Judge: Marcella O. Mclaughlin, Case: 37-2019-00043699-CU-BC-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00043699-CU-BC-CTL KINSALE INSURANCE COMPANY VS XL STAFFING INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice of Application and Hearing for Right to Attach Order and

Writs of Attachment, 02/26/2024 Plaintiff Kinsale Insurance Company's application for a right to attach order and writ of attachment is DENIED.

A. Kinsale's request for judicial notice is granted. Evid. Code § 452(d). 'However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.' Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.

B. The court rules on Kinsale's evidentiary objections as follows: -Objections 1-8 are sustained.

-Objection 9 is overruled.

C. Before an attachment order is issued, the court must find all of the following: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the applicant 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 request for attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Code Civ. Proc. § 484.090(a).

The plaintiff has the burden of establishing the probable validity of the claim upon which the attachment is based. Rreef America Reit II Corp, YYY v. Samsara Inc. (2023) 91 Cal.App.5th 609, 617. 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. § 418.190. This definition requires the plaintiff to 'at least establish a prima facie case.' Pech v. Morgan (2021) 61 Cal.App.5th 841, 854. To establish a prima facie case for breach of contract, a plaintiff must prove: (1) the existence of a contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damages to plaintiff. Id. at 855.

Here, Kinsale has not submitted any evidence regarding the second element of its breach of contract claim – i.e., performance or excuse for nonperformance of the Hospitality Agreement by its insured, Rich's San Diego. Thus, Kinsale has not established a prima facie case for breach of contract. Kinsale has therefore failed to meet its burden of demonstrating the probable validity of the claim upon which the requested attachment is based.

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3096517  14 CASE NUMBER: CASE TITLE:  KINSALE INSURANCE COMPANY VS XL STAFFING INC [IMAGED]  37-2019-00043699-CU-BC-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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