Judge Ronald F. Frank, Case Number: 24TRCP00270, Date: 2024-10-02 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCP00270, Date: 2024-10-02 Tentative Ruling

Case Number: 24TRCP00270 Hearing Date: October 2, 2024 Dept: 8

Tentative Ruling

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HEARING DATE: October 2, 2024

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CASE NUMBER: 24TRCP00270

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CASE NAME: DUBRAVKO SKARE v. PETER BALOV aka PETAR BALOV, et al.

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MOVING PARTY: Plaintiff Dubravko Skare

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RESPONDING PARTY: Defendant Peter Balov (no opposition filed)

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TRIAL DATE: None

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MOTION:¿ Application for Writ of Attachment

Tentative Ruling: Deny. Plaintiff to argue why a non-specific attachment order should be issued without notice to Defendant

I. BACKGROUND¿¿

A. Factual

Plaintiff Dubravko Skare (“Plaintiff”) sues Defendant Peter Balov aka Petar Balov (“Balov”) to enforce a money judgment that Plaintiff obtained in the Republic of Croatia.

The Complaint alleges that the judgment was based on a contract whereby Plaintiff agreed to transfer his shares in a company to Balov in exchange of Balov agreeing to release and indemnify Plaintiff from all the company’s liabilities and obligations. (Compl., ¶ 8.) Balov allegedly breached the agreement, causing Plaintiff to pay the company’s debts. (Compl., ¶ 8.) Plaintiff then sued Balov in Croatia for reimbursement and/or indemnification. (Compl., ¶ 8.) On September 29, 2016, the Municipal Civil Court in Zagreb, Croatia, issued a judgment in favor of Plaintiff and against Balov for HRK 2,598,091.25 (approximately $373,086). (Compl., ¶¶ 9-10.) Plaintiff filed this lawsuit seeking to collect that judgment in California pursuant to the Uniform Foreign-Country Money Judgments Recognition Act (Code Civ. Proc., §§ 1713-1724). (Compl., ¶ 11.)

B. Procedural

¿ On July 9, 2024, Plaintiff filed this lawsuit against Balov and Does 1 through 50, inclusive, asserting one cause of action for recognition and enforcement of the foreign-country money judgments.

On August 7, 2024, Plaintiff filed the instant writ of attachment application. No opposition to the writ application has been filed.

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¿III. ANALYSIS¿

A. Legal Standard

“‘“Attachment is an ancillary or provisional remedy to aid in the collection of a money demand by seizure of property in advance of trial and judgment.”’ [Citation.]” (Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1476 (“Kemp”) [emphasis removed].)

“California’s Attachment Law (Code Civ. Proc., § 482.010 et seq.) is purely statutory and is strictly construed.” (Kemp, supra, 146 Cal.App.4th at p. 1476 [foot note omitted].)

“Except as otherwise provided by statute, 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 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).)

“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.)

“The application shall be executed under oath and shall include all of the following:

(a) A statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued.

(b) A statement of the amount to be secured by the attachment.

(c) A statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

(d) 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).

(e) 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. …. 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.)

“No order or writ shall be issued under this article 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.)

The notice of application and hearing shall inform the defendant, among other things, that: “If the defendant claims that the personal property described in the application, or a portion thereof, is exempt from attachment, the defendant shall include that claim in the notice of opposition filed and served pursuant to Section 484.060 or file and serve a separate claim of exemption with respect to the property as provided in Section 484.070.” (Code Civ. Proc., § 484.040, subd. (f).) In addition, that the “defendant may obtain a determination at the hearing whether real or personal property not described in the application or real property described in the application is exempt from attachment by including the claim in the notice of opposition filed and served pursuant to Section 484.060 or by filing and serving a separate claim of exemption with respect to the property as provided in Section 484.070 ….” (Code Civ. Proc., § 484.040, subd. (g).)

“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).)

“If, in addition to the findings required by subdivision (a) [above], the court finds that the defendant has failed to prove that all the property sought to be attached is exempt from attachment, it shall order a writ of attachment to be issued upon the filing of an undertaking as provided by Sections 489.210 and 489.220.” (Code Civ. Proc., § 484.090, subd. (b).)

“If the court determines that property of the defendant is exempt from attachment, in whole or in part, the right to attach order shall describe the exempt property and prohibit attachment of the property.” (Code Civ. Proc., § 484.090, subd. (c).)

“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).)

B. Discussion

Plaintiff seeks a right to attach order and writ of attachment in the amount of $373,086.

The Court finds that the claim upon which Plaintiff’s attachment request “is based is one upon which an attachment may be issued,” the money judgment over $500. (Code Civ. Proc., §§ 484.090, subd. (a)(1); 483.010, subd. (a).)

The Court also finds that Plaintiff has satisfied most requirements under Code of Civil Procedure section 484.020 (“Section 484.020”) by providing the following information under oath. A statement that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued. (Application for Right to Attach Order (Form AT-105), filed August 7, 2024 (the “Application”), Item 3.) A statement of the amount to be secured by the attachment: $373,086. (Id. at Item 8.) A statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (Id. at Item 4.) A statement that Plaintiff has no information or belief that the claim is discharged or the prosecution of the action is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy). (Id. at Item 5.)

However, the Court finds the following issues with the application.

First, the application does not describe the property that Plaintiff seeks to attach in a manner that would allow Balov to know which property will be attached. As stated above, attachment statutes are strictly construed. Section 484.020(e) states that “[w]here 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.” Here, Plaintiff only wrote the following. “Interests in real property; accounts receivable, chattel paper, and general intangibles arising out of the conduct by the defendant of a trade, business, or profession; equipment; farm products; inventory; final money judgments arising out of the conduct by the defendant of a trade, business, or profession; 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.” (Application, Item 9c.) That description is not specific enough to give notice of the property Plaintiff is seeking to attach.

Second, as stated above, Plaintiff was required to serve “the defendant … 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.)

Here, there is no proof of service of summons, complaint, or application filed. The Court notes that on August 7, 2024, Plaintiff filed a completed Notice of Application and Hearing of Right to Attach Order and Order for Issuance of Writ of Attachment (Judicial Council of California Form AT-115). However, there is no proof of service filed for that notice either.

The declaration in support of the Application, signed in Croatia, states that Mr. Skare is “informed and believes” that there is a risk that the property sought to be attached will be concealed or its value impaired unless an attachment is ordered without notice. The Court will hear oral argument as to why Plaintiff contends that no notice of the suit or of this application should be given to the defendant, and any authority for the proposition that an attachment can be ordered on such a thin showing ex parte.

For those reasons, the application is tentatively denied.

IV. CONCLUSION

The Application for Writ of Attachment is DENIED, without prejudice.