TENTATIVE RULING

Calendar: 2

Date: 1/13/2023

Case No.         19 GDCV00558                     Trial Date: August 28, 2023

Case Name:     Herc Rentals v. 1 Stop Home Remodeling, Inc.

WRIT OF ATTACHMENT

Moving Party: Plaintiff Herc Rentals     

Responding Party: Defendant 1 Stop Home Remodeling, Inc.  

FACTUAL AND PROCEDURAL BACKGROUND:

This is an action brought by plaintiff Herc Rentals to collect sums allegedly due under a written Herc Account agreement plaintiff entered with defendant 1 Stop Home Remodel.  

The file shows that on August 6, 2019, plaintiff filed a Request for Entry of Default of defendant, which was entered as requested on August 8, 2019.   

On October 3, 2019, Judgment by the Court by Default based on plaintiff’s written declaration was filed and signed by the court, awarding judgment for plaintiff and against defendant 1 Stop Home Remodeling, Inc. in the total sum of $54,295.39. 

On December 3, 2021, the court heard a motion brought by defendant to set aside the default and default judgment, based on an argument that service of the summons and complaint did not result in actual notice of the action to defendant in time to defend the action.  The motion was granted.  

Plaintiff now seeks a writ of attachment against defendant.  

GROUNDS FOR MOTION 

Claim is one on which an attachment may be issued 

[Attachment may only be issued in an action on a claim for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney’s fees]

Claim is for amount due under invoices submitted to defendant 1 Stop Home Remodeling, Inc. by plaintiff Herc Rentals Inc., for money owed for goods and services plaintiff provided to defendant.  [Aukerman Decl. para. 6-8, Ex. A].  On or subsequent to November 13, 2017, the stated value of the goods sold and delivered to defendant at the agreed price was $38,472.15, and although defendant was invoiced for that sum, defendant made no payment to plaintiff and there is now due and owing to plaintiff from defendant that sum.  [Decl., paras. 8, 9; Ex. A].   

Establishes a probable validity of claim on which attachment is based

Defendant 1 Stop Home Remodeling was provided goods and services and has failed to pay for those services and goods sold and delivered at the agreed price.  [Decl., paras. 6-9].  

Not sought for any purpose other than to secure recovery on the claim

Application, paragraph 4. 

ANALYSIS:

CCP §483.010 (a) provides that: 

“an 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 is a fixed or readily ascertainable amount not less than five hundred dollars ($500), exclusive of costs, interest and attorney’s fees.” 

Under CCP § 484.090, governing the hearing on a writ of attachment:

“(a) 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….

(d) 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.”

With respect to “probable validity,” under CCP section 481.190:

“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.”

The burden to show probable validity is on the party seeking attachment.  Lorber Industries v. Turbulence, Inc. (1985, 2nd Dist.) 175 Cal.App.3d 532, 535.  The trial court’s determination of probable validity will not be disturbed if there is substantial evidence to support the determination.  Id.     

  Here, the evidence submitted includes invoices submitted to defendant by plaintiff with respect to rentals of equipment such as washers, dehumidifiers, air removers, and air scrubbers.  [Ex. A].  There is no written agreement submitted between the parties, but the debt appears to have been incurred pursuant to an agreement between the parties, express or implied, for the payment to plaintiff for the rental of the equipment and the listed services, at an “agreed price.”  [Aukerman Decl., para. 8].  

With respect to the amount due, there is no summary or calculation submitted which reflects the conclusion in the declaration of plaintiff’s legal analyst that the total due and owing is in the sum of $38,472.15 as claimed.  The court is evidently expected to total the various invoices submitted.  The court could find that under the circumstances, plaintiff has failed to meet its burden here, and deny the application, but the court elects not to do so. 

However, a review of the invoices shows totals invoiced and running total as follows:

10/02/17       506.52

10/12/17         17,802.40 18,308.92

10/20/17 2,353.55 20,662.47

10/20/17 1,968.85 22,631.32

10/23/17 2,576.73 25,208.05

10/23/17 4,399.95 29,608.00

11/1/17 4,432.05 34,040.05

11/13/17 4,432.10 38,472.15

The invoices appear to total $38,472.15 as claimed. 

The court accordingly makes the requisite findings here, including, (1) that the claim upon which the attachment is based is one upon which an attachment may be issued, that is, that the claim is for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than five hundred dollars, and (2) that substantial evidence supports a finding that plaintiff has established the probable validity of the claim upon which the attachment is based.

