Judge: Lynette Gridiron Winston, Case: 24PSCV02763, Date: 2025-05-05 Tentative Ruling
Case Number: 24PSCV02763 Hearing Date: May 5, 2025 Dept: 6
CASE NAME: East West Bank v. Tianchang Lyu, et al.
Plaintiff East West Bank’s Application for a Right to Attach Order and Writ of Attachment
TENTATIVE RULING
The Court GRANTS Plaintiff East West Bank’s application for a right to attach order and writ of attachment.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a breach of guaranty action. On August 26, 2024, plaintiff East West Bank (Plaintiff) filed this action against defendants Tianchang Lyu, Xiu Lian Zhang (Zhang) and Does 1 through 50, alleging causes of action for two counts of breach of commercial guaranty, and specific performance of judicial reference agreement.
On April 4, 2025, Plaintiff applied for a right to attach order and writ of attachment. The application is unopposed.
LEGAL STANDARD
“Except as otherwise provided by statute, 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).) “The order will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the order are established.” (Id., § 484.050, subd. (b).)
REQUEST FOR JUDICIAL NOTICE
The Court GRANTS Plaintiff’s request for judicial notice 1-4 as to Exhibits 6, 8, 9, and 10 to the Declaration of Stuart Bonomo ISO the Application. (Evid. Code, § 452, subds. (c)-(d); West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803 [court may take judicial notice of recorded deed]; see City of Alameda v. Sheehan (2024) 105 Cal.App.5th 68, 81, fn. 7 [court took judicial notice of business searches on the Secretary of State’s website].) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)
DISCUSSION
Plaintiff seeks a right to attach order and a writ of attachment in the amount of $5,584,057.97 arising from a loan agreement in which Plaintiff provided an $8,000,000.00 line of credit to China Nortel. Plaintiff indicates that Zhang is the CEO of China Nortel and that she personally guaranteed this loan. Plaintiff contends China Nortel has breached the loan agreement and that Zhang has also breached the guaranty. Plaintiff thereby seeks to attach certain real property belonging to Defendant Zhang, located at 27 Los Coyotes Drive, Pomona, CA 91766, all securities, stocks and bonds in which Defendant Zhang has an interest or holds title to, and money belonging to Defendant (the Property). Plaintiff contends attachment is authorized here because its claim against Zhang is based upon a contract for a readily ascertainable sum, it is not secured by any interest in real or personal property, and arose from Zhang’s conduct of a trade, business, or profession.
Plaintiff contends the loan is clearly not a consumer loan, and that Zhang is the CEO of China Nortel and that she signed the loan agreement and promissory note in her capacity as CEO. Plaintiff indicates that the loan agreement expressly provides the money was to be used solely for business operations and that Zhang was the only person authorized to request advances and authorize payments under the loan. Plaintiff contends China Nortel’s incorporation documents with the Secretary of State list Zhang as the incorporator, agent for service of process, CEO, and director of China Nortel. Plaintiff further contends the Property is attachable under Code of Civil Procedure section 487.010, subdivision (c).
“When the claim is against a defendant (or counterdefendant) who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant (or counterdefendant) of a trade, business, or profession, and only if the goods, services, or money furnished were not used by the defendant (or counterdefendant) primarily for personal, family or household purposes. C.C.P. § 483.010(c). Attachment may issue against an individual who guarantees corporate obligations or business debts if ‘the guarantee ... sued upon is part and parcel of an activity which occupies the time, attention and effort of the guarantor for the purpose of livelihood or profit on a continuing basis.’ [Citation.]” (Pos-A-Traction, Inc. v. Kelly-Springfield Tire Co., Div. of Goodyear Tire & Rubber Co. (C.D. Cal. 2000) 112 F.Supp.2d 1178, 1182 [applying California law].) In determining whether a claim arises out of natural person’s trade, business, or profession, the courts distinguish between one who spends one’s attention, time, and effort in carrying on an activity for the purpose of livelihood or profit on a continuing basis versus someone who merely conserves one’s personal investments. (Nakasone v. Randall (1982) 129 Cal.App.3d 757, 764.) The courts generally determine on a case-by-case basis whether the activity of the person with respect to the extension of credit generally, or to the business of the primary obligor, justifies finding that the guarantee of the primary obligor’s debt sued upon is part of an activity “’which occupies the time, attention, and effort of the guarantor for the purpose of livelihood or profit on a continuing basis.’ [Citation.]” (Great Am. Ins. Co. v. Nat'l Health Servs., Inc. (1976) 62 Cal.App.3d 785, 795.)
The Court finds Plaintiff has demonstrated a probable validity of its claim to support an attachment order and writ of attachment. (Code Civ. Proc., § 484.050, subd. (b).) The evidence clearly demonstrates that the loan agreement at issue is a business loan with China Nortel as the borrower. (Bonomo Decl., Ex. 1.) The evidence also shows that Zhang is the CEO of China Nortel. (Goldflam Decl., Ex. D, Interrogatory 2.6, subd. (b); Bonomo Decl., Exs. 9-10.) Zhang signed the subject business loan agreement and corresponding promissory note in her capacity as CEO of China Nortel, and then executed a commercial guaranty for the subject business loan agreement with China Nortel. (Bonomo Decl., Exs. 1-3.) The Court finds this evidence sufficiently demonstrates that Zhang’s conduct was for the business operations of China Nortel for purposes of attaching the Property. (Code Civ. Proc., §§ 483.010, subd. (a), 487.010, subd. (c)(1); Pos-A-Traction, Inc. v. Kelly-Springfield Tire Co., Div. of Goodyear Tire & Rubber Co., supra, 112 F.Supp.2d at p. 1182.)
The Court further notes Zhang’s lack of opposition and construes the lack of opposition as a concession that Plaintiff’s arguments are meritorious. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion, "it is assumed that [nonmoving party] concedes" that ground].)
Based on the foregoing, the Court GRANTS the application.
CONCLUSION
The Court GRANTS Plaintiff East West Bank’s application for a right to attach order and writ of attachment.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.