Judge: Peter A. Hernandez, Case: 23PSCV03247, Date: 2024-02-01 Tentative Ruling
Case Number: 23PSCV03247 Hearing Date: April 4, 2024 Dept: K
Plaintiff Haaker Equipment Company’s Application for
Right to Attach Order and Order for Issuance of Writ of Attachment Against
Defendant J&M Contracting Corp. is DENIED.
Background
Plaintiff Haaker Equipment Company (“Plaintiff”) alleges as follows:
Plaintiff applies for a right to attach order and writ of attachment against Defendant. The amount to be secured by the attachment is $87,026.98, which includes estimated costs of $600.00 and estimated allowable attorney fees of $1,200.00.
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.)
On January 29, 2024, Plaintiff filed a “Notice and Acknowledgment of Receipt,” which reflected that Defendant’s counsel acknowledged receipt of, inter alia, the summons and complaint. On February 6, 2024, Defendant filed an answer.
On March 12, 2024, the instant application and supporting documents were filed; the concurrently filed proof of service reflects that Defendant’s counsel had been electronically and mail-served with said documents that day.
The court determines that adequate notice has been provided, based on the above and on the information contained in the footnote.
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 2023) ¶ 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 four written rental agreements, whose total sum is more than $500. (Haaker Decl., ¶¶ 4, 9, 14 and 19). Defendant, however, contends that the alleged debt is not readily fixed or ascertainable. (See Campos Decl.; see below.)
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.)
The court determines that Plaintiff has not shown the probable validity of its claim. Plaintiff’s
President, Robin Haaker (“Haaker”), has
attached copies of the four rental agreements and
“VACTOR Rental Agreement HXX Walk-Around” for
each of the foregoing agreements as
Exhibits “1”-“4” to her declaration. Haaker
attests that Defendant owes $30,324.49 under
Agreement #1, $32,837.26 under Agreement #2,
$7,645.71 under Agreement #3 and $12,680.82
under Agreement #4, plus interest (Haaker
Decl., ¶¶ 7, 8, 12, 13, 17, 18, 22 and 23), for a total
principal owed of $83,488.28. Haaker does not
explain how these amounts were calculated.
Haaker has also attached a copy of a
“Customer Statement as of 2023-08-10” as Exhibit “5” to
her declaration. However, Exhibit 5 fails to
attach any of the specific invoices referenced therein.
Plaintiff has not provided the court with any
breakdown as to how the balance for each invoice
was calculated. Further, Exhibit 5 lists a
balance of $80,488.28, not $83,488.28.
Defendant is disputing the final balance
allegedly owed; more specifically, Defendant is
challenging Plaintiff’s charges for alleged
overage hours and for certain repairs that
were purportedly charged to it weeks after
the equipment was returned and a walkthrough was
conducted. (Campos Decl., ¶¶ 10, 13, 14, 19,
20, 23 and 24). Defendant is also challenging
whether it should be charged the daily rate
or the pro-rated monthly rate for equipment
Defendant leased but returned after four days
at Plaintiff’s demand. (Id., ¶ 25).
RULING:
The application is denied.