Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV01290, Date: 2024-11-06 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV01290, Date: 2024-11-06 Tentative Ruling

Plaintiffs David Smith and Cheyanne Kane’s Application for Right to Attach Order and Writ of Attachment is GRANTED in the amount of $1,876,667.20. Plaintiffs David Smith and Cheyanne Kane shall file an undertaking in the amount of $10,000 within twenty (20) days of entry of this order.

“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.” (Code Civ. Proc., § 484.010.) Code of Civil Procedure section 484.020 provides that the application must be executed under oath and include all of the following information:

(d)A statement that the applicant has no information or belief that the claim is discharged in a proceeding under Title 11 of the United States Code (Bankruptcy) or that the prosecution of the action is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy).

(e)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. 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.

The application for a right to attach order and 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.” (Code Civ. Proc., § 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 [citing Code Civ. Proc., § 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 p. 80, ellipsis and quotation marks omitted.)

(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.” (Code Civ. Proc., § 481.190.) “In the discretion of the court, the amount to be secured by the attachment may include an estimated amount for costs and allowable attorney’s fees.” (Code Civ. Proc., § 482.110, subd. (b).)

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. (Code Civ. Proc., § 484.090, subd. (a)(1).) “[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.” (Code Civ. Proc., § 483.010, subd. (a).)

In this case, Plaintiffs David Smith and Cheyanne Kane (“Plaintiffs”)’s claim for disgorgement stated against Defendant Christian Rodolfo Nunez Ramirez (“Defendant”) seeks compensation paid to an unlicensed contractor, and the claim exceeds $500, as Plaintiffs seek disgorgement of $2,500,000 plus interest. Plaintiffs show that they paid invoices in the amount of $2,338,528 (Mot., Kane Decl. ¶ 6, Ex. 1), and Defendant has stated in discovery responses that Plaintiffs paid him $1,876,667.20 (Mot., Rader Decl. ¶ 4, Ex. B). Defendant disputes this amount, but he provides no evidence of payment made to subcontractors. (See Opp’n, Ramirez Decl. ¶ 7.) Accordingly, the Court finds that Plaintiffs’ claim provides a proper basis for attachment. (See Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 854 [disgorgement claim “is fundamentally contractual in nature since it is based on an unlicensed contractor’s agreement with the beneficiary to provide services, and the beneficiary's agreement to pay for same”].)

Code of Civil Procedure section 484.090, subdivisions (a)(1) and (a)(2), state 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, Plaintiffs attest on Form No. AT-105 that attachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based. (AT-105 ¶ 4.) Further, the amount sought to be secured is greater than zero, as Plaintiffs seek to secure an amount of $1,876,667.20. (AT-105 ¶ 8.) 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 Plaintiffs have properly set forth that the attachment is not sought for a purpose other than recovery of the claim for breach of subject agreement, and the amount sought to be secured is greater than zero.

Code of Civil Procedure section 484.020, subdivision (e), requires “[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.” Plaintiffs state that they seek to attach interests in real property, accounts receivable, chattel paper, and general intangible arising out of Defendant’s conduct of a trade, business, or profession; equipment; inventory; money on the premises where Defendant’s business is conducted; and deposit accounts. (AT-105 ¶ 9(c).) The Court finds that Plaintiffs have properly described the property sought to be attached. (See Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 267-268.)

In this action, Plaintiffs allege that Defendant was an unlicensed contractor who performed negligent construction work at 888 Linda Flora Drive who ultimately refused to perform some of the work and abandoned the project. (Compl. ¶¶ 18-20, 23-28.) Plaintiffs allege that they paid Defendant period progress payments of more than $2,500,000, and they seek disgorgement of no less than that amount. (Compl. ¶¶ 18, 28.)

Plaintiffs support their application with the declaration of Plaintiff Cheyanne Kane, who states that Defendant performed construction services for Plaintiffs (Mot., Kane Decl. ¶ 6, Ex. 1), and they provide Defendant’s discovery responses stating that he did not have a contractor’s license when he performed the subject work (Mot., Rader Decl. ¶ 3, Ex. A). Defendant argues that Plaintiffs’ claim is time barred because he completed the work on November 8, 2021, with additional work performed by January 28, 2022. and the disgorgement claim is subject to a one-year statute of limitations. (Opp’n, Ramirez Decl. ¶ 8.) However, Defendant provides no evidence beyond his statement to this effect, while Plaintiffs provide a copy of invoices dated April 2, 2022 and April 3, 2022, which would place their claim within the one-year statute of limitations because Defendant was requesting payment on those dates for work which required a license. (Mot., Kane Decl. ¶¶ 56, Ex. 1.) Thus, the Court cannot conclude that Plaintiffs’ claim is time barred as a matter of law.

The Court finds that Plaintiffs have sufficiently established that their claim has probable validity, as it is more likely than not that Plaintiffs will obtain a judgment against Defendant on their claim. (Code Civ. Proc., § 481.190.)

“Before issuance of a writ of attachment, . . . the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.” (Code Civ. Proc., § 489.210.) Plaintiffs shall file an undertaking in the amount of $10,000 within twenty (20) days of entry of this order.