Judge Mitchell L. Beckloff, Case Number: 23STCV11645, Date: 2023-10-04 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCV11645, Date: 2023-10-04 Tentative Ruling

Plaintiff, Romex Textiles, Inc., seeks writ of attachment against Defendant, Mega Wear, Inc., in the amount of $48,020.62. Defendant did not file an opposition.[1] The court notes if a defendant “fails to file a notice of opposition [to an application for a writ of attachment] within the time prescribed, the defendant shall not be permitted to oppose the issuance of the order.” (Code Civ. Proc., § 484.060, subd. (a).)

Plaintiff caused Defendant to be served with the summons and complaint on May 25, 2023. Plaintiff caused Defendant to be served with its application for a writ of possession (and all related papers) on August 16, 2023. Finally, Plaintiff caused Defendant to be served with the notice of the court’s temporary protective order and notice of today’s hearing on September 1, 2023. The court finds notice has been given as required by law.

Plaintiff’s request to take judicial notice of all the pleadings in the court’s file in this action including Exhibit 2 is granted. The court does not, however, take judicial notice of hearsay statements or controvertible facts within such documents. (See Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768.)

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” (Code Civ. Proc., § 484.010.)

(1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued;

(3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based;

(4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and

(5) a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment.

“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.” (Id., § 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.) 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].)

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.

Plaintiff’s complaint alleges 10 causes of action, including breach of contract and common counts for open account, account stated and goods sold and delivered.

“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 attests through its President that it entered into a series of written agreements with Defendant who agreed to purchase fabric goods from Plaintiff. (Binafard Decl. ¶ 6.) Between March 2021 and June 2022, Plaintiff delivered goods to Plaintiff, and Defendant accepted all goods listed on the invoices. (Binafard Decl. ¶ 6, Ex. 1.) Defendant never rejected the goods or notified Plaintiff of any intention to reject the goods. (Binafard Decl. ¶ 9.)

Defendant made only partial payments totaling $8,277 against the purchase price for the goods referenced in the invoices and delivered to Defendant. (Binafard Decl. ¶ 8.) Plaintiff presents evidence Defendant owes Plaintiff the sum of $31,743.85 for the goods referenced in the invoices. (Binafard Decl. ¶ 8, Ex. 2) Plaintiff is also the assignee from Encore Textiles, Inc. of invoices and accounts between Defendant with Encore Textiles, Inc. between September 2022 and November 2022. (Binafard Decl. ¶ 10, Ex. 3.) Defendant owed $6,276.77 Encore Textiles, Inc. at the time of assignment of the invoices and accounts to Plaintiff. (Binafard Decl. ¶ 10.)

Defendant owes a combined unpaid balance of $38,020.62 to Plaintiff. Plaintiff seeks a right to attach order and writ of attachment against Defendant to secure the sum of $48,020.62, which includes estimated costs of $5,000 and attorney’s fees in the sum of $5,000. (Binafard Decl.

¶ 12). Plaintiff’s counsel has put Defendant on notice of Plaintiff’s invoices and Encore Textile Inc.’s invoices, but Defendant has failed to pay the remaining unpaid balances. (Binafard Decl.

Plaintiff has provided copies of all invoices for goods delivered to Defendant. Plaintiff has also accounted for payments made by Defendant for those invoices.

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 series of written agreements 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 that 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’s President attests on Judicial Council Form AT-105 that its application for a writ of attachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based. (Judicial Council Form AT-105.) 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.

Here, Plaintiff seeks attachment of $48,020.62 against Defendant which includes estimated costs of $5,000 and attorney’s fees in the sum of $5,000.

Code of Civil Procedure section 489.210 requires Plaintiff to file an undertaking before issuance of a writ of attachment. Code of Civil Procedure section 489.220 provides unless an objection has been made, “the amount of an undertaking filed pursuant to this article shall be ten thousand dollars ($10,000).”

As Plaintiff has not filed an undertaking, it must do so—in the amount of $10,000—prior to a writ issuing.

[1] Solly Nigri filed a declaration in opposition to Plaintiff’s ex parte application for a right to attach order on August 18, 2023. Nigri also appeared at the ex parte hearing held the same date. Nigri is the Vice President of Defendant. It does not appear Nigri is a licensed attorney and advised in his declaration Defendant intended to hire an attorney for representation in these proceedings.