Case Number:?BC659324????Hearing Date:?October 04, 2018????Dept:?85

Nick Engineering, Inc. v. Breen Engineering, Inc., et al., BC 659324

Tentative decision on application for right to attach order:??denied

Plaintiff Nick Engineering, Inc. (?Nick?) seeks a right to attach order in the amount of $63,854.49 against Defendant Breen Engineering, Inc. (?Breen?).

The court has read and considered the moving papers, opposition,[1]?and reply, and renders the following tentative decision.

  1. Statement of the Case
  2. Complaint

Plaintiff Nick commenced this proceeding on April 26, 2017, alleging causes of action for (1) breach of oral contract, (2) services rendered, and (3) open book account.??The verified Complaint alleges in pertinent part as follows.

From January 2016 through March 15, 2017, Breen and Nick entered into a series of oral agreements whereby Nick provided engineering services to Breen in exchange for payment of invoices for services rendered.??Nick performed all covenants, conditions, and obligations of the oral agreements, but Breen breached said agreements by failing to pay the balance due on the invoices.??Nick has requested that Breen pay the monies due and owing to no avail.??Nick has been damaged by Breen?s breach in the amount of $63,854.49.

  1. Cross-Complaint

Defendant Breen filed a Cross-Complaint against Nick on September 14, 2017 alleging causes of action for (1) breach of contract, (2) damage to reputation, and (3) lost business opportunity.??The Cross-Complaint alleges in pertinent part as follows.

From 2016 through 2017, Nick agreed to perform engineering services for Breen, and, in exchange, Breen agreed to pay Nick for the services upon the services? completion.??Nick failed to finish the work, plan check, and perform necessary revisions on various projects for Breen.??As a result of Nick?s failure to perform, Breen incurred damages in the form of lost opportunities and suffered harm to its professional reputation.

  1. Course of Proceedings

Proofs of service on file show that Defendant Breen was served by substituted service with the Summons and Complaint on May 2, 2017.???Breen has cross-complained.??The moving papers were served on Breen?s counsel by mail on August 20, 2018.

  1. Applicable Law

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant?s assets to aid in the collection of a money demand pending the outcome of the trial of the action.??See?Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533.??In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP ?481.010?et seq.) that meets the due process requirements set forth in?Randone v. Appellate Department, (1971) 5 Cal.3d 536.??See?Western Steel & Ship Repair v. RMI, (1986) 176 Cal.App.3d 1108, 1115.??As the attachment statutes are purely the creation of the Legislature, they are strictly construed.?Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.

A writ of 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).??CCP ?483.010(a).??A claim is ?readily ascertainable? where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative.??CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).

All property within California of a corporation, association, or partnership is subject to attachment if there is a method of levy for the property.??CCP ?487.010(a), (b).??While a trustee is a natural person, a trust is not.??Therefore, a trust?s property is subject to attachment on the same basis as a corporation or partnership.??Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson,?supra, 197 Cal.App.3d at 4.

The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint.??CCP ?484.010.??Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing.??See?ibid.

The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115).??The application must be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.??CCP ?484.040.

?Where the defendant is a corporation, a general reference to ?all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010? is sufficient.??CCP ?484.020(e).??Where the defendant is a partnership or other unincorporated association, a reference to ?all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010? is sufficient.??CCP ?484.020(e).??A specific description of property is not required for corporations and partnerships as they generally have no exempt property.??Bank of America v. Salinas Nissan, Inc., (?Bank of America?) (1989) 207 Cal.App.3d 260, 268.

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing.??CCP ?484.050(e).??The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).

The plaintiff may file and serve a reply two court days prior to the date set for the hearing.??CCP ?484.060(c).

At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment.??The defendant may appear at the hearing.??CCP ?484.050(h).??The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence.?Bank of America,?supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts.??CCP ?482.040.??The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed.??See?Bank of America,?supra, 207 Cal.App.3d at 271, 273.

The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP ?484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP ?484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP ?484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP ?484.090(a)(4)).

A claim has ?probable validity? where it is more likely than not that the plaintiff will recover on that claim.??CCP ?481.190.??In determining this issue, the court must consider the relative merits of the positions of the respective parties.??Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484.??The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order.??CCP ?484.050(b).

The amount to be secured by the attachment is the sum of (1) the amount of the defendant?s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys? fees under CCP section 482.110.?CCP ?483.015(a);?Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852.??This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant?s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest?s value.??CCP ?483.015(b).???A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a?prima facie?showing that the claim would result in an attachment against the plaintiff.

Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.??CCP ?489.210.??The undertaking ordinarily is $10,000. CCP ?489.220.??If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment.??CCP ?489.220.??The court also has inherent authority to increase the amount of the undertaking?sua sponte.??North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.

  1. Statement of Facts
  2. ?Plaintiff?s Evidence[2]

Beginning January 2016 through March 15, 2017, Breen and Nick entered into a series of oral agreements whereby Nick agreed to provide various engineering services to Breen in exchange for Breen?s payment of invoices for services rendered.??Mobed Decl. ?6.?Nick performed all covenants, conditions, and obligations required of it under the terms of the oral agreements.??Mobed Decl. ?9.??On April 21, 2017, Breen made a partial payment of $35,000 toward the invoices leaving a remaining balance owed of $63,854.49.??Mobed Decl. ?6, Ex. A.[3]??Nick has requested that Breen pay the balance owed to no avail.??Mobed Decl. ?10.??As a result of Breen?s breach of the oral agreements, an amount of $63,854.49 is presently due.??Mobed Decl. ?11.

