Judge: Mary H. Strobel, Case: 22STLC04200, Date: 2023-03-02 Tentative Ruling

Case Number: 22STLC04200    Hearing Date: March 2, 2023    Dept: 82

            Plaintiff Mashian Law Group (“Plaintiff”) moves for a writ of attachment against Defendant Melody, LLC (“Defendant”) in the amount of $23,611.17.

Judicial Notice

Plaintiff’s Request for Judicial Notice (“RJN”) Exh. 101 – Granted.

Relevant Procedural History

            On June 22, 2022, Plaintiff filed a complaint against Defendants Afsaneh Karimi and Melody, LLC for breach of contract, account stated, and quantum meruit. 

            On July 18, 2022, Plaintiff filed its first application for writ of attachment against Defendant Melody. 

On September 26, 2022, Defendants filed a notice of stay of proceedings pursuant to Business and Professions Code section 6201.

On October 20, 2022, the court (Judge Strobel) took Plaintiff’s first application for writ of attachment off calendar in light of the stay.

On November 7, 2022, after a hearing, the court (Judge Chilton) granted Plaintiff’s motion to vacate the stay.

On November 15, 2022, Plaintiff filed and served the instant application for writ of attachment.  No opposition has been received.  On February 22, 2023, Plaintiff filed and served a notice of non-receipt of opposition. 

            On November 17, 2022, Defendant Karimi filed a “proof of service.” Paragraph 4 states that Karimi served a “paid invoice 00886 with cashier check for full and final payment” on November 15, 2022.  The proof of service does not state the person or persons upon whom documents were served.  Plaintiff should address this filing at the hearing, namely whether it actually received the cashier’s check a copy of which is attached to the proof of service. 

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.) 

“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 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.) 

Plaintiff submits evidence to support all elements of its contract claim against Defendant Melody.  Specifically, Plaintiff submits evidence that in March 2021, Melody retained Plaintiff to perform legal services pursuant to a written retainer agreement; that Plaintiff performed legal services for Melody pursuant to the agreement; that Plaintiff submitted invoices to Melody for services rendered; and that Melody has failed to pay a balance of $6,730 and also owes $1,073.09 in interest pursuant to the agreement.  (Mashian Decl. ¶¶ 1-12, Exh. 1-3.) 

The agreement states that the prevailing party in an enforcement action is entitled to reasonable attorney’s fees and costs.  Plaintiff is requesting $13,640 in attorneys’ fees at the rate of $550/hour, and costs in the amount of $513.08 in enforcing the agreement to date.  Plaintiff also projected an additional $1,595 in fees and $60 in costs for the reply and hearing. (Stanton Decl. ¶¶ 1-5.) Given that there was no opposition, no reply was necessary.

The court would normally find incurring $15,000 in attorneys’ fees to attach a debt of less than half that amount is clearly unreasonable.  Plaintiff argues that the inflated attorneys’ fees are due to Defendant’s tactic of filing an untimely request for fee arbitration with the County Bar and causing the first scheduled hearing on the writ of attachment to go off calendar. There is some merit to Plaintiff’s arguments, but the court still finds the amount of the attorneys’ fees to be unreasonable.  Subject to further argument at the hearing, the court will allow $6,000 in attorneys’ fees to be attached. 

As noted above, Karimi’s proof of service filed November 17, 2022, appears to attach a copy of a cashier’s check made out to Plaintiff in the amount of $6,730.  As stated above, Plaintiff should address this issue at the hearing. 

Plaintiff shows a probably valid contract claim against Defendant in the amount of $7,803.09 in damages and interest, plus $6,000 in allowable reasonable attorneys’ fees and costs in the amount of $513.08 for a total of $14,316.17. Whether this amount must be reduced by the amount of the cashier’s check will be discussed at the hearing.

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).) 

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 agreement is not secured by real property.  Plaintiff’s damages are fixed and readily ascertainable from the terms of the agreement and from Plaintiff’s declaration. 

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. 

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

Defendant has not argued or shown that the attachment should be reduced by a cross-claim or affirmative defense.  (See CCP § 483.015 and Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.)  

5.    Subject Property

Code of Civil Procedure section 487.010(a) provides that “[w]here the defendant is a corporation, all corporate property for which a method of levy is provided” is subject to attachment.   Thus, the request for attachment of all of Defendant’s property is appropriate.  (Application ¶ 9c.) 

6.    Exemptions

Defendant has not claimed exemptions.  

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

            Subject to further argument whether payment has been made on the debt, the application for writ of attachment is granted in the amount of $14,316.17.

The request for a turnover order is denied.