Judge: Theresa M. Traber, Case: 21STCV31210, Date: 2025-03-10 Tentative Ruling

Case Number: 21STCV31210    Hearing Date: March 10, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 10, 2025                      JUDGMENT February 19, 2025

CASE:                         JL Financing, LLC v. Charles L. Sanchez, Jr. et al.

CASE NO.:                 21STCV31210           

MOTION TO EXPUNGE WRIT OF ATTACHMENT

MOVING PARTY:               Defendant Charles L. Sanchez, Jr.

RESPONDING PARTY(S): Plaintiff JL Financing, LLC

CASE HISTORY:

·         08/24/21: Complaint filed.

·         10/26/22: Cross-Complaint filed.

·         02/19/25: Judgment entered for Defendant on Complaint and Cross-Defendants on Cross-Complaint after Court trial.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This was an action for breach of a promissory note. Plaintiff alleged that Defendant defaulted on two mortgages on a parcel of property, and, after foreclosure under the senior deed of trust, the deed of trust at issue became unsecured. Plaintiff therefore demanded payment of the money owed under the promissory note. The Court entered judgment for Defendant on the Complaint and for the Cross-Defendants on the Cross-Complaint after a Court trial.

Defendant moves to expunge a writ of attachment executed by Plaintiff.  

TENTATIVE RULING:

Defendant’s Motion to Expunge Writ of Attachment is GRANTED.

DISCUSSION:

Defendant moves to expunge a writ of attachment executed by Plaintiff.  

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Legal Standard for Expungement of Writ of Attachment

Pursuant to Code of Civil Procedure section 485.240, subdivision (a), “[a]ny defendant whose property has been attached pursuant to a writ issued under this chapter may apply for an order (1) that the right to attach order be set aside, the writ of attachment quashed, and any property levied upon pursuant to the writ be released, or (2) that the amount to be secured by the attachment be reduced as provided in Section 483.015. Such application shall be made by filing with the court and serving on the plaintiff a notice of motion.”  

“At the hearing on the motion, the court shall determine whether the plaintiff is entitled to the right to attach order or whether the amount to be secured by the attachment should be reduced. If the court finds that the plaintiff is not entitled to the right to attach order, it shall order the right to attach order set aside, the writ of attachment quashed, and any property levied on pursuant to the writ released.” (Code Civ. Proc., § 485.240, subd. (c).) “The court's determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of such additional evidence or points and authorities.” (Code Civ. Proc., § 485.240, subd. (d).) 

Attachment is proper where: (1) “[t]he claim is one upon which an attachment may be issued;” (2) “plaintiff has established the probable validity of the claim upon which the attachment is based;” (3) “[t]he attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based;” and (4) “[t]he amount to be secured by the attachment is greater than zero.” (Code Civ. Proc., § 480.090, subd. (a); see also Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 271 (Salinas Nissan) [party pursuing attachment remedy carries burden of establishing grounds justifying attachment, including presenting facts that show probable validity of underlying claim].)¿ The court may issue an attachment on a claim for money arising under contract, so long as the amount claimed by the party seeking attachment is reasonably ascertainable in an amount greater than $500.00.¿ (Code Civ. Proc., § 483.010, subd. (a).)¿¿¿¿ 

¿¿¿ 

“Probable validity means that ‘more likely than not’ the plaintiff will obtain a judgment on that claim.” (Santa Clara Waste Water Co. v. Allied World National Assurance Co. (2017) 18 Cal.App.5th 881, 885, citing Code Civ. Proc., § 481.190.) Plaintiff’s application must “be supported by an affidavit or declaration showing that the applicant, on the facts presented, would be entitled to a judgment on the claim upon which the attachment is based.” (Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944, citing Code Civ. Proc., § 484.030.) The affidavits must set forth facts with particularity and a verified complaint may be utilized in lieu of such affidavits. (Code Civ. Proc., § 482.040.) Furthermore, any documentary evidence must be presented in admissible form. (Id., at p. 944.)¿¿ 

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Analysis

            Defendant moves to expunge a writ of attachment obtained by Plaintiff during the pendency of this action. Plaintiff filed the Complaint in this action on August 24, 2021, alleging that Defendant had breached his obligations under a promissory note for $300,000 after Plaintiff had already foreclosed on a senior loan for $600,000 between the same or related parties. (See Complaint ¶ 14.) On March 15, 2023, the Court granted Plaintiff’s application for a writ of attachment. (March 15, 2023 Order on Application.) The Court held a bench trial in this action and issued its Final Statement of Decision on August 8, 2024. The Court found in favor of Defendant and against Plaintiff on the Complaint, concluding, based on the evidence presented, that the two loans comprised a single, intentionally split loan that was intended to evade the effect of Code of Civil Procedure section 580d and was therefore unenforceable. (Final Statement of Decision pp. 12-13.)

            Defendant argues that the writ of attachment should be expunged because Plaintiff cannot demonstrate the probable validity of its claim in light of the Court’s contrary ruling on the merits of the case. Plaintiff, in response, asserts, without elaboration, that the probable validity of the claim is apparent based on the Court’s initial order granting the writ of attachment. The Court is not persuaded by Plaintiff’s assertions. Plaintiff cannot demonstrate the probable validity of its claim where the Court has already determined on the merits based on evidence admitted at trial that the claim is invalid.

            Plaintiff also argues in opposition that the writ should not be expunged in light of the perfecting of Plaintiff’s appeal from the judgment. Code of Civil Procedure section 921 governs writs of attachment on appeal:

An appeal by a party who has levied an attachment shall not continue in force the attachment, unless an undertaking is executed and filed on the part of the appellant that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below is sustained in favor of the respondent; and unless, within five days after written notice of the entry of the order appealed from, the appeal is perfected. The amount of the undertaking on appeal required by this section shall be such amount as is fixed by the trial court on motion of the respondent as provided in Section 489.410 and if no such order has been made, the undertaking shall be in double the amount of the debt claimed by the appellant. 

(Code Civ. Proc. § 921 [emphasis added].) Plaintiff served and filed notice of its appeal on February 21, 2025, two days after judgment in this action was entered and notice of entry was given. (See Notice of Appeal.) However, no application by Plaintiff for an order fixing the amount of the undertaking has been made, and Plaintiff has not furnished any security beyond the default $10,000 security required under Code of Civil Procedure section 489.210. As Plaintiff claimed a debt in excess of $300,000, this undertaking is not sufficient under the plain text of section 921.

            As Plaintiff has not demonstrated the probable validity of its claim and has not furnished the proper security required by section 921, the writ of attachment must be expunged.

CONCLUSION:

            Accordingly, Defendant’s Motion to Expunge Writ of Attachment is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 10, 2025                                   ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.