Judge: Linda S. Marks, Case: 2023-01318419, Date: 2023-07-31 Tentative Ruling

Application for Right to Attach Order/Writ of Attachment filed by West L.A. Properties on 4/28/23

Plaintiff West L.A. Properties (“Plaintiff”) filed an Application for Right to Attach Order and Order for Issuance of Writ of Attachment in the amount of $44,156.09.

The court notes that Defendant failed to timely file and serve its opposition pursuant to Code of Civil Procedure sections 1005 and 484.060. Code of Civil Procedure section 484.060 states:

“If the defendant desires to oppose the issuance of the right to attach order sought by plaintiff or objects to the amount sought to be secured by the attachment, the defendant shall file and serve upon the plaintiff no later than five court days prior to the date set for the hearing a notice of opposition. The notice shall state the grounds on which the defendant opposes the issuance of the order or objects to the amount sought to be secured by the attachment and shall be accompanied by an affidavit supporting any factual issues raised and points and authorities supporting any legal issues raised. If the defendant fails to file a notice of opposition within the time prescribed, the defendant shall not be permitted to oppose the issuance of the order.” (Code Civ. Proc., § 484.060.)

Here, there is no proof of service filed in support of the opposition. The opposition was also filed on 07/25/2023 but was due 07/24/2023. Even without considering the late opposition, the court finds that Plaintiff has not carried its burden. But here the court considers the late opposition to address and circumvent raising of the same issues in a subsequent filing.

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., § 483.010, subd. (a).)

Importantly, a court must find the following before it issues a right to attach order:

“(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, subd. (a).)

“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.” (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1118 [citing Code Civ. Proc., § 481.190].)

“The application 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.” (Code Civ. Proc., § 484.030.) Code of Civil Procedure section 484.020 sets forth the specific information that must be included in the application and executed under oath.

“The Attachment Law statutes are subject to strict construction, and where a court is required to exercise its jurisdiction in a particular manner or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void.” (Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106.)

Here, the court finds that Plaintiff has not carried its burden. First, Plaintiff has not provided 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” as required pursuant to Code of Civil Procedure section Code Civ. Proc., § 484.020(e).

Moreover, Plaintiff also has not established the requisite probable validity of its breach of lease claim. To succeed on its claim, Plaintiff must establish damages. The court finds that Defendant has presented sufficient evidence and legal authority that calls into question whether Plaintiff will obtain a judgment against Defendant on its breach of lease claim. As Defendant correctly argues, “[u]nless the total detriment suffered, whether by loss of rentals or consequential damages, exceeds the amount to be received under the new lease there is in fact no detriment, and hence no damages.” (Willis v. Soda Shoppes of California, Inc. (1982) 134 Cal.App.3d 899, 905.)

Defendant’s objections are OVERRULED.

Tentative Ruling: The Application is DENIED WITHOUT PREJUDICE.

Defendant to give notice