Ataka America, Inc. v. Crateo, Inc.

[317]Opinion

KINGSLEY, J. Plaintiff sued Crateo, Inc., on a guaranty given by that defendant allegedly to secure an obligation to plaintiff for goods sold to the codefendant, Nieuw Plywood Co., Inc. An attachment issued, which ultimately resulted in attaching stock owned by Crateo in a corporation known as Time Savings and Loan Association, which stock was pledged with a bank by Crateo as security for a loan. Time Savings Holding Company, Inc., filed a third party claim, pursuant to section 689 of the Code of Civil Procedure, claiming to be a purchaser for value of Crateo’s equity in the attached stock. Since plaintiff did not file a bond in response to the third party claim, the sheriff, pursuant to the statutory provisions, released the stock from the attachment. Thereafter, after several continuances, the third party claim came on for hearing,1 resulting in a judgment against the third party claimant.2 The appeal in our case No. 39802 is from that judgment.

Thereafter, on a claim that the stock was about to be so transferred as to make it unavailable for execution, an order was issued forbidding transfer by the third party claimant of the attached stock pending the determination of the appeal in No. 39802, unless a bond was filed by the claimant. Our case No. 41013 is an appeal from that order.

I

The attachment was sought and issued, on March 12, 1970, under subdivision 1 of section 537 of the Code of Civil Procedure, as that section then read. The judgment in the third party proceeding was entered on May 18, 1971. On August 26, 1971, the Supreme Court of California filed its opinion in Randone v. Appellate Department (1971) 5 Cal.3d 536 [96 Cal.Rptr. 709, 488 P.2d 13], holding that that subdivision was unconstitutional.

So far as we can discover, the effect of Randone on attachments issued before its filing, has been considered in only two reported cases.3 In Modern [318]Management Method v. Superior Court (1971) 20 Cal.App.3d 496 [97 Cal.Rptr. 791], division one of this court held that Randone authorized an order dissolving an attachment issued and levied prior to the date of that decision. The rationale of that holding was as follows (p. 498): “Petitioners’ argument that the rule of Randone should not be applied to authorize a court to grant a motion to dissolve a writ of attachment levied prior to the date of that decision ignores the nature of the motion to dissolve. That motion does not necessarily test the validity of the writ of attachment when levied. Rather it determines whether the writ should be continued. Since in the case at bench no constitutional statute authorized attachment at the time the trial court heard the motion to dissolve, its action in granting the motion was a proper one.”