Judge Mitchell L. Beckloff, Case 20STCV40995 2023-03-17 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCV40995, Date: 2023-03-17 Tentative Ruling

Plaintiff, Jose Mejia, seeks a writ of attachment against Defendants, Beverly Alexander and Carol Singleton, in the amount of $223,976.00, or in the alternative amounts of $178,976 or $45,000.

Plaintiff’s request for judicial notice (RJN) of Exhibit A is granted. (Evid. Code, § 452, subd. (c).)

The court declines to rule on Defendants’ handwritten evidentiary objections to Plaintiff’s declaration. (California Rules of Court, Rules 2.100-2.108.)

Plaintiff’s objections to the Declaration of Beverly Alexander are all overruled. Plaintiff’s motion to strike the declaration is denied.

The Court shall issue a right to attach order if the Court 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.

“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].)

“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 seeks an attachment based on the tenancy and employment relationship between Plaintiff, as tenant and employee, and Defendants, and landlords and employer. Specifically, in exchange for maintenance services on Defendants’ property, Defendants provided Plaintiff with a residential leasehold at the property at a reduced rent payment of $900 per month (reduced from $1,300 a month). (Mejia Decl., Ex. 1 [Lease/Employment Agreement].)

The unverified complaint contains fourteen causes of action alleged against Defendants and Willie Bluitt Estates Incorporation: (1) Negligence; (2) Breach of Warranty of Habitability;

(3) Breach of Covenant of Quiet Enjoyment; (4) Premises Liability; (5) Nuisance; (6) Failure to Obtain Workers’ Compensation Insurance Policy; (7) Workplace Discrimination Based on Disability; (8) Retaliatory Termination; (9) Severe and Pervasive Workplace Harassment;

(10) Wrongful Termination in Violation of Public Policy; (11) Failure to Furnish Timely and Accurate Wage Statements; (12) Failure to Pay Minimum Wage; (13) Failure to Pay Overtime Worked; and (14) Intentional Infliction of Emotional Distress.

Petitioner represents in a very general manner—while performing his employment duties as property manager, maintenance worker, fumigator, exterminator and plumber at the subject property—he suffered abdominal epigastric pain, gastritis, dyspepsia, constipation, diarrhea, enteritis, nausea, vomiting, hyperechoic stranding of the pancreatic parenchyma, gastric antral mottling, anxiety, and depression work injuries. (Mejia Decl., ¶ 10, Ex. 6-8.) Plaintiff claims Defendants failed to obtain workers’ compensation insurance such that his medical injuries resulted in significant medical costs to him. (Mejia Decl., ¶¶ 10, 12, 14.)

He also states “on information and belief” that as an on-site manager and maintenance person, his daily wages for about two years were not completely paid by Defendants in violation California’s minimum wage schedule. (Mejia Decl., ¶ 8.)

As result of Defendants’ alleged misconduct, Plaintiff claims damages in the amount of $178,976 for Plaintiff’s unpaid wages. He also claims he is entitled to $45,000 for approximate medical expenses owed by Plaintiff to his medical providers because the lack of workers’ compensation insurance. (Mejia Decl., ¶¶ 13-14.)

First, Defendants challenge the probable validity of Plaintiff’s claims based on his alleged employment by Defendants. Defendants argue they did not employ Plaintiff. They assert Plaintiff was not an “employee” but an “independent contractor” who performed “occasional work” on the property. (Alexander Decl., ¶ 4, Ex. A [interrogatory responses].)

Plaintiff argues Defendants failed to secure workers’ compensation insurance for the benefit of Plaintiff in violation of Labor Code sections 3700, 3700.5 and 3706.

The Worker's Compensation Act (Act) extends only to injuries suffered by an “employee,” which arise out of and in the course of his/her “employment.” (Labor Code, §§ 3600, 3700; see Cal. Const., art. XIV, § 4.) “Employee[s]” include most persons “in the service of an employer under any . . . contract of hire” (Lab. Code, § 3351), but do not include independent contractors. The Act defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” (Id., § 3353.)

The court finds Plaintiff’s generalized testimony does not demonstrate the probable validity of his claims, including his claim based on Defendants’ alleged failure to obtain workers’ compensation insurance. Plaintiff has provided no specific evidence to the court about the scope of his employment and the control allegedly exerted by Defendants over him. The court cannot determine on this record Plaintiff and Defendants had an employer-employee relationship. In fact, Defendants expressly dispute Plaintiff even performed most of the work he contends he performed; rather, Defendants suggest Plaintiff performed some limited work on the property. (Alexander Decl., ¶¶ 6-9.) Defendants—and their admission that Plaintiff performed some limited work for them—are more credible than Plaintiff. Thus, Plaintiff has not demonstrated a probable validity of prevailing on the workers’ compensation claim.[1]

Moreover, there is no evidence of a relationship or nexus between Plaintiff’s medical conditions and his employment except for Plaintiff’s own opinion (i.e., a layperson’s opinion) as to his medical condition. (Mejia Decl., ¶¶ 9-10, Exs. 6-8; see Alexander Decl., ¶ 13.) Thus, Plaintiff has not demonstrated that the failure to obtain workers’ compensation insurance resulted in his medical injuries and subsequent costs. Further, Plaintiff has failed to substantiate his medical costs with any documentation despite Defendants’ request for such evidence. (Alexander Decl., ¶¶ 13-14.)

The court also finds Plaintiff has not demonstrated the probable validity of his claim he was not paid as required by Labor Code sections 221, 223, 1194 and 1197.

In addition to Defendants’ evidence disputing the work performed by Plaintiff and Plaintiff’s claimed status as “employee,” the court notes Plaintiff has not submitted any calculations that demonstrate the time work over the two-year period—he merely makes a conclusion. (Memo., p. 2. [“Plaintiff has calculated his unpaid wages, including overtimes worked for about 2 years to be in excess of $178, 976.00.”]) Absent such evidence, Plaintiff cannot demonstrate a statutory violation for failure to pay an employee the minimum wage pursuant to Labor Code sections 221, 223, 1194 and 1197. Plaintiff’s mere conclusory statement that he incurred wages beyond those provided by the rental/employment agreement is not overly generalized and entitled to little, if any, evidentiary weight. (Mejia Decl., ¶ 8.) Plaintiff’s evidence is insufficient to meet his burden on his applications.

Finally, Defendants argue they have an offset in the amount owed to Defendants from their unlawful detainer action against Plaintiff. (Opp., 6:17-20 [Def.’s RJN Ex. B [Judgment of $6,060].) The court need not consider the offset where Plaintiff has not demonstrated a probable validity of his claims.

Based on the evidence before the court, this court finds for purposes of his applications for writs of attachment, Plaintiff has failed to meet his burden on his claims based on violations of the Labor Code.

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 written contract—a lease/employment agreement—and is in excess of five hundred dollars.

Defendants argue Plaintiff has not alleged a breach of contract, and Plaintiff’s claims are instead based on tort and statutory violations. Their argument is unpersuasive.

“[T]he amount to be secured by an attachment” must be based on “[t]he amount of the defendant's indebtedness claimed by the plaintiff.” (Code Civ. Proc., § 483.015, subd. (a)(1).) “The term ‘indebtedness has no rigid or fixed meaning, but rather must be construed in every case in accord with its context.” (Carman v. Alvord (1982) 31 Cal.3d 318, 326 [cleaned up].) “It can include all financial obligations arising from contract, obligations which are yet to become due as [well as] those which are already matured and may be created by statute rather than contract.” (Patton v. City of Alameda (1985) 40 Cal.3d 41, 46 [cleaned up]).”

Defendants also argue Plaintiff’s claim for damages is not in a fixed readily ascertainable amount. Their argument has merit.

“[A]n attachment order may be issued only if the claim sued upon is, inter alia, for money based upon a contract and is of a ‘fixed or readily ascertainable amount.’ ” (Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1481, fn. 5; see also Hobbs v. Weiss, supra, 73 Cal.App.4th at 782.) “The Legislature has determined attachments may properly issue only to secure anticipated recoveries on contract claims in fixed or readily ascertainable amounts.” (Baker v. Superior Court (1983) 150 Cal.App.3d 140, 146-147; see also Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1277.)

“The fact that the damages are unliquidated is not determinative. But the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.” (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 540 [cleaned up].) Although it is not necessary that the amount owed appear on the face of the contract, it must be measurable by reference to the contract sued upon, and the basis of the damages must be reasonable and certain. (Ibid.; Walker v. Phillips (1962) 205 Cal.App.2d 26, 31.)

As argued by Defendants, the amount Plaintiff contends is now owed to him for labor wages at a minimum hour rate and medical costs are not readily ascertainable from the contract between the parties and is not otherwise fixed. The contract indicates nothing with respect to medical costs incurred for a workers’ compensation claims. Further, on the unpaid wages claim, the contract in fact contains opposite terms limiting Plaintiff’s compensation for work performed to $400 a month—the difference in rent paid and rent owed.

Accordingly, the court finds Plaintiff’s claim is not a proper basis for attachment.

Code of Civil Procedure section 484.090 states 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 the application for attachment was not sought for a purpose other than the recovery on a claim upon which the attachments are based. (Mejia Decl., ¶ 15.) Accordingly, the court finds Plaintiff has complied with Code of Civil Procedure sections 484.020 and 484.090.

Where the defendant is a natural person, the description of the property shall be reasonably adequate to permit the defendant to identify the specific property sought to be attached.” (Code Civ. Proc. § 484.020, subd. (e).)

Plaintiff identified the specific property that is sought to be attached as 823 West 81st Street, Los Angeles, California, 90044.

For the foregoing reasons, the applications for a writ of attachment are denied.

[1] Defendants also argue, in bringing this claim, Plaintiff has not demonstrated compliance with Welfare & Institutions Code Section 14124.73. (Opp. 10:10-11:19.) The court need not resolve this issue having found the other defects with Plaintiff’s claim.