Judge Mitchell L. Beckloff, Case Number: 23STCV11695, Date: 2023-10-13 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCV11695, Date: 2023-10-13 Tentative Ruling

Plaintiff, Ellen Kallen, seeks a writ of attachment against Defendant, Raymond York, in the amount of $1,550,000.[1] Defendant, Raymond York, opposes the application.[2]

The court does not rule on Defendant’s request for judicial notice or his evidentiary objections. Given Plaintiff’s showing on the application, the court need not reach those issues.

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].)

Plaintiff’s application is defective because Plaintiff failed to submit a memorandum of points and authorities in support of her 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.

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

If Plaintiff intends to refile her application, she may want to consider the mostly well-taken evidentiary objections filed by Defendant. Further, illegible documents are not admissible as evidence.

[1] While Defendants Scott M. York and Erick York filed an opposition to the application, the application seeks relief only against Defendant Raymond York.

[2] Plaintiff’s amended objection to and motion to strike the timely filed opposition papers is denied. (Code Civ. Proc., § 484.060, subd. (a).) Contrary to Plaintiff’s assertion, the court was in session on Monday, October 9, 2023.