Judge: Stephen I. Goorvitch, Case: 24STCV23250, Date: 2025-02-28 Tentative Ruling
Case Number: 24STCV23250 Hearing Date: February 28, 2025 Dept: 82
B & G & U Investments, LLC Case No. 24STCV23250
v. Hearing: February 28, 2025
Location: Stanley Mosk Courthouse
Department: 82 Adrian Comstock Judge: Stephen I. Goorvitch
[Tentative] Order Granting Application for Writ of Attachment
INTRODUCTION
Plaintiff B & G & U Investments, LLC (“Plaintiff”) moves for a writ of attachment against Defendant Adrian Comstock (“Defendant”). Defendant filed no opposition to the application. The court grants the application and issues a writ of attachment in the amount of $382,863.24.
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.) “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.)
DISCUSSION
A. Notice
The application, filed on Judicial Council form AT-105, does not state Defendant’s name in paragraph 2. However, the notice of hearing, filed on Judicial Council form AT-115, Plaintiff’s memorandum of points and authorities, and Plaintiff’s declarations all state that the application seeks attachment against Defendant Adrian Comstock. The court concludes that notice is legally sufficient.
B. Probable Validity of Plaintiff’s Claim
The application is based on Plaintiff’s cause of action for breach of contract. To establish a claim for breach of contract, a plaintiff must prove: (1) the 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.) Here, Plaintiff submits sufficient evidence to establish a sufficient likelihood of success on the breach of contract claim against Defendant Comstock for the principal sum of $200,000, plus accrued interest totaling $128,918.24 and estimated allowable attorney’s fees of $53,945, for a total attachment of $382,863.24. (See De Sanctis Decl. ¶¶ 3-17, Exh. A-B; West Decl. ¶¶ 3-16, Exh. A; Odom Decl. ¶¶ 2-11.) Defendant has not filed an opposition and has not rebutted this evidence.
C. Basis for Attachment – Plaintiff satisfies the statutory requirements.
D. Purpose and Amount of Attachment – Plaintiff stratifies the statutory requirement.
E. Reduction of Amount to be Secured – Defendant has not argued, or shown, that the amount of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b).
F. Exemptions – Defendant has not claimed any exemptions.
G; Subject Property – Plaintiff requests attachment against Defendant, a natural person, of items listed in Code of Civil Procedure section 487.010(c) and (d), including real property. (Application ¶ 9c and Attachment 9(c).) That request is proper. (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)].) Attachment is limited to those items specifically listed in section 487.010(c) and (d).
H. 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.
CONCLUSION AND ORDER
Based upon the foregoing, the court orders as follows:
1. The application for writ of attachment is granted in the amount of $382,863.24.
2. Plaintiff shall post an undertaking of $10,000.
3. The court limits attachment to the items specifically listed in Code of Civil Procedure section 487.010(c) and (d).
4. Plaintiff’s counsel shall provide notice and file proof of service with the court.
IT IS SO ORDERED
Dated: February 28, 2025 ______________________
Stephen I. Goorvitch
Superior Court Judge