Judge: Stephen I. Goorvitch, Case: 24STCV02065, Date: 2024-05-17 Tentative Ruling

Case Number: 24STCV02065    Hearing Date: May 17, 2024    Dept: 82

Align Technology, Inc. v. Louis F. Mascola, DDS, Inc.

Case No. 24STCV02065

[Tentative] Order Granting Application for Writ of Attachment

INTRODUCTION

            Plaintiff Align Technology, Inc. (“Plaintiff”) moves for writs of attachment in the amount of $174,447.61 against Defendants Louis F. Mascola, DDS, Inc. and Louis F. Mascola, DDS, an individual (“Defendants”).  Defendants were defaulted on March 28 and April 2, 2024.  The writ is issued. 

LEGAL STANDARD 

“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.)  Section 482.040 states in pertinent part: “The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein. As to matters shown by information and belief, the affidavit shall state the facts on which the affiant's belief is based, showing the nature of his information and the reliability of his informant. The affiant may be any person, whether or not a party to the action, who has knowledge of the facts.”  “The Attachment Law statutes are subject to strict construction.”  (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) 

DISCUSSION

A.        Probably Validity of the Claim   

The complaint alleges causes of action against Defendants for open book account, account stated, and quantum meruit.  Plaintiff is a “leading provider of ‘Invisalign’ products which are provided to dentists as part of their orthodontic practice.”  (Henry Decl. ¶ 1.)  Defendants Louis F. Mascola, DDS, Inc. and Louis F. Mascola, DDS, an individual (“Defendants”) purchased products from Plaintiff but have not made payments for the products totaling $171,447.61.  (Id. ¶ 5.)  Plaintiff’s collection manager, declarant Kent Alleyne Henry, authenticates a statement of accounts that summarizes the invoices issued to Defendants, the due dates, sale order numbers, days in arrears, payments made, and balances due.  (Id. ¶¶ 5-6, Exh. A-1 to A-13.)  The statement of accounts shows a total balance due of $171,447.61.  (Ibid.)  Henry declares that the statement of accounts was “kept in the ordinary course of business by the accounting department (receivables) of Align by individuals whose obligation is to maintain such accounting records” and “[i]nvoices are posted at or near the transaction thereof in the ordinary course of business of Align.”  (Id. ¶ 6.)  Henry also authenticates Plaintiff’s “Pricing Terms and Conditions,” which state, among other things, that Plaintiff’s “customer” includes both the doctor and corporate body whose name is on the invoices, and that both the doctor and corporate body are jointly and severally responsible for the payment obligations.  (Id. ¶ 11.)  Defendants have defaulted on the complaint, have not filed an opposition to this application for writ of attachment, and have not rebutted the foregoing evidence.

Based upon the foregoing, Plaintiff has shown a probably valid claim in the amount of $171,447.61 based on an open book account and Defendants’ failure to pay for goods delivered pursuant to Plaintiff’s invoices.  (See e.g. Costerisan v. DeLong (1967) 251 Cal.App.2d 768, 770-771 [defining a book account].)  Plaintiff’s sworn application on form AT-105 also provides a reasonable estimate of costs in the amount of $3,000.  Accordingly, Plaintiff shows a probably valid claim in the total amount of $174,447.61.   

            B.        Basis of Attachment

“[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.”  (CCP § 483.010(a).)  “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….”  (CCP § 483.010(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.  (§ 483.010(c); see Advance Transformer co. v. Sup.Ct. (1974) 44 Cal.App.3d 127, 143-144.)

Here, Plaintiff’s application for writ of attachment is based on an implied agreement, under which Defendants impliedly agreed to pay for products supplied by Plaintiff pursuant written invoices, and where the total amount allegedly due is in excess of $500.  The agreement is not secured by real property.  The claim against Defendant Louis Mascola, DDS, arises from his conduct of a trade, business, or profession.  (See Henry Decl. ¶¶ 5-11.)  Plaintiff’s damages are fixed and readily ascertainable from the terms of the implied agreement, the statement of accounts and invoices summarized therein, and Henry’s declaration. 

            C.        Purpose and Amount of Attachment

Code of Civil Procedure section 484.090 states that the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.”  Plaintiff declares, and the court finds, that attachment is not sought for a purpose other than the recovery on Plaintiff’s contract claim.  (Appl. ¶ 4.)  The amount to be secured is greater than zero.  Defendants do not argue, or show, that the amounts of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b).  

            D.        Subject Property

Defendant Louis F. Mascola, DDS, Inc. is a corporation and not a natural person.  Accordingly, “all corporate property for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8” may be attached.  (Code Civ. Proc. § 487.010(a).)  Plaintiff’s request for attachment of all of Defendant’s property is proper.  (Appl. ¶ 9a.)

Plaintiff requests attachment against Defendant Louis. F. Mascola, DDS, a natural person, of items listed in Code of Civil Procedure section 487.010(c) and (d).  (Application ¶ 9c.)  That request is proper.  Plaintiff is not required by section 484.020(e) to describe the property sought for attachment with further specificity.  (See Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal. App. 3d 260, 267-268 [“all-inclusive” application satisfies CCP section 484.020(e)].)

However, Plaintiff’s Attachment A appears to seek attachment against Defendant Louis. F. Mascola, DDS, an individual, of items not listed in Code of Civil Procedure section 487.010(c) and (d), such as “decedents’ estates,” “defendants’ interests in personal property,” and “personal property in defendant’s possession or control.”  (See Attach. A at 2-3, citing Code Civ. Proc. §§ 488.485, 488.335.)  Plaintiff does not show that prejudgment against an individual is authorized for items not listed in section 487.010(c) and (d).  (Cf. Code Civ. Proc. § 487.010(a) [authorizing attachment against a corporation of “all corporate property for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8.”].)  Accordingly, the court limits the attachment against Defendant Louis. F. Mascola, DDS, an individual, to the items specifically listed in section 487.010(c) and (d).

E.         Undertaking

Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment.  Code of Civil Procedure section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000.  The court concludes that the statutory undertaking of $10,000 is appropriate. 

F.         Turnover Order  

Plaintiff seeks a turnover order.  (See Proposed Order ¶ 3.d.)  “If a writ of attachment is issued, the court may also issue an order directing the defendant to transfer to the levying officer either or both of the following: [¶] (1) Possession of the property to be attached if the property is sought to be attached by taking it into custody. [¶] (2) Possession of documentary evidence of title to property of or a debt owed to the defendant that is sought to be attached.”  (Code Civ. Proc. § 482.080 [emphasis added].)  Plaintiff has not shown the applicability of this section to its attachment request or briefed the necessity of this additional remedy.  The request for a turnover order is denied.

CONCLUSION AND ORDER

            Based upon the foregoing, the court orders as follows:

            1.         The application for writ of attachment against Defendants Louis F. Mascola, DDS, Inc. and Louis F. Mascola, DDS, an individual is GRANTED in the amount request of $174,447.61.

            2.         The court limits the attachment against Defendant Louis. F. Mascola, DDS, an individual, to the items specifically listed in Code of Civil Procedure section 487.010(c) and (d). 

3.         Plaintiff’s counsel shall submit a revised, proposed writ of attachment and right to attach order in conformance with this ruling. 

4.         Plaintiff shall post an undertaking of $10,000 for each defendant, i.e., $20,000.

5.         Plaintiff’s request for a turnover order is denied.

6.         The court’s clerk shall serve this order upon Plaintiff’s counsel.  Further notice is not required, as Defendants are in default.