Judge: Mitchell L. Beckloff, Case: 23STCV23196, Date: 2024-03-22 Tentative Ruling

Case Number: 23STCV23196    Hearing Date: March 22, 2024    Dept: 86

ZIONS BANCORPORATION, N.A. v. ENGAGE BDR, INC.

Case Number: 23STCV23196

Hearing Date: March 22, 2024

[Tentative]       ORDER GRANTING APPLICATION FOR WRIT OF ATTACHMENT

Plaintiff, Zions Bancorporation, N.A. dba California Bank & Trust, seeks a writ of attachment against Defendant Kurtis Rintala in the amount of $58,665. Defendant has not opposed the application. Code of Civil Procedure section 484.060, subdivision (a) specifies, “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.”

The application is GRANTED.

FACTUAL BACKGROUND

Defendant executed a guaranty agreement in connection with a business credit card issued by Plaintiff to Defendant Engage BDR, Inc. Defendant is/was the Chief Operating Officer of the business. Through the agreement, Defendant (along with Defendant Ted Dhanik) guaranteed payment by Defendant Engage BDR, Inc. of the balance due on the credit card account. (Mathers Decl., Ex 1.)

On February 17, 2023, Defendant Engage BDR, Inc. failed to make the required monthly credit card payment then due, as well as every subsequent monthly payment due thereafter.  Based upon Defendant BDR, Inc.’s ongoing default, Plaintiff elected to declare the unpaid balance on the account immediately due and payable. Plaintiff thereafter made a payment demand on Defendant Engage BDR, Inc. as well as Defendants Dhanik and Rintala for such payments. Plaintiff reports all Defendants refused and continue to refuse to make the required payment.

Plaintiff alleges Defendants owe Plaintiff the principal balance of $49,818.35, plus late/over limit fees in the sum of $90 as well as unpaid accrued interest in the sum of $5,754.01 and accrual of unpaid interest on the unpaid principal balance at the contract rate of 19.25 percent from July 29, 2023, according to proof at the time of trial or entry of judgment.

On September 25, 2023, Plaintiff filed this action. Plaintiff asserts causes of action for (1) Breach of Contract (Credit Card Account), (2) Money Lent, (3) Account Stated, (4) Breach of Contract (Guaranty), and (5) Money Due.

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.” (Id. at § 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 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 Plaintiff’s 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.) 

To prevail on a claim for breach of contract, a Plaintiff must prove (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff.

In support of its contract claim against Defendants, Plaintiff represents the terms of disclosure Defendants received along with the business credit card application itself, including the guaranty therein, collectively demonstrate Defendants’ written and executed contract with Plaintiff. (Mathers Decl. Exhs. 1-2.) Specifically, Defendant’s guaranty agreement provides he will be jointly and severally and unconditionally liable with Defendant Dhanik for any outstanding payments or debts incurred by Defendant Engage BDR, Inc. The guaranty provides “Borrower and each Guarantor shall be liable for the full amounts of Borrower’s Outstanding Balance regardless of the purpose . . . .” (Mathers Decl. Exh.2.) The court finds on the evidence provided Plaintiff and Defendant have a contract.

The evidence also establishes Plaintiff performed its obligations under that contract. Plaintiff provides evidence it issued a business credit card to Defendant Engage BDR, Inc. and extended credit through it.

Plaintiff demonstrates with evidence Defendant has failed to perform under the terms of the guaranty agreement. Defendant Engage BDR, Inc. defaulted on its payment obligations to Plaintiff on February 17, 2023. Defendant failed to cure the default under the terms of the guaranty after Plaintiff made a demand. (Mathers Decl. ¶ 4.) Plaintiff’s failure to perform constitutes a breach of the guaranty agreement.

Plaintiff has also provided proof of monetary damages sustained by Defendant’s breach. (Mathers Decl. ¶ 5.)

Plaintiff has provided sufficient evidence to demonstrate the probable validity of its contract claim against Defendant.

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. at § 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 written contract. (Mathers Decl. Exhs. 1-2.) Plaintiff has sufficiently established its claim is in excess of $500.

Accordingly, the court finds Plaintiff’s claim is a proper basis for attachment.

Purpose and Amount of Attachment:

As noted, statutory attachment procedures are purely creations of the legislature and as such “are subject to ‘strict construction.’ ” (Hobbs v. Weiss, supra, 73 Cal.App.4th at 79.) “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.” (Id. at 79-80.) 

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 . . . [and] the amount to be secured by the attachment is greater than zero.” A plaintiff seeking attachment must make this showing.

Plaintiff attests through its Senior Vice President the application for 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, ¶ 4.)

Accordingly, the court finds that Plaintiff has complied with Code of Civil Procedure sections 484.020 and 484.090.

Subject Property:

Code Civil Procedure section 487.010, subdivision (c) provides that where the defendant is a natural person, all of the following property is subject to attachment:

(1) Interests in real property except leasehold estates with unexpired terms of less than one year; (2) Accounts receivable, chattel paper, and general intangibles arising out of the conduct by the defendant of a trade, business, or profession, except any such individual claim with a principal balance of less than one hundred fifty dollars ($150); (3) Equipment; (4) Farm products; (5) Inventory; (6) Final money judgments arising out of the conduct by the defendant of a trade, business, or profession; (7) Money on the premises where a trade, business, or profession is conducted by the defendant and, except for the first one thousand dollars ($1,000), money located elsewhere than on such premises and deposit accounts, but, if the defendant has more than one deposit account or has at least one deposit account and money located elsewhere than on the premises where a trade, business, or profession is conducted by the defendant, the court, upon application of the plaintiff, may order that the writ of attachment be levied so that an aggregate amount of one thousand dollars ($1,000) in the form of such money and in such accounts remains free of levy; (8) Negotiable documents of title; (9) Instruments; (10) Securities; and (11) Minerals or the like (including oil and gas) to be extracted.

Plaintiff provides an attachment to its application specifying it seeks to attach all 11 categories of property subject to attachment for a natural person under Code of Civil Procedure section 487.010, subdivision (c). (Judicial Council Form AT-105 for Defendant Rintala, ¶ 9.) Plaintiff specifies under the real property category it is seeking to attach Defendant’s interest in the property located at 2199 Sunset Plaza Dr, Los Angeles, California.

Thus, the Court finds the property identified by Plaintiff is properly subject to attachment.

Attorney’s Fees:

Code of Civil Procedure section 482.110, subdivision (a) provides “[t]he plaintiff's application for a right to attach order and a writ of attachment pursuant to this title may include an estimate of the costs and allowable attorney's fees.”

Here, Plaintiff argues attorney’s fees are allowable in this case, as provided by the parties’ contract. (See Mathers Decl. Ex. 2, ¶ 22.) The contract provides: “the Bank may take legal action (including collection action) against Borrower/Guarantor and Borrower/ Guarantor agrees to pay all collection costs whether or not awardable as court costs (including the cost of Bank staff) and reasonable attorney’s fees (including those of salaried Bank employees). If the Bank sues to collect and Borrower wins the lawsuit, the Bank will pay Borrower’s court costs and reasonable attorney’s fees.” (Mathers Decl. Ex. 2, ¶ 22.)

The Court finds that the amount to be attached may include estimated attorney’s fees.

CONCLUSION

Based on the foregoing, Plaintiff’s application for a writ of attachment against Defendant is GRANTED in the amount of $58,665.60 ($1,000 in estimated costs plus $49,818.35 principal plus $5,754.01 accrued interest plus $90 in over limit fees plus $2,003.24 in attorney’s fees and costs).

Code of Civil Procedure section 489.210 requires a plaintiff to file an undertaking before issuance of a writ of attachment. Plaintiff shall post a $10,000 undertaking. (Code Civ. Proc.,

§ 489.220.)

IT IS SO ORDERED.

March 20, 2024                                                                      ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court