Judge Mitchell L. Beckloff, Case 20STCV26766 2022-08-05 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCV26766, Date: 2022-08-05 Tentative Ruling

On September 18, 2020, the court granted an application by Plaintiff, Paul Sutton, seeking a writ of attachment against Defendant, Strategic Legacy Investment Group, Inc., in the amount of $625,000, which includes $25,000 in attorney fees.

SLIG now seeks to partially vacate and quash that writ of attachment specifically as it relates to the attachment against the real property located at 701 Dos Rios Street in Sacramento, California (the Property).

Defendant filed its reply brief on August 1, 2022 at 8:24 p.m. Code of Civil Procedure section 1005, subdivision (b) requires that reply papers be served and filed “at least five court days before the hearing.” Pursuant to the code, Defendant’s reply papers were due no later than July 29, 2022. The court exercises its discretion to disregard Defendant’s late filed reply. (Cal. Rules of Court, Rule 3.1300, subd. (d).)[2]

Through its motion, SLIG seeks to discharge the attachment and release certain property levied through a writ of attachment.

SLIG argues the Property has been levied upon based on the writ of attachment and the Property is not owned by SLIG. Instead, the Property is owned by a different entity, The Legacy at Riverviews, LLC (Legacy). As SLIG is the party against whom the court issued a writ of attachment, SLIG contends the Property must be released.

Plaintiff contends even assuming SLIG’s factual position is correct, this motion is not SLIG’s to make. That is, SLIG has no standing to assert another entity’s claims. Plaintiff notes Code of Civil Procedure section 367 provides “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” Plaintiff argues SLIG admits it has no ownership interest in the Property (Sabet Decl. ¶¶ 8-9), and therefore, it may not prosecute Legacy’s claim.

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.) Neither party focuses on the attachment statutes and the process relevant to address claims of third parties like Legacy.[3]

Code of Civil Procedure section 488.110 provides: “A third person shall claim an interest in property attached in the manner provided for third-party claims under Division 4 (commencing with Section 720.010) of Title 9.”

Code of Civil Procedure section 720.110 provides: “A third person claiming ownership or the right to possession of property may make a third-party claim under this chapter in any of the following cases if the interest claimed is superior to the creditor’s lien on the property: (a) Where the property has been levied upon under a writ of attachment . . . .”

Code of Civil Procedure section 720.120 requires the third party to file the claim with the levying officer after “levy on the property but before the levying officer” sells the property or delivers it to the property to the creditor. (Code Civ. Proc., § 720.120, subds. (a), (b).)

Code of Civil Procedure section 720.140 requires the levying officer to take certain actions after the third party files the claim. Where a third party claimant does not file an undertaking for release of the property, the levying officer must advise the creditor “that the property will be released unless . . . the creditor files with the levying officer an undertaking that satisfies the requirements of Section 720.160.” (Id. at 720.140, subd. (a)(4).

“where the third person has not filed with the levying officer an undertaking to release the property pursuant to Chapter 6 (commencing with Section 720.610), if the creditor does not within the time allowed under subdivision (b) of Section 720.140 file with the levying officer an undertaking . . . that satisfies the requirements of Section 720.160, the levying officer shall release the property unless it is to be held under another lien or unless otherwise ordered by the court.”

Finally, the court may conduct a hearing on a third-party claim. (Id. at 720.170, subd. (d).)

“Not later than 15 days after the third-party claim is filed with the levying officer pursuant to Section 720.120 or 720.220, or 15 days after filing an undertaking pursuant to Section 720.610, either the creditor or the third person may petition the court for a hearing to determine the validity of the third-party claim and the proper disposition of the property that is the subject of the claim.”

Legacy has a remedy through the statutory third-party claim procedure. “The purpose of third party claims is to give a quick and effectual remedy to third parties whose property has been levied upon by mistake.” (Regency Outdoor Advertising v. Carolina Lanes, Inc. (1995) 31 Cal.App.4hh 1323, 1329.) Despite its arguments, SLIG has demonstrated no authority to bring this motion. Absent such authority, the claim is Legacy’s to assert.

Based on the foregoing, SLIG’s motion to release levied upon property is DENIED.

[1] The opposition is filed on behalf of Plaintiffs collectively. However, the underlying order granting the writ of attachment was made by Paul Sutton, as Trustee of the Sutton Revocable Trust. The court therefore refers to Plaintiff in the singular.

[2] Even if the court had considered SLIG’s late filed brief, it would make to difference in the outcome here. SLIG’s contention that “SLIG has standing by law to appear in Court to argue that certain property attached was exempt, as it is not owned by it” is not persuasive. Exempt property is that property owned by a defendant that is not subject to attachment. Exempt property is owned by a debtor. Property not owned by a debtor belongs to a third party; there is no issue related to exemption.

[3] SLIG’s moving and supplemental papers rely on authority citing Code of Civil Procedure sections 556 and 558. Both were repealed. SLIG’s reliance on Code of Civil Procedure section 485.240, subdivision (a) is inapplicable as SLIG’s property has not (allegedly) been attached.