Case Number: KC066977    Hearing Date: September 02, 2014    Dept: J

Re: Retail Capital, LLC, etc. v. Odyssey Clinical Laboratories, etc. (KC066977)

APPLICATIONS FOR RIGHT TO ATTACH ORDERS (X3)

Moving Party: Plaintiff Retail Capital LLC

Respondents: No timely opposition filed

POS: Moving OK as to Defendant Frank B. Hernandez only

Plaintiff seeks to recover $42,133.83 from Defendants for their breach of agreement for the purchase and sale of future receivables and personal guaranties. The Complaint, filed on 6/30/14, asserts causes of action or:
1. Breach of Written Agreement
2. Money Lent
3. Account Stated
4. Personal Guaranty

The Case Management Conference is set for 11/5/14.

Plaintiff Retail Capital LLC (“Plaintiff”) applies for right to attach orders and writs of attachment against Defendants Odyssey Clinical Laboratories (“Odyssey”), Elizabeth A. Torres (“Torres”) and Frank B. Hernandez (“Hernandez”). The amount to be secured by the attachment is $47,143.92.

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.)

The proof of service filed with the court on July 21, 2014, demonstrates that Defendant Hernandez was served with the summons, complaint and all moving papers for the attachment by substituted service on 7/14/14, and by mail on 7/15/14.

Plaintiff, however, fails to demonstrate that Defendants Odyssey and Torres received proper notice of the applications.

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 here is for money, and based upon written agreements, whose total sum is more than $500.00. The claim is supported by the Declaration of Eric Stamell, the Managing Director and the custodian of records for Plaintiff. The claim arises out of a debt owed by Defendants’ business. (Stamell Decl., Pars. 8-14, Exhs. 1-2.) 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 purchase agreement, account statement, and the Declaration of Eric Stamell. 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 as against Defendant Hernandez. Accordingly, the application is granted as against Defendant Hernandez. The court will issue a writ for $47,143.92 and order $10,000.00 undertaking.

The applications are denied without prejudice as to the remaining defendants.