Judge Salvatore Sirna, Case Number: 24PSCV03196, Date: 2024-10-28 Tentative Ruling

Judge: Salvatore Sirna, Case: 24PSCV03196, Date: 2024-10-28 Tentative Ruling

Case Number: 24PSCV03196 Hearing Date: October 28, 2024 Dept: G

Plaintiff Georgia McCaffrey’s Application for a Right to Attach Order, an Order for Issuance of Writ of Attachment, and a Temporary Protective Order

Respondent: Defendants Efrain Rangel and Maria Rangel

TENTATIVE RULING

Plaintiff Georgia McCaffrey’s Application for a Right to Attach Order, an Order for Issuance of Writ of Attachment, and a Temporary Protective Order is DENIED as to Defendants.

BACKGROUND

This is an action for conversion and financial elder abuse. In 2021, Plaintiff Georgia McCaffrey hired Defendant Edward Rangel as a bus boy/host for McCaffrey’s restaurant in Covina. After one and one-half months, McCaffrey fired Edward Rangel due to poor work performance. In April 2022, McCaffrey hired Edward Rangel to help McCaffrey move into a new home in La Verne. Upon learning of Edward Rangel’s housing issues, McCaffrey agreed to let Edward Rangel live at the La Verne property in exchange for providing help around the house. In January 2023, McCaffrey asked Edward Rangel to leave the property after Edward Rangel had allegedly engaged in drug use, as well as odd and disturbing behavior. In August 2024, McCaffrey alleges Edward Rangel broke into McCaffrey’s house and did so again during Labor Day weekend 2024. In September 2024, McCaffrey discovered $90,000 in cash and $15,000 worth of jewelry was missing from McCaffrey’s house. When McCaffrey confronted Edward Rangel’s parents, Defendants Efrain Rangel and Maria Rangel, they refused to give McCaffrey access to their property.

On September 25, 2024, McCaffrey filed a complaint against Edward Rangel, Efrain Rangel, Maria Rangel, and Does 1-20, alleging the following causes of action: (1) conversion, (2) financial elder abuse, (3) intentional infliction of emotional distress (IIED), and (4) common counts.

On September 30, 2024, McCaffrey filed an ex parte application for a writ of attachment. On October 2, 2024, the court denied McCaffrey’s ex parte application and set it for hearing as a noticed motion.

A hearing on the present application is set for October 28, 2024, along with a case management conference and OSC Re: Failure to File Proof of Service set for February 25, 2025.

ANALYSIS

McCaffrey applies for writ of attachment against Edward Rangel, Efrain Rangel, and Maria Rangel. For the following reasons, the court DENIES McCaffrey’s application.

Legal Standard

Attachment is proper where: (1) “[t]he claim is one upon which an attachment may be issued;” (2) “plaintiff has established the probable validity of the claim upon which the attachment is based;” (3) “[t]he attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based;” and (4) “[t]he amount to be secured by the attachment is greater than zero.” (Code Civ. Proc., § 480.090, subd. (a); see also Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 271 (Salinas Nissan) [party pursuing attachment remedy carries burden of establishing grounds justifying attachment, including presenting facts that show probable validity of underlying claim].) The court may issue an attachment for damages in an action for financial elder abuse pursuant to Welfare and Institutions Code section 15657.01.

“Probable validity means that ‘more likely than not’ the plaintiff will obtain a judgment on that claim.” (Santa Clara Waste Water Co. v. Allied World National Assurance Co. (2017) 18 Cal.App.5th 881, 885, citing Code Civ. Proc., § 481.190.) Plaintiff’s application must “be supported by an affidavit or declaration showing that the applicant, on the facts presented, would be entitled to a judgment on the claim upon which the attachment is based.” (Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944, citing Code Civ. Proc., § 484.030.) The affidavits must set forth facts with particularity and a verified complaint may be utilized in lieu of such affidavits. (Code Civ. Proc., § 482.040.) Furthermore, any documentary evidence must be presented in admissible form. (Id., at p. 944.)

Discussion

In this case, McCaffrey seeks to attach the following property: (1) real property owned by Efrain and Maria Rangel in West Covina, (2) a white Mini Cooper owned by Edward Rangel, and (3) any tangible property of value owned by the Rangels. McCaffrey’s writ of attachment is based upon a claim of financial elder abuse pursuant to Welfare and Institutions Code section 15657.01.

As to Efrain and Maria Rangel, the court finds this application fails on all grounds. While the Complaint alleges a cause of action for financial elder abuse against Edward Rangel, it fails to do so against the Efrain and Maria Rangel. (Complaint, ¶ 24-28.) Because the Complaint does not allege a cause of action for financial elder abuse against Efrain and Maria Rangel, McCaffrey is without any authority to attach their property pursuant to Welfare and Institutions Code section 15657.01. As to Edward Rangel, McCaffrey must establish the probable validity of McCaffrey’s financial elder abuse claim.

Pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), an elder or dependent adult may bring a civil action for financial abuse pursuant to Welfare and Institutions Code section 15657.5. For the purposes of the EADACPA, “elder” is defined as “any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.) The EADACPA defines financial abuse as the taking, secreting, appropriating, obtaining, or retaining of an elder or dependent adult’s real or personal property “for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15610.30, subd. (a).) Property is deemed taken for a wrongful use if “the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code, § 15610.30, subd. (b).) Financial abuse may also occur when the taking, secreting, appropriating, obtaining, or retaining of an elder or dependent adult’s real or personal property is the result of undue influence as defined in Welfare and Institutions Code section 15610.70. (Welf. & Inst. Code, § 15610.30, subd. (a)(3).)

In this case, neither McCaffrey’s initial declaration nor McCaffrey’s supplemental declaration explicitly states McCaffrey’s age. While McCaffrey states “I am the owner of Bun N Burger[,] a family style restaurant that has served the Covina, California community for over 57 years,” (McCaffrey Suppl. Decl., ¶ 2) this statement does not establish McCaffrey’s age as it does not clarify if McCaffrey served as owner during this entire time. And to the extent McCaffrey’s declaration attached a police report that purports to provide McCaffrey’s date of birth, that report is inadmissible hearsay. (See People v. McVey (2018) 24 Cal.App.5th 405, 415)

Additionally, McCaffrey’s declaration also fails to explicitly allege McCaffrey was a resident of California, although that fact appears to be implied by the claim that McCaffrey moved into a house in La Verne in April 2022. As age is an essential element of a claim for financial elder abuse, McCaffrey’s evidence is insufficient to establish the probable validity of McCaffrey’s claims. But because age can easily be established by McCaffrey’s testimony at the hearing on this application, the court proceeds to address whether McCaffrey has established the probable validity of the claim that Edward Rangel wrongfully took McCaffrey’s property.

On September 6, 2024, McCaffrey states McCaffrey discovered around $80,000 in cash and $15,000 worth of jewelry was missing from McCaffrey’s La Verne house. (McCaffrey Suppl. Decl., ¶ 13.) Prior to that date during the Labor Day weekend, McCaffrey states Edward Rangel had been texting and calling McCaffrey to determine if McCaffrey was away from home. (McCaffrey Suppl. Decl., ¶ 12.) Furthermore, in August 2024, an unknown individual in a hood entered McCaffrey’s home through a doggy door. (McCaffrey Suppl. Decl., ¶ 11.) McCaffrey’s belief that Edward Rangel was the one who gained access to McCaffrey’s home and took McCaffrey’s property is based on the following circumstantial facts.

First, after the initial break-in in August 2024, Edward Rangel began showing pictures of Edward Rangel’s son wearing a gold ring and diamond necklace. (McCaffrey Suppl. Decl., ¶ 11.) When McCaffrey asked how Edward Rangel paid for the jewelry, Edward Rangel claimed their grandmother, Carmen Gomez, purchased the jewelry for them. (McCaffrey Suppl. Decl., ¶ 11.) Although McCaffrey states Carmen Gomez told McCaffrey that this was a lie, this is inadmissible hearsay. (McCaffrey Suppl. Decl., ¶ 11.) It is also unclear from McCaffrey’s testimony how McCaffrey was able to tell from Edward Rangel’s picture that the jewelry was real and not fake or costume jewelry. Thus, this evidence alone is insufficient.

