Judge: Mary H. Strobel, Case: 22STCV08309, Date: 2023-03-21 Tentative Ruling

Case Number: 22STCV08309    Hearing Date: March 21, 2023    Dept: 82

            Plaintiff Robert Gary, as Trustee of the James F. Chamberlain Living Trust dated September 9, 2008 (“Plaintiff”) moves for a writ of attachment against Defendant Rodney Alves (“Defendant” or “Alves”) in the amount of $1,411,440.00

Relevant Procedural History

             On March 8, 2022, Plaintiff filed a verified complaint against Defendant Alves and Defendant Shift Energy Holdings, Inc. (“Shift”) for multiple causes of action, including breach of contract.  The complaint is verified by Robert Gary, as Successor Trustee to the James F. Chamberlain Living Trust.

            On August 2, 2022, the trial court (Judge Wendy Chang) overruled Defendants’ demurrer to the complaint. 

            On August 22, 2022, Defendants filed a verified answer and a verified cross-complaint.  The answer and cross-complaint are verified by Defendant Rodney Alves, both individually and as CEO of Shift Energy Holdings, Inc.

            On December 6, 2022, Plaintiff filed this application for writ of attachment.  The court has received Defendant’s opposition and claims of exemption, Plaintiff’s reply, and Plaintiff’s objection to claims of exemption. 

            On March 2, 2023, Judge Chang sustained Plaintiff demurrer to the cross-complaint in part, with 30 days leave to amend, and overruled the demurrer in part.  As relevant to the application for writ of attachment, Judge Change sustained the demurrer, with leave to amend, as to the causes of action based on an alleged joint venture.  Defendants have not yet filed an amended cross-complaint. 

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 facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein. As to matters shown by information and belief, the affidavit shall state the facts on which the affiant's belief is based, showing the nature of his information and the reliability of his informant. The affiant may be any person, whether or not a party to the action, who has knowledge of the facts. A verified complaint that satisfies the requirements of this section may be used in lieu of or in addition to an affidavit.”  (§ 482.040.)

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.) 

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

“The court’s determinations [for an application for writ of attachment] shall have no effect on the determination of any issues in the action other than issues relevant to proceedings [for attachment]. The court’s determinations under this chapter shall not be given in evidence nor referred to at the trial of any such action.”  (CCP § 484.100.)

Analysis 

1.    Probable Validity of Plaintiff’s Claims

The application is based on Plaintiff’s causes 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.) 

As permitted by statute, Plaintiff relies, in part, on allegations made in the verified complaint to support this application for writ of attachment.  (See CCP § 482.040.)  Some of the material facts are also corroborated by Defendant’s declaration, answer, and cross-complaint, as discussed below. 

            Factual Background

James F. Chamberlain created the James F. Chamberlain Living Trust dated September 9, 2008 (“Trust”) in 2008, and was trustee until about December 18, 2020, at which time Plaintiff Robert Gary was appointed trustee.  Chamberlain passed away in January 2021, at such time the trust became irrevocable.  (Verified Complaint (“Compl.”) ¶¶ 11-17.)

On or about September 20, 2017, Chamberlain, as trustee of the Trust, and Defendant Alves executed a “Letter Agreement” that required Alves to pay off a loan taken from lender Kenneth E. Rose, Trustee.  For that loan, Trust had agreed to offer as collateral a condominium in Maui, Hawaii (“Condo”).  The Loan Agreement was incorporated by reference into the Letter Agreement.  Alves agreed to pay off the loan secured by the Condo, with interest and other fees, on or before January 31, 2018.  Section 4 of the Letter Agreement is titled “Compensation” and states that, as consideration for Chamberlain’s “gesture,” Alves agreed to pay Trust $300,000 on or before January 31, 2008.  In the Letter Agreement, Alves offered Trust as collateral, for its exposure to liabilities on the Loan, 800,000 common stocks in Shift Energy Holdings, Inc. (“Shift”) and a lien on a Brazilian-issued government bond.  (Compl. ¶¶ 18-21, Exh. 1.) 

The Condo is located at 3765 Lower Honoapiilani Road #210, Lahaina, Hawaii.  (Alves Decl. ¶ 10; Compl. ¶ 12.)

            On or about March 20, 2019, Alves and Trust executed an Amendment to Letter Agreement (“Amendment”), which stated in the recitals that Trust “has agreed to continue support Shift … by offering a real estate property in Maui, Hawaii, … as collateral to a certain loan to be obtained by the Company (‘New Loan’).”  Section 2 of the Amendment states that in addition to the compensation set forth in section 4 of the Letter Agreement, Alves (or Shift on his behalf) shall compensate Trust as follows:

                      i.        $3,000 per month in cash commencing April 15, 2019, for six months extending to September 15, 2019;

                    ii.        $5,000 per month in cash commencing October 15, 2019, until the New Loan is paid off.

