Judge: Mary H. Strobel, Case: 21STCV39678, Date: 2022-09-15 Tentative Ruling

Case Number: 21STCV39678    Hearing Date: September 15, 2022    Dept: 82

            Plaintiff Baocheng Li (“Plaintiff”) moves for a writ of attachment against Defendant “X-Speed Transportation, et al.” (“Defendant”) in the amount of $500,000.

Procedural History

            On October 27, 2021, Plaintiff filed a complaint against X-Speed Transportation, Inc. and Songpo Zhang for motor vehicle negligence and general negligence.  On October 28, 2021, Plaintiff filed a first amended complaint for the same causes of action.    X-Speed Transportation, Inc. and Songpo Zhang answered the first amended complaint. 

            On June 23, 2022, Plaintiff filed this application for writ of attachment.

            No opposition to the application for writ of attachment has been filed.

Summary of Applicable Law

“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.”  (CCP § 484.010.)

The application shall be executed under oath and must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and (5) 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.  (CCP § 484.020.)

“The application [for a 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.”  (CCP § 484.030.) 

The Court shall issue a right to attach order if the Court finds all of the following:

(1) The claim upon which the attachment is based is one upon which an attachment may be issued.

(2) The plaintiff 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 attachment is based.

(4) The amount to be secured by the attachment is greater than zero.

CCP § 484.090.

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) 

Analysis 

1.    Notice of Motion

The motion is brought pursuant to Labor Code section 3707.  That section allows an injured employee to seek attachment of the property of his or her employer, when the employer has failed to secure worker’s compensation.  The section further provides that the provisions of the Code of Civil Procedure, not inconsistent with this division, govern the issuance of, and proceedings upon such attachment.

            A noticed motion for attachment is governed by the procedures in CCP sections 482.010 et seq. and 484.010, et seq.   (See also CCP § 486.030(b) [same requirements apply to application for temporary protective order].)  As relevant here, CCP section 484.040 states: “No order or 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 of any affidavit in support of the application.”  (bold italics added.) 

CCP section 484.050 states that the notice of application “shall inform” Defendant of all of the following:

(a) A hearing will be held at a place and at a time, to be specified in the notice, on plaintiff's application for a right to attach order and a writ of attachment.

(b) 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. The hearing is not for the purpose of determining whether the claim is actually valid. The determination of the actual validity of the claim will be made in subsequent proceedings in the action and will not be affected by the decisions at the hearing on the application for the order.

(c) The amount to be secured by the attachment is determined pursuant to Sections 482.110, 483.010, 483.015, and 483.020, which statutes shall be summarized in the notice.

(d) If the right to attach order is issued, a writ of attachment will be issued to attach the property described in the plaintiff's application unless the court determines that such property is exempt from attachment or that its value clearly exceeds the amount necessary to satisfy the amount to be secured by the attachment. However, additional writs of attachment may be issued to attach other nonexempt property of the defendant on the basis of the right to attach order.

(e) If the defendant desires to oppose the issuance of the order, the defendant shall file with the court and serve on the plaintiff a notice of opposition and supporting affidavit as required by Section 484.060 not later than five court days prior to the date set for hearing.

(f) If the defendant claims that the personal property described in the application, or a portion thereof, is exempt from attachment, the defendant shall include that claim in the notice of opposition filed and served pursuant to Section 484.060 or file and serve a separate claim of exemption with respect to the property as provided in Section 484.070. If the defendant does not do so, the claim of exemption will be barred in the absence of a showing of a change in circumstances occurring after the expiration of the time for claiming exemptions.

(g) The defendant may obtain a determination at the hearing whether real or personal property not described in the application or real property described in the application is exempt from attachment by including the claim in the notice of opposition filed and served pursuant to Section 484.060 or by filing and serving a separate claim of exemption with respect to the property as provided in Section 484.070, but the failure to so claim that the property is exempt from attachment will not preclude the defendant from making a claim of exemption with respect to the property at a later time.

(h) Either the defendant or the defendant's attorney or both of them may be present at the hearing.

(i) The notice shall contain the following statement: “You may seek the advice of an attorney as to any matter connected with the plaintiff's application. The attorney should be consulted promptly so that the attorney may assist you before the time set for hearing.”

Here, Plaintiff has brought a noticed motion for attachment.  However, the notice page does not include the information required by section 484.050.  “The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)  Accordingly, the motion is DENIED.  Because the notice is deficient, the court does not consider whether the application otherwise would support issuance of a writ of attachment.

Ex Parte Attachment

            The notice, filed in June 2022, confusingly states that Plaintiff has noticed an ex parte application for issuance of writ of attachment for September 15, 2022.  However, the caption refers to a “Notice of Hearing.”  The court interprets the notice as pertaining to a noticed motion for writ of attachment. 

            Even if Plaintiff sought attachment by ex parte application, Plaintiff would need to submit an affidavit showing “that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.”  (CCP § 485.010(a); see also CCP § 486.010(b) [same requirement for TPO].)  Plaintiff has not submitted a declaration or affidavit that addresses this issue.  The conclusory statement on information and belief in Plaintiff’s form AT-105, signed by an attorney, does not satisfy section 485.010(a).  (See AT-105 ¶ 13.a.)  Moreover, any claim of great or irreparable injury is undermined by Plaintiff filing the application in June 2022 for a hearing in September 2022. 

Conclusion

            The application is DENIED.