What is an Application to Set Aside Right to Attach Order?

Useful Rulings on Setting Aside Writ of Attachment

Recent Rulings on Setting Aside Writ of Attachment

RANCHO NUEVO HARVESTING, INC. V. MELONCO, LLC

. (§§ 483.010, 484.090; 483.010.) The damages need not be liquidated but must be measurable from the contract itself. (Kemp Bros. Constr. Inc., v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1481.) It makes no difference for attachment purposes whether the debt occurred as a sole proprietor, partner, or member of association.

  • Hearing

    Jul 14, 2020

3M PARTS, INC. V. P&B INTERMODAL SERVICES, LLC

Proc., § 483.010(c). A claim has “probable validity” where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. Code Civ. Proc., § 481.190; Lorber Industries, 175 Cal.App.3d at 535 (Attachment “allows a creditor who has applied for an attachment following the statutory guidelines and established a prima facie claim to have a debtor’s assets seized and held until final adjudication at trial.”)

  • Hearing

    Jul 13, 2020

JOHNSON VS. JOINER

(CCP §§ 483.010 & 484.090.) Here, Plaintiff alleges that his claims arise out of alleged breaches of the Note and Deed of Trust, both dated 3/7/07. (See Applications, ¶ 7.c; Johnson Decl. ¶ 25.) As noted previously, each application seeks to secure $2,252,500. However, Plaintiff fails to demonstrate how the requested amount is fixed or readily ascertainable, and measurable by reference to the Note or Deed of Trust themselves. (CCP § 483.010(a); see CIT Group/Equipment Financing, Inc. v.

  • Hearing

    Jul 09, 2020

CARR V. RODRIGUEZ

(CCP § 483.010.) The motion states that the relevant parties were in an employment relation which is considered to be a relation of contract. But it is the causes of action that must support the remedy. (See CCP § 483.010.) The Complaint and First Amended Complaint are framed in tort, for conversion, intentional infliction of emotional distress, Civil RICO, and a remedy of constructive trust and injunctive relief which are not really substantive causes of action in any event, see Camp v.

  • Hearing

    Jul 09, 2020

L.A. NOOSHA, INC., A CORPORATION VS RAPHAEL AHARONOFF, AN INDIVIDUAL, ET AL.

CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction). Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e).

  • Hearing

    Jul 09, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

MURGIL CAPITAL, LLC VS. ALPINE CREEK CAPITAL PARTNERS, LLC

(CCP §§ 483.010 & 484.090.) Plaintiff has established that its claim is one upon which attachment may be issued since the claim is for money based on a contract. Specifically, the claim is based upon the written Promissory Note. (Pasternack Decl., ¶ 2, Exh. A.) Plaintiff has also established a probable validity of its claim.

  • Hearing

    Jul 09, 2020

CHATSWORTH CAS, LLC VS OREN LANG

CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction). 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.

  • Hearing

    Jul 07, 2020

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

BRAND PRODUCE, INC. VS ENCINO GLATT MARKET, INC.

., § 483.010, subd. (a).) “If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession.” (Code Civ. Proc., § 483.010, subd. (c).) Here, Brand claims money pursuant to the invoices it sent to Encino following delivery of the requested produce.

  • Hearing

    Jul 06, 2020

  • Type

    Contract

  • Sub Type

    Breach

XIUWEI YU, ET AL. VS YEN CHUAN CHANG

. § 483.010, a claim is “one upon which an attachment may be issued” in the following instances: (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 $500. Further, in determining the amount at issue for a writ of attachment, the Court may look to Code of Civ.

  • Hearing

    Jul 06, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

JOSE VAZQUEZ , ET AL. VS ALMA HERNANDEZ , ET AL.

(CCP § 483.010(a).) “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….” (CCP § 483.010(b).) Here, Plaintiff’s claim under the fourth cause of action is for an amount in excess of $500. This claim is not secured by real property. Plaintiff’s non-economic damages for the fourth cause of action are not “fixed or readily ascertainable” within the meaning of section 483.010(b).

  • Hearing

    Jun 30, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

IBORROW REIT, LP, A DELAWARE LIMITED PARTNERSHIP VS LONG HA

CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction). Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e).

  • Hearing

    Jun 30, 2020

HITACHI CAPITAL AMERICA CORP VS OT TRUCKLINES, INC., A CALIFORNIA CORPORATION, ET AL.

CCP § 483.010(a)-(c). Pursuant to CCP § 483.010(a): “Except as otherwise provided by statute, an 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) exclusive of costs, interest, and attorney's fees.”

  • Hearing

    Jun 26, 2020

  • Type

    Collections

  • Sub Type

    Promisory Note

SMARTMED, INC. V. FIRSTCHOICE MEDICAL GROUP, INC.

Defendant points out that, under Code of Civil Procedure section 483.010, subdivision (a), an attachment order may only issue on a claim based on a contract, express or implied, where the total amount at issue is a fixed or readily ascertainable amount of not less than $500. Here, defendant contends that it has never even communicated with plaintiff, much less entered into a contract with it, so it concludes that plaintiff has no right to an attachment order against defendant.

  • Hearing

    Jun 25, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

BANK OF THE WEST V. EASYKLEAN, INC.

., § 483.010, subd. (a).) Here, the Complaint (filed on 3-2-20 under ROA No. 2) alleges that Defendant (Iabal Abdullah) failed to pay under a guarantee agreement. (For example, see Complaint, ¶¶ 17-27.) Using Code of Civil Procedure section 484.090, this claim is based on contract through the Unconditional Guarantee Agreement. (Dennison Decl., ¶¶ 6-15, Exhibits 1, 2, and 3.) Thus, the court can issue an attachment based on this claim. (Code Civ. Proc., § 484.090, subd. (a)(1).)

