Judge: Mary H. Strobel, Case: 22STCV39448, Date: 2023-01-26 Tentative Ruling

Case Number: 22STCV39448    Hearing Date: January 26, 2023    Dept: 82

            Plaintiffs Annette Clovis and Anna Levinson (“Plaintiffs”) move for a writ of attachment against Defendant Gracious Ridge LLC (“Defendant”) in the amount of $103,100.  Plaintiffs also move for a temporary protective order (“TPO”). 

Procedural History

            On December 20, 2022, Plaintiffs filed a complaint against Defendant for breach of written contract.

            On December 30, 2022, Plaintiff filed the instant application for writ of attachment.

            On January 20, 2023, Plaintiff filed a notice of non-receipt of opposition. 

            Late in the afternoon on January 24, 2023, Defendant untimely filed and served an opposition.  The opposition should have been filed and served by January 19, 2023.  (CCP § 484.060(a).)  Defendant did not provide a courtesy copy of the opposition to the court, as required by the General Order re Electronic Filing.  Given that the untimely filing of the opposition prevented any timely reply, the court exercises its discretion to disregard the opposition.   

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

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. (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.)  The application for writ of attachment must be denied for failure to comply with the mandatory notice requirement of section 484.050.[1]

Application for a TPO

            Plaintiffs also seek a temporary protective order with respect to all of Defendant’s California assets.  (Proposed TPO ¶¶ 2.i and 3.)  To obtain a TPO, Plaintiffs must show that they will suffer great or irreparable injury if the TPO is not issued.  (CCP § 486.020(d); see also § 485.010.)  Great and irreparable injury may be proven if, as relevant here, any of the following are shown:

(1)  Under the circumstances of the case, it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice.

(2) Under the circumstances of the case, it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute. Plaintiff's affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant, that the debts are not subject to bona fide dispute, and the basis for plaintiff's determination that the defendant's debts are undisputed.

….[¶¶]

(5) Any other circumstance 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(b).) 

Plaintiffs do not submit a declaration that satisfies section 485.010(b)(2) and they do not show, with evidence, that Defendant is insolvent within the meaning of that sub-division.

            Plaintiffs do not expressly address the other methods of proving great and irreparable injury in their memorandum of points and authorities.  Plaintiffs argue that an arbitration writ should issue because “Gracious Ridge has not only stopped responding to Plaintiffs inquiries regarding the disposition of their funds, but it has also listed the Property for sale.”  (Mot. 9; see Clovis Decl. ¶¶ 7, 9, Exh. 5.)  To the extent this argument was intended to address the great and irreparable injury requirement for a TPO, the court finds it unpersuasive. 

Defendant’s failure to respond to inquiries does not support an inference that there is a danger that Defendant’s California assets would be concealed, substantially impaired in value, or otherwise made unavailable to levy if issuance of the order were delayed until Plaintiff could file a properly noticed application for attachment.

            Plaintiffs submit evidence that real property located at 12210 Malone Street, Los Angeles, CA 90066, has been listed on RedFin for 194 days as of November 1, 2022.  The property is listed for $2,199,000.  (Clovis Decl. Exh. 5 [showing print date of 11/1/22].)  Plaintiffs do not provide any other details concerning the listing, which apparently has been listed on RedFin for many months.  Plaintiffs’ delay in seeking a TPO based on this evidence weighs against a finding of great or irreparable injury.  Also, the potential sale of a single parcel of real property does not address the great and irreparable injury requirement with respect to all of Defendant’s California assets.  Plaintiffs do not move for a TPO specifically with regard to property located at 12210 Malone Street, Los Angeles, CA 90066.  Plaintiffs also do not submit evidence of the current legal ownership of that property.  While Plaintiffs suggest Defendant legally owns that property, Plaintiffs fail to support the point with relevant property records.  Unless Defendant owns the real property, there could be no great or irreparable injury from the sale listing. 

For all these reasons, Plaintiffs have not shown great or irreparable injury within the meaning of section 485.010.  Accordingly, the application for a TPO is DENIED.

Conclusion

            The application for writ of attachment is DENIED WITHOUT PREJUDICE.

The application for a TPO is DENIED.