Judge: Mitchell L. Beckloff, Case: 23STCV09455, Date: 2023-12-08 Tentative Ruling
Case Number: 23STCV09455 Hearing Date: January 10, 2024 Dept: 86
SAN MARCOS PHARMACY, INC. v. SANTA MARIA
PHARMACY, INC.
Case Number: 23STCV09455
Hearing Date: January 10, 2024
[Tentative] ORDER
GRANTING APPLICATIONS FOR WRITS OF ATTACHMENT
Plaintiffs, San Marcos Pharmacy, Inc. (SMP) and
Guadalupe Pharmacy, Inc. (GP), move for a writ of attachment against Defendant,
Santa Maria Pharmacy, Inc., in the amount of $1,482,330.
Plaintiff GP moves for a writ of attachment against
Defendant, Marcos Soliman, in the amount of $643,251.50.
Plaintiff, SMP moves for a writ of attachment
against Defendant, Marcos Soliman, in the amount of $1,123,523.
The applications are granted.
RELEVANT PROCEDURAL HISTORY
On April 27, 2023, Plaintiffs filed a complaint
for breach of contract and other claims.
On August 7, 2023, Plaintiffs filed their joint application
for a writ of attachment against Defendant Santa Maria Pharmacy, Inc.
On August 23, 2023, Plaintiff SMP filed its
application for a writ of attachment against Defendant Marcos Soliman.
On August 23, 2023, Plaintiff GP filed its
application for a writ of attachment against Defendant Marcos Soliman.
On September 28, 2023, the court entered
Plaintiffs’ request for default against Defendant Santa Maria Pharmacy, Inc.
On October 20, 2023, the court entered
Plaintiffs’ request for default against Defendant Marcos Soliman.
Defendants did not file an opposition to the
applications. Plaintiffs note Code of Civil Procedure section 484.060,
subdivision (a) provides a defendant who does not file a timely opposition to
an application for a writ of attachment “shall not be permitted to oppose the
issuance of the order.”
///
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 [emphasis added].) A court 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.)
Plaintiffs
allege causes of action for breach of contract, money had and received, goods
tendered and fraud in their complaint against Defendants.
Plaintiffs’
claims against Defendant Santa Maria Pharmacy, Inc:
Plaintiffs
and Defendant Santa Maria Pharmacy, Inc. entered into a written loan agreement
whereby Plaintiffs lent $1,450,000 to Defendant Santa Maria Pharmacy. (Soliman
Decl. ¶6 and Exh. 1.) Under the terms of the parties’ agreement, Defendant
Santa Maria Pharmacy was required to make installment payments on the loan
obligation. Defendant Santa Maria Pharmacy has acknowledged the $1,450,000
obligation to Plaintiffs. Plaintiffs have fully performed under the loan agreement.
(Soliman Decl. ¶¶ 8-9, and Exh. 2.) Defendant Santa Maria Pharmacy failed to
make the payments required by the loan agreement. (Soliman Decl. ¶¶ 10-17.)
Plaintiffs
have demonstrated the probable validity of their claim for $1,450,000 against
Defendant Santa Maria Pharmacy, Inc.
Plaintiff SMP’s claims against Defendant
Soliman:
Defendant
Soliman requested that Plaintiff SMP sell him goods and inventory, and Plaintiff
SMP did so and provided goods valued at $1,123,463. (Soliman
Decl. ¶¶ 6-8 and Exh. 1.) Plaintiff SMP’s invoices issued to Defendant Soliman
specifically indicate “[p]lease remit payment by credit card or check to: San
Marcos Pharmacy”. (See Soliman Decl. Exh. 1.) Defendant Soliman failed to pay
for the goods and acknowledged his obligation to Plaintiff SMP on several
occasions. (Soliman Decl. ¶¶ 10-14 and Exhs. 2, 3, 4. [“To reiterate, payments
are guaranteed by [Defendant] Santa Maria Pharmacy’s assets and the CEO’s
assets.”])
Defendant
Soliman is the sole shareholder and Chief Executive Officer of Defendant Santa
Maria Pharmacy, Inc. (Soliman Decl. ¶ 4.)
Plaintiff
SMP has demonstrated the probable validity of its claim for $1,123,463 against
Defendant Soliman.
Plaintiff GP’s claims against
Defendant Soliman:
Plaintiff
GP’s claims against Defendant Soliman are nearly identical to Plaintiff SMP’s
claims against him. Plaintiff GP provided goods to Defendant valued at $643,191.50.
(Soliman Decl. ¶¶ 6-7.) Plaintiff GP directed invoices to Defendant Soliman,
and Defendant Soliman failed to pay for the goods and acknowledged his
obligation to Plaintiff GP on several occasions.[1] (Soliman
Decl. ¶ 7.)
Defendant
Soliman is the sole shareholder and Chief Executive Officer of Defendant Santa
Maria Pharmacy, Inc. (Soliman Decl. ¶ 4.)
Plaintiff
GP has demonstrated the probable validity of its claim for $643,191.50 against
Defendant Soliman.
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.” (Id., § 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.” (Id., § 483.010, subd. (c).)
Plaintiffs’
claims against Defendant Santa Maria Pharmacy, Inc. are based on a promissory
note and are in excess of five hundred dollars. Accordingly, the court finds Plaintiffs’
claims are a proper basis for attachment.
Plaintiffs’
individual claims against Defendant Soliman arise out of Defendant Soliman’s trade,
business or profession. Plaintiff SMP’s claims are based on contract and exceed
$500. Plaintiff GP’s claims are based on contract and exceed $500.
Accordingly,
the court finds all claims asserted are 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,
Plaintiffs attest through their Chief Executive Officer that the applications
for attachment are not sought for a purpose other than the recovery on claims
upon which the attachments are based. (Each Attachment Form AT-105, ¶ 4.)
Accordingly, the court finds Plaintiffs have complied with Code of Civil
Procedure sections 484.020 and 484.090.
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).)
Plaintiffs seek to attach the property identified in
Paragraph 9 of Form AT-105 for the attachments sought. For each application, the
property subject to attachment complies with Code of Civil Procedure section
487.010 as to Defendant Santa Maria Pharmacy, Inc. and Defendant Soliman.
CONCLUSION
The applications are granted as prayed.
Code Civil Procedure Section
489.210 requires a plaintiff to file an undertaking before issuance of a writ
of attachment. Code Civil Procedure Section 489.220 provides that, unless an
objection has been made, “the amount of an undertaking filed pursuant to this
article shall be ten thousand dollars ($10,000).” No undertaking has been
submitted by Plaintiffs.
·
Plaintiffs SMP and GP are entitled to a writ of
attachment against Defendant Santa Maria Pharmacy, Inc. in the amount of
$1,482,330 upon the filing of a $10,000 undertaking.
·
Plaintiff GP is entitled to a writ of attachment against
Defendant Soliman in the amount of $643,251.50 upon the filing of a $10,000
undertaking.
·
Plaintiff SMP is entitled to a writ of attachment
against Defendant Soliman in the amount of $1,123,523 upon the filing of a
$10,000 undertaking.
IT IS SO ORDERED.
January
10, 2024 ________________________________
Hon. Mitchell
Beckloff
Judge of the
Superior Court