Case Number: KC066766 Hearing Date: June 16, 2014 Dept: O

Unilab Corp. v. Evidia Biosciences, Inc. (KC066766)

Plaintiff Unilab Corporation’s APPLICATION FOR RIGHT TO ATTACH ORDER

Respondent: Defendant Latara Enterprise, Inc.

TENTATIVE RULING

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

The court approves the writ in the amount of $140,679.45, 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 on 5/14/14.

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.)

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 Kelly Kraemer, Director of Revenue Services at Quest Diagnostics, attesting that Plaintiff agreed to provide laboratory services for Defendant on credit. The current amount due is $136,233.90. The claim arises out of a debt owed by defendant’s 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 Reference Laboratory Services Agreement (Kraemer Decl., Exhibit 1), Quest’s Reconciliation Sheet (Kraemer Decl., Exhibit 2), and monthly billing statements (Kraemer Decl., Exhibit 3.) In opposition, Defendant Latara Enterprise, Inc. dba Foundation Laboratory does not dispute the debt, but instead contends that the contract is illegible, does not have a fixed or readily ascertainable amount, and questions the authenticity of the document. However, although the contract is, for certain portions, illegible, the court can readily make out the contracting parties, which are Defendant “Foundation Laboratory” and Plaintiff Quest Diagnostics, and that the contract clearly indicates that it was signed on 11/28/07, not in January 2004 as alleged in the Opposition. Further, the Reconciliation Sheet and Statements clearly bear Defendant’s name. CCP 481.190 provides that a claim has probable validity where it is more likely than not that Plaintiff will obtain “A” judgment, and the court has the power to determine disputed facts on the basis of a preponderance of the evidence. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) Thus, that there are illegible portions of the contract, by itself, does not defeat a finding that a claim has probable validity. In addition to the contract, Plaintiff has also submitted a declaration attesting to Defendant’s debt, as well as other documentary evidence such as the Reconciliation Sheet and billing statements. Accordingly, based on a preponderance of the evidence, the court find Plaintiff’s claim has probable validity.

PURPOSE OF ATTACHMENT:
As stated on the Application for Right to Attach Order (Judicial Council Form AT-105, No. 4), the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

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.)

Plaintiff seeks $10,000 in attorneys fees, but Plaintiff failed to identify the contractual provision in the contract or any statutory authority. Thus, the amount requested is reduced by $10,000. The amount of the writ is $140,679.45, and an undertaking of $10,000 is ordered as provided for by statute. (CCP 489.220.)

[The court notes that Plaintiff indicated in its Reply that it provided the court with a “clean” contract so that the court could ascertain its entitlement to attorneys fees. However, neither the contract attached to the Complaint nor the contract attached to the RTAO documents is the “clean” version. If such is produced at the hearing, the court will reconsider attorney’s fees.]