Judge Mitchell L. Beckloff, Case 22STCV25557 2023-04-07 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCV25557, Date: 2023-04-07 Tentative Ruling

Plaintiff, Public Interest Investigations, Inc., seeks a writ of attachment against Defendant, Netfreedom Pioneers, in the amount of $50,307.44. The amount sought includes $570 in estimated costs and $1,200 in estimated attorney’s fees.

Defendant has not filed an opposition. “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., § 484.090, subd. (a).) The court finds notice is proper.[1] (See Proof of Service filed January 11, 2023.)

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 a written contract to provide services. Plaintiff contends it provided valuable services to Defendant for which it has not been paid.

On June 29, 2021, Plaintiff and Defendant entered into a written contract (the Contract) engaging Plaintiff to provide “an impartial and independent investigation involving an internal personnel matter” at Defendant’s work place. (Dalton Decl., ¶ 4, Ex. 1.) Pursuant to the Contract’s terms, Defendant paid a retainer of $5,000.00. (Dalton Decl., ¶ 5.) Also, as required by the Contract, Plaintiff agreed to deliver monthly statements to Defendant showing the number of hours worked and the remaining balance of the $5,000 retainer, and Defendant agreed to pay Plaintiff’s invoices within 30 days after delivery. (Dalton Decl., ¶ 6.) Defendant defaulted under the Contract by failing to pay Plaintiff’s monthly invoices submitted on August 9, 2021, September 24, 2021 and October 6, 2021. (Dalton Decl., ¶ 8, Ex. 2-4.) Plaintiff has been damaged in the amount of $43,555. (Dalton Decl., ¶ 9, Ex. 4.)

Based on the only evidence before the court, for the attachment purposes, the court finds Plaintiff’s evidence shows the probable validity of Plaintiff’s breach of contract claim.

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).)

Plaintiff’s claim is based on a written contract—a services agreement—and is in excess of five hundred dollars.

Accordingly, the court finds Plaintiff’s claim is 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, through declarant Barbara Dalton, attests the application for attachment is not sought for a purpose other than the recovery on a claim upon which the attachments are based. (Judicial Council Form AT-105, ¶ 4.) Accordingly, the court finds Plaintiff has complied with Code of Civil Procedure sections 484.020 and 484.090.

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 properly identifies the property subject to attachment as the property identified at item 9(a) of the Judicial Council attachment forms.

[1] Petitioner shall address how it obtained Defendant’s counsel’s email address. The email address does not appear on any documents filed by Defendant in this action.