Judge: Mary H. Strobel, Case: 21STCV40099, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCV40099    Hearing Date: October 13, 2022    Dept: 82

            Plaintiff James Cheung (“Plaintiff”) moves for a writ of attachment against Defendant Roger Han (“Defendant”) in the amount of $1,998,106.

Judicial Notice

Defendant’s Requests for Judicial Notice, Nos. 1-3 – Granted.  

Defendant’s Evidentiary Objections

Declaration of James Cheung

(1)  – (6) Overruled.  Can be considered in support of request for temporary protective order but not writ of attachment.  Showing of irreparable harm for issuance of a temporary protective order may be based on information and belief.  CCP section 486.010(b). 

(7)  Sustained. 

Declaration of Jinwoo Hyoung

(1)  Overruled. 

(2)  Overruled

(3)  Sustained.

Relevant Procedural History

            On November 1, 2021, Plaintiff filed a complaint against Defendant Roger Han, among other defendants, for fraud, breach of contract, breach of implied covenant of good faith and fair dealing, and civil conspiracy. 

            On January 7, 2022, Plaintiff filed the operative first amended complaint (“FAC”) against Defendant Roger Han, among other defendants, for fraud, breach of contract, breach of implied covenant of good faith and fair dealing, and civil conspiracy.  

            On May 31, 2022, Defendant answered the FAC.

            On July 12, 2022, the court denied Plaintiff’s ex parte application for a writ of attachment, finding that Plaintiff had not presented any evidence of irreparable harm.  On August 30, 2022, the court denied Plaintiff’s second ex parte application for a writ of attachment.

            On September 19, 2022, Plaintiff filed this noticed application for writ of attachment and supporting papers.  On October 3, 2022, Defendant filed an opposition. 

            On September 30, 2022, Defendant filed a motion for leave to file a cross-complaint.  The motion is on calendar for November 1, 2022, in Department 72.

            On October 3, 2022, Judge Curtis Kin (Dept. 72) denied Defendant’s ex parte application to compel arbitration, finding no exigency, and stating that Defendant may proceed by way of noticed motion.  Defendant presently has not filed a noticed motion to compel arbitration.  

            On October 12, 2022, at 2:12 am, Plaintiff untimely filed a reply declaration in support of the application for writ of attachment.  Any reply papers were due two days before the hearing, or by October 11, 2022.  (CCP § 484.060(c).)  There is no proof of service for this reply declaration, which is also not signed by Plaintiff. 

On October 12, 2022, at 11:30 am, Plaintiff untimely filed a similar reply declaration that is signed, includes several exhibits, and has proof of service.

Plaintiff is admonished to timely file all papers.  Nonetheless, while the reply declarations were untimely filed, the proof of service states that Plaintiff timely served the second declaration on October 11.  Accordingly, the court exercises its discretion to consider the reply declaration. 

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.

“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 § 481.190.)  “In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”  (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)

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

Analysis 

1.    Notice

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).)  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: … (b) A notice of application and hearing. ….”  (bold italics added.)  CCP section 484.050 states that the notice of application “shall inform” Defendant of numerous matters, including the place and time of the hearing; the amount to be secured; and specific procedures that apply to an attachment motion. 

Here, Plaintiff has brought a noticed motion for attachment and the notice page does not include all of the information required by section 484.050.  Because the attachment statutes are strictly construed, the defective notice could be a basis for denying the motion.  However, Defendant has not raised any issue of notice in his opposition brief, has not claimed prejudice, and has opposed the application on its merits, including with evidentiary objections and several declarations.  The court finds that Defendant waived the defect in notice in these circumstances.  (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1115-16 [inadequate notice not grounds for reversal where defendant could show no prejudice from application for attachment being served 4 days late]; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [“It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.”].) 

2.    Probably Validity of Plaintiff’s Claim

The application is based on Plaintiff’s cause of action for breach of contract, specifically breach of a real estate sales contract.  To establish a claim for breach of contract, a plaintiff must generally prove: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach of the contract; and (4) damages incurred by plaintiff as a result of the breach.  (Durell v. Sharp Healthcare, (2010) 183 Cal.App.4th 1350, 1367.)  As discussed further below, special rules of damages apply to breach of a real estate sales contract.  If the buyer breaches the sales contract, the seller may recover “loss of bargain damages as to the real property, i.e., the excess of the contract price over the value of the real property to the seller at the date of breach.”  (Abrams v. Motter (1970) 3 Cal.App.3d 828, 840.)

