This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:54:33 (UTC).

JORGE GUZMAN JR VS HECTOR CHAVEZ ET AL

Case Summary

On 10/30/2014 JORGE GUZMAN JR filed a Personal Injury - Other Personal Injury lawsuit against HECTOR CHAVEZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is BENNY C. OSORIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2564

  • Filing Date:

    10/30/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

BENNY C. OSORIO

 

Party Details

Plaintiff and Petitioner

GUZMAN JORGE JR.

Claimant

DIRECTOR OF INDUSTRIAL RELATIONS AS

Defendants and Respondents

ALVAREZ PHILMA

CHAVEZ HECTOR

DOES 1 THROUGH 20

ROBLEDO KEVIN W. DOE 3

AVALON FOODS INC. DOE 1

YOUNAN EDWARD W. DOE 2

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF ALEXANDER J. PEREZ

ABIR COHEN TREYZON SALO LLP

ALEXANDER J. PEREZ ESQ.

Claimant Attorney

BETHGE MICHELLE COUNSEL

Defendant Attorney

ANDERSON MICHAEL D. ESQ.

 

Court Documents

PLAINTIFF'S OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL; DECLARATION OF AARON LAVINE

8/1/2018: PLAINTIFF'S OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL; DECLