Sometimes, creditors are not satisfied with merely filing a lawsuit and waiting until the end of trial (and after post-judgment motions are completed) to obtain assets to satisfy the judgement. Instead, some creditors seek more rapid, immediate relief, by filing what is called a prejudgment writ of attachment motion, which allows them to attach property that the defendant owns even before the debtor has answered the lawsuit. Legally speaking, an attachment is a prejudgment remedy (before trial) providing for the seizure of one or more of the defendant’s (or cross-defendant’s) assets to aid in the collection of a money demand pending the outcome of the trial of the action. (Whitehouse v. Six Corp. (1995) 40 Cal.App.4th 527, 533.) This article will address the legal issues surrounding a prejudgment writ of attachment, its nuances, how to assert a prejudgment writ of attachment, and how to defend against one. At Kashfian & Kashfian, LLP, we have experience with filing and opposing prejudgment writ of attachment motions, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.
“California’s Attachment Law (Cal. Civ. Proc. Code § 482.010, et seq.) is purely statutory and is strictly construed.” (Kemp Bros. Const., Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1476.) The party seeking a prejudgment writ of attachment has the burden of establishing grounds for an attachment order. (Pos-A-Traction, Inc. v. Kelly-Springfield Tire Co. (C.D. Cal. 2000) 112 F.Supp.2d 1178, 1181; Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1116.)
The court may issue a right to attach order prejudgment if the party seeking the attachment shows all of the following:
● The claim upon which the attachment is based is one upon which an attachment may be issued;
● The party seeking an attachment has established the probable validity of the claim upon which the attachment is based;
● The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and
● The amount to be secured by the attachment is greater than zero.
(Cal. Civ. Proc. Code, § 484.090.)
Importantly, 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). (Cal. Civ. Proc. Code, § 483.010, subd. (a).) A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence. (CIT Group/Equipment Financing. Inc. v. Super DVD. Inc., (2004) 115 Cal.App.4th 537, 540-41.)
Moreover, the application for a right to attach order must be supported by an affidavit or declaration showing that the applicant, on the facts presented, would be entitled to a judgment on the claim upon which the attachment is based. (Cal. Civ. Proc. Code, § 484.030.) It is critical that the affidavit or declaration state the facts “with particularity.” (Cal. Civ. Proc. Code, § 482.040; see also, VFS Fin., Inc. v. CHF Express, LLC (C.D.Cal. 2009) 620 F.Supp.2d 1092, 1095 (VFS Fin) [“Since California’s attachment law is purely statutory, it must be strictly construed.”].) Except where matters are specifically permitted to be shown upon information and belief, each affidavit or declaration must show that the affiant or declarant, if sworn as a witness, can testify competently to the facts stated therein. (Id.)
The court, in considering an application for right to attach order and writ of attachment, must “apply the same evidentiary standard to an attachment hearing decided on affidavits and declarations as to a case tried on oral testimony.” (Goldstein v. Barak Constr. (2008) 164 Cal.App.4th 845, 853.) “At a minimum, this means that the affiant or declarant must show actual, personal knowledge of the relevant facts, rather than the ultimate facts commonly found in pleadings, and such evidence must be admissible and not objectionable.” (Pos-A-Traction, Inc. v. Kelly-Springfield Tire Co. (C.D. Cal. 2000) 112 F.Supp.2d 1178, 1182 (Pos-A-Traction).)
Often times, the moving party tries to show the probable validity of the party’s claim upon which the attachment is based with invoices between the parties. However, this showing may not be sufficient under California law, as invoices by themselves do not establish their own validity or that they accurately reflect an amount due; courts, instead, will require additional evidence. (Hebberd-Kulow Enterprises, Inc. v. Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283 (Hebberd-Kulow) [“These invoices, absent additional evidence, did not by themselves establish that the interest provision was an agreed-upon term.”])
As one court has explained,
The prevailing rule is that an invoice, standing alone, is not a contract and a buyer is ordinarily not bound by statements thereon which are not a part of the original agreement. . . . An invoice, as such, is no contract. An invoice is a mere detailed statement of the nature, quantity, and the cost or price of the things invoiced.
(India Paint & Lacquer Co. v. United Steel Products Corp. (1954) 123 Cal.App.2d 597, 607-608 [internal citations omitted]; see also Cal. Comm. Code § 2201.)
Moreover, in establishing the probable validity of its claims, it is the moving party’s burden to show that any defenses raised by the opposing party are “less than fifty percent likely to succeed.” (Studio 159, LLC v. Pophang, LLC (C.D.Cal. Dec. 21, 2012, No. CV 12-7127-RGK (JEMx)) 2012 U.S. Dist. LEXIS 181431, at p. *9.) “Thus, it is not enough for the Plaintiff to make out a prima facie case for breach of contract; rather, the Plaintiff must also show that the defenses are less than fifty percent likely to succeed. [Citations.] If an applicant fails to rebut a factually-supported defense that would defeat its claims, the applicant has not established probable validity.” (Blastrac, N.A. v. Concrete Solutions & Supply (CD. Cal. 2010) 678 F. Supp. 2d 1001, 1005.) The failure to address or rebut potential defenses results in a failure to establish probable validity. (See id.; Intervest Mortgage Inv. Co. v. Skidmore (E.D. Cal. Dec. 19, 2008) 2008 U.S. Dist. LEXIS 105936, at *7 (Intervest Mortgage).)
Pet Food Express Ltd. v. Royal Canin United States Inc. (N.D.Cal. July 27, 2009, No. C 09-01483 MHP) 2009 U.S. Dist. LEXIS 65141 (Pet Food Express Ltd.), is instructive. There, the court stated, “For Pet Food to establish probable validity–which is based on a preponderance of the evidence standard–of its breach of contract claim, it must show that Royal’s illegality defense is less than fifty percent likely to succeed. Pet Food has provided no support for this.” (Id. at p. *14.)
Intervest Mortgage, supra, 2008 U.S. Dist. LEXIS 105936 is also instructive. There, plaintiff unsuccessfully argued that it did not have to refute defendant’s defenses to show “probable validity.” (Id. at p. *7.) The court disagreed by saying probable validity “requires prediction of the probable outcome of the litigation, and the affirmative defenses and counterclaims will potentially influence this outcome.” (Id.)
At Kashfian & Kashfian, LLP, we have experience with filing and opposing prejudgment writ of attachment motions, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.
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