Plaintiff cannot seek attachment based on his cause of action for fraud.  (See Cheung Decl. ¶ 18 [discussing alleged fraudulent inducement].)  Pre-judgment attachment “may be issued only in an action on a claim … based upon a contract, express or implied….”  (CCP § 483.010(a).)  Accordingly, Plaintiff’s fraud allegations are not relevant to this application and are not discussed further. 

In support of the contract claim, Plaintiff submits evidence that he and Defendant executed a Residential Purchase Agreement (“Agreement”) on March 4, 2021, under which Defendant agreed to purchase from TCL Oxford Solutions, LLC three (3) adjoining single family homes located at 539, 541, and 547 N Hobart Boulevard, Los Angeles, California 90004 (“Properties”) for $6 million.  (Cheung Decl. ¶¶ 12-13, Exh. D.)  Defendant agreed to waive all contingencies and deposit $1 million into escrow within three business days after the parties fully executed the Agreement.  (Ibid.)  The Agreement stated that escrow shall close on April 15, 2021.  (Ibid.)  Plaintiff submits evidence that he is the sole member of TCL Oxford Solutions, LLC (“TCL”), and that TCL has assigned its legal claims against Defendant to Plaintiff.  (Cheung Decl. re: Standing ¶ 5.)

On March 9, 2021, three business days from the execution of the Agreement, Defendant failed to deposit the $1,000,000 into escrow.  (Cheung Decl. ¶ 14.)  On April 15, 2021, the sale transaction did not close. (Id. ¶ 15.) 

Plaintiff declares that he has performed all obligations of the Agreement that were required of him, except those he was prevented or excused from performing.  (Id. ¶ 21.)  Plaintiff declares that, as a result of Defendant’s breach of the Agreement, he had to sell the Properties to a third-party buyer on December 21, 2021, for $4.2 million, with Plaintiff receiving net proceeds of $4,001,894.00.  (Id. ¶ 22, Exh. E.)  Plaintiff contends that he has been damaged in the amount of $1,998,106, the difference between $6,000,000 and $4,001,894.00.  (Ibid.)  The court notes that Plaintiff has not claimed any consequential or liquidated damages from the alleged breach in his declaration or moving brief.  (Ibid. and Mot. 8-9.)

In the FAC, Plaintiff makes certain admissions relevant to his contract claim, including that the parties apparently agreed to a new closing date of July 26, 2021.  (FAC ¶¶ 19-20.)  Those admissions are not explained in Plaintiff’s declaration, which asserted a closing date of April 15, 2021.

In an opposing declaration, Defendant also makes various statements relevant to Plaintiff’s contract claim.  Among other things, Defendant states that the Agreement arose from a development project that also involved non-party architect Eric Kwon.  (Han Decl. ¶ 4.)  Defendant declares that “[t]he parties also discussed that the value of three parcels of the properties was about or less than $4M all together, however, the contract price would be $6M, since KWON and Plaintiff would incur substantial amounts in processing architectural plans and obtaining city permits and licenses. The materials showing the value of the Property is attached hereto as Exhibit 2.”  (Id. ¶ 7.) 

Defendant further declares, as follows:

8. The parties then executed the Sales and Purchase Agreement dated 02/25/2021 (“PSA”). KWON prepared the PSA with no contingencies, since the parties’ intent was to open the escrow with other contingencies and terms ONLY AFTER KWON and Plaintiff would complete the works of obtaining the permits and licenses from the city.

9. Contrary to what KWON and Plaintiff promised, they would not be able to obtain the permits and licenses until April, or May, or June of 2021. Defendants and MIRAE demanded the performance of KWON and Plaintiff on numerous occasions, and in June 2021, the parties agreed to allow more time to KWON and Plaintiff to complete the permits and licenses process until late July 2021. KWON’s inducement, promises, and Defendants’ demands for KWON and Plaintiff to perform the promises are attached hereto as Exhibit 3.

10. Realizing that KWON was not able to obtain the permits and licenses from the city, Plaintiff unilaterally cancelled the PSA by issuing “Cancellation of Contract,” on June 27, 2021. The relevant portion of Plaintiffs FAC is attached hereto as Exhibit 4.

11. The value of the properties was about or less than $4M, but Plaintiff was able to sell them for $4.2M in 12/2021, just a few months after his unilateral cancellation of the PSA.

“In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”  (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)

While the court has carefully considered the parties’ evidence and legal positions, the court finds it unnecessary to decide whether Plaintiff has shown a probably valid contract claim because, as discussed below, Plaintiff’s application must be denied for several other reasons.   

3.    Basis of Attachment

“[A]n 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.”  (CCP § 483.010(a).)  “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….”  (CCP § 483.010(b).)  “If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession.  (§ 483.010(c); see Advance Transformer co. v. Sup.Ct. (1974) 44 Cal.App.3d 127, 143-144.)

Here, Plaintiff’s applications for writ of attachment are based on a contract where the total amount allegedly due is in excess of $500.  The contract claim is not secured by real property.   It may be reasonably inferred from the record, including admissions in Defendant’s declaration, that the contract claim arises from Defendant’s conduct of a trade, business, or profession, specifically a real estate development project.  (See Han Decl. ¶¶ 3-15.)

Defendant contends that Plaintiff’s damages are not fixed and readily ascertainable from the Agreement.  (Oppo. 7-8.)  The court finds this argument persuasive.  Notably, Plaintiff has not addressed this material issue in the motion or in a reply brief. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) 

“It is a well-recognized rule of law in this state that an attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. [Citations.] The fact that the damages are unliquidated is not determinative. [Citations.] But the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.’ ” (See CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App. 4th 537, 541.)  

“The rules of damages for a breach of a contract to sell or buy real property are special and unique.”  (Miller & Starr, Cal. Real Estate 4^th, § 40:42, citing Boshes v. Miller (1953) 119 Cal.App.2d 332, 336-337.)  If the buyer breaches the sales contract, the seller may recover “loss of bargain damages as to the real property, i.e., the excess of the contract price over the value of the real property to the seller at the date of breach.”  (Abrams v. Motter (1970) 3 Cal.App.3d 828, 840.)  The value of the property is the “fair market value,” measured on the date of breach.  The seller has the burden of proving the value of the property, which is a question of fact.  (Miller & Starr, Cal. Real Estate 4th § 40:50; see also Abrams, supra, 3 Cal.App.3d at 840 and CMSH Co. v. Antelope Development, Inc. (1990) 223 Cal.App.3d 174, 182.)  “When the seller diligently resells the property within a reasonable time, the resale price is evidence of the value of the property on the date of the buyer's breach, but it is not conclusive.”  (Miller & Starr, Cal. Real Estate 4th § 40:50; see Royer v. Carter (1951) 37 Cal.2d 544, 548-550.) 

Here, Plaintiff has the burden to show that his damages are fixed and readily ascertainable.  Plaintiff fails to address that issue in the motion or in a reply.  Plaintiff has not identified any language from the Agreement that provides a standard from which Plaintiff has calculated damages.  In the application, Plaintiff seeks “loss of bargain” damages.  (Heung Decl. ¶ 22; Mot. 8-9.)  As discussed, case law supports calculating Plaintiff’s loss of bargain damages as the difference between the contract price and fair market value as of the date of breach.  (See Abrams v. Motter (1970) 3 Cal.App.3d 828, 840.)  However, determining the fair market value of the property at the time of breach is a question of fact and encompasses various different factors.  Plaintiff does not show that the Agreement provides a standard for calculating fair market value.  Thus, Plaintiff’s damages are not fixed and readily ascertainable for purposes of pre-judgment attachment.

The court notes that Plaintiff calculates damages by using evidence of his resale in December 2021.  (Cheung Decl. ¶ 22.)  Plaintiff apparently contends that Defendant breached the contract in April 2021, months earlier.  (Id. ¶ 15.)  While evidence of Plaintiff’s resale for $4.2 million in December 2021 may be relevant to the determination of fair market value, it is not conclusive evidence.  (Royer v. Carter (1951) 37 Cal.2d 544, 548-550.)  In the motion and reply, Plaintiff has not cited any other evidence of fair market value.  Even assuming arguendo, that the record contains some other potential evidence of fair market value, including statements of Defendant, the Agreement does not provide a legal standard from which the court could weigh such evidence.

Because Plaintiff’s asserted damages are not fixed and readily ascertainable, the application must be denied.

4.    Arbitration Writ

Defendant contends that Plaintiff’s contract claim is subject to a binding arbitration provision in the Agreement.  (Oppo. 9.)  Plaintiff has not responded to this argument in reply.  The possibility that the action must be submitted to arbitration is relevant to Plaintiff’s request for pre-judgment attachment.

CCP § 1281.8(b) states in pertinent part:

A party to an arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if an arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.   (emphasis added.)

The court cannot grant an attachment if this showing has not been made.  (See also California Retail Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 856-857.)

Plaintiff fails to address this issue in the motion or reply.  For purposes of this application, Plaintiff has not opposed Defendants’ contention that the contract claim is subject to binding arbitration.  While Plaintiff is not precluded from raising such arguments in opposition to a motion to compel arbitration, the court presently has no argument against enforcement of the arbitration provision, which is found in Section 22 of the Agreement and includes mandatory language.  (See Heung Decl. Exh. D.)  Plaintiff also does not show that an arbitration award would be rendered ineffective without a pre-judgment attachment.  Plaintiff’s evidence of great or irreparable injury relies on hearsay and lacks foundation.  (See Cheung Decl. ¶¶ 5-11; Hyoung Decl. generally.) 

For this additional reason, attachment must be denied.

5.    Purpose and Amount of Attachment

Code of Civil Procedure section 484.090 states that the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.”

Plaintiff declares that attachment is not sought for a purpose other than the recovery on Plaintiff’s claim.  (Appl. ¶ 4.)  The amount to be secured is greater than zero.

6.    Reduction of Amount to be Secured

“[T]o sustain reduction in a writ amount, most courts require that the defendant provide enough evidence about its counterclaims and/or defenses to prove a prima facie case [for attachment against Plaintiff].”  (Ahart, California Practice Guide: Enforcing Judgments and Debts, ¶ 4:64 (1998 rev.).)  Defendant has the burden of proof to satisfy the requirements of attachment for any offset claim.  (See CCP § 483.015 and Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.)  

Defendant does not show that the amount of attachment should be reduced by an attachable cross-claim or affirmative defense. 

7.    Subject Property

Plaintiff requests attachment against Defendant, a natural person, of items listed in CCP § 487.010(c) and (d), specifically real property located at 30048 Knoll View Dr., Rancho Palos Verdes, CA 90275.  (Application ¶ 9c.)  That request is proper. 

8.    Exemptions

“If a defendant filing a notice of opposition desires to make any claim of exemption as provided in Section 484.070, the defendant may include that claim in the notice of opposition filed pursuant to this section.”  (CCP § 484.060(b).)  A claim of exemption must describe the property to be exempted and specify the statute section supporting the claim.  (§ 484.070(c).)  “The claim of exemption shall be accompanied by an affidavit supporting any factual issues raised by the claim and points and authorities supporting any legal issues raised.”  (§ 484.070(d).)

Plaintiff Has Not Filed a Notice of Opposition to Defendant’s Claim of Exemption

The plaintiff must oppose any claim of exemption filed by the defendant by filing a “notice of opposition” not less than two days before the hearing.  (CCP § 484.070(f).)  “If the plaintiff does not file and serve a notice of opposition as provided in this subdivision, no writ of attachment shall be issued as to the property claimed to be exempt.”  (Ibid. [bold italics added]; see also Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270.)

The court has not received a “notice of opposition” to Defendant’s claim of exemption.  Accordingly, no attachment may issue as to the property for which Defendant claims exemption -- 30048 Knoll View Dr., Rancho Palos Verdes, CA 90275.  That is the only property for which Plaintiff seeks attachment.  (Appl. ¶ 9.)  Accordingly, the application must be denied on this basis. 

Homestead Exemption

Even if Plaintiff had filed a notice of opposition, the court would reach the same result and conclude that no attachment may issue as to 30048 Knoll View Dr., Rancho Palos Verdes, CA 90275.

The claim of exemption, and supporting declarations, are reasonably interpreted to claim a homestead exemption for the real property that Plaintiff seeks to attach, 30048 Knoll View Dr., Rancho Palos Verdes, CA 90275.  (See Notice of Exemption ¶ 4; Han Decl. ¶ 17; Hyun Mi Han Decl. ¶¶ 3-5.)

CCP section 487.025(b) states:

(b) An attachment lien attaches to a homestead (as defined in Section 704.710) in the amount of any surplus over the total of the following:

(1) All liens and encumbrances on the homestead at the time the attachment lien is created.

(2) The homestead exemption set forth in Section 704.730.

As this statute is interpreted in the Rutter treatise, “An individual's principal dwelling (¶ 6:1013 ff.) may be attached, but only to the extent of the surplus” as calculated by reference to section 487.025(b).   (Rutter, Cal. Prac. Guide, Enforcing Judgments and Debts ¶ 4:107.) 

Under CCP section 704.730, the amount of the homestead exemption is defined in pertinent part as:

(a) The amount of the homestead exemption is the greater of the following:

(1) The countywide median sale price for a single-family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption, not to exceed six hundred thousand dollars ($600,000).

(2) Three hundred thousand dollars ($300,000).

(b) The amounts specified in this section shall adjust annually for inflation, beginning on January 1, 2022, based on the change in the annual California Consumer Price Index for All Urban Consumers for the prior fiscal year, published by the Department of Industrial Relations.

The Rutter treatise states that these amounts have been increased due to inflation to $626,400 or $313,200, respectively.  (Rutter, Cal. Prac. Guide, Enforcing Judgments and Debts ¶ 6:1022.)  Rutter also states: “Given the lofty median sale prices of homes in Los Angeles, Orange, San Diego, San Francisco and Santa Clara counties, the higher figure is almost certainly the maximum amount of the homestead exemption for these counties in 2022.”   (Ibid.)

The definition of “homestead” is “the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor’s spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead.”  (CCP § 704.710(c).) 

Here, Defendant submits sufficient evidence that 30048 Knoll View Dr., Rancho Palos Verdes, CA 90275 is a “homestead” within the meaning of section 704.710(c).  Specifically, Defendant resides in the property with his wife and the property is “primarily” used as their residence.  (Han Decl. ¶ 17; Hyun Mi Han Decl. ¶¶ 4-5.) 

Defendant has not provided a specific calculation of the amount of the homestead exemption pursuant to section 704.730.  However, Defendant declares that the property is valued at $1.6 million and there are two mortgages on the property in the amounts of $750,000 and $400,000, respectively.  (Han Decl. ¶ 17.)  Plaintiff has not rebutted that evidence.  Thus, there is $450,000 in equity in the property.  If the statutory exemption is equal or greater to $450,000, then there is no surplus subject to attachment.  At the hearing, the parties should address what amount of exemption from section 704.730 should apply.  Subject to argument, the court judicially notices and tentatively concludes that the countywide median sale price for a single-family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption (i.e., Los Angeles County in 2021) was at least $450,000.  (See Evid. Code § 452(g), (h); see also Rutter, Cal. Prac. Guide, Enforcing Judgments and Debts ¶ 6:1022 [“Given the lofty median sale prices of homes in Los Angeles … the higher figure is almost certainly the maximum amount of the homestead exemption for these counties in 2022”].)  Accordingly, the property that Plaintiff seeks to attach is fully exempt from attachment pursuant to the homestead exemption. 

9.    Temporary Protective Order

Plaintiff also seeks a temporary protective order against Defendant with respect to the property located at 30048 Knoll View Dr., Rancho Palos Verdes, CA 90275.  (Appl. ¶ 13.)  To obtain a TPO, Plaintiff must show that he will suffer great or irreparable injury if the TPO is not issued.  (CCP § 486.020(d); see also § 485.010.)  Plaintiff is not entitled to a TPO because the property is exempt from attachment and Plaintiff has not proven other elements of attachment (see above).  (See CCP § 486.020 [plaintiff must prove requirements of attachment to obtain a TPO].)   

10. Undertaking

Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment.  Code of Civil Procedure section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000. 

Because the court denies the application, no undertaking is required.

Conclusion

The application is DENIED.