Application for right to attach order and order for issuance of writ of attachment
That said, leave to amend shall be allowed as there is a reasonable possibility that Jacks and Schanfeldt can state a good cause of action. Any amended complaint shall be filed and served within 10 days after service of the order after hearing.
2. CU0001849 Gregory Thrush vs. Jose Antonio Valdovinos
Plaintiff Gregory Thrush’s unopposed application for right to attach order and order for issuance of writ of attachment is granted. Plaintiff shall advise the Court whether the previously issued temporary protective order shall be dissolved or otherwise.
Legal Standard
“ Attachment is an ancillary or provisional remedy to aid in the collection of a money demand by seizure of property in advance of trial and judgment.” Rreef America Reit II Corp, YYYY v. Samsara Inc. (2023) 91 Cal.App.5th 609, 616–617 (quotations omitted).
“Upon the filing of the complaint or at any time thereafter, the Plaintiff may apply ... 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) ....” Code Civ. Proc. § 483.010 (a).
“Before an attachment order is issued, the court must find all of the following: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the applicant 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 upon which the request for attachment is based; and (4) the amount to be secured by the attachment is greater than zero.” Rreef America Reit II Corp, YYYY, 91 Cal.App.5th at 617, citing Code Civ.
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Proc. § 484.090(a). “The plaintiff has the burden of establishing the probable validity of the claim upon which the attachment is based.” Ibid. “If, in addition to the findings required by subdivision (a), the court finds that the defendant has failed to prove that all the property sought to be attached is exempt from attachment, it shall order a writ of attachment to be issued upon the filing of an undertaking as provided by Sections 489.210 and 489.220.” Code Civ. Proc. § 484.090(b).
Analysis
Plaintiff seeks attachment based on a claim for breach of oral contract. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.
At bar, Plaintiff’s evidentiary showing rests primarily on the declaration of attorney Auerbach, as well as various discovery responses by Defendant. Included is an excerpt from a deposition of Defendant where, in substance, Defendant confirms that Plaintiff made a $200,000 investment 3
agreement with Defendant and Defendant breached the agreement by failure to make required payment(s). See Auerbach Decl., Ex. 5 at 129:20-130:4.
On this record, Plaintiff successfully demonstrates probable validity of his claim, and that the claim is one upon which attachment is proper. Code Civ. Proc., § 484.090(a)(1)-(2). He has also demonstrated that the attachment is not sought for purposes other than recovery on the claim, which amounts to a sum greater than zero. Code Civ. Proc. § 484.090(a)(3)-(4). Furthermore, Defendant has failed to prove that any of the property sought to be attached is exempt from attachment. As such a writ of attachment shall be issued upon the filing of an undertaking as described below. Code Civ. Proc. § 484.090(b).
An undertaking is required prior to the issuance of a writ of attachment in order to pay the defendant for any wrongful attachment. Code Civ. Proc. § 489.210. “Except as provided in subdivision (b), the amount of an undertaking filed pursuant to this article shall be ten thousand dollars ($10,000).” Code Civ. Proc. § 489.210(a). If there is an objection to the undertaking, the court may order an increased amount. Code Civ. Proc. § 489.210(b). At bar, there is no objection to the undertaking. Accordingly, the amount of the undertaking remains set at $10,000.
Temporary Protective Order
The Court previously issued a temporary protective order. Plaintiff shall advise the Court whether that order can be dissolved or otherwise.
3. CU0001910 Anabel Sanchez vs. Michael Salmon, et al.
Defendant Truckee Donner Public Utility’s and Defendant Michael Salmon’s (“Salmon”) motion for summary judgment is denied; the alternative motion for summary adjudication is granted in part as to the third and fourth causes of action.
Request for Judicial Notice
Plaintiff’s request for judicial notice of court records is granted. Evid. Code § 452(d). However, judicial notice is limited to the fact that the documents were filed, not the truth of their contents. Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn.
7.
Defense Evidentiary Objections
The following objections are overruled: 1, 4, 71, 112, 123.
1 The Court construes this to be an objection under Evidence Code section 1523(a) and assumes the reference to Evidence Code section “1532” is a typographical error. In any event, the Court would overrule an objection under Evidence Code section 1532. 2 The Court construes this to be an objection under Evidence Code section 1523(a). 3 The Court construes this to be an objection under Evidence Code section 1523(a) 4