Judge: Melvin D. Sandvig, Case: 21CHCV00111, Date: 2023-01-10 Tentative Ruling

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Case Number: 21CHCV00111    Hearing Date: January 10, 2023    Dept: F47

Dept. F47

Date: 1/10/23

Case #21CHCV00111

WRIT OF ATTACHMENT

Application filed 10/13/22.

MOVING PARTY: Plaintiff Vav Plastics, Inc.

RESPONDING PARTY: Defendant Arminak Solutions dba KBL Cosmetics

NOTICE: ok

RELIEF REQUESTED: A right to attach order and writ of attachment with $392,506.63 as the amount to be secured by the attachment.

RULING: The application is denied.    

This action arises out of Plaintiff Vav Plastics, Inc.’s (Plaintiff) claim that Defendants Arminak Solutions dba KBL Cosmetics (Arminak) and Apackaging Group,  LLC (Apackaging) (collectively, Defendants) failed to pay for certain goods.  As a result, on 2/17/21, Plaintiff filed this action against Defendants for breach of oral contract (1^st – 3^rd causes of action) and common counts (4^th – 7^th causes of action).  On 6/4/21, Defendants filed an answer to the complaint.  On that same date Arminak filed a cross-complaint against Plaintiff for: (1) Breach of Contract, (2) Breach of the Covenant of Good Faith and Fair Dealing, (3) Declaratory Relief, (4) Breach of Express Warranty, (5) Breach of Implied Warranty of Merchantability, (6) Breach of Implied Warranty of Fitness for a Particular Purpose and (7) Negligent Interference With Prospective Economic Relations.  In response to Plaintiff’s demurrer to the cross-complaint, on 8/2/21, Arminak filed a First Amended Cross-Complaint alleging the same causes of action as the original cross-complaint.  On 8/26/21, Plaintiff answered the First Amended Cross-Complaint.   

On 10/13/22, Plaintiff filed and served the instant application seeking a right to attach order and writ of attachment with $392,506.63 as the amount to be secured by the attachment against Arminak.  Arminak has opposed the application. 

Generally, “an 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). 

In order to issue a writ of attachment, the Court must find that: (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 and the property sought to be attached is not exempt from attachment.  CCP 484.090(a), (b).

A claim has probable validity if it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.  CCP 481.190.

Plaintiff has failed to establish the probable validity of it claims against Arminak.  Despite being aware of Arminak’s cross-claims against it regarding the same products at issue in the complaint for approximately a year and a half and contending that Arminak lacks any evidence to support such claims based on the lack of production of documents at the deposition of Arminak’s principal on 8/30/22, Plaintiff fails to address the foregoing in the moving papers.  Rather, the moving papers consist of a bare-bones argument that Arminak has failed to pay invoices issued based on three purchase orders made.  Plaintiff does not mention Arminak’s claims of delivery of defective product and only mentions a credit for defective product vaguely in the declaration of Hovannes Pashyan wherein it is stated that a credit of $8,478.85 was issued for damaged bottles.  (See 10/13/22 Pashyan Decl. ¶34.b.).

The reply argues that Arminak does not dispute that it actually received the invoiced product.  (See Reply, p.1:12-13).  However, Plaintiff’s complaint acknowledges that it did not deliver all of the product ordered.  Rather, Plaintiff alleges that it “delivered most of the product ordered” and that Arminak refused delivery of the remaining portion and instructed Plaintiff to cease production.  (See Complaint ¶6).  Further, the moving papers do not expressly claim that all of the product was delivered to/received by Arminak.  As such, there was nothing for Arminak to dispute in this regard.  However, the declaration of Arminak’s principal does state that  in December 2020, Arminak canceled the remaining shipments of bottles.  (See H. Arminak Decl. ¶30).

Additionally, the reply complains that Arminak provides no evidence supporting its claims that Plaintiff delivered defective bottles.  (See Reply, p.4:20-21).  However, the application itself provides such evidence through the declaration of Hovannes Pashyan wherein it is admitted, albeit vaguely, that a credit was given for damaged bottles.  (Pashyan Decl. ¶34.b.).  Additionally, Arminak provides the declaration of its principal along with email communications regarding the alleged defective bottles.  (See H. Arminak Decl. and exhibits thereto).  Further, Arminak’s principal has indicated that it lost business as a result of the defective products.  (See H. Arminak Decl.).  Plaintiff has failed to establish that Arminak will not be able to support this claim and/or that such damage claim will not further offset Plaintiff’s own claims and/or in what amount.  Plaintiff also fails to adequately address the argument in the opposition that its claims for breach of contract are barred by the statute of frauds. 

Based on the foregoing, it cannot be determined that Plaintiff is more likely than not to obtain judgment on its claims (i.e., the probable validity of its claims).  CCP 481.190.