Judge: Michael J. Strickroth, Case: 2021-01238083, Date: 2022-11-28 Tentative Ruling

Application for Prejudgment Writ of Attachment

Plaintiff, Vivera Pharmaceuticals, Inc.’s Application for Prejudgment Writ of Attachment in the amount of $2,057,591.00 against Defendants Dalrada Financial Corporation, and Dalrada Health Products, Inc. is DENIED without prejudice.

Under California law, an attachment may issue only if the claim sued upon is (1) a claim “for money ... based upon a contract, express or implied;” (2) of a “fixed or readily ascertainable amount not less than $500;” (3) that is either unsecured or secured by personal property; and (4) that is a “commercial claim.” Code of Civil Procedure § 483.010.

Code Civ. Proc. § 484.090(a) provides: “At the hearing, the court shall consider the showing made by the parties appearing and shall issue a right to attach order, which shall state the amount to be secured by the attachment determined by the court in accordance with Section 483.015 or 483.020, 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. ¶ (4) The amount to be secured by the attachment is greater than zero.”

The burden is on the moving party to establish entitlement to a writ of attachment.  Loeb and Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1116; see also Legislative Committee Comment to 1974 Addition to Code of Civil Procedure § 484.090 (stating that the “plaintiff has the burden of proving (1) that his claim is one upon which an attachment may be issued, and (2) the probable validity of such claim”).

The damages claimed by Plaintiff must be measurable by reference to the contract itself and the basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541.

Plaintff contends: “Here, although the full amount of Vivera’s damages is disputed, the minimum indisputable amount owed under the terms of the LLC Agreement is $2,057,591.00. (Declaration of Brad Ledbetter, ⁋⁋ 2-11; Exs. 29-32). It is well-recognized that an attachment will lie upon a cause of action for damages for breach of contract where the damages are readily ascertainable by reference to the contract.” (Motion, 14:18-22.)

Defendants contend that “Ledbetter’s assumptions and analysis are grossly incorrect, Plaintiff has failed to prove its claim for $2,057,591 in distributions, and Plaintiff fails to identify a clear and definite formula for the computation of its claim.” (Opposition, 8:25-9:2.)

Defendants further contend: “Ledbetter also alleges that the document he submits as Exhibit 31 is a Labport report capturing all tests done at Pala when there was an 80/20 split in distributions. However, Exhibit 31 is unmarked, incorrectly color coded, confusing, and hearsay. Labport is an administrative software that Plaintiff uses and to which it refuses to give Defendants access, even though the Court ordered Plaintiff to provide such access. (McCollum ¶ 18; Ex. L, p. 11.)” (Opposition, fn. 1)

After a review of the Ledbetter Declaration and supporting exhibits, the Court determines that $2,057,591 is not readily ascertainable and certain. The calculations and assumptions are unclear. Thus, Plaintiff has not met its burden to the satisfaction of the Court.

Based on the foregoing, the Court DENIES the Application for Writ of Attachment without prejudice.

Defendants Dalrada Financial Corporation, and Dalrada Health Products, Inc. to give notice.