Re: Santander Bank, N.A. v. Aero Transport, Inc. et al.
Superior Court Case No. 18CECG00252
Hearing Date: March 21, 2018 (Dept. 503) In the event oral argument is
requested, it will be held on Tuesday, March 27, 2018 at 3:30 in
Dept. 503.
Application: Right to Attach Order (RTAO) and Writ of Attachment Re: Aero
Transport, Inc.
Tentative Ruling:

To grant the application. Upon the filing of an undertaking in the amount of $10,000 as required by Code of Civil Procedure section 489.220, the RTAO and writ of attachment will issue.

Explanation:

Attachment is a solely statutory remedy. The attachment statutes are subject to strict construction–i.e., unless specifically provided for by the attachment law, no attachment procedure may be ordered by the court. (Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) Generally, an attachment may proceed only if the claim sued upon is:

· A “claim for money . . . based upon a contract, express or implied”;

· Of a “fixed or readily ascertainable amount not less than $500”;

· That is either unsecured or secured by personal property (including fixtures); AND

· That is a commercial claim. (Code Civ. Proc., § 483.010.)

The money claim must be for a “fixed or readily ascertainable amount” of at least $500 (excluding costs, interest and attorney fees). (See CCP § 483.010(a).) Claims may be aggregated to reach the minimum $500. The damages sought need not be liquidated, but must be measurable by reference to the contract itself. (Lewis v. Steifel (1950) 98 Cal.App.2d 648, 650.) A complaint must be filed before plaintiff may apply for an attachment. (Code Civ. Proc., §§ 484.010, 485.210, and 492.020.) 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.” (Code of Civ. Proc., § 481.190; see Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476.)

Prior to the hearing date, a plaintiff must serve the defendant with the summons, complaint and all moving papers for attachment. Notice of the hearing of the

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application for a right to attach order and writ of attachment must be served on the defendant at least 16 court days before the hearing. (Code Civ. Proc., §§ 484.040 and 1005.) Proof of service must be filed with the court at least 5 court days before the hearing. (Cal. Rules of Court, rule 3.1300.)

In the case at bench, the service requirements have been met. As for the substantive requirements, Santander Bank has shown that the claim is one upon which an attachment may be issued; i.e., a commercial claim for money based upon a written contract in excess of $500 that is secured by personal property pursuant to Code of Civ. Proc., section 483.010. (See Exhibit 1 attached to the Declaration of Brusseler, the Vice President Risk Manager, consisting of the Promissory Note and Security Agreement, Guaranty, the Promissory Note and Security Agreement Delivery and Acceptance Receipts, Schedule 000 and 001.)

These documents indicate that on May 13, 2015, Aero Transport, Inc. borrowed the sum of $148,456 to purchase a tractor and $70,527 to purchase a trailer via a single promissory note with two loan schedules. The promissory note was secured by the collateral consisting of said tractor, a 2016 Kenworth T680 VIN 1XKYDP9X9GJ490205 and said trailer, a 2016 Wabash VIN IJJV532B7FL874366. The promissory note provided that, in the event of default, the interest rate of 18% per annum would apply on the amount owed. It also provided for a late charge of 5% due after 10 days without payment. The loan was guaranteed by Ranjit S. Dhaliwal.

On July 25, 2016, Aero Transport defaulted on the loan. The collateral was repossessed. The tractor was sold for $40,000 and the trailer was sold for $25,000. The remaining balance on the loan is $141,880, plus prejudgment interest in the amount of $37,432.98, costs of $564, and estimated attorney fees of $6,168.80. Thus, Plaintiff asks for a RTAO in the amount of $186,045.78. (See Declaration of Brusseler at ¶¶ 24-34.) It has shown the probable validity of its claim based upon these same exhibits. No opposition has been filed.

The application will be granted. Upon the filing of an undertaking in the amount of $10,000 pursuant to Code of Civil Procedure section 489.220, the RTAO and writ of attachment will issue.

Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure section 1019.5, subd. (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: KAG on 03/19/18
(Judge’s initials) (Date)