Judge: Mark C. Kim, Case: 22LBCV00438, Date: 2023-04-20 Tentative Ruling

Case Number: 22LBCV00438    Hearing Date: April 20, 2023    Dept: S27

  1. Background Facts

Plaintiff, Interpool, Inc. filed this action against Defendants, Blue Flash Express, Inc., Daniel Rodriguez, and Juana Rodriguez for breach of contract, common counts, possession of personal property and damages, conversion, and injunctive relief, alleging Defendants rented chassis equipment owned by Plaintiff, but failed to pay for and/or return the equipment.  Plaintiff alleges Defendants owe $150,000 in rental charges. 

 

Plaintiff filed its complaint on 8/24/22.  Defendants filed a demurrer, which was overruled, and ultimately filed an answer on 3/20/23.

 

  1. Application for Right to Attach Order

a.     Relief Sought

Plaintiff seeks an attachment order in its favor and against Defendant, Blue Flash in the amount of $85,631.75, which amount includes $2000 in estimated costs and $20,000 in estimated attorneys’ fees (the box for attorneys’ fees is not checked at ¶8 of the application, but the amount appears there).  Plaintiff seeks to attach “any property of a defendant who is not a natural person.”  Plaintiff supports its application with the Declaration of Karen Wolcott, who is the claims and litigation manager for Plaintiff. 

 

b.     Law Governing Right to Attach Order

Procedurally: CCP section 484.040 provides that, “No order of writ shall be issued under this article except after a hearing.  At the times prescribed by subdivision (b) of Section 1005, the defendant shall be served with all of the following: (a) A copy of the summons and complaint; (b) A notice of application and hearing; (c) A copy of the application and any affidavit in support of the application.” Each of these must be served 16 court days before the hearing if defendant is personally served or 16 court days plus 5 calendar days if service is by mail.  Defendant must file opposition to the application no later than five court days prior to the hearing date and if no opposition is filed within the time prescribed, defendant may not be permitted to oppose the issuance of the order.  (CCP section 484.060(a).)  Defendant may include a claim of exemption in the notice of opposition.  (CCP section 484.060(b).)  A reply to the opposition may be filed two court days prior to the hearing date.  (CCP section 484.060(c).)

 

Substantively: CCP section 484.090 provides that a writ of attachment should issue if the court finds that: (1) the claim upon which the attachment is based is one upon which the attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; and (3) the attachment is not sought for a purpose other than the recovery upon the claim which the attachment is based. 

The Claim: A claim is one upon which attachment may be issued if it meets the following requirements: (1) a claim for money based on a contract, express or implied; (2) of a fixed or readily ascertainable amount not less than $500; (3) that is either unsecured or secured by personal property, not real property; and (4) that is a commercial claim. (CCP section §483.010.)

 

Probable Validity of the Claim: Plaintiff has the burden of establishing the probable validity of the claim.  “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.”  (CCP section 481.190.) 

 

Property to be Attached: All property within California held by a corporation, partnership or unincorporated association is subject to attachment if there is a statutory method of levy for the property.  (CCP section 487.010(a), (b).)  By logical extension, this requirement also applies to limited liability companies because CCP section 481.170 defines “person” for attachment purposes to include corporations, partnerships, unincorporated associations and limited liability companies.  Property belonging to an individual or natural person is subject to attachment only if it falls within one of the categories set forth in CCP §487.010.  All other property belonging to an individual is exempt.  The application must specify the particular property sought to be attached.  (See CCP section §487.010.) 

 

An Undertaking: Before a writ of attachment may issue, the plaintiff must file an undertaking pursuant to CCP section 489.210 and a flat amount of $10,000 is provided for by statute. (CCP section 489.220(a).)  A writ of attachment issued without the mandated bond is void.  A defendant whose damages would be larger than the statutory amount may object, supported by declarations showing why the statutory amount is insufficient.  If the court is convinced, it may order the undertaking increased to the “probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful.”  (CCP section 489.220(b).)

 

c.     Opposition

Any opposition to the motion was due on or before Tuesday, 4/13/23 (five court days prior to the hearing).  The Court has not received opposition to the motion.  The Court will rule on the motion in the absence of opposition.

 

d.     Verification

CCP §484.020 makes clear that an application for a right to attach order must be “executed under oath.”  Plaintiff supports its application with the Declaration of Karen Wolcott, who is the claims and litigation manager for Plaintiff.  This requirement is therefore satisfied.

 

e.     Probable Validity of Claim in Ascertainable Amount

Wolcott declares Defendant, in connection with the parties’ account, owes Plaintiff $63,631.75.  She also provides documentation of this amount.  She declares Plaintiff estimates it will incur attorneys’ fees of $20,000 and costs in the amount of $2000 in connection with this action; both amounts are objectively reasonable, especially in light of the amount of law and motion practice that has already transpired between the parties.  Plaintiff therefore met its burden to show there is probable validity to its claim in the fixed and therefore readily ascertainable amount of $63,631.75.

 

f.      Conclusion

Plaintiff met its moving burden to show it is entitled to the relief sought.  In the absence of opposition, the motion is granted.

 

Plaintiff is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.