  • Hearing

    Jun 23, 2020

EARTH TEK ENGINEERING CORP VS DEACON CORP ET AL

(CCP § 483.010(a).) “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….” (CCP § 483.010(b).) “It is a well-recognized rule of law in this state that an attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. [Citations.]

  • Hearing

    Jun 23, 2020

  • Type

    Real Property

  • Sub Type

    other

COMERICA BANK VS ECS CONTRACTORS INC., A CALIFORNIA CORPORATION, ET AL.

Code of Civil Procedure Section 483.010(a). The Note between ECS Contractors Inc. and Plaintiff and the Guaranty of such obligation executed by Guarantor establish that Plaintiff’s claim is one on which an attachment may be issued. (Martinez Declaration. ¶¶3, 11-12, 14, Exhibit 1-3). ECS Contractors Inc.’s default under the Note and the failure to pay upon demand establishes the probable validity of Plaintiff’s claim. (Martinez Declaration. ¶¶6, 9).

  • Hearing

    Jun 23, 2020

CITY OF SAN FERNANDO VS GREGORY MAYNE

CCP 483.010(c). Guarantor was an officer of ECS when signing the Guaranty. (Martinez Decl., Ex.2). As such, it follows that Guarantor was acting in the course of business and had a business relationship with ECS when executing the Guaranty. As such, an attachment may also properly issue against Guarantor. See Advance Transformer Company (1974) 44 CA3d 127, 143-145 (decided under substantially similar prior law). Plaintiff has sufficiently identified the property sought to be attached.

  • Hearing

    Jun 23, 2020

  • Type

    Other

  • Sub Type

    Intellectual Property

COMERICA BANK VS ECS CONTRACTORS INC., A CALIFORNIA CORPORATION, ET AL.

Code of Civil Procedure Section 483.010(a). The Note between ECS Contractors Inc. and Plaintiff and the Guaranty of such obligation executed by Guarantor establish that Plaintiff’s claim is one on which an attachment may be issued. (Martinez Declaration ¶¶3, 11-12, 14, Ex.1-3). ECS Contractors Inc.’s default under the Note and the failure to pay upon demand establishes the probable validity of Plaintiff’s claim. (Martinez Declaration ¶¶6, 9).

  • Hearing

    Jun 22, 2020

CITY OF SAN FERNANDO VS GREGORY MAYNE

CCP 483.010(a). The Note between ECS and Plaintiff and the Guaranty of such obligation executed by Guarantor establish that Plaintiff’s claim is one on which an attachment may be issued. (Martinez Decl. ¶¶3, 11-12, 14, Ex.1-3). ECS’s default under the Note and the failure to pay upon demand establishes the probable validity of Plaintiff’s claim. (Martinez Decl. ¶¶6, 9). There is no evidence that the attachment is sought for a purpose other than the recovery on the claim upon which the attachment is based.

  • Hearing

    Jun 22, 2020

  • Type

    Other

  • Sub Type

    Intellectual Property

MURRAY VS. CAMPOS

(CCP § 483.010 (a).) A court shall issue a right to attach order if it finds 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. (4) The amount to be secured by the attachment is greater than zero. (CCP § 484.090 (b).)

  • Hearing

    Jun 03, 2020

NUTRIEN AG SOLUTIONS, INC. V. WESTLAND FLORAL COMPANY CARPINTERIA, INC., ET AL.

Pursuant to Code of Civil Procedure section 483.010(a), an 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 $500, exclusive of costs, interest, and attorney’s fees. An attachment also may not be issued on a claim secured by any interest in real property. (Code Civ. Proc., § 483.010, subd. (b).)

  • Hearing

    Jun 02, 2020

NUTRIEN AG SOLUTIONS, INC. V. WESTLAND FLORAL COMPANY CARPINTERIA, INC., ET AL.

Pursuant to Code of Civil Procedure section 483.010(a), an 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 $500, exclusive of costs, interest, and attorney’s fees. An attachment also may not be issued on a claim secured by any interest in real property. (Code Civ. Proc., § 483.010, subd. (b).)

  • Hearing

    Jun 02, 2020

PACIFIC MERCANTILE BANK VS USMAN VAKIL

(CCP § 483.010(a) [emphasis added].) “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement, statute, or other rule or law . . . [h]owever, an attachment may be issued where the claim was originally so secured but, without any act of the plaintiff or the person to whom the security was given, the security has become valueless or has decreased in value to less than the amount then owing on the claim . . .” (CCP § 483.010(b).)

  • Hearing

    Jun 02, 2020

  • Type

    Collections

  • Sub Type

    Promisory Note

MICHAEL J . KUHL, ET AL VS. COOPERATIVE COMMUNITY ENERGY CORPORATION, ET AL

Barak Const, (2008) 164 Cal.App.4th 845, 852-853; Code Civ, Proc. § 483.010(a), § 484.090(a).) As a predicate for issuing a right to attach order, the court must make the following findings: (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.

  • Hearing

    Mar 17, 2020

(NO CASE NAME AVAILABLE)

MOTION TO DISMISS; MOTION TO SET ASIDE RIGHT TO ATTACH ORDER AND RELEASE ATTACHED PROPERTY (CCP § 680.135) TENTATIVE RULING: Judgment Debtor Tesha D. Gatewood’s Motion to Dismiss and Motion to Set Aside Right To Attach Order And Release Attached Property are CONTINUED TO MAY 14, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. ANALYSIS: Plaintiff Ford Motor Credit Company (hereafter “Judgment Creditor”) filed the instant action for breach of contract against Defendant Tesha D.

  • Hearing

    Mar 12, 2020

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