Applications for Right to Attach Orders

Moving Party: Plaintiff McCormick 107, LLC

Responding Party: Defendants, Hero Nutritionals, LLC, Hero Nutritionals, Inc. and Jennifer L Hodges

Ruling: Defendant’s applications for right to attach orders are granted.  Defendants’ objections to the declaration of Sean Schroeder are overruled; Defendants’ objections to the declaration of Craig Higgins are sustained.  Plaintiff’s objections to the declaration of Jennifer Hodges are overruled.

A court shall issue a right to attach order 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; and (4) the amount to be secured by the attachment is greater than zero.  (Cal. Civ. Proc. Code § 484.090(a)(1)-(4).)  A court may order the issuance of a writ of attachment only if the plaintiff’s claim has probable validity; i.e., where it is more likely than not that the plaintiff will obtain a judgment against the defendant on the claim.  (Id. § 481.190; Kemp Bros. Constr., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476.)

In determining an application for a writ of attachment, the court must make a preliminary determination of the merits of the action and the probable outcome.  (Id. at 1478; Lorber Indus. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.)  In analyzing the probable validity of a plaintiff’s claim, the court 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., 146 Cal.App.4th at 1481-82.)  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 the facts stated. Cal. Civ. Proc. Code § 482.040.

Plaintiff has demonstrated that the requirements for issuance of a right to attach order are present here. The action is on a claim for money based on a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney’s fees. Cal. Civ. Proc. Code § 483.010(a). Plaintiff’s evidence submitted in support of its application demonstrates the probability validity of the claims upon which the attachment is based.  (See Schroeder Dec.)  There is insufficient evidence to show that the attachment is sought for a purpose other than the recovery on the claim upon which the attachment is based.  The amount to be secured by the attachment is greater than zero, as the amount to be secured is $2,529,366.40. See Application ¶ 8. In addition, because Defendant Hodges is a natural person, Plaintiff also most demonstrate that its claims arise out of the conduct by Defendant of a trade, business, or profession. Cal. Civ. Proc. Code § 483.010(c). Plaintiff has provided evidence that its claims arise out of the conduct by Defendant Hodges of a trade, business, or profession.  (Schroeder Dec. ¶¶ 23-26, 43-46, 63-66, 83-86, 103-106, 109-115.)

Defendants argue that the Petition for Writ of Attachment has not been served as required by Code of Civil Procedure §§482.070(d)(e) because Defendants were served directly on their counsel.  Defendants, however, made a general appearance by filing a demurrer on July 21, 2020.  Thus, Plaintiff properly served Defendants by serving their counsel.  (See, e.g., Code Civ. Proc., § 482.070(e).)

Defendants also argue that the property sought by the petition is held in trust by Defendant Hodges and the trust is not before the court. To support this argument, Defendant Hodges states in her declaration that “All the property sought by the Petition and listed on the UCC-1 (Ex. 8 to the complaint), is held by the trust, not by me individually.”  The “defendant has the burden of proving that the property is exempt.”  (Civ. Proc. §484.070(g).)  Hodges does not identify “the trust” with any specificity.  And the Opposition concedes that Defendant Hodges is the trustee of “the trust.”  (Opp. at 9:10.)  Property held in trust is subject to attachment in an action based on a contract entered into by the trustee.  (Kadison, Pfaelzer, Woodward, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4-5.)  Plaintiff has sufficiently alleged that Hodges entered into contracts with Plaintiff.

Defendants also argue that all of the property which is sought to be attached is exempt because it is necessary for Defendant’s support, citing Code of Civil Procedure §487.020(b).  However, Code Civ. Proc § 484.070 requires Defendant to file a claim of exemption for personal property at least 5 court days before the hearing.  Here, Defendant Hodges has not filed a claim of exemption at least 5 court days before the hearing (i.e., by 8/31/2020).  Further, Section 484.070(c)(1) provides that the claim of exemption must describe the property claimed to be exempt.  Defendant’s Financial Statement does not identify any personal property claimed to be exempt.

Plaintiff’s application is granted. Before the writ of attachment may issue, Plaintiff must post an undertaking in the amount of $10,000.00 for each of the three applications.  (Cal. Civ. Proc. Code §§ 489.210, 489.220.)

Plaintiff to give notice.