Plaintiff Kuo’s APPLICATION FOR RIGHT TO ATTACH ORDER

Respondent: Defendant Walnut Hill Estate, Inc.

TENTATIVE RULING

Plaintiff Kuo’s application for writ of attachment is GRANTED. (CCP 484.090(a).)

The court approves the writ in the amount of $848,000.00, and an undertaking of $10,000 is ordered as provided for by statute. (CCP 489.220.)

NOTICE:
Notice of the RTAO hearing must be served at least 16 court days before the hearing. (CCP 484.040; 1005.) If the papers are served by mail, the notice period is increased. (CCP 1005(b).)

Defendant was served with the Notice on 1/17/14.

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) 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. CCP 483.010.) 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 a written agreement, whose total sum is more than $500. The claim is supported by the declaration of Plaintiff Janheng Kuo. The claim arises out of a debt owed by defendants’ business. 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 two Promissory Notes, signed by Shann-Tsau Lee, for and on behalf of Walnut Hill Estate, Inc.. The Notes were for $550,000 and $250,000, with monthly payments due on the first of each month following contract execution. (Kuo Decl., Exs. A-B.) On 12/6/11 Plaintiff loaned Defendant $550,000, and on 1/21/12, Plaintiff loaned Defendant $250,000. (Kuo Decl., Pars. 2 and 4.) In opposition, Defendant contends that Plaintiff never lent any money to Walnut Hill Estate, Inc., citing notes entered into by Billary Development Inc., and corresponding disbursement of funds on 1/21/10 and 4/6/10 and 4/8/10. (Lee Decl., Pars. 3-6.) The disbursements that Walnut cites pre-date the contracts entered into on 1/18/12, and pre-date the disbursements on 12/6/11 and 1/21/12. The Billary and Walnut Hill notes and disbursements appear to be separate transactions. There is no evidence to suggest that the two transactions are related. Plaintiff’s claim has probable validity based on a preponderance of the evidence.

AMOUNT OF WRIT:
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 reduced by… any security interest held by plaintiff in defendant’s property. (CCP § 483.015.) A writ of attachment issued without the mandated bond is void. (Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882.)

Defendant contends that Plaintiff already attached Billary’s East West Bank account for $877,693.67, which is more than the $848,000 that Plaintiff seeks to attach by this motion. However, the attachment of Billary’s account relates to separate contracts that are not the subject of this application.

The amount of the writ is $848,000.00, and an undertaking of $10,000 is ordered as provided for by statute. (CCP 489.220.)