Judge Stephen I. Goorvitch, Case Number: 24STCV27179, Date: 2025-02-14 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCV27179, Date: 2025-02-14 Tentative Ruling

Case Number: 24STCV27179 Hearing Date: February 14, 2025 Dept: 82

Citibank, N.A. Case No. 24STCV27179

v. Hearing: February 14, 2025

Location: Stanley Mosk Courthouse

Department: 82 Unheim, a California corporation, et al. Judge: Stephen I. Goorvitch

[Tentative] Order Granting Application for Writ of Attachment

INTRODUCTION

Plaintiff Citibank, N.A. (“Plaintiff”) moves for a writ of attachment against Defendant Micah Heimlich (“Defendant”). Defendant filed no opposition to the application. The court grants the application and issues a writ of attachment in the amount of $67,421.70.

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 hearing was continued from January 15, 2025, because the moving papers were not timely served. Plaintiff served notice of the continuance on January 22, 2025, and notice that Defendant’s opposition was due at least nine court days prior to the new hearing date. Accordingly, Plaintiff has now given proper notice of the hearing date.

B. Probable Validity of Plaintiff’s Claim

The application is based on Plaintiff’s cause of action for breach of personal guaranty. To establish a claim for breach of contract or breach of guaranty, 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 probably valid claim against Defendant Heimlich for breach of guaranty for the principal sum of $63,826.80, plus accrued interest totaling $2,189.90, late fees of $105.00, estimated costs of $300.00, and estimated allowable attorney’s fees of $1,000.00, for a total attachment of $67,421.70. (See Austin Decl. ¶¶ 6-22, Exh. 1-3.) Defendant has not filed an opposition and has not rebutted this evidence.

C. Basis for 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.” (Code Civ. Proc. § 483.010(a).) “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….” (Code Civ. Proc. § 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. Superior Court (1974) 44 Cal.App.3d 127, 143-144.)

Here, 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 alleged damages are fixed and readily ascertainable from the terms of the Commercial Credit Application/Agreement executed by Defendant Unheim, the personal guaranty executed by Defendant Heimlich, and Plaintiff’s declaration. Plaintiff’s claim arises from Defendant’s conduct of a trade, business, or profession. (See Austin Decl. Exh. 1-2.)

D. 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 has satisfied this 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 section 484.020(e)].)

However, Plaintiff also requests attachment of items not listed in section 487.010(c) and (d), such as “estates of a decedent.” (Application ¶ 9c and Attachment 9(c).) The court limits attachment to the 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.

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CONCLUSION AND ORDER

Based upon the foregoing, the court orders as follows:

1. The application is GRANTED in the amount of $67,421.70.

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 14, 2025 ______________________

Stephen I. Goorvitch

Superior Court Judge