Judge: Mitchell L. Beckloff, Case: 19STCV28595, Date: 2022-10-21 Tentative Ruling
Case Number: 19STCV28595 Hearing Date: October 21, 2022 Dept: 86
ROMEX TEXTILES, INC. v. DOOL FNA, INC.
Case Number: 19STCV28595
Hearing Date: October 21, 2022
[Tentative] ORDER GRANTING THE APPLICATION FOR WRIT OF ATTACHMENT
In December 2019, Plaintiff, Romex Textiles, Inc., brought an application for a writ of attachment against Defendant, Dool FNA, Inc. The court granted the application and issued the writ in the amount of $508,600.10. The attachment amount included $5,000 in estimated costs and $5,000 in estimated attorney’s fees.
On February 21, 2020, Defendant moved the court to release the attachment by offering to file an undertaking in the sum of $508,600.10 in lieu of the attachment. The court granted the request and ordered the attachment released upon the filing of the undertaking.
Plaintiff now seeks a writ of attachment in an additional amount of $172,750 for attorney fees.
The application is granted.
The court need not rule on Plaintiff’s evidentiary objections as the Chang Declaration is not material to this ruling.
APPLICABLE LAW
The Court shall issue a right to attach order if the Court finds all of the following:
The claim upon which the attachment is based is one upon which an attachment may be issued.
The plaintiff has established the probable validity of the claim upon which the attachment is based.
The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.
The amount to be secured by the attachment is greater than zero.
(Code Civ. Proc. § 484.090.)
“The application [for a writ of attachment] shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.” (Code Civ. Proc. § 484.030.) Statutory attachment procedures are purely creations of the legislature and as such “are subject to ‘strict construction.’” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79; see also Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) A judge does not have authority to order any attachment that is not provided for by the attachment statutes. (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1466.) “The declarations in the moving papers must contain evidentiary facts, stated ‘with particularity,’ and based on actual personal knowledge with all documentary evidence properly identified and authenticated.” (Hobbs v. Weiss, supra, 73 Cal.App.4th at 79-80.) “In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” (Id. at 80 [cleaned up].)
ANALYSIS
Probable Validity of Plaintiff’s Claims:
“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc. § 481.190.)
Plaintiff previously demonstrated a probable validity of its claims—that is, the claims arising from a series of allegedly unpaid invoices—in the amount of $498,600.10. On Plaintiff’s prior application, the court found Plaintiff was entitled to an attachment for $5,000 in estimated attorney fees arising from a contractual obligation.
Additionally, as noted in Plaintiff’s supplemental reply, the court to which this matter is assigned—on August 11, 2022—granted Plaintiff’s motion for summary adjudication in Plaintiff’s favor and against Defendant on the first and second causes of action of Plaintiff’s first amended complaint for breach of contracts and for open book account. The court need not re-litigate these issues that have been conclusively decided on summary adjudication (and also previously by this court in connection the Plaintiff’s initial application for a writ of attachment).
Thus, the court rejects Defendant’s claim “Plaintiff cannot establish the probable validity of its claim against Defendant.” (Opposition 3:13-14.) Plaintiff has twice prevailed on the issue—once before this court and once before another court on a motion for summary adjudication.
Accordingly, Plaintiff has demonstrated a probable validity of its claims against Defendant.
Basis of Attachment:
The Court shall issue a right to attach order if the claim upon which the attachment is based is one upon which an attachment may be issued. (Code Civ. Proc. § 484.090.) “[A]n 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.” (Code Civ. Proc. § 483.010, subd. (a).) “If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession.” (Code Civ. Proc. § 483.010, subd. (c).)
Plaintiff’s claim is based on a series of written contracts in the form of invoices and is in excess of five hundred dollars.
In opposition, Defendant suggests that this application contains an improper purpose because Plaintiff seeks an attachment on an updated attorney fee amount only. Defendant cites no legal authority for its proposition. Moreover, the potential obligation running from Defendant is growing based on legal fees. Nothing precludes Plaintiff from establishing Defendant is now obligated to Plaintiff in excess of that previously found. That is, if Plaintiff had instead sought an attachment at this stage of the litigation as opposed to earlier in the litigation, Plaintiff would have been entitled to the attorney fees incurred (and estimated) at this later time; there is no legal or logical reason Plaintiff should be precluded from an attachment related to its attorney’s fees.
Accordingly, the court finds that Plaintiff’s claim is a proper basis for attachment.
Purpose and Amount of Attachment:
Code of Civil Procedure section 484.090 states that the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.”
Here, Plaintiff attests on Form AT-105 that its application for attachment is not sought for a purpose other than the recovery on a claim upon which the attachments are based. (AT-105 ¶ 4.) There is no indication that the application is sought for any other purpose. Accordingly, the court finds that Plaintiff has complied with Code of Civil Procedure sections 484.020 and 484.090.
With respect to the amount of attorney fees, Defendant states “it is unacceptable and unreasonable of Mr. Nico Tabibi, Esq. to seek an amount of $177,750.00 without the bases and only based on an estimated hour spent and to be spent.” (Cha Decl., ¶ 5.)
The court does question the sufficiency of Plaintiff’s counsel's evidence to substantiate the substantial fee requested. Plaintiff’s counsel identifies numerous actions undertaken in the course of litigation but then, in a conclusory manner, “request[s] $395 per hour and . . . estimate[s] approximately a total of 450 hours for the foregoing for a total of $177,750 in attorney’s fees.” (Tabibi Decl., ¶¶ 11-12.)
Nonetheless, 450 hours over a three-year period calculates to about one month of work on the case per year or one-week of work every quarter. Given the extent of litigation involved in the action from the court’s review of the docket and counsel’s declaration, the hours claimed do not appear unreasonable for purposes of this application. Moreover, the court does not find $395 an hour is unreasonable.
The court is therefore not inclined to reduce the amount sought for the attachment.
Subject Property:
Code Civil Procedure section 487.010, subdivision (a) provides that “[w]here the defendant is a corporation, all corporate property for which a method of levy is provided” is subject to attachment.
Plaintiff seeks to attach the property identified in Paragraph 9(a) of Form AT-105. The property subject to attachment complies with Code of Civil Procedure section 487.010.
CONCLUSION
For the foregoing reasons, the application for writ of attachment is granted in the amount of $172,750 upon the filing of a $10,000 undertaking. (Code Civ. Proc. § 489.210.)
IT IS SO ORDERED.
October 21, 2022 ________________________________
Hon. Mitchell Beckloff
Judge of the Superior Court