(Compl. ¶¶ 23-24, Exh. 2.)

            In the verified complaint, Plaintiff asserts: “It appears that Alves and/or Shift made monthly payments to Mr. Chamberlain from April 15, 2019, until September 2019. No monthly payments were made to Mr. Chamberlain after September 2019.”  (Compl. ¶ 26.)  In the verified answer, Alves admits that payments were made to Trust from April 15, 2019, until September 2019. (Ans. ¶ 26.)  In the cross-complaint, answer, and declaration, Alves does not claim to have paid the $300,000 or monthly payments of $5,000 starting October 2019. 

            Plaintiff alleges, on information and belief, that title to the Condo was transferred to Shift by quitclaim deed in or around October 2019.  (Compl. ¶ 22.)  Defendant Alves asserts that Chamberlain executed a quit claim deed in March 2019 transferring title to the Condo to Shift.  (Alves Decl. ¶ 28, Exh. E.)

            On March 23, 2020, Trustee and Alves executed a “Second Amendment to Letter Agreement” (“Second Amendment”), which stated that the Loan secured by the Condo was extended to March 31, 2021, and that Alves’ obligations to Trust would be deferred until that date.  The Second Amendment also stated: “The Loan being in [Trust’s] name only, title to the Property shall revert back to Jim’s Trust by Quit Claim Deed.”  (Compl. ¶¶ 27-29, Exh. 3.)

“In or around December 2020, Alves and Mr. Chamberlain discussed a further possible amendment to the Letter Agreement, but such amendment was never signed.”  (Compl. ¶ 30.)  In his declaration, Defendant does not show that this third amendment was executed by Trust.  (Alves Decl. ¶ 36 and Exh. F [unsigned amendment].) 

            Alves defaulted on the underlying Loan, which was secured by the Condo.  The lender initiated a foreclosure action in Hawaii and, in the face of the foreclosure, the Condo was sold for $940,000 on or about January 18, 2022.  After the payment of the mortgage and other costs, $73,560.33 of the proceeds were paid to Trust.  (Compl. ¶¶ 34-46; see also Ans. ¶ 46 and Cross-Compl. ¶¶47-52 [admitting ¶ 46 of complaint regarding sale of Condo] and Fichtelman Decl. ¶¶ 3-4 and Exh. 2b [Final Sellers Statement].) 

            In the verified complaint, Plaintiff states: “At no time has Alves and/or Shift paid to the Trust the $300,000 lump sum or the monthly payments of $5,000 due for each month since September 2019 that were due under the Letter Agreement and amendments.”  (Compl. ¶ 47.) 

            The Letter Agreement states that the prevailing party in an enforcement action is entitled to “actual attorneys and all costs.”  (Compl. Exh. 1.)  Plaintiff’s attorney estimates that Plaintiff will incur at least $5,000 in costs and at least $100,000 in legal fees, at $425/hour, for this legal “through trial.”  (Fichtelman Decl. ¶ 5.)

            In his declaration filed in opposition to the application, Alves admits that he executed the Letter Agreement, Amendment, and Second Amendment with Trust.  (Alves Decl. ¶¶ 24-26.)  He also admits various facts regarding the underlying Loan that was secured by the Condo and the sale of the Condo in January 2022.  (Id. ¶¶ 39-40.)  He does not dispute, in his declaration, that he failed to pay Trust the $300,000 lump sum or monthly payments from October 2019, as he agreed in the Letter Agreement and amendments.  (See Alves Decl. generally.) 

Plaintiff Has Shown a Probably Valid Contract Claim as to Some of its Alleged Damages

            Here, Plaintiff submits evidence that supports a probably valid contract claim against Alves with respect to the principal payment of $300,000 required by the Letter Agreement and Amendments.  Specifically, it is undisputed that Trust and Alves executed the Letter Agreement, Amendment, and Second Amendment and that Trust performed its obligations by giving the Condo as collateral for a separate loan.  Plaintiff also submits undisputed evidence that Alves made payments on the Letter Agreement, Amendment, and Second Amendment of $3,000 a month from April 2019 to September 2019.  (Compl. ¶ 26; Ans. ¶ 26.)  Finally, Plaintiff submits evidence that Alves, or Shift, failed to pay Trust the $300,000 lump sum required by the Letter Agreement.  (Compl. ¶ 47.)  In the cross-complaint, answer, and declaration, Alves does not claim to have paid the $300,000 lump sum at any time.

