Judge: Mitchell L. Beckloff, Case: 21STCV39456, Date: 2023-09-08 Tentative Ruling

Case Number: 21STCV39456    Hearing Date: September 8, 2023    Dept: 86

MOOBERY v. SINZ R US LLC

Case Number: 21STCV39456

Hearing Date: September 8, 2023

[Tentative]       ORDER DENYING APPLICATION FOR WRIT OF ATTACHMENT

Plaintiff, Brad Moobery, seeks a writ of attachment against Defendant, Gary Kleinman, in the amount of $150,000.00. Defendant opposes the application. (Plaintiff does not seek an attachment against Defendant Wham Network, Inc.)

The application for a writ of attachment is denied.

Defendant’s unopposed request for judicial notice is denied.

APPLICABLE LAW

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.

(4)    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 

Plaintiff’s application is defective because Plaintiff failed to submit a memorandum of points and authorities in support of his application.  Pursuant to the California Rules of Court (CRC), a memorandum of points and authorities is required for a pre-judgment application for attachment.  (CRC Rules, 3.1103, subd. (a)(1); 3.1112, subd. (a)(3); 3.1113, subd. (a); and 3.1114.) “The court may construe the absence of a memorandum as an admission that the motion . . . is not meritorious and cause for its denial . . . .”  (CRC, Rule 3.1113, subd. (a).)  Furthermore, “[t]he Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)  The court denies the applications based on Plaintiff’s failure to file a memorandum of points and authorities with the application. 

CONCLUSION 

The application is DENIED without prejudice. (Cf. Code Civ. Proc., § 485.220, subd. (b).)

IT IS SO ORDERED.

September 8, 2023                                                                ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court