Judge Stephen I. Goorvitch, Case Number: 23STCV03744, Date: 2024-06-05 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCV03744, Date: 2024-06-05 Tentative Ruling

Case Number: 23STCV03744 Hearing Date: June 5, 2024 Dept: 82

Ace Investment Services, LLC v. Status Collection & Co., Inc., et al.

Case No. 23STCV03744

Applications for Writs of Attachment

Plaintiff Ace Investment Services, LLC (“Plaintiff”) filed applications for writs of attachment in the amount of $84,025.03 against Defendants Status Collection & Co., Inc. and Jeremaih Spielman, an individual (collectively, “Defendants”). Plaintiff filed and served the instant applications on March 13, 2024.

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article 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 court shall issue a right to attach order if the court 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.) “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.) “In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.”¿ (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) “The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”¿(Code Civ. Proc. § 484.030.) “The facts stated in each affidavit filed [in support of the application] shall be set forth with particularity.” (Code Civ. Proc. § 482.040.)

There are several problems with Plaintiff’s applications. Plaintiff did not file a memorandum of points and authorities. Pursuant to the Rules of Court, a memorandum of points and authorities is required for a pre-judgment application for writ of attachment. (Cal. Rules of Court, rules 3.1103(a)(1); 3.1112(a)(3); 3.1113(a); and 3.1114.) “The court may construe the absence of a memorandum as an admission that the motion … is not meritorious and cause for its denial ….” (Cal. Rules of Court, rule 3.1113(a).) Furthermore, “[t]he Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

Putting that aside, the record does not contain sufficient information to issue the writs of attachment. These applications are based on a claim for breach of contract. To establish a claim for breach of contract, a plaintiff must prove: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach of the contract; and (4) damages incurred by plaintiff as a result of the breach. (Durell v. Sharp Healthcare, (2010) 183 Cal.App.4th 1350, 1367.) The facts stated in a declaration submitted in support of an application for writ of attachment “shall be set forth with particularity.” (Code Civ. Proc. § 482.040.)

In the declaration submitted with the applications, Plaintiff’s managing member, Sam Wafaa, states that Plaintiff and Defendants entered a written contract on or about November 16, 2022, under which Plaintiff sold a gold bar to Defendants for $120,000. (Wafaa Decl. ¶¶ 2-3 & Exh. A.) The contract required Defendants to make an initial payment of $40,000.00 on or before November 25, 2022, and then six additional weekly payments of $13,333.33, on or before December 2, 2022, December 9, 2022, December 16, 2022, December 23, 2022, December 30, 2022, and January 6, 2023. (Id. ¶ 3 and Exh. A.) The contract also states that for “any payment made late after the due date, the late fee will be 10% of the total outstanding balance for each late payment and added to the payment due.” (Id. Exh. A.)

Wafaa declares that Plaintiff performed its obligations under the contract and that Defendants breached “by failing to make all timely payments, and there is now due and owning, under the Contract, the sum of $84,025,03, consisting of the outstanding principal balance and late fees, due as of the date of filing of this Complaint.” (Id. ¶ 5.) Wafaa does not submit a written account balance or ledger showing the payments that were made on the contract or how late fees were calculated. Wafaa also does not provide such information in his declaration. Accordingly, Wafaa has not described “with particularity” how Plaintiff’s damages of $84,025,03 were calculated, including late fees.

Finally, Plaintiff requests attachment against Defendant Jeremiah Spielman, a natural person, of “any property of a defendant who is not a natural person.” (Application ¶ 9a.) That request is improper. Pre-judgment attachment against a natural person is limited to the items listed in Code of Civil procedure section 487.010(c) and (d).

Based upon the foregoing, the court denies Plaintiff’s applications for writs of attachment without prejudice. Plaintiff’s counsel shall provide notice and file proof of service with the court.