Defendant has filed opposition to the application, arguing that plaintiff has failed to establish the probable validity of its claim against defendant.  Defendant argues that no officer or management level employee of defendant ever rented equipment from plaintiff as alleged.  

Defendant submits the declaration of its Chief Executive Officer, Mohamed Joudeh, who states that throughout this litigation, including in responses to written discovery signed under penalty of perjury, Joudeh has maintained that One Stop Home Remodeling, Inc. never entered into an agreement with plaintiff for the equipment invoiced by plaintiff.   [Joudeh Decl., para. 2].  The declaration states, “We have denied any liability and have at all times asserted that the parties herein never entered into a contract.”  [Joudeh Decl., para. 2].  The declaration indicates that the declarant believes that whatever goods or services allegedly provided were provided to a third party without defendant’s knowledge or consent, and that “my company never contracted with Herc Rentals or any of its affiliates.”  [Joudeh Decl., para. 3]. 

The declaration also points out that it appears the alleged transactions took place in the state of Texas.  [See Ex. A, p. A-12].  The declaration states, “I can categorically confirm that 1 Stop Home Remodeling does not now, nor has ever had a Texas address or maintained a place of business in Texas.  We have never done a project in Texas, and, in fact, I have never been to the State of Texas either for business, pleasure or otherwise.”  [Joudeh Decl., para. 5].  

Based on this showing, the probable validity of plaintiff’s claim is in question, and the writ of attachment accordingly is denied.  

The application also seeks a temporary protective order, alleging that plaintiff will suffer great or irreparable injury if such an order is not issued because there is a danger that the property sought to be attached will be concealed, substantially impaired in value or made unavailable to levy by other concealment or impairment in value.  [Application, para. 13]. 

Under CCP section 486.010:

“(a) At the time of applying for a right to attach order under Chapter 4 (commencing with Section 484.010), the plaintiff may apply pursuant to this chapter for a temporary protective order by filing an application for a temporary protective order with the court in which the action is brought.

(b)  The application shall state what relief is requested and shall be supported by an affidavit, which may be based on information and belief, showing that the plaintiff would suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary restraining order were not issued.” 

The application for writ of attachment is denied, so no temporary protective order is issued. 

In addition, the application here fails to state what relief is requested by temporary protective order.  The application does not check the box requesting relief and does not provide any specifics on the application when the application directs that with respect to relief requested, the applicant “specify.”  [See Application, para. 14].   There is no specification, for example, that plaintiff seeks that defendant be prohibited from transferring certain property which would otherwise be subject to the writ of attachment.  The application for a temporary protective order also accordingly is denied for failure of the applicant to specify the relief requested. 

Moreover, even if the writ were granted, in connection with the issuance of a temporary protective order, under CCP section 486.020, the court shall examine the application and supporting affidavit, and issue the temporary protective order if finds all of the following; the claim is one upon which an attachment may be issued, plaintiff has established the probably validity of the claim, the order is not sought for a purpose other than recovery upon the claim upon which the application for attachment is based, and “(d)  The plaintiff will suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary protective order is not issued.” 

CCP section 485.010, which applies to ex parte procedures for obtaining a writ of attachment (not on full notice) provides the following definition of great or irreparable injury:

“(b) The requirement of subdivision (a) is satisfied if any of the following are shown:

(1) Under the circumstances of the case, it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made available to levy if issuance of the order were delayed until the matter could be heard on notice.

(2) Under the circumstances of the case, it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute.  Plaintiff’s affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant, that the debts are not subject to bona fide dispute, and the basis for plaintiff’s determination that the defendant’s debts are undisputed.” 

The declaration here states very generally:

“Based on Defendant 1 STOP HOME REMODELING, INC., a California corporation's seeming inability to meet its obligations, this Application for Right to Attach Order should issue as there exist danger that Defendant's remaining assets will be substantially impaired in value or otherwise made unavailable to levy.”

[Auckerman Decl., para. 10].  

This argument again fails to request specific relief in connection with the issuance of a temporary protective order, and also fails to show that under the circumstances that property will be concealed or impaired in value, or that defendant is insolvent under the showing required by the statute.  It is not stated that defendant is not generally paying debts as they become due, only that defendant is seemingly unable to pay this debt, and the declaration mentions nothing about known undisputed debts not being subject to bona fide excuse, or the 

basis for a determination debts are undisputed. The request for a temporary protective order accordingly is denied.

RULING:

Application for writ of attachment is DENIED. 

Defendant in opposition has raised questions with respect to whether plaintiff has established the probable validity of its claim. 

Application for temporary restraining order is DENIED.  

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

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