            Plaintiff also shows a probably valid claim for attorney’s fees and costs through trial of $100,000 and $5,000, respectively.  In a pre-judgment attachment, the court, in its discretion, may include an estimate of allowable attorney’s fees and costs through trial.  (CCP § 483.015(a), § 482.110(b).)  The Letter Agreement states that the prevailing party in an enforcement action is entitled to “actual attorneys and all costs.”  (Compl. Exh. 1.)  Plaintiff’s attorney estimates that Plaintiff will incur at least $5,000 in costs and at least $100,000 in legal fees, at $425/hour, for this legal “through trial.”  (Fichtelman Decl. ¶ 5.)  Defendant provides no contrary estimate in opposition.  The estimated hourly rate for Plaintiff’s counsel appears reasonable for a contract action of this nature.  Defendants have filed an answer asserting claims for offset and multiple defenses, and a cross-complaint related to the same transaction in the complaint.  Considering the answer and cross-complaint, including Defendant’s allegations of a joint venture and/or usury as defenses, the court finds that Plaintiff’s estimate of attorney’s fees and costs through trial is reasonable. 

            Under the probable validity standard, Plaintiff does not sufficiently prove up its claim for damages related to the $5,000 monthly payment from October 2019.  In the moving papers, Plaintiff does not state how it calculated damages related to this payment obligation.  In the reply, Plaintiff argues that the calculation can be made from the verified complaint, and includes “$5,000 per month starting October 2019.”  Plaintiff does not submit a declaration in support of its calculation of damages, nor state in the reply the number of months it has used to calculate damages at $5,000 per month.  The number of months for which the $5,000 is due is not evident from the complaint and accompanying exhibits.  The Amendment states in relevant part, that Alves shall compensate Trust with $5,000 per month in cash commencing October 15, 2019, “until the New Loan is paid off.”  (Compl. ¶¶ 23-24, Exh. 2.)  The Second Amendment to Letter Agreement provides in pertinent part: “All Jim’s compensation set forth in the Letter Agreement, including the monthly compensation of $5,000 per month from October 2019, shall be accumulated at no interest and deferred to the above new Loan maturity date at which time all Jim’s compensation shall be paid in full.”  These provisions suggest different ways in which the amount due could be determined.    While Plaintiff may be able to correct this defect in future proceedings, Plaintiff has not shown a probably valid claim for any specific amount of damages related to the $5,000 payments due from October 2019.

            Finally, under the probable validity standard, Plaintiff does not sufficiently prove its claim for $866,440 for the value of the Condo.   Plaintiff states that the Second Amendment obligated Alves to eventually “return title” to the Condo once the New Loan was paid off.  (Compl. ¶ 29; Mot. 4:3-7; Reply 1:14-15.)  The Second Amendment stated: “The Loan being in [Trust’s] name only, title to the Property shall revert back to Jim’s Trust by Quit Claim Deed.”  (Compl. ¶¶ 27-29, Exh. 3.)  However, the Second Amendment does not specify whether Alves will owe Plaintiff damages of any particular amount if title did not revert back to Trust.  Nor does it specify a standard for calculating those damages.  The complaint also concedes that “[i]n or about August 2021, the Trustee consented to listing the Condominium for sale in order to ensure that some value could be salvaged from the Condominium due to the pending foreclosure action.”  (Compl. ¶ 42.)  Plaintiff does not sufficiently explain in the moving papers or reply the contractual basis upon which Defendant was obligated to pay $866,440 for the value of the Condo.  Plaintiff may further develop this claim in future proceedings.

            Based on the foregoing, Plaintiff shows a probably valid contract claim in the amount of $405,000.

            Defendant’s Opposition and Defenses

            Defendant has filed an opposition brief and opposing declaration.  He also asserts relevant claims and defenses in the answer and cross-complaint. 

            “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.)  Contrary to Defendant’s assertion, this standard is distinct from the standard for a summary judgment motion, where a triable issue of fact requires denial of the motion.  For pre-judgment attachment, the court makes a determination of the probable outcome of the contract claim, even if there are disputed issues of fact.  (See Oppo. 12.) 

            Defendant’s primary defense is that Chamberlain was a joint venturer with Alves; that the Letter Agreement was an investment in a joint venture, not a loan; and that this dispute as to the nature of the parties’ agreement means that no attachment can issue.  (Oppo. 8-12.)  “There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise.”  (Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1666.)  The details of the alleged joint venture, which the court has considered, are set forth in Defendant’s opposing declaration and cross-complaint.   In sustaining Plaintiff’s demurrer, Judge Chang ruled that “while Cross-Complainants sufficiently describe acts that the alleged joint venture took, there are insufficient allegations of joint control, profit-sharing, or ownership interest in the joint venture.”  (See Reply Exh. 3 at p. 7 of 14.)  Defendant has not since amended the cross-complaint.  While the court is not bound by Judge Chang’s ruling in his application for attachment, the court is similarly not persuaded based on Defendant’s declaration that Defendant has shown the existence of a joint venture sufficient to defeat a claim for breach of contract.