????????????Saman Behnam (?Behnam?), Nick?s attorney of record, declares that he has incurred $755 in estimated costs in this action and $2,380 in estimated attorney?s fees.??Behnam Decl. ?? 5-6.

  1. ?Defendant?s Evidence

Breen is a corporation engaged in the business of providing mechanical, electrical, plumbing, and civil engineering services.??Paul Breen (?P. Breen?) Decl. ?3.??BEI Services, Inc. (?BEI?) is a California corporation engaged in the business of providing telecommunication engineering services and computer-aided design drafting services.??P. Breen Decl. ?5.??Although P. Breen is the Chief Executive Officer of both corporations, Breen and BEI were formed as separate and distinct legal entities.??P. Breen Decl. ?? 4, 6, Exs. 1-2.

In January 2016, BEI retained Nick to provide engineering services for BEI?s telecommunication projects.??P. Breen Decl. ?7.??BEI?s offices assigned various projects to Nick, and Nick invoiced BEI for the services provided.??P. Breen Decl. ?? 7-8.

?

  1. Analysis

Plaintiff Nick seek a right to attach order against Defendant Breen in the amount of $63,854.49, including $755 in estimated costs and $2,380 in estimated allowable attorney fees.

Nick?s claim is based on an alleged series of oral agreements between the parties.??Mobed Decl. ?6, Ex. A.??The alleged amount due pursuant to Breen?s breach of this series of oral contract is the balance of unpaid invoices, $63,854.49.??Mobed Decl. ?? 6, 11, Ex. A.?This is a fixed and readily ascertainable amount.??This is a claim on which attachment can be based.

Nick asserts that it is likely to prevail on its breach of oral contract claim against Breen.??App. at 6.??The elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff?s performance or excuse for nonperformance, (3) defendant?s breach, and (4) resulting damages to plaintiff.??Oasis West Realty, LLC v. Goldman, (2011) 51 Cal.4th 811, 821.

Breen correctly challenges Nick?s evidence as stating conclusory and ultimate facts in violation of the statutory attachment scheme?s mandate that the facts in support of an application for a right to attach order be set forth in declarations with particularity.??CCP ?482.040.??Opp. at 5-7.??The Mobed declaration alleges in pertinent part that Breen entered into a series of oral arguments with Nick between January 2016 through March 15, 2017 and that Nick provided Breen with various engineering services pursuant to these agreements.??Mobed Decl. ?6.??This is conclusionary evidence of agreement.??People enter agreements on behalf of entities, the entities themselves do not agree.??The foundation for ultimate facts is who, what, when, where, and how.??Nick presented the what (contract) and the how (oral), but failed to present the who, when, where, and how.??The Mobed declaration also alleges that Nick invoiced Breen for the services.??Mobed Decl. ?6.??Although Nick purports to provide the invoices (Mobed Decl. ?6), in fact Nick provides a statement of account.??Mobed Decl. Ex. A.

Second, the admissible evidence reflects that Nick entered into a series of agreements with BEI, not Breen.??BEI and Breen are two distinct legal entities, BEI engaged Nick for engineering services, and Nick invoiced BEI for said services.??P. Breen Decl. ?? 6-8.??Nick inadvertently concedes BEI?s involvement by attaching to its moving papers a statement of account stating that the open invoices are for services furnished to BEI.??Mobed Decl. Ex. A.

Nick contends that its services were provided to Breen, but there is no admissible evidence to support that argument.??At this stage, the admissible evidence establishes that Nick?s causes of action lie against BEI, not Breen.??In failing to provide evidence that Breen should be liable for the debts of BEI, Nick cannot prevail on this application.

Nick?s application for a right to attach order is denied.

[1]?Defendant Breen?s counsel is admonished for failing timely to file its opposition.??The opposition was required to be filed and served on September 27, 2018, five court days prior to the October 4, 2018 hearing. CCP ?484.060(a).??Breen fax-filed its opposition on October 1, 2018, and Department 85 did not actually receive it until?two?court days before the hearing.??The court in its discretion has decided to read and consider the opposition brief for the sole reason that Nick was served earlier.??Breen served the opposition on September 27, 2018 via overnight mail.??This service still was one day late because Breen was required to serve it on Nick by September 27, 2018.??As Nick has filed a reply brief, the court has elected to consider the opposition.

[2]?The two exhibits attached to Nick?s reply brief are unauthenticated and inadmissible.

[3]?The evidence regarding the chronology of payments is contradictory.??The Behnam declaration (?4) asserts that Behnam sent Breen a March 27, 2017 letter demanding payment of the principal amount of $63,854.49.??(No such letter is attached to the Behnam declaration.) However, the principal amount as of March 27, 2017 should have been $98,854.49 because Nick did not receive the $35,000 payment until April 2017.??Mobed Decl. ?6.??on March 27, 2017, he The Behnam and Mobed declarations both agree that the remaining balance owed is $63,854.49.