Judge: Mary H. Strobel, Case: 22STCV26959, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV26959    Hearing Date: January 19, 2023    Dept: 82

TAC Possibilities LLC, v. Better World Resources, LLC, et al. Judge Mary Strobel Hearing: January 19, 2023

22STCV26959

Tentative Decision on Application for Writ of Attachment

Plaintiff TAC Possibilities LLC (“Plaintiff”) moves for a writ of attachment against Defendant Better World Resources, LLC (“Defendant”) in the amount of $60,396.50.

Relevant Procedural History

On August 18, 2022, Plaintiff filed a complaint against Defendants Better World Resources, LLC, and Sarah Pulido for breach of contract, breach of implied covenant of good faith and fair dealing, and unfair business practices.

On November 2, 2022, the court rejected a request for entry of default filed by Plaintiff against Defendant Better World Resources, LLC, because, among other reasons, Plaintiff did not file proof of service of summons and complaint on the proper form (POS-010.)

On November 3, 2022, Plaintiff filed a proof of service of summons on form POS-010.

On November 7, 2022, the court rejected a request for entry of default filed by Plaintiff against Defendant Better World Resources, LLC, because, among other reasons, the proof of service of summons was incomplete with respect to the name of the person authorized to accept service and the Notice and Acknowledgement of Receipt was incomplete.

On November 14, 2022, Plaintiff filed this application for writ of attachment. On November 14, 2022, Plaintiff filed a proof of service of mailing of the application and supporting papers. Plaintiff did not file a new proof of service of the summons and complaint on form POS-010 in support of the application.

No opposition to the application for writ of attachment has been received. Defendant has made no appearance in this action.

Analysis

A noticed motion for attachment is governed by the procedures in CCP sections 482.010 et seq. and 484.010, et seq. 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….” (bold italics added.)

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) The service requirements in section 484.040 are mandatory, and the court cannot issue a writ if the summons and complaint have not been properly served.

On November 3, 2022, Plaintiff filed a proof of service of summons and complaint on Defendant on form POS-010. Plaintiff checked box 5.c indicating that it had completed service by mail and acknowledgment of receipt of service. However, as the court indicated in its notice of rejection of request for default, the proof of service was incomplete because it did not specify the name of the person served as an authorized agent in paragraph 3.b and because the attached acknowledgment of receipt was not completed by a recipient. (See CCP § 415.30 and § 416.10.)

Plaintiff also checked box 5.d in the proof of service and stated, in Attachment 1, that it had mailed the summons, complaint, and writ of attachment papers to Defendant at an address in Wyoming. While service on “a person outside this state” can be completed by certified or registered mail with return receipt requested (see CCP § 415.40), Plaintiff has not argued or shown that this section applies to Defendant. (See Compl. ¶ 16 [specifying that Defendant has offices in California].) Even if this section applies (which the court does not decide), the proof of service is deficient because Plaintiff did not attach a return receipt and the proof of service does not indicate the name of the authorized agent that was served. (See CCP § 416.10 [describing persons to be served on behalf of corporation] and § 417.20(a) [“If served in a manner specified in a statute of this state, as prescribed by Section 417.10, and if service is made by mail pursuant to Section 415.40, proof of service shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence”].) Further, the proof of service indicates that the “Notice to the Person Served” on the summons was completed as follows: “as an individual defendant.” (paragraph 6a.) If this proof of service was intended to show service on the LLC, the summons was defective.

Because Plaintiff has not shown timely service of the summons and complaint on Defendant as required by CCP section 484.040, the application is denied.

Conclusion

The application for writ of attachment is DENIED.