            Even if a joint venture existed, Defendant does not explain why it would defeat Plaintiff’s claim for damages based on the express terms of the Letter Agreement and amendments.  The Letter Agreement is an integrated contract and “constitute[s] the entire understanding between the Parties, and any previously stated understandings, either written or oral, are hereby superseded by this Agreement and rendered null and void.”  (Compl. Exh. 1 and § 5(b); see also Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1385 [“the law ‘presumes a written contract supersedes all prior or contemporaneous oral agreements’ and, where the writing is integrated, the presumption cannot be overcome.”].)  Defendant does not dispute that he executed the Letter Agreement and amendments.  Nor does he dispute that he failed to pay the $300,000 lump sum and that, pursuant to the express terms of the agreements, that sum is due and owing to Trust.  Having considered the relative merits of the parties’ positions, including Defendant’s allegations of a joint venture, the court concludes that Plaintiff has the stronger position with respect to its claim for damages  for breach of contract in the principal amount of $300,000 and attorney’s fees and costs of $105,000.  For reasons discussed above, the court need not determine how Defendant’s allegations of joint venture would impact the remaining aspects of Plaintiff’s claim for the monthly payments or the value of the Condo. 

Defendant briefly contends that the Letter Agreement and amendments were not supported by sufficient consideration.  (Oppo. 11-12.)  Although his argument is not fully developed, the argument appears to be that Alves himself did not benefit from the transaction, and only Shift did.  (Ibid.)  The sufficiency of consideration for a contract is a question of fact.  (Sharman v. Longo (1967) 249 Cal.App.2d 948, 952.)  Furthermore, “a written instrument is presumptive evidence of consideration.”  (Civ. Code § 1614.)  The Letter Agreement and amendments all state that consideration was given by Trust to Alves.  Alves is CEO and a founder of Shift.  (See Alves Decl. ¶ 2.)  In the agreements, Trust gave collateral that directly benefited Shift and, directly or indirectly, benefited Alves.  On this briefing, the court concludes that sufficient consideration was given to Alves in the Letter Agreement and amendments.

Without elaboration, Defendant asserts that the Letter Agreement and amendments may be usurious or otherwise unenforceable as against public policy.  (Oppo. 11, 13.)  Defendant does not develop the argument with citation to authority or discussion or the relevant evidence.  Nor does Alves specify which parts of the transaction he contends are usurious or the appropriate remedy. For purposes of this application, the argument is waived.    (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)  Defendant may further develop the defense in future proceedings.

            In the Notice of Opposition, Defendant states he will claim “offset” and that “[a] cross-complaint based on an attachable claim has been filed against plaintiff. An attachable claim has been asserted as a defense in the answer. Plaintiff holds a nonattachable security interest in defendant's property, and/or the underlying security has been devalued through plaintiff's acts.”  (Notice of Oppo. ¶ 4.a.)  Defendant does not elaborate on his claim for offset or show that all elements of attachment are satisfied, including damages in any specific amount.  Accordingly, Defendant does not prove a basis to reduce the attachment.  (See CCP § 483.015 and Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.)  To the extent Defendant argues that Plaintiff’s contract claim is secured by real property, Defendant does not support the point.  In the Letter Agreement, Defendant gave collateral, but it was not real property. 

            Defendant also states that Plaintiff’s attorney’s fees and costs are “specifically excluded by the code.”  (Notice of Oppo. ¶ 4b.)  The argument is unclear.  As discussed, since the contract includes an attorney’s fees provision, an estimate of attorney’s fees and costs may be included in the attachment.

            Finally, Defendant asserts that “Plaintiff failed to identify with particularity” the amount of damages owed.  (Notice of Oppo. ¶ 4b.)  Although Plaintiff has specified the amount of its damages (see Compl. ¶¶ 53-54), the court agrees that Plaintiff did not sufficiently prove up the damages for the $5,000 monthly payments from October 2019 or the $866,440 for the sale of the Condo.  In all other respects, the court finds that Plaintiff sufficiently identified and proved up its damages under the probably validity standard, as discussed above.

Having considered the relative merits of the parties’ positions, the court finds that Plaintiff has shown a probably valid claim for breach of contract in the reduced amount of $405,000.   

2.    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 application for writ of attachment is based on an agreement where the total amount allegedly due is in excess of $500. 

The Letter Agreement and Amendments are not secured by real property.  The Second Amendment states that the Condo shall “revert back to Jim’s Trust.”  Defendant does not develop an argument that this provision constituted real property security for the Letter Agreement and Amendments.  Notably, Defendant does not cite any deed of trust securing the Condo and benefiting the Trust.  Moreover, the Condo has since been sold in foreclosure.  The court concludes that the Letter Agreement and Amendments were not secured by real property in favor of Trust.

 Defendant admittedly executed the agreement as part of his trade, business, or profession.  (See Alves Decl. generally.) 

Plaintiff’s damages of $405,000 are fixed and readily ascertainable from the terms of the agreement, as analyzed above. 

            As discussed above, Plaintiff does not sufficiently explain in the moving papers or reply the contractual basis upon which Defendant was obligated to pay $866,440 for the value of the Condo.  Plaintiff does not address this issue at all in the moving papers or reply.  Accordingly, on this briefing, Plaintiff does not show that this aspect of its damages is fixed and readily ascertainable. 

3.    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, and the court finds, 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.

            To the extent Defendant contends that Plaintiff seeks attachment for an improper purpose (Oppo. 13), Defendant fails to develop the argument.  The court considers the contention unpersuasive and waived. 

4.    Reduction of Amount to be Secured Based on Offset Claims or Affirmative Defenses

Code of Civil Procedure section 483.015(b) provides that the amount to be secured by the attachment shall be reduced by, inter alia:  “(2) The amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant’s claim is one upon which an attachment could be issued.”  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.)  

For the reasons discussed above, Defendant has not proven all elements of attachment for his cross-claims, including fixed and readily ascertainable damages. 

5.    Subject Property

Plaintiff requests attachment against Defendant, a natural person, of items listed in CCP section 487.010(c) and (d), including shares owned by Alves in two corporations.  (Application ¶ 9c.)  That request is proper. 

Defendant fails to support his argument that Shift Energy Holdings, Inc. and Growers’ Coffee, Inc. are Delaware corporations, not subject to attachment in California pursuant to CCP section 487.010.  (Notice of Oppo. ¶ 4.c.(4).)  Securities owned by an individual are subject to attachment.  (§ 487.010(c)(10).)  Defendant cites no authority that it matters where the corporations are incorporated.  Plaintiff also submits evidence in reply that both Shift Energy Holdings, Inc. and Growers’ Coffee, Inc. appear to be headquartered in California, regardless of where they are incorporated, and Growers’ Coffee, Inc., appears to be a California corporation.  (Objection to Claim of Exemption 2-3 and Exh. A and B.)

6.    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).) The claim of exemption must be filed and served “no later than five court days prior to the date set for the hearing.”  (Id. § 484.060(a).)  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).)

As asserted in Plaintiff’s objection and opposition to the claims of exemption, Defendant’s claims of exemption are defective because Defendant does not submit an “affidavit supporting any factual issues raised by the claim and points and authorities supporting any legal issues raised.”  (CCP 484.070(c) and (d).)  For reasons discussed above, Defendant does not prove that Alves’ shares of Shift Energy Holdings, Inc. and Growers’ Coffee, Inc. are exempt.  Alves does not describe any other property to be exempted, as required by section 484.070(c).

Finally, to the extent Defendant claims certain assets are necessary for his support or that of his family, Defendant has not filed a financial statement that complies with CCP section 703.530.  This requirement is mandatory.  (Rutter, Cal. Prac. Guide, Civ. Pro. Before Trial, ¶ 9:875.) 

            Defendant’s claims of exemption are DENIED.

7.    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.  Neither party argues for a different amount of undertaking. 

8.    Turnover Order  

Plaintiff seeks a turnover order.  (See Proposed Order ¶ 3.d.)  “If a writ of attachment is issued, the court may also issue an order directing the defendant to transfer to the levying officer either or both of the following: [¶] (1) Possession of the property to be attached if the property is sought to be attached by taking it into custody. [¶] (2) Possession of documentary evidence of title to property of or a debt owed to the defendant that is sought to be attached.”  (CCP § 482.080 [emphasis added].) 

            Plaintiff has not shown the applicability of this section to its attachment request or briefed the necessity of this additional remedy. The request for a turnover order is denied.

Conclusion

The application for writ of attachment is GRANTED in the reduced amount of $405,000.  Plaintiff to post an undertaking of $10,000.   

The request for a turnover order is DENIED.

Defendant’s claims of exemption are DENIED.