Case Number: BC501930    Hearing Date: September 16, 2014    Dept: 82

Owen Frank Gallogly,
v.
William R. Lanphear, Frederic Ballot, European Vintage Car Company, LLC, and Does 1 through 10

Tentative Decision Denying Applications for Right to Attach Order and Writ of Attachment

On February 27, 2013, Plaintiff Owen Frank Gallogly filed this lawsuit against Defendants William R. Lanphear, Frederic Ballot, and European Vintage Car Company, LLC. The complaint asserts the following causes of action:

1. Breach of Oral Contract – Sale of Goods (against all Defendants);
2. Negligence per se – Bus. & Prof. Code § 17500 (against all Defendants);
3. Negligence per se – Vehicle Codes §§ 285, 286, 11617(a)(6), 11700, 11721(f), 11726, 11800, and 11824 (against all Defendants);
4. Negligence per se – Title 13, Code of Regulations §§ 255.00-255.04, 260.00-262.09 (against all Defendants);
5. Fraud and deceit due to intentional misrepresentation of fact (against all Defendants);
6. Fraud and deceit due to promise without intent to perform (against all Defendants); and
7. Conversion (against all Defendants).

On March 1, 2013, Plaintiff served Defendant Lanphear with the summons and complaint.

On April 29, 2013, defaults were entered against Defendants Ballot and European Vintage Car Company, LLC.

Defendant Lanphear filed an answer to the complaint on October 15, 2013.

On April 18, 2014, Plaintiff filed, but did not serve, applications for a right to attach order and writ of attachment against Defendants Lanphear, Ballot, and European Vintage Car Company, LLC, to secure $160,090.00 (including estimated costs of $90.00). The applications were to be heard on August 5, 2015.

The proof of service filed with the Court on June 27, 2014 states that the applications for writ of attachment and supporting papers were served by mail on June 26, 2014, or more than two months after Plaintiff filed the applications, on “each person on the attached Service List;” however, no service list was attached to the proof of service.

In contrast, the proof of service fax filed with the Court on August 4, 2014, states that service of the applications for writ of attachment and supporting papers was made on June 26, 2014 “to each person on [sic] the party and address below.” Defendant Lanphear’s counsel’s name and address are then listed. Obviously, the language in the June 27 and August 4, 2014 proofs of service is different.

A final status conference in connection with the August 13, 2014 trial was conducted on August 1, 2014.

On August 5, 2014, Defendant Lanphear filed various trial documents. On the same date, the hearing on the applications for writ of attachment was continued to September 16, 2014 because of irregularities involving service of Plaintiff’s papers.

On August 6, 2014, Plaintiff filed the Second Declaration of Scott L. Levitt in support of the applications which states that on June 26, 2014, Plaintiff’s counsel personally mailed Defendant Lanphear’s counsel all notices of the filed pre-judgment applications for attachment. Because of the discrepancies between the June 27 and August 4, 2014 proofs of service, the Court does not find this statement by Levitt to be credible and gives it no weight.

Trial is now set for October 22, 2014.

Analysis

Code of Civil Procedure section 484.090 states that the Court shall issue a right to attach order if, among other things, “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.” Defendant Lanphear contends that the pending applications were sought solely to harass and annoy him, particularly in light of the close proximity of the trial date. The Court agrees. First, Plaintiff filed this action on February 27, 2013, yet waited until April 18, 2014, essentially four months before the scheduled trial day, to file the applications. Second, Plaintiff noticed the hearing for August 5, 2014, or after the final status conference and just eight days before the trial was scheduled to begin. It is reasonable to infer that this was a tactical decision made by Plaintiff to distract Defendant from trial preparation. Third, as discussed above, the Court finds that Plaintiff did not even serve the applications until shortly before the original August 5, 2014 hearing date. Fourth, although the other defendants had defaults entered against them more than a year ago, Plaintiff has never obtained a default judgment against them. It is worth noting that a default judgment must be entered within 45 days after entry of default. See Rule 3.110(h), California Rules of Court. Finally, Plaintiff has not set forth any explanation regarding the delay in bringing and serving these applications.

Disposition

Because the Court cannot find that “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based,” the applications are denied.

IT IS SO ORDERED