Case Number: KC066888    Hearing Date: August 08, 2014    Dept: J

Re: American Safety Casualty Insurance Company v. Kormx, Inc., et al. (KC066888)

APPLICATION FOR WRIT OF ATTACHMENT

Moving Party: Plaintiff American Safety Casualty Insurance Company

Respondents: No timely opposition filed

POS: Moving OK

In this action for breach of an indemnity agreement, Plaintiff (surety) seeks to recover $499,203.11 in connection with several public works construction projects. The Complaint, filed on 5/20/14, asserts causes of action or:

1. Breach of Express Indemnity Agreement
2. Statutory Indemnity

The Case Management Conference is set for 10/20/14.

Plaintiff American Safety Casualty Insurance Company (“Plaintiff”) applies for a right to attach order and writ of attachment against Defendant Joe U. Cardenas (“Defendant”). The amount to be secured by the attachment is $531,366.16.

NOTICE:

Statutory procedures for attachment of property are subject to the strictures of the 14th Amendment Due Process Clause. Due process generally requires a notice and hearing prior to seizure of property. (Sniadach v. Family Finance Corp. (1969) 395 US 337, 342.) Prior to the hearing date, plaintiff must serve defendant with the summons, complaint and all moving papers for attachment. Notice of the Right to Attach Order (“RTAO”) hearing must be served at least 16 court days before the hearing. (CCP §§ 484.040, 1005(a)(1) & (b).) If the required papers are served by mail or substitute service, the notice period is increased as provided by statute. (See CCP §§ 1005(b), 415.20.)

Defendant was personally served with the Summons, Complaint and all moving papers for the attachment on June 16, 2014.

MERITS:

At the hearing, the court shall consider the showing made by the parties appearing and shall issue a right to attach order, which shall state the amount to be secured by the attachment determined by the court in accordance with Section 483.015 or 483.020, if it finds all of the following:

1. The claim upon which the attachment is based is one upon which an attachment may be issued
2. The plaintiff 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 on the claim upon which the attachment is based. (CCP § 484.090(a).)

The court’s determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of the additional evidence or points and authorities. (CCP § 484.090(d).)

CLAIM:

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 ($500.00) exclusive of costs, interest, and attorney’s fees. (CCP § 483.010.) Plaintiff’s claim against a natural person must arise out of the defendant’s conduct of a trade, business or profession. (CCP § 483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4.) The court has the power to determine disputed facts on the basis of preponderance of evidence as disclosed in the declarations. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.)

The claim is for money, and based upon written agreements, whose total sum is more than $500.00. The claim is supported by the Declaration of Clark Cameron, the claims adjuster and administrator of claims against surety bonds issued by Plaintiff. The claim arises out of a debt owed by Defendant’s business. (Cameron Decl., Pars. 3-22, Exhs. A-J.) Thus, the claim is proper.

PROBABLE VALIDITY:

A claim has “probable validity” where “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (CCP 481.190.)

Plaintiff has established probable validity of its claim by presenting evidence of the indemnity agreement, construction contracts, claims and payments made, and the Declaration of Clark Cameron. The court finds that Plaintiff’s claim has probable validity.

UNDERTAKING:

If the writ is ultimately issued by the court, plaintiff must file an undertaking, or bond, in the amount of $10,000.00 in a case of unlimited jurisdiction. (CCP §§ 489.210, 489.220(a).) The writ will issue for the amount of the claimed indebtedness, plus an amount to cover costs and allowable attorney fees as determined by the court. (CCP §§ 483.015(a), 482.110.)

All the requirements have been satisfied. Accordingly, the application is granted. The court will issue a writ for $531,366.16 and order a $10,000.00 undertaking.