Second, after the Labor Day weekend, Edward Rangel showed up to work in a “brand-new” blue Polaris. (McCaffrey Suppl. Decl., ¶ 12.) It is unclear to the court, however, the basis upon which McCaffrey knew the car was “brand-new.” (McCaffrey Suppl. Decl., ¶ 12.) And while McCaffrey provides an alleged picture of the car in Exhibit A, McCaffrey fails to authenticate this exhibit and provide foundation. (McCaffrey Suppl. Decl., ¶ 12, Ex. A.) When McCaffrey asked how Edward Rangel was able to pay for the car, Edward Rangel claimed the money came from Edward Rangel’s 401k account. (McCaffrey Suppl. Decl., ¶ 12.) But in a statement to others, Edward Rangel claimed McCaffrey had bought the car. (Alderson Decl., ¶ 6.) On September 7, 2024, McCaffrey asked Edward Rangel for proof that Edward Rangel’s money came from a 401k account withdrawal. (McCaffrey Suppl. Decl., ¶ 14.) Edward Rangel then purportedly provided a document that had a partially sideways Merril Lynch logo and wet signature. (McCaffrey Suppl. Decl., ¶ 14.) While an exhibit of this document is purportedly attached as Exhibit D, McCaffrey fails to provide authentication for this exhibit. McCaffrey then states McCaffrey took a copy of the document to Merril Lynch’s office and they confirmed it was fraudulent. (McCaffrey Suppl. Decl., ¶ 14.) However, this fact is also based on inadmissible hearsay. Thus, this evidence is also insufficient.

On September 13, 2024, McCaffrey went to Carmen Gomez’s house. (McCaffrey Suppl. Decl., ¶ 15.) While McCaffrey states Gomez denied purchasing jewelry for Edward Rangel’s sons, this is inadmissible hearsay. (McCaffrey Suppl. Decl., ¶ 15.) McCaffrey also spoke to Edward Rangel’s older son who allegedly told McCaffrey that Edward Rangel takes the younger son on shopping sprees at the mall and spends thousands of dollars. (McCaffrey Suppl. Decl., ¶ 15.) This is also inadmissible hearsay. On October 1, 2024, Edward Rangel’s older son provided McCaffrey with pictures of Edward Rangel’s younger son with cash. (McCaffrey Suppl. Decl., ¶ 19.) While McCaffrey provides purported copies of these pictures as Exhibit F and Exhibit G, McCaffrey fails to properly authenticate and provide foundation for these pictures. McCaffrey states that the bundles of money in the pictures resembled the way McCaffrey bundled money and even included the same silver and blue paperclips. (McCaffrey Suppl. Decl., ¶ 19.) McCaffrey also identified the diamond necklace the son was wearing as belonging to McCaffrey. (McCaffrey Suppl. Decl., ¶ 20.)

In conclusion, the only evidence supporting McCaffrey’s claim that Edward Rangel stole cash and jewelry from McCaffrey’s La Verne residence is either hearsay or inadmissible. The facts that Plaintiff has proffered are: (1) Edward Rangel suddenly came into enough money to purchase a car, (2) Edward Rangel gave conflicting stories on how Edward Rangel was able to purchase the car, (3) one of Edward Rangel’s sons was pictured with cash in bundles similar to McCaffrey’s cash including the different colors of paperclips used, and (4) one of Edward Rangel’s sons was pictured with a diamond necklace that McCaffrey recognized as McCaffrey’s. The court finds this circumstantial evidence, however, not does support a reasonable inference that Edward Rangel was responsible for taking the missing cash and jewelry from McCaffrey’s residence. As such, it is sufficient to establish the probable validity of McCaffrey’s claim that Edward Rangel wrongfully took McCaffrey’s property.

Accordingly, the court DENIES McCaffrey’s application.

CONCLUSION

Based on the foregoing, McCaffrey’s application for a writ of attachment is DENIED.