Judge: Peter A. Hernandez, Case: 23PSCV02159, Date: 2024-03-06 Tentative Ruling
Case Number: 23PSCV02159 Hearing Date: March 6, 2024 Dept: K
Plaintiff Flexi-Van Leasing, Inc.’s Application for Order for Issuance of Writ of Attachment Against Defendant A Speed Transportation Inc. is GRANTED. The court will issue a writ for $264,502.97 and order an undertaking of $10,000.00.
Background
Plaintiff Flexi-Van Leasing, Inc. (“Plaintiff”) alleges that A Speed Transportation (“Defendant”) became indebted to Plaintiff in the amount of $264,502.97 for goods and/or services rendered, which Defendant has failed to pay.
Plaintiff applies for a right to attach order and writ of attachment against Defendant. The amount to be secured by the attachment is $264,502.97, which includes estimated costs of $0 and estimated allowable attorney fees of $0.
Analysis
“Attachment is a prejudgment remedy which requires a court to make a preliminary determination of the merits of a dispute. It allows a creditor who has applied for an attachment following the statutory guidelines and established a prima facie claim to have a debtor's assets seized and held until final adjudication at trial.” (Lorber Industries, Inc. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) “A purpose of the attachment statutes is to confine attachments to commercial situations and to prohibit them in consumer transactions. The language, ‘trade, business or profession,’ in section 483.010, subdivision (c) fulfills that purpose by limiting the use of attachments to ‘commercial transactions’ and precluding them in ‘consumer transactions.’” (Kadison, Phaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4 [citation omitted].)
Attachment is governed by Attachment Law, Title 6.5 of the Code of Civil Procedure, sections 481.010-493.060. “[A]ttachment procedures are solely creatures of statute and . . . such statutes must be strictly construed.” (Arcata Publications Group v. Beverly Hills Publishing Co. (1984) 154 Cal.App.3d 276, 279.)
Procedural Considerations: “Upon the filing of the complaint or at any time thereafter, the plaintiff may apply…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, 485.210, subd. (a).) “No order or writ shall be issued. . . except after a hearing. At the times prescribed by subdivision (b) of Section 1005, the defendant shall be served with all of the following: (a) A copy of the summons and complaint. (b) A notice of application and hearing. (c) A copy of the application and of any affidavit in support of the application.” (Code Civ. Proc., § 484.040.)
On September 19, 2023, Defendant filed an answer. On September 29, 2023, Plaintiff filed a proof of service which reflected, inter alia, that Defendant had been substitute served with the summons and complaint on August 12, 2023.
On December 19, 2023, Plaintiff filed a proof of service, which reflected that Defendant’s counsel had been mail and email served that day with the following documents: “Application for Right to Attach Order, Order for Issuance of Writ of Attachment; Right to Attach Order and Order for Issuance of Writ of Attachment After Hearing; Notice of Application and Hearing for Order for Issuance of Writ of Attachment; Declaration in Support of Pre-Judgment Writ of Attachment.”
The court, then, determines that adequate notice has been provided.
Substantive Considerations: “At the hearing, the court shall consider the showing made by the parties appearing and shall issue a right to attach order, which shall state the amount to be secured by the attachment determined by the court in accordance with Section 483.015 or 483.020, if it 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, subd. (a).)
“The court's determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of the additional evidence or points and authorities.” (Code Civ. Proc., § 484.090, subd. (d).) “The court has the power to determine disputed facts on the basis of a preponderance of the evidence as disclosed in the affidavits and declarations… [Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80…].” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2022) ¶ 9:948 (emphasis theirs).)
“The following property of the defendant is subject to attachment: (a) Where the defendant is a corporation, all corporate property for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8. (b) Where the defendant is a partnership or other unincorporated association, all partnership or association property for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8. . .” (Code Civ. Proc., § 487.010.)
Plaintiff must provide a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based, a statement that the applicant has no information or belief that the claim is discharged in a proceeding under Title 11 of the United States Code (Bankruptcy) or that the prosecution of the action is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy). (Code Civ. Proc., § 484.020, subds. (c) and (d).) Plaintiff has complied with these requirements.
Plaintiff must also provide 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. (Code Civ. Proc., § 484.020, subd. (e).) “Where the defendant is a corporation, a reference to ‘all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010’ satisfies the requirements of this subdivision. Where the defendant is a partnership or other unincorporated association, a reference to ‘all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010’ satisfies the requirements of this subdivision. 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.” (Id.) Plaintiff has sufficiently complied with this requirement.
CLAIM:
“[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) [emphasis added].)
“An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement, statute, or other rule or law . . . [h]owever, an attachment may be issued where the claim was originally so secured but, without any act of the plaintiff or the person to whom the security was given, the security has become valueless or has decreased in value to less than the amount then owing on the claim . . .” (Code Civ. Proc., § 483.010, subd. (b).) “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).)
The claim is for money, and based upon an implied agreement (i.e., common counts), whose total sum is more than $500. (Cardona Decl., ¶ 4.)
Probable Validity:
“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’s Director of Credit and Collections, Adelita Cardona (“Cardona”), represents as follows: Plaintiff is a lessor of marine chassis used by shipping companies to facilitate the loading and hauling of cargo. (Cardona Decl., ¶ 2). Each chassis is identified by a unit number and is rented at a daily rate. (Id.) Information concerning the pickup and return of chassis is obtained by Plaintiff at periodic intervals and includes the identity of the chassis by number and the identity of the renter including their SCAC code. (Id.) Defendant used Plaintiff’s chassis transport services at Defendant’s request within the last four years. (Id., ¶ 3, Exh. A.) On May 17, 2023, Defendant defaulted in its payments to Plaintiff, leaving the principal amount of $264,502.97 due and owing to Plaintiff from Defendant. (Id., ¶¶ 3, 4 and 6, Exhs. A and B). Interest accrues on that sum at the rate of 10% per annum from and after May 17, 2023. (Id., ¶ 4). Cardona has researched Plaintiff’s file and found no record of credit that has not been applied previously to this account. (Id., ¶ 5).
The court finds that Plaintiff has shown that its claim has probable validity. Moreover, Defendant has not filed any opposition. Plaintiff’s application, then, is granted.
UNDERTAKING:
“Before issuance of a writ of attachment, . . . the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.” (Code Civ. Proc., § 489.210.)
“Except as provided in subdivision (b), the amount of an undertaking filed pursuant to this article shall be ten thousand dollars ($10,000).” (Code Civ. Proc., § 489.220, subd. (a).) “If, upon objection to the undertaking, the court determines that the probable recovery for wrongful attachment exceeds the amount of the undertaking, it shall order the amount of the undertaking increased to the amount it determines to be the probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful. (Code Civ. Proc., § 489.220, subd. (b).)
RULING:
All the requirements have been satisfied.
Accordingly, the application is granted. The court will issue a writ for $264,502.97 and order an undertaking of $10,000.00.