Case Number: EC064926??? Hearing Date: September 23, 2016??? Dept: A
Sierra Forest Products, Inc. v National Custom Doors, Inc.
APPLICATION FOR WRIT OF ATTACHMENT
Case No: EC064926
MP: Plaintiff, Sierra Forest Products, Inc.
RP: Defendant, National Custom Doors, Inc.
Writ of Attachment for $77,100.83 on property of Defendant
This case arises from the Plaintiff’s claim that the Defendant failed to pay for materials delivered to the Defendant. Trial is set for November 28, 2016.
This hearing concerns the Plaintiff’s application for a writ of attachment on the property of the Defendant. The writ of attachment is a prejudgment remedy that will allow the Plaintiff to have a lien on the Defendant?s assets until a final adjudication of Plaintiff?s claims.
CCP section 484.090 permits the Court to issue a writ of attachment after finding the following:
1) the Plaintiff’s claim 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; and
4) The amount to be secured by the attachment is greater than zero.
CCP section 483.010 permits an attachment to be issued only in the following cases:
1) the case arises from a claim or claims for money;
2) each claim for money is based upon a contract, express or implied; and
3) the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars.
In support of its application, the Plaintiff provides facts in the declaration of its Manager of Past Due Accounts, Martha Porter. Ms. Porter provides facts showing that she is personally familiar with the manner by which the Plaintiff?s employees created the business records, that the records were made at the time as when the transactions occurred, and that she has reviewed the facts in the records. Ms. Porter states in paragraph 4 that the Defendant has failed to repay invoices and bills for goods and services rendered to it by the Plaintiff and that the invoices total $75,400.83. Ms. Porter states that the Defendant has refused to repay the balance and that $75,400.83 is due and owing since March 9, 2015. Copies of the invoices are in an untabbed and unmarked exhibit to her declaration.
The application includes a request for $1,000 in attorney?s fees. Ms. Porter identifies no basis for an award of attorney?s fees. A review of the invoices reveals no provision regarding the recovery of attorney?s fees. The opposition papers claim that the business records lack a sufficient foundation. This is not correct because, as noted above, Ms. Porter provides facts to show that she is personally familiar with the manner by which business records are created and that the records were created in the usual and ordinary course of business at the time of the transactions to which they pertain. Further, Ms. Porter states that she has personal knowledge of their contents. These facts are sufficient to provide a foundation for the records.
The opposition papers also argue that there are no facts regarding the contract between the parties. However, this case is based on the implied contract created by the delivery of goods and services along with invoices to demand payment. Civil Code sections 1619 to 1621 state that a contract is either express or implied, that an express contract is one, the terms of which are stated in words, and that an implied contract is one, the existence and terms of which are manifested by conduct. Whether or not an implied contract has been created is determined by the acts and conduct of the parties and all the surrounding circumstances involved. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 611. Here, Ms. Porter has provided facts to show that the Plaintiff delivered goods and sent invoices for the goods to the Defendant. This is sufficient to show that an implied contract was created in which the Defendant agreed to pay the invoices for the goods delivered to it.
The opposition papers then argue that it has defenses to the claims, e.g., frustration of purpose, unjust enrichment, unclean hands, waiver, estoppel, and precluded from performance. However, the Defendant only attempts to offer evidence that there was an accord and satisfaction under which the Defendant agreed to make monthly payments on the outstanding balance. Civil Code sections 1521 to 1523 state 1) an accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled and that 2) satisfaction is acceptance, by the creditor, of the consideration of an accord. Accordingly, an accord and satisfaction is a substitute contract for settlement of a debt by some alternative other than full payment.
The Defendant provides facts in the declaration of Modesa Salcedo, who states that she is the accounting manager for the Defendant. Ms. Salcedo states that she discussed an installment plan to satisfy the balance with Randy Porter and that Mr. Porter agreed to accept a sum of money less than the outstanding balance. Ms. Salcedo does not provide facts that identify the amount of the payments that the Defendant was required to make, any time period in which the payments would be made, or the reduction in the previous obligation, i.e., how much had the Plaintiff agreed to forgive of the debt in order to resolve it through the accord and satisfaction. This is insufficient to identify the terms of any accord and satisfaction.
Further, Ms. Salcedo states that installment payments were made. Ms. Salcedo does not identify the amounts of these payments. This is insufficient to show that the amount of the writ of attachment should be reduced by any payments that reduced the $75,400.83 due and owing under the invoices.
Therefore, the evidence shows that Plaintiff has a claim for money based upon an express contract and that the amount owed is greater than $500. In addition, the Plaintiff’s evidence demonstrates the probable validity of its claim that the Defendant breached an implied contract by failing to failing to pay invoices after receiving the goods and services from the Plaintiff.
The Plaintiff’s application for the writ of attachment states in paragraph 4 that the attachment is not sought for any purpose other than to recover the claim. In addition, the amount sought is greater than $0, as shown by the Ms. Porter?s statement that the amount that the Defendant owes is $75,400.83. The Plaintiff seeks a writ of attachment for the amount of $77,100.83, which includes the principal amount of $75,400.83, estimated costs of $700 and estimated attorney’s fees of $1,000. As discussed above, the amount for attorney?s fees will be removed because the Plaintiff has not identified any grounds for an award of attorney?s fees.
Therefore, the Plaintiff?s application satisfies the requirements of CCP section 484.090 because the Plaintiff has demonstrated that its claim is one upon which an attachment may be issued, that the Plaintiff?s claim has probable validity, that the attachment is sought only to recover the claim, and that the amount to be secured by the attachments is greater than zero.
CCP section 489.210 requires the Plaintiff to provide an undertaking before the Court may issue a writ of attachment. CCP section 489.220 sets the amount for an undertaking at $10,000.
Therefore, the Court will not issue the writ of attachment on the property of the Defendant until the Plaintiff files an undertaking for $10,000.
Grant application and upon the filing of an undertaking for $10,000, issue a writ of attachment for $76,100.83 on the property of the Defendant.