Judge: Melissa R. Mccormick, Case: Edgley v. Fought, Date: 2022-10-06 Tentative Ruling

Plaintiff Richard Edgley’s Application for Right to Attach Order & Writ of Attachment

Plaintiff Richard Edgley applies for a right to attach order and order for issuance of a writ of attachment against defendant Cathleene Fought.  For the following reasons, plaintiff’s application is denied.

A court shall issue a right to attach order if it 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; and (4) the amount to be secured by the attachment is greater than zero.  Cal. Civ. Proc. Code § 484.090(a)(1)-(4).  A court may order the issuance of a writ of attachment only if the plaintiff’s claim has probable validity; i.e., where it is more likely than not that the plaintiff will obtain a judgment against the defendant on the claim.  Id. § 481.190; Kemp Bros. Constr., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476. 

In determining an application for a writ of attachment, the court must make a preliminary determination of the merits of the action and the probable outcome.  Id. at 1478; Lorber Indus. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.  In analyzing the probable validity of a plaintiff’s claim, the court must assess the sufficiency of the plaintiff’s evidence, weigh it against the defendant’s evidence, and consider the relative merits of the parties’ positions.  Kemp Bros., 146 Cal.App.4th at 1481-82.  Facts stated in affidavits or declarations must be set forth with particularity and must affirmatively show that the affiant or declarant, if sworn as a witness, could testify competently to the facts stated.  Cal. Civ. Proc. Code § 482.040.

Plaintiff has not demonstrated that the requirements for issuance of a right to attach order are present here.  Specifically, plaintiff has not demonstrated the probable validity of the claim on which the attachment is based. 

Plaintiff’s complaint alleges five causes of action against defendant:  breach of written contract; fraud by intentional misrepresentation; financial elder abuse; violation of Penal Code section 496; and fraudulent transfers.  Plaintiff argues he has demonstrated the probable validity of his financial elder abuse cause of action, but plaintiff does not identify the elements of that claim or show with evidence that he has proved, or is likely to prove, each element.  For example, plaintiff has not presented evidence he was 65 years of age or older at the time of defendant’s alleged conduct.  See CACI 3100 (element 2).  The court cannot conclude on this record that plaintiff it is more likely than not that plaintiff will obtain a judgment against defendant on the financial elder abuse claim.

Plaintiff also generally argues the Edgley and Cheadle Declarations demonstrate plaintiff “is entitled to a judgment” against defendant.  Brief at 6:26.  But plaintiff does not identify a claim(s) upon which plaintiff bases this assertion, much less set forth the elements of the claim(s) and demonstrate with evidence that plaintiff is more likely than not to obtain a judgment against defendant on any such claim.  Plaintiff also has not presented sufficient evidence and argument from which the court can conclude at this juncture that plaintiff’s breach of contract claim was not discharged in defendant’s bankruptcy.  See, e.g., In re Nielsen (9th Cir. 2004) 383 F.3d 922, 924-927.

Clerk to give notice.