Judge: Stephen I. Goorvitch, Case: 24STCV08148, Date: 2024-08-28 Tentative Ruling

Case Number: 24STCV08148    Hearing Date: August 28, 2024    Dept: 82

Mingzhe Zhao                                                           Case No. 24STCV08148

v.                                                                     Hearing: August 28, 2024

                                                                        Location: Stanley Mosk Courthouse

                                                                                    Department: 82                                                  Mi In Fashion, Inc., et al.                                                Judge: Stephen I. Goorvitch

[Tentative] Order Granting Plaintiff’s Application for Writ of Attachment  

INTRODUCTION

Plaintiff Mingzhe Zhao (“Plaintiff”) moves for a writ of attachment against Defendant Mi In Fashion, Inc., dba ces femme, a California corporation (“Defendant”) in the amount of $645,320.35.  No opposition to the application has been filed by Defendant.  Because Plaintiff satisfies all statutory requirements, the writ of attachment is granted.    

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 Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) 

“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.)  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.)    “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.)¿“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.) 

Code of Civil Procedure 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.” 

DISCUSSION

A.        Notice – Plaintiff provided proper notice of the application.  Plaintiff has also served the summons and complaint, and Defendants filed answers. 

B.        Probable Validity of Plaintiff’s Claims – Plaintiff establishes that its claims are probably valid.  The application is based on Plaintiff’s causes of action for breach of contract, goods sold and delivered, account stated, and open book account.  Plaintiff submits evidence that, starting in 2023, Defendant purchased clothing products from Plaintiff’s assignor, Sinsunghui Fashion Co., Ltd. (“Sinsunghui”), pursuant to written purchase orders, with payment terms of 15 to 30 days after delivery.  Sinsunghui delivered the products to Defendant, and there has not been a dispute over quality, quantity, or delivery issues.  Starting September 2023, Defendant became behind on making payments on the purchases.  Plaintiff submits evidence, including an account summary, showing that Defendant presently owes $535,320.35 based on the purchases it made from Sinsunghui.  (See Zhao Decl. ¶¶ 2-12, Exhs. A, B.) 

The complaint is based on an assignment from Sinsunghui to Plaintiff.  (Compl. ¶ 1.)  A written assignment is attached to Plaintiff’s declaration as Exhibit C, but was not authenticated in the declaration.  However, the complaint is verified and states that Plaintiff “is an assignee of a commercial claim” of Sinsunghui.  (Ibid.)  Plaintiff also states, in his declaration, that he “run[s] clothing business under the name of Sinsunghui” and he “handle[s] all of credit issues, collection issues, and/or other customers relations matters.”  (Zhao Decl. ¶ 2.)  This is sufficient in the absence of an opposition or contrary evidence. 

Plaintiff requests attachment of $100,000 in attorney’s fees and $10,000 in costs.  Pursuant to Code of Civil Procedure section 482.110(b), “the amount to be secured by the attachment may include an estimated amount for costs and allowable attorney’s fees.”  (Code Civ. Proc. § 482.110(b), emphasis added.)  Plaintiff has not submitted evidence of a contractual agreement for Defendant to pay attorney’s fees in an enforcement action.  Accordingly, the court will limit attachment of attorney’s fees to the $1,200 authorized by Civil Code section 1717.5(a) for an open book account.  (See Yong Bom Lee Decl. ¶ 10.)  On this record, the request for $10,000 in costs also appears excessive.  (See Ibid.)  The court will limit attachment of costs to $5,000. 

            Based upon the foregoing, Plaintiff has shown probable validity of a claim for damages in the amount of $541,520.35 ($535,320.35 + $1,200 + $5,000).  The court will issue the writ of attachment for this amount.

C.        Basis of Attachment – Plaintiff establishes a sufficient basis for attachment.  “[A]n attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite.”  (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App. 4th 537, 541.)  In this case, Plaintiff’s application for writ of attachment is based on a contract claim for which the total amount allegedly due is in excess of $500.  The claim is not secured by real property.  Plaintiff’s damages are fixed and readily ascertainable from the terms of the contract and Plaintiff’s declaration.

D.        Purpose and Amount of Attachment – The court finds that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachments is based and the amount to be secured by the attachment is greater than zero. 

E.         Reduction of Amount to be Secured, and Exemptions – Defendant does not argue, or show, that the amount of attachment should be reduced pursuant to Code of Civil Procedure  section 483.015(b).   Defendant also has not claimed any exemptions.    

F.         Subject Property – Defendant 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).) 

G.        Undertaking – Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment.  Section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000.  Neither party has argued for a different amount of undertaking.

H.        Turnover Order – Plaintiff seeks a turnover order.  (See Proposed Order on form AT-120 ¶ 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 [bold italics added].)  Plaintiff has not shown the applicability of this section to its attachment request or briefed the necessity of this additional remedy.  Plaintiff does not seek attachment by taking property into custody or property that is titled to Defendants.  Therefore, the request for a turnover order is denied.   

CONCLUSION AND ORDER

Based upon the foregoing, the court orders as follows:

1.         The application for a writ of attachment is granted in the reduced amount of $541,520.35.

2.         The request for a turnover order is denied.

3.         Plaintiff shall post an undertaking in the amount of $10,000 within ten (10) days.

4.         Plaintiff’s counsel shall prepare and lodge a revised “Right to Attach Order After Hearing and Order for Issuance of Writ of Attachment” on Form AT-120 reflecting the court’s ruling.

5.         Plaintiff’s counsel shall provide notice and file proof of service with the court.    

IT IS SO ORDERED

Dated: August 28, 2024                                              ______________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge