Judge: Mitchell L. Beckloff, Case: 22STCV00047, Date: 2022-09-07 Tentative Ruling

Case Number: 22STCV00047    Hearing Date: September 7, 2022    Dept: 86

LLAMAS v. BROWN UNITED, INC.

Case Number: 22STCV00047

Hearing Date: September 7, 2022

 

 

[Tentative]       ORDER GRANTING APPLICATION FOR WRIT OF ATTACHMENT

 

 

Plaintiff, Jeff Llamas (Plaintiff), seeks a writ of attachment against Defendant, Tamara Brown (Defendant), in the amount of $795,428.76, which includes $93,252.50 in estimated attorney fees and $2,847.50 in estimated costs.

 

Defendant did not file an opposition. The court notes, “If the defendant fails to file a notice of opposition within the time prescribed, the defendant shall not be permitted to oppose the issuance of the order.” (Code Civ. Proc. § 484.060, subd. (a).)

 

The application for writ of attachment in a reduced amount.

 

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

     

    Probable Validity of Plaintiffs’ 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 seeks an attachment based on an indemnity agreement.

     

    By way of background, Defendant Brown United, Inc. is in the business of renting, designing, engineering and constructing the staging for entertainment events; Defendant Brown United obtains its materials and equipment from various vendors, including Direct Scaffold Supply, LP (Direct Scaffold). (Llamas Decl., ¶4)

     

    Relevant to this application, in August 2015, Plaintiff—while working as an employee of Defendant Brown United—was asked to sign a ““Guarantee Agreement,” by Direct Scaffold in order to receive a delivery of goods on behalf of Brown United; Direct Scaffolding insisted on a guarantee agreement because Defendant Brown United had exceeded its business credit and Direct Scaffolding would not deliver the goods unless someone guaranteed Defendant Brown United’s debt for Direct Scaffolds’ invoices. (Llamas Decl., ¶¶ 7-8, Ex. E.) As both Defendant John Brown and Defendant Tamara Brown were on vacation at the time, Defendant John Brown directed Plaintiff to sign the guaranty, which Plaintiff signed on August 19, 2015. (Llamas Decl., ¶¶ 7-8, Ex. E.)

     

    On February 16, 2018, Defendant Tamara Brown, Defendant Brown United, Inc.

    (through its CEO, Defendant John Brown), and Defendant John Brown, executed an contract wherein Defendants agreed as follows:

     

    "On or about August 18, 2015, Indemnitee [Plaintiff], without consideration and solely for the benefit and accommodation of Indemnitors [Defendants] entered into a guarantee of Indemnitors [Defendants'] obligation to Direct Scaffolding, Inc., in the amount of $260,000.00 (‘Guarantee’).

     

    Indemnitors [Defendants] hereby agree to indemnify Indemnitee [Plaintiff], and his legal representative, against all liability arising from the Guarantee. Indemnitors [Defendants] agree to hold them harmless against all demands, claims, actions, losses, and expenses arising from the Guarantee, including reasonable attorney fees." (Reali Decl., ¶¶ 14, 15, Ex. C.)

     

    Ultimately, neither Defendant Tamara Brown, Defendant John Brown nor Defendant Brown United paid Direct Scaffold’s invoices. (Llamas Decl., ¶ 8.)

     

    On March 2, 2017, Direct Scaffold filed an action in the District Court of Harris County, Texas (Case Number 2017-14603), alleging breach of contract claims against Defendant Brown United, Inc. under a “sworn account” and against Plaintiff and Defendant John Brown as guarantors, seeking a $253,531.08 balance on an account sought to be recovered. (Reali Decl., ¶ 24.) After filing an unopposed motion for summary judgment, the Texas court granted summary judgment and entered judgment on December 8, 2017 (Texas Judgment). (Reali Decl., ¶ 24.)

     

    On November 18, 2020, Direct Scaffold filed its Application for Entry of Judgment on Sister-State Judgment with the Los Angeles Superior Court to enforce the Texas Judgment requesting a judgment of $508,259.43 (California Enforcement Action). On that same day, the clerk of court entered the California judgment based on the Texas Judgment in the amount of $508,259.43 (California Judgment). (Reali Decl., ¶¶ 25-26.)

     

    On May 13, 2022, Direct Scaffolded filed a Memorandum of Costs in the California Enforcement Action, reflecting the California Judgment was in the amount of $583,593.22 ($508,259.54 principal, plus $75,333.79 interest). (Reali Decl., ¶ 27; RJN Ex. B). A June 2, 2022 Memorandum of Costs[1] reflects the Judgment against Plaintiff is $586,378.21 ($508,259.43 principal, plus $78,118.78 interest). (Llamas Decl., ¶ 16, Ex. F.)

     

    In responses to discovery, Defendant Tamara Brown admitted she failed to comply with the terms of Indemnity Agreement. (Reali Decl., ¶¶ 16, 20, 21, Ex. B [RFAs No. 13, 20].)

     

    The total amount Plaintiff seeks for attachment is $789,749.26—which includes $586,378.21 [amount of judgment against Plaintiff as of June 2, 2022] + $10,763.55 [interest at 10 percent on the $586,378.21 from June 2, 2022 to August 8, 2022] + $72,135.00 [attorneys’ fees incurred as of August 4, 2022] + $2,372.50 [costs incurred as of August 4, 2022] + $15,325 [anticipated attorneys’ fees after August 4, 2022] + $475 [anticipated costs after August 4, 2022] + $102,300 [monies lost from Plaintiff’s inability to refinance mortgage loan]. (Llamas Decl., ¶¶ 14, 17, 18; Reali Decl. ¶¶ 31-44; Haines Decl., ¶¶ 3-7; Baer Decl., ¶¶ 2-8.)

     

    Defendant Tamara Brown filed no opposition to this application (or the evidence contained therein).

     

    The court finds that, for the attachment purposes, Plaintiff’s evidence shows a probable validity of Plaintiff’s breach of contract claim.

     

    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 written contract—an Indemnity Agreement—and is in excess of five hundred dollars.

     

    Further, Plaintiff submits evidence demonstrating that the claim against Defendant Tamara Brown arises from her business. Specifically, during the relevant period of Plaintiff’s employment, Defendant Tamara Brown was the 51 percent owner and corporate secretary for Defendant Brown United. (Reali Decl., ¶¶ 6, 10-13, Ex. B; Llamas Decl., ¶ 5.) Further, Defendant Tamara Brown was extensively involved in the finances and operations of Defendant Brown United and the management of Defendant Brown United’s personnel. (Llamas Decl., ¶ 6, Exs. A-D.) Defendant Tamara Brown owns Defendant Brown United along with her husband, Defendant John Brown. (Lllamas Decl., ¶¶ 4, 5.)

     

    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 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 is not sought for a purpose other than the recovery on a claim upon which the attachments are based. (Form AT-105, ¶ 4.) Accordingly, the court finds Plaintiff has complied with Code of Civil Procedure sections 484.020 and 484.090.

     

    However, Plaintiff’s request for $102,300 for monies lost as result of Plaintiff’s inability to refinance his mortgage appears to be inappropriate for the purposes of an attachment as a compensable injury flowing from the breach of the indemnity.

     

    “ ‘ “[I]t is a well-recognized rule of law in this state that an attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. [Citations.] The fact that the damages are unliquidated is not determinative. [Citations.] 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.” ‘ [Citation] Accordingly, it is not necessary that the amount owed appear on the face of the contract; it often happens that the amount due under a contract does not appear on the contract itself. [Citation.]” (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 540.)

    Unlike the other direct damages identified by Plaintiff flowing from the breach of the Indemnity Agreement, the lost savings from the inability to refinance does not appear fixed or readily ascertainable from the contract; that is, no “clear and definite” formulas for the computation of such damages. (Llamas Decl., ¶ 14.) In fact, liability for this damage is uncertain and will depend on results at trial.

     

    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. 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 properly identifies the property subject to attachment as the property identified in 9(c) of the Attachment Judicial Forms.

     

    CONCLUSION

     

    For the foregoing reasons, the application for a writ of attachment is granted as to Defendant Tamara Brown in the reduced amount of $ 693,128.76 upon the filing of a $10,000 undertaking. (Code Civ. Proc. §§ 489.210, 489.220.)

     

    IT IS SO ORDERED.

     

    September 7, 2022                                                               ________________________________

                                                                                                                       Hon. Mitchell Beckloff

                                                                                                                       Judge of the Superior Court


[1] Plaintiff notes Direct Scaffold served the memorandum of costs but did not file it.