Application for Right to Attach Order and Order for Issuance of Writ of Attachment
Clayton Construction, Inc. v. Roclan Maguire, et al. (25CV001074) Plaintiff Clayton Construction, Inc.s Application for Right to Attach Order and Order for Issuance of Writ of Attachment: Plaintiff Clayton Construction, Inc. (Clayton) applies for a right to attach order and writ of attachment against defendant, Rocky Maguire, Inc. (RMI) to protect plaintiffs interests against dissipation or concealment of assets by defendant pending judgment. Defendant RMI opposes the motion on the basis that Clayton fails to show the requisite probable validity of its claim, an that RMI is entitled to an offset to Claytons alleged debt. The application is DENIED. Pursuant to Code of Civil Procedure section 484.090(a), the court may issue a right to attach order if the plaintiff shows all of the following:
(1) the claim on which the attachment is based is one on which an attachment may be issued;
(2) the plaintiff has established the probable validity of the claim;
(3) attachment is sought for no purpose other than the recovery on the subject claim; and
(4) the amount to be secured by the attachment is greater than zero.
At issue here is the probable validity of the plaintiffs claim. A claim has probable validity where it is more likely than not that the plaintiff will recover on that claim. (CCP § 481.190; Santa Clara Waste Water Co. v. Allied World Natl Assur. Co. (2017) 18 Cal.App.5th 881, 885; Lydig Constr., Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944.) When analyzing the probable validity of a plaintiffs claim, the court must assess the sufficiency of the plaintiffs evidence, weigh it against the defendants evidence, and consider the relative merits of the parties positions. (Kemp Bro.
Constr., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1481-1482.) Facts stated in affidavits or declarations must be set forth with particularity and must affirmatively show that the affiant or declarant, if sworn as a witness, could testify competently to those facts. (
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This case involves a contractual dispute over payment for construction services. Clayton was a sub-contractor on a residential construction project, and RMI was the general contractor. A dispute arose between Clayton and RMI regarding the quality of the work performed by Clayton and RMIs payment of Clayton for its services. In 2021, partway through the project, RMI refused to pay Clayton for its services if Clayton did not address certain concerns about quality. Having received no payment for a January 2021 invoice in the amount of $141,911.75, Clayton pulled out of the project and ultimately brought this lawsuit to recover on its unpaid invoice, plus attorneys fees and costs. RMI claims that it had to hire another subcontractor to complete the work Clayton
was hired to do, and to conduct remedial work at a cost of $119,702. RMI filed a cross-complaint for seeking to recover these sums.
In support of its application, Clayton submits a declaration of its principal Jason Clayton and supporting emails showing that Clayton sent an invoice for $141,911.75 in January 2025, for completed services, and that RMI refused to pay the invoice based on quality concerns over other aspects of the construction project. Clayton takes the position that the quality concerns are not a basis to deny payment of the invoice because they are unrelated to the invoiced services. In support of its opposition, RMI submits a declaration of its principal, Roclan Maguire, showing that RMI had concerns about the quality of Claytons services in late 2020, that RMI asked Clayton to address those concerns in 2020 and 2021, and that RMI subsequently incurred costs of $119,702 to have another subcontractor complete the work Clayton was contracted for and conduct remedial work.
Clayton does not sufficiently address the defenses and cross-claims of RMI. The contract between the parties which is attached as Exhibit 2 to Jason Claytons declaration provides, among other thangs, that Clayton will be liable for damages caused by its own delays on the construction project, that Clayton will guarantee its work and hold RMI harmless against all losses arising in defects in that work, that Clayton will, on notice, correct any defects in its work, that Clayton will pay costs necessarily incurred by RMI to correct defects in Claytons work, and that Clayton shall not be entitled to further payment if it breaches the contract until RMIs damages, if any have been ascertained.
While not dispositive, RMI has presented sufficient evidence to overcome a right to attachment on one invoice under the contract, by showing potential defenses to Claytons claims, and a potential right to an offset of the amounts claimed by Clayton in this action. Accordingly, the application is denied.
Plaintiffs objections to evidence are overruled.
Plaintiffs request for judicial notice is granted.
Defendant RMI is to prepare the courts order consistent with the tentative ruling. NOTE RE: TENTATIVE RULING This tentative ruling becomes the courts order, and no hearing shall be held unless one of the parties contests it by complying with Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by emailing TentativeRulings@monterey.courts.ca.gov or by telephoning the Calendar Department at (831) 647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.