Judge: Stephen I. Goorvitch, Case: 25STCV02978, Date: 2025-03-21 Tentative Ruling

Case Number: 25STCV02978    Hearing Date: March 21, 2025    Dept: 82

U.S. Bank, N.A.                                                         Case No. 25STCV02978

v.                                                                     Hearing: March 21, 2025

                                                                        Location: Stanley Mosk Courthouse

Western Group Packaging,                                     Department: 82                                                  LLC, et al.                                                             Judge: Stephen I. Goorvitch

[Tentative] Order Granting Application for Writ of Attachment

INTRODUCTION

            Plaintiff U.S. Bank, N.A. (“Plaintiff”) applies for separate writs of attachment against each of Defendants Western Group Packaging, LLC (“Western Group Packaging”), Unix Holdings, LLC (“Unix Holdings”), and Unix Packaging, LLC (“Unix Packaging”) (collectively, “Defendants”), jointly and severally, in the amount of $52,672,394.56.  Defendants oppose the applications but not on the merits.  Rather, Defendants argue: (1) They are negotiating the sale of their assets to a private equity group through a private Article 9 foreclosure sale; (2) The potential purchaser has made a proposal to Defendants and Plaintiff on or about February 28, 2025; (3) The proposal is pending with U.S. Bank; and (4) Granting these applications will jeopardize the transaction.  These are not valid grounds upon which to oppose the applications, and Plaintiff satisfies the statutory requirements for writs of attachment, so the applications are 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.)  “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

Plaintiff served Defendants with its applications via express mail on February 21, 2025, for a hearing on March 21, 2025.  Therefore, Plaintiff has provided proper notice of its applications.   

B.        Probable Validity of Plaintiff’s Claim

The application is based on Plaintiff’s causes of action for breach of contract and 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.) 

Plaintiff submits a declaration and exhibits establishing its contracts with Defendants, its own performance, and Defendants’ breach and continuing nonpayment of its obligations.  (Stredde Decl., ¶¶ 8-12, 15-19, 21, Exhs. A-I, K [contracts]; ¶¶ 13, 15, 17-20, 22, 26-32, Exhs. G-P [default, including repeated acknowledgments of default in Forbearance Agreements]; ¶¶ 34-38, Exhs. Q-R [performance and damages, via outstanding balance owed].)  Defendants concede they have defaulted on the relevant agreements and owe the outstanding balance.  As discussed, Defendants’ opposition focuses on issues unrelated to the probable validity of Plaintiff’s claim, which is not seriously in dispute.  Therefore, Plaintiff has established the probable validity of its claim. 

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.  (Code Civ. Proc. § 483.010(c); see Advance Transformer co. v. Sup.Ct. (1974) 44 Cal.App.3d 127, 143-144.)

Plaintiff’s claim is based on a series of written contracts for which the total amount allegedly due is far in excess of $500.  “[N]one of the security granted to Lenders, including the Collateral, includes any real property.” (Stredde Decl., ¶ 11.)  Plaintiff’s damages are readily ascertainable from the balance sheets generated in the course of its business.  (See id., ¶¶ 33-38 and Exhs. P-R.)  The action is not against a natural person.  Therefore, Plaintiff has satisfied this requirement. 

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.”  Although Defendants argue in their opposition that a writ of attachment will interfere with their ongoing attempts to resolve their dispute with Plaintiff and with their business operations generally (see Melamed Decl., ¶¶ 27-36), they do not offer any evidence that Plaintiff seeks a writ for any purpose other than to recover on its claim.  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

Defendants have 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.        Undertaking

Code of Civil Procedure  section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment.  CCP 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.        Defendants’ Request for a Continuance

            As discussed, Defendants request a continuance to afford time to complete their transaction.  The court denies the request.  However, Defendants are free to negotiate with Plaintiff concerning an extension on Plaintiff’s time table to obtain and execute the writs of attachment.

CONCLUSION AND ORDER

            Based upon the foregoing, the court orders as follows:

            1.         The applications for writs of attachment are issued against Defendants Western Group Packaging, LLC (“Western Group Packaging”), Unix Holdings, LLC (“Unix Holdings”), and Unix Packaging, LLC (“Unix Packaging”) (collectively, “Defendants”), jointly and severally, in the amount of $52,672,394.56.

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

IT IS SO ORDERED 

Dated: March 21, 2025                                               ______________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge