Case Name: Yunyan Fu vs Bao Ge
Case No.: 17CV306858

Plaintiff has filed a petition for writ of attachment, seeking to attach the home of the Defendant Bao Ge (“Defendant”).

For various reasons, the noticed application is DENIED WITHOUT PREJUDICE.

The plaintiff must serve the defendant with copies of the summons and complaint, notice of application and hearing (see Judicial Council form AT-115), and application and any supporting affidavits at least 16 court days before the hearing on the application. (CCP §§ 484.040, 1005(a)(1), (b).) As there were two court holidays in February, the application was served by electronic service exactly 16 court days before the hearing. Electronic service extends the necessary time for service by an additional two days (CCP §1010.6(a)(4)(b)), and the notice of the hearing was insufficient.

A judge may order the issuance of a writ of attachment only if the claim has probable validity (CCP § 484.090(a)(2)), i.e., when the plaintiff is likely to obtain a judgment against the defendant on the claim. CCP § 481.190; Lydig Constr., Inc. v Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944; Kemp Bros. Constr., Inc. v Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476, 1481.) In determining an application for a writ of attachment, a judge must make a preliminary determination of the merits of the action and the probable outcome. (146 Cal.App.4th at 1478; Lorber Indus. v Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) In analyzing the probable validity of a plaintiff’s claim, a judge must assess the sufficiency of the plaintiff’s evidence, weigh it against the defendant’s evidence, and consider the relative merits of the parties’ positions. Kemp Bros. Constr., supra, 146 Cal.App.4th at 1481–1482, 1484.)

Facts stated in affidavits or declarations must be set forth with particularity and must affirmatively show that the affiant or declarant, if sworn as a witness, could testify competently to these facts. (CCP § 482.040.)

A judge is not required to accept as true either the undisputed allegations in a party’s affidavits or the undisputed testimony of any witness at the hearing and may make contrary findings based on inferences drawn from other evidence. (Bank of Am. v Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260.)

Under California Rules of Court, rule 3.1110(g), exhibits in a foreign language must be accompanied by an English translation, certified by an interpreter. Nearly all of the exhibits submitted in evidence (well over 100 pages) attached to the crucial declaration presented in support of the motion are in Mandarin without translation. Because there is insufficient translation of evidence submitted in support of the motion, the Court is unable to make a finding that the Plaintiff’s claim has probable validity. Finally, no exchange rate was provided to establish the proper amount for any writ of attachment.