Judge: Lee W. Tsao, Case: 24NWCV00851, Date: 2024-06-13 Tentative Ruling
Case Number: 24NWCV00851 Hearing Date: June 13, 2024 Dept: C
CITIBANK, N.A. v. EK.A. T ENTERPRISE INC.
CASE
NO.: 24NWCV00851
HEARING:
06/13/24
#6
Plaintiff CITIBANK, N.A. (“Plaintiff”) applies for a writ
of attachment against Defendant ESTELA VASQUEZ
(“Defendant”) in the amount of $89,144.11.
“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.) “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 v. Weiss (1999) 73 Cal.App.4th 76, 79-80.) “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.)
At
the
hearing, the court
shall consider the
showing made by
the
parties appearing and
shall issue a
right to attach
order, which shall state the
amount to be
secured by the
attachment determined by
the
court in accordance
with
Section 483.015 or 483.020, if
it
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.
(CCP
§
484.090(a).)
The
court's determinations shall be
made
upon
the
basis of the
pleadings and other
papers in the
record; but, upon
good
cause shown, the
court may receive
and
consider at the
hearing additional evidence, oral or
documentary, and additional points and
authorities, or it
may
continue the hearing
for
the
production of the
additional evidence or
points and authorities. (CCP §
484.090(d).)
CLAIM: 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. (CCP 483.010.) Plaintiff's claim against a natural person must arise out of the defendant's conduct of a trade, business or profession. (CCP § 483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197
Cal.App.3d 1, 4. CCP 483.010.) The court has the power to determine disputed facts on the basis of preponderance of evidence as disclosed in the declarations. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.)
The claim is for money and based upon written agreements,
whose total sums are more than $500. The claim is supported by the declaration of Scott D.
Austin, attesting that Plaintiff and Defendant EJ. A. T ENTERPRISE, INC. entered into an
Agreement, that EJ. A. T ENTERPRISE, INC. is in default, and that Defendant
ESTELA VASQUEZ executed a personal guaranty. Plaintiff’s application indicates
that the claim arises out of a debt owed by Defendant’s trade, business, or profession. The claim is proper.
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.
(CCP § 481.190.)
Plaintiff has established probable validity of its claim by presenting evidence of the account history between the parties.
The Motion is unopposed.
Based on a preponderance of the evidence, the court finds Plaintiff’s claim has probable validity because it is “more likely than not” that Plaintiff will
obtain a judgment.
PURPOSE OF ATTACHMENT: As stated on the Application for Right to Attach Order (Judicial Council Form AT-105, No. 4), the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.
AMOUNT OF WRIT: The writ will issue for the amount of the claimed indebtedness, plus an amount to cover costs and allowable attorney fees as determined by the court reduced by… any security interest held by plaintiff in defendant's property. (CCP § 483.015.) A writ of attachment issued without the mandated bond is void. (Vershbow v. Reiner (1991) 231
Cal.App.3d 879, 882.)
Defendant must “produce detailed, factual declarations showing the nature and extent of the claimed offset.” (Weil & Brown, Civil Procedure Before Trial at 9:933.)
The amount of the writ against Defendant is $89,144.11, and an undertaking of $10,000.00 is
ordered as provided by statute. (CCP § 489.220.)