Case Number: EC062476 Hearing Date: June 13, 2014 Dept: NCD

TENTATIVE RULING
#19
EC 062476
SOVEREIGN BANK v. TASTY BIRDS MANAGEMENT, INC. .

Plaintiff Sovereign Bank’s Application for Writ of Attachment as to defendant Tasty Birds Management, Inc. dba KFC also dba Kentucky Fried Chicken

TENTATIVE RULING:
Plaintiff Sovereign Bank’s Application for Writ of Attachment as to defendant Tasty Birds Management, Inc is GRANTED.
The Court makes the following findings pursuant to CCP §484.090:
1) the claim is on upon which attachment may be issued;
2) plaintiff has established the probable validity of the claim;
3) attachment is not sought for any purpose other than recovery on the claim;
4) the amount to be attached is greater than zero.

The court further finds that a temporary protective order shall be extended.
The Court makes the following findings pursuant to CCP §484.090:
1) the claim is on upon which attachment may be issued;
2) plaintiff has established the probable validity of the claim;
3) attachment is not sought for any purpose other than recovery on the claim;
4) plaintiff will suffer great or irreparable injury if the temporary restraining order is not issued.

Court to retain $10,000 bond posted on May 15, 2014 (CCP §489.220)

GROUNDS FOR MOTION
Claim is one on which an attachment may be issued
[Attachment may only be issued in an action on a claim for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney’s fees]
Claim is for amount due under written Lease Agreement with plaintiff’s Assignor, for the rental of business equipment. [Decl., para. 6, 8 Ex. 1, 2]. Defendant has defaulted on payments due under the lease agreement, and the current amount of $50,703.13 is owed, together with accrued interest. [Decl., paras 11, 12, 17].

Establishes a probable validity of claim on which attachment is based (CCP § 484.090)
Equipment provided to defendant, and it has defaulted on payments. [Decl., para. 6-12].

Not sought for any purpose other than to secure recovery on the claim
Application, paragraph 4

OPPOSITION: (CCP 484.060 – .070)
No opposition.

ANALYSIS:
CCP §483.010 provides that an attachment may only be issued in an action on a claim for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney’s fees.

Here, as noted above, the claim is for a fixed amount of not less than $500 based on a written contract.

Under CCP §484.090, for a writ to issue, the court must find that plaintiff has established the “probable validity of the claim.” The burden to show probable validity is on the party seeking attachment. Lorber Industries of California v. Turbulence, Inc. (Second District, 1985) 175 Cal.App.3d 532, 535.

Here, there is sufficient evidence offered supporting the probable validity of the claim, and no opposition, so this evidence is uncontroverted. The paperwork is in order and the writ may issue.

Plaintiff also seeks a Temporary Protective Order. CCP section 486.010.

Under CCP section 486.020, the court shall examine the application and supporting affidavit, and issue the temporary restraining order if finds all of the following; the claim is one upon which an attachment may be issued, plaintiff has established the probably validity of the claim, the order is not sought for a purpose other than recovery upon the claim upon which the application for attachment is based, and “(d) The plaintiff will suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary restraining order is not issued.”

Applying this definition here, the declaration provides evidence that the note is being paid out by Stephanie Wong to Tasty Bird or Premco, and there is an immediate danger these payments may be concealed or transferred. [Decl., para. 19]. It also appears that Tasty Birds and Preco are suspended or invalid corporations, and that the note may become unavailable for levy. [Paras. 21, 22]. This is sufficient evidence to support a finding that the property sought to be attached is in danger of being made unavailable to levy, and the TPO may also be issued. See CCP section § 485.010.

The TPO currently in effect appears to comply with the requirements of CCP §§ 486.040 and 486.050, and its terms may be extended.