Judge Mitchell L. Beckloff, Case Number: 23STCV14236, Date: 2024-01-05 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCV14236, Date: 2024-01-05 Tentative Ruling

Plaintiff, 400 W. Pico LLC, seeks writs of attachment against Defendant, Carlo Gholami dba Couture Clothing, in the amount of $122,846.77. Defendant opposes the application and claims an exemption for his tools of the trade, a screen printing machine and seven sewing machines. Plaintiff did not file a reply.

The parties acknowledge their landlord/tenant relationship. Plaintiff’s predecessor entered into a lease agreement and amendments with Defendant for real property located at 404 and 410 W. Pico Boulevard. (Compl. ¶¶ 8, 10-11; Exh. A.) The parties’ agreement specifies the amount of monthly rent payable.

Plaintiff alleges Defendant failed to pay the total amount of rent due for the months of April 2020 to February 2021, leaving a total balance of $33,178.30 due and owing. (Compl. ¶¶ 13-14.)

Plaintiff also alleges Defendant substantially damaged the properties during his tenancy. (Compl. ¶ 15.)

“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.” (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 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].)

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.

Preliminarily, the court notes Plaintiff’s moving papers consist of a mix of both Judicial Council forms and ordinary pleadings. While Plaintiff used a form AT-115 for its Notice of the Application and a form AT-120 for its proposed right to attach order, Plaintiff did not use form AT-105 for its application. The Judicial Council forms are for optional use. They do, however, ensure an application is complete.

It is well established that the attachment procedures are subject to strict construction. Code of Civil Procedure section 484.020 mandates an application include, among other things, “[a] statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based,”[1] and “[a] description of the property to be attached under the writ of attachment . . . .”[2] (Code Civ. Proc., § 484.020, subd. (c), (e).) The application must also include “[a] statement that the applicant has no information or belief that the claim is discharged . . . or stayed in a proceeding under Title 11 of the United States Code (Bankruptcy).” (Id. at subd. (d).)

Plaintiff has not submitted any evidence to make the showing required by Code of Civil Procedure section 484.020, subdivisions (c), (d) and (e) in its moving papers. Accordingly, Plaintiff’s application must be denied. The court denies the application without prejudice, however, to allow Plaintiff to reapply for a right to attach order.

Given the deficiencies in Plaintiff’s evidence, the court need not consider whether Plaintiff’s claims against Defendant are probably valid.

Based on the foregoing, the application for a writ of attachment is denied without prejudice.

[1] Code of Civil Procedure section 484.090 provides 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 . . . .”

[2] “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).)