Judge: Mary H. Strobel, Case: 21STCV47089, Date: 2022-10-04 Tentative Ruling

Case Number: 21STCV47089    Hearing Date: October 4, 2022    Dept: 82

Plaintiff MSN Forensic Solution Experts LLC (“Plaintiff”) moves for writs of attachment against Defendants Charles O. Agege dba Law Office of Charles O. Agege and Setareh Kavosi (“Defendants”) in the amount of $83,150. 

Judicial Notice

Defendants’ Request for Judicial Notice, Exhibits 1 and 2 – Granted.

Plaintiff’s Evidentiary Objections

Declaration of Charles O. Agege

(1)  Sustained.  

(2)  Sustained. 

(3)  Overruled.

(4)  Sustained

(5)  Overruled. 

(6)  Overruled.  

(7)  Overruled. 

Declaration of Ron J. Anfuso

(1)  - (18)   Overruled. 

Defendants’ Evidentiary Objections

Supplemental Declaration of Rob Razani

(1)  – (8) Overruled. 

Relevant Procedural History

            On December 27, 2021, Plaintiff filed a complaint against Defendants for breach of contract and common counts.

On June 3, 2022, Plaintiff filed the instant applications for writ of attachment.

On June 23, 2022, Defendants filed an opposition to the applications for writ of attachment. 

On September 29, 2022, Plaintiff filed a reply. 

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 [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.”  (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)  The court’s determination in an attachment proceeding “shall have no effect” on the main action.  (CCP § 484.100.)

Analysis 

1.    Unverified Application

Defendants contend that the applications must be denied because Plaintiff’s applications on form AT-105 were not verified.  (Oppo. 2.)  The court agrees. 

CCP section 484.020 states in full:

The application shall be executed under oath and shall include all of the following:

(a) A statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued.

(b) A statement of the amount to be secured by the attachment.

(c) A statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

(d) A statement that the applicant has no information or belief that the claim is discharged in a proceeding under Title 11 of the United States Code (Bankruptcy) or that the prosecution of the action is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy).

(e) 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. Where the defendant is a corporation, a reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the requirements of this subdivision. Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” satisfies the requirements of this subdivision. Where the defendant is a natural person, the description of the property shall be reasonably adequate to permit the defendant to identify the specific property sought to be attached.

(bold italics added.) 

The court interprets section 484.020 to be a mandatory requirement for an application for writ of attachment.  “Ordinarily, the term ‘shall’ is interpreted as mandatory and not permissive. Indeed, ‘the presumption [is] that the word ‘shall’ in a statute is ordinarily deemed mandatory and ‘may’ permissive.’”  (People v. Standish (2006) 38 Cal.4th 858, 869.)   Moreover, “[t]he Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) 

The applications submitted by Plaintiff on Judicial Council form AT-105 are not verified or executed under oath.  While the applications are signed by Plaintiff’s attorney, the “Declaration” section of the forms is blank.  Plaintiff’s attorney did not verify the applications under penalty of perjury.  The declarations of Rob Razani submitted in support of the applications (including the reply declaration), while verified, do not include the information required by section 484.020. 

In reply, Plaintiff provides no explanation for failing to verify the applications.  (Reply 6.)  The court notes that the opposition brief was filed and served on June 23, 2022, more than three months ago, before the hearing on the applications were continued.  The opposition argued that the applications must be denied due to lack of verification.  Plaintiff has not filed a notice of errata asserting that Plaintiff inadvertently failed to verify the applications.   

Because Plaintiff has not complied with the mandatory requirements of section 484.020, the applications against Agege and Kavosi are DENIED for this reason and for other reasons discussed below.

2.    Probable Validity of Plaintiff’s Claim

The application is based on Plaintiff’s cause of action for breach of contract.  To establish a claim for breach of contract, a plaintiff must 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.)  

            Because the applications must be denied on other grounds, the court does not analyze the probable validity of Plaintiff’s contract claim.

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.)

Defendants contend that Plaintiff has not submitted any evidence that the claim for breach of contract arose out of the conduct of Kavosi of a trade, business, or profession.  (Oppo. 3.)  The court agrees.  Plaintiff failed to address that issue in the moving papers and therefore did not meet its burden of proof.  In any event, the evidence clearly shows that Kavosi hired Defendant Agege to represent her in a divorce matter.  Agege in turn hired Plaintiff to perform forensic accounting work to support Kavosi’s case in that divorce matter.  (Agege Decl. ¶¶ 1-4, Exh. 1; Kavosi Decl. ¶ 3.)  Plaintiff’s contract claim against Kavosi arises from a personal divorce matter and not her conduct of a trade, business, or profession. 

In reply, Plaintiff argues for the first time that the retention of a forensic accountant by a litigant involved in a divorce proceeding “is a business transaction.”  (Reply 6.)  “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Plaintiff does not show good cause to raise this argument for the first time in reply.  Moreover, the relevant question is whether the contract claim arises from Kavosi’s conduct of a trade, business, or profession, not whether the retention of a forensic accountant is a business transaction in some general sense.  The parties to a divorce proceeding are not engaged in a trade, business, or profession, but rather a personal legal matter.   Plaintiff cites no authority to the contrary.  

The application against Kavosi is DENIED.

Conclusion

The applications for writ of attachment are DENIED.