Case Number: EC059560    Hearing Date: July 18, 2014    Dept: A

Ally Financial v Luxor Auto Group

DEMURRER to CROSS-COMPLAINT

Calendar: 2
Case No: EC059560
Date: 7/18/14

MP: Cross-Defendants, Ally Financial and Ally Bank
RP: Cross-Complainant, Anna Dolmazyan

ALLEGATIONS IN FIRST AMENDED CROSS-COMPLAINT:
The Cross-Complainant is the victim of identity theft. The Cross-Defendants have continued to pursue claims that a guaranty agreement was breached against the Cross-Complaint even thought she has presented facts demonstrating that her identity was stolen. In addition, the Cross-Defendants obtained a pre-judgment writ of attachment.

CAUSES OF ACTION IN FIRST AMENDED CROSS-COMPLAINT:
1) Identify Theft
2) Wrongful Attachment

RELIEF REQUESTED:
Demurrer to second cause of action

DISCUSSION:
This hearing concerns the Cross-Defendants’ demurrer to the second cause of action in the First Amended Cross-Complaint. The Cross-Defendants argue that the cause of action lacks sufficient facts.
The second cause of action for wrongful attachment seeks relief under CCP section 490.010, which creates a statutory cause of action for wrongful attachment. The Cross-Complainant alleges in paragraph 29 that the Cross-Defendants’ attachment is wrongful under CCP section 490.010(b). Under CCP section 490.010(b), a wrongful attachment occurs when the levy under a writ of attachment occurs in an action in which the plaintiff does not recover judgment. The cause of action must be pleaded with particularity because it is a statutory claim. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790.

The First Amended Cross-Complaint does not plead that the Plaintiff did not recover judgment. Instead, the Cross-Complainant alleges in paragraph 30 that “on information and belief”, the Cross-Defendants will not recover judgment. This is insufficient because it does not allege that the Cross-Defendants did not recover a judgment.

In her opposition, the Cross-complainant cites to case law that is approximately 130 years old: Sharp v. Miller (1881) 57 Cal. 431 and McCusker v. Walker (1888) 77 Cal. 208. The Cross-complainant claims that although they are old law, they are good law. However, these cases and their legal principles are irrelevant to the pending demurrer because CCP section 490.010, the statute under which the Cross-Complainant seeks relief, was enacted nearly 100 years later, in 1974. Since the cross-complainant is seeking relief under a statute that created a statutory remedy in 1974, the nineteenth century cases do not support her opposition or offer any grounds to find that she has pleaded sufficient, particular facts to state her statutory cause of action.
Further, the law in these nineteenth century cases is not good law. In 1971, the California Supreme Court invalidated the entire attachment law on the ground that it violated procedural due process as guaranteed by article I, section 13 of the California Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. Randone v. Appellate Dep’t of Superior Court (1971) 5 Cal. 3d 536, 541. After the demise of the attachment law in Randone, the Law Revision Commission undertook to formulate a wholly revised attachment statute which would satisfy constitutional due process requirements.
The result was “The Attachment Law” in effect today. This resulted in the enactment of the statute under which the Cross-Complainant seeks relief in the pending case, i.e., CCP section 490.010.

A review of the legal authority reveals that the analysis supporting their holdings is no longer correct. For example, in McCusker v. Walker (1888) 77 Cal. 208, the Court held that when the gist of an action is a malicious prosecution, the statute begins to run when the wrongful act is done. This is the reasoning upon which the holding that a wrongful attachment claim begins to run at the time of the levy.
However, the current law on when the statute begins to run for malicious prosecution actions holds that the time begins at the time of entry of judgment in the underlying action in the trial court. Stavropoulos v. Superior Court (2006) 141 Cal. App. 4th 190, 197. If the Court in McCusker were basing its reasoning on current law, it would hold that the statute for a wrongful attachment claim begins to run at the time of the entry of judgment, just as it does for a malicious prosecution claim. This is consistent with the requirement in CCP section 490.010 that a claim for wrongful attachment may be brought when the plaintiff did not recover a judgment.
Accordingly, the old law cited by the Cross-Complainant is not “good law” for the purposes of ruling on the demurrer or examining her Cross-Complaint.

Therefore, the court will sustain the demurrer to the second cause of action because the First Amended Cross-Complaint does not state sufficient facts to constitute a cause of action for relief under CCP section 490.010.

It is not reasonably possible to correct this defect by amendment. A review of the Court file reveals that this case has not been resolved. A judgment has not been entered in favor of any party. Since the case is still pending, the Cross-Complainant cannot bring a claim for wrongful attachment under CCP section 490.010(b) because an essential element of her cause of action has not occurred.
Accordingly, the Court will not grant leave to amend.

RULING:
Sustain demurrer to second cause of action without leave to amend.