Case Number: EC062254    Hearing Date: August 01, 2014    Dept: NCD

TENTATIVE RULING (8-1-14)
#15
EC 062254
AUCTIONS AMERICA BY RM, INC. v. HAIRAPETIAN

Plaintiff Auctions America by RM, Inc.’s Application for Writ of Attachment as to defendant Levon Hairapetian, individually and dba L.A. Wholesale Company
Plaintiff Auctions America by RM, Inc.’s Application for Temporary Protective Order as to defendant Levon Hairapetian, individually and dba L.A. Wholesale Company

TENTATIVE RULING:
Plaintiff Auctions America by RM, Inc.’s Application for Writ of Attachment as to defendant Levon Hairapetian, individually and dba L.A. Wholesale Company is GRANTED, only as to the $46,000 the evidence shows defendants agreed to pay. [See Sulman Decl., para. 12].
The Court makes the following findings pursuant to CCP §484.090:
1) the claim is one upon which attachment may be issue;
2) plaintiff has established the probable validity of the claim;
3) attachment is not sought for any purpose other than recovery on the claim;
4) the amount to be attached is greater than zero.

The court further finds that the claim arises out of the conduct by defendant Levon Hairapetian, an individual, of a trade, business, or profession.

Writ will issue upon the posting of a bond in the amount of $10,000. (CCP §489.220)

Plaintiff Auctions America by RM, Inc.’s Application for Temporary Protective Order as to defendant Levon Hairapetian, individually and dba L.A. Wholesale Company, is DENIED.

BACKGROUND:
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff Auctions America by RM, Inc. alleges that it made an inadvertent overpayment pursuant to consignment and purchase agreements to defendant Levon Hairapetian, the proprietor and alter ego of LA Wholesale Co., which defendant has refused to return.

Specifically, the parties entered into an Auction Listing and Selling Contract Agreement to consign a vehicle of defendant’s which plaintiff sold at auction, and under the agreement plaintiff owed defendant $119,850. Defendant also purchased a vehicle at the same auction for $67,155, pursuant to a purchase agreement, leaving an amount due from plaintiff to defendant of $52,695. Auction America wire transferred this sum to LA Wholesale’s bank account, and on that same day, due to an internal error, sent a duplicate wire in the same amount to defendant’s bank account. On August 27, 2013, plaintiff learned of the error, but defendant has refused to return the second wire, or to permit defendant’s bank to return the funds.

ANALYSIS:
CCP §483.010 provides that 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 is a fixed or readily ascertainable amount not less than five hundred dollars ($500), exclusive of costs, interest and attorney’s fees.”

Under CCP §484.090, for a writ to issue, the court must find that plaintiff has established the “probable validity of the claim.” The burden to show probable validity is on the party seeking attachment. Lorber Industries of California v. Turbulence, Inc. (Second District, 1985) 175 Cal.App.3d 532, 535. The trial court’s determination of probable validity will not be disturbed if there is sufficient evidence to support the determination. Id.

If the writ is issued, subdivision (c) provides, in pertinent part:
“If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession. An attachment may not be issued on a claim against a defendant who is a natural person if the claim is based on …the loan of money where…the money loaned was used by the defendant primarily for personal, family or household purposes.”

The evidence shows that the individual defendant was involved in the transaction pursuant to his fictitious business name and dba in his business. [See paras. 2, 3]. The writ may accordingly issue, as limited.

Plaintiff also seeks a Temporary Protective Order.

Under CCP section 486.020, the court shall examine the application and supporting affidavit, and issue a temporary restraining order if it finds all of the following; the claim is one upon which an attachment may issue, plaintiff has established the probably validity of the claim, the order is not sought for a purpose other than recovery upon the claim upon which the application for attachment is based, and “(d) The plaintiff will suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary restraining order is not issued.”

CCP section 485.010, which applies to ex parte procedures for obtaining a writ of attachment (not on full notice) provides the following definition of great or irreparable injury:
“(b) The requirement of subdivision (a) is satisfied if any of the following are shown:

(1) Under the circumstances of the case, it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made available to levy if issuance of the order were delayed until the matter could be heard on notice.

(2) Under the circumstances of the case, it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute. Plaintiff’s affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant, that the debts are not subject to bona fide dispute, and the basis for plaintiff’s determination that the defendant’s debts are undisputed.”

Applying this definition here, the declaration does not satisfy either of these alternatives. The declaration states that defendant admitted that the second wire was received but stated that he “could not afford to pay back the full amount,” and has dithered about what he could afford, and that he has “threatened that Hairapetian may file for bankruptcy.” [Paras. 11-14]. There is no showing of any threat to conceal or impair the value of assets, or any showing regarding any particular asset, and no showing regarding defendant generally not paying debts other than this one. There is no statement concerning known undisputed debts, whether they are subject to dispute and the basis for claiming they are undisputed. Plaintiff has failed to meet its burden on the application for Temporary Protective Order and the application is denied.