauded them. Defendants filed a notice of related case and moved to consolidate. This action and Case No. 22STCV09428 were consolidated on July 5, 2022.

On August 14, 2023, Defendants filed a Cross-Complaint in Case No. 22STCV09428 naming Bo Wang as a cross-defendant. Defendants have been unable to effectuate service of process on Bo Wang who, in 2018, was deported from the United States to China.

Before the court is Defendants’ Ex Parte Application for Right to Attach Order and Order for Issuance of Writ of Attachment. Defendants seek to preserve their ability to recover on their cross-complaint against Bo Wang by requesting that this court exercise in rem/quasi in rem jurisdiction over “all property of Bo Wang which is subject to attachment.”

Defendants do not establish entitlement to the relief requested for several reasons.

First, Defendants’ Ex Parte Application for Writ of Attachment was improperly filed with this court. Under LASC Local Rule, rules 2.8(a) and 2.9, an application for pre-judgment writ of attachment is to be heard in Department 82, 85, or 86. (Cf. LASC Local Rule(a) [providing that applications for post-judgment writ of attachment are to be heard in the department where the case is assigned (emphasis added)].) A judgment has not been entered in this action. Accordingly, Defendants’ application for pre-judgment writ of attachment must be heard by Department 82, 85, or 86.

Second, Defendants do not establish they will suffer irreparable harm or immediate danger. California Rules of Court, Rule 3.1201 provides that a request for ex parte relief must be in writing and must include all of the following:

2. A declaration in support of the application making the factual showing required under rule 3.1202(c);

3. A declaration based on personal knowledge of the notice given under rule 3.1204;

Pursuant to California Rules of Court, Rule 3.1202(c), “[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.”

Here, Defendants fail to show irreparable harm or immediate danger if relief is not granted. Indeed, Defendants do not discuss at all the elements of irreparable harm or immediate danger. Similarly, Code of Civil Procedure section 485.010 provides that “no right to attach order or writ of attachment may be issued pursuant to this chapter unless it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.” (Emphasis added.) Defendants do not meet their burden of proof.

Third, Defendants have not provided an adequate description of the property to be attached. Code of Civil Procedure section 484.020 states, in part, “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.” (Code Civ. Proc., § 484.020(e).) Here, cross-defendant Bo Wang is a natural person. Accordingly, Defendants are required to provide a reasonably adequate description of his property to be attached. However, Defendants state they seek to attach “all property of Bo Wang which is subject to attachment.” This is not a reasonably adequate description of the property to be attached.

Fourth, Defendants have not provided Bo Wang with proper notice. 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. (Code Civ. Proc., § 484.010.) Here, Defendants did not serve Bo Wang with this Ex Parte Application or the summons and cross-complaint.

Kerry Bensinger

Judge of the Superior Court