Judge: Michael Shultz, Case: 21CMCV00274, Date: 2022-08-16 Tentative Ruling

Case Number: 21CMCV00274    Hearing Date: August 16, 2022    Dept: A

21CMCV00274 Interpol, Inc. dba Trac Intermodal v. ADP Express, LLC

Tuesday, August 16, 2022 at 8:30 a.m.

 

[TENTATIVE] ORDER GRANTING PLAINTIFF’S APPLICATION FOR A WRIT OF ATTACHMENT

 

I.            BACKGROUND

The complaint filed on October 21, 2021, alleges that Defendant failed to pay the invoices incurred from Defendant’s use of Plaintiff’s chassis equipment pursuant to credit terms. Plaintiff alleges claims for breach of contract, common counts, conversion and for possession property.

              On February 28, 2022, the court entered default against Defendant.  On April 21, 2022, a default judgment was obtained against defendant for $280,860.30. On June 28, 2022, the Hon. Thomas D. Long granted Defendant’s Motion to Set Aside Default Entry and Default Judgment. On the same date, the court took off calendar Plaintiff’s first Motion for an Order Assigning the Right to Payment of Earnings as it was rendered moot.

 

II.            MOTION

A.      Motion for Right to Attach Order filed July 11, 2022

On July 11, 2022, Plaintiff, filed this motion for a right to attach any property of Defendant to secure the amount owed to Plaintiff totaling $267,682.51. Plaintiff alleges that the claim is “probably valid” based on its business records showing Defendant’s use of Plaintiff’s chassis equipment without payment.

 

B.      Opposition filed July 28, 2022

ADP Express, LLC (“ADP”) argues that the motion should be denied because there is a genuine factual dispute over the amount claimed by Plaintiff since Defendant filed its Answer on July 2022 denying Plaintiff’s claims.  The amount allegedly owed by Defendant is not accurate or readily ascertainable.

C.      Reply filed July 29, 2022

Plaintiff argues it has demonstrated a probably valid claim given the Plaintiff’s business records. Plaintiff does not have to identify property to be attached since all property of an entity is subject to attachment.

 

III.            LEGAL STANDARDS

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action.  Randone v. Appellate Department (1971) 5 Cal.3d 536; Code Civ. Proc., § 483.010. Pursuant to the statutory scheme, a writ of 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).  Code Civ. Proc., §483.010(a). 

The court makes its determination based upon “the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of the additional evidence or points and authorities." Code Civ. Proc., § 484.090.

 

   IV.            DISCUSSION

To support the application, Plaintiff must state that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued, the amount to be secured by the attachment, that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, that the applicant has no information or belief that the claim is discharged in a bankruptcy proceeding or that there is a bankruptcy stay, a description of the property to be attached and a statement that the plaintiff is informed and believes that such property is subject to attachment. Code Civ. Proc., § 484.320. The application shall be supported by an affidavit showing that the Plaintiff would be entitled to a judgment on the claim on which the attachment is based. Code Civ. Proc., § 484.030.  Plaintiff used Judicial Council Form AT-105 which includes these affirmations. Plaintiff seeks to secure $290,682.51 which includes the principal amount owed plus attorney’s fees and costs.

Plaintiff has submitted the declaration of Karen Wolcott, Plaintiff’s custodian of records, who attests to the existence of an agreement Defendant made on October 11, 2018, permitting Defendant to use chassis pool equipment. Wolcott Declaration, Ex. 1. Plaintiff provides invoices sent to Defendant for charges incurred, and a ledger showing Defendant owes $267,682.51 as of September 10, 2021. Wolcott Declaration., Exhibits 2 and 3. Therefore, Plaintiff has established a “fixed or readily ascertainable claim” and the probable validity of the claim. Code Civ. Proc., § 489.40.  Defendant has not proffered any evidence affecting the validity of the Plaintiff’s claim.

While the application should describe the property to be attached, where the defendant is a corporation, a statement that “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the requirements of this subdivision. Code Civ. Proc., § 484.020 subd. (e).              

V.            CONCLUSION

Based on the foregoing, Plaintiff’s Application for Writ of Attachment is GRANTED. Before issuance of a writ of attachment, the plaintiff shall file an undertaking to pay the defendant any amount that the defendant may recover for any wrongful attachment by the plaintiff. Code Civ. Proc., § 489.210. The court requires Plaintiff to post an undertaking no less than five days from the hearing in the amount of $10,000 as required by statute. Code Civ. Proc., § 489.220 subd. (a).