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
[TENTATIVE] ORDER
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).