2017-00223075-CU-BC

Li Rong Feng Riley vs. Henu Yu

Nature of Proceeding: Writ of Attachment

Filed By: Zhong, Wei

Plaintiff Li Rong Feng Riley’s application for writ of attachment is denied.

In this action [related to another matter on this day’s calendar involving the same real property: Case No. 2017-0223071] Plaintiff alleges causes of action for breach of contract and others against Defendant Henu Yu. Plaintiff alleges that the parties

entered into a written contract pursuant to which Plaintiff lent Defendant $40,000 to purchase real property. The parties allegedly agreed that the loan would be repaid by December 4, 2016 and that the property would serve as collateral for the loan. Plaintiff alleges that Defendant has failed to repay the loan.

On December 18, 2017, this Court issued an ex parte order granting a temporary protective order prohibiting Defendant from transferring the subject real property. The Court ordered that a hearing be set on an application for writ of attachment. Opposition was due by January 8, 2018. No opposition was received by the Court.

Here, even though the Court issued a TPO and even though no opposition was filed, the writ of attachment must be denied.

CCP § 483.010(c) prohibits prejudgment attachment against Defendants who are natural persons unless the claim arises out of a trade, business, or profession. The phrase engaged in business “may be found to encompass almost any activity engaged in for profit with ‘frequency and continuity’…” (Advance Transformer Co. v. Superior Court (1974) 44 Cal.App.3d 127, 139.) CCP § 483.010(c) also states that an attachment cannot issue against a defendant who is a natural person if the claim is “based on the sale or lease of property, a license to use property, the furnishing of services, or the loan of money where the property is sold or leased, or licensed for use, the services furnished, or the money loaned was used by the defendant primarily for personal, family, or household purposes.”

A loan to purchase a home cannot be classified as a claim that arises out of a trade, business, or profession. The Court is aware of Plaintiff’s declaration indicating that the Defendant indicated that the loan was for “purposes of capitalizing her business ventures and minimizing interests and costs.” (Plf’s Decl. ¶ 6.) The Court is also aware of the statement that Defendant represented that “she was in the business or trade of doing investments and that the funds would be used in business ventures including purchasing and improving the Property.” (id. ¶ 2.) However, there is no evidence that Defendant was engaged in any trade, business, or profession for profit with “frequency and continuity” and that this loan was part of such trade, business, or profession. There is only evidence of this single loan transaction.

No attachment may issue here and the application is denied.

The TPO previously issued by the Court is hereby dissolved.