Judge: Loren G. Freestone, Case: 37-2022-00021318-CU-BC-CTL, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 17, 2023

08/18/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00021318-CU-BC-CTL PERFORMANCE CONTRACTING INC VS PACIFIC SHIP REPAIR AND FABRICATION CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Performance Contracting Inc.'s application for writ of attachment is CONTINUED.

No 'notice or paper, other than amendments to the pleadings, or an amended pleading, need be served upon any party whose default has been duly entered or who has not appeared in the action or proceeding.' (See Code Civ. Proc., §§ 1010.) Thus, a motion seeking relief prayed for in the complaint may be granted in the absence of notice to a defendant in default. (See Korea Exchange Bank v. Yang (1988) 200 Cal.App.3d 1471, 1475.) However, an '[a]ttachment is an ancillary or provisional remedy to aid in the collection of a money demand by seizure of property in advance of trial and judgment.' (Kemp Bros. Constr., Inc. v. Titan Elec. Corp., (2007) 146 Cal.App.4th 1474, 1476, citations and internal quotation marks omitted.) 'It is a provisional, independent proceeding initiated by the affidavit.' (Nail v. Superior Court (1909) 11 Cal.App. 27, 31.) 'Attachment is a harsh remedy because it causes the defendant to lose control of his property before the plaintiff's claim is adjudicated.' (Martin v. Aboyan (1983) 148 Cal.App.3d 826, 831.) Although Defendant Pacific Ship Repair and Fabrication Inc. is in default on the complaint, it is entitled to notice of this ancillary proceeding seeking a remedy not prayed in the main action. And while Performance Contracting did serve Pacific Ship with a copy of its moving papers notwithstanding its default, there is no proof of service showing that notice of this continued hearing date was ever provided.

The hearing on this motion is therefore continued to September 29, 2023 at 10:30am. Performance Contracting is ordered to serve Pacific Ship with notice of the new hearing date. (See Code Civ. Proc., §§ 482.070, 484.040.) Calendar No.: Event ID:  TENTATIVE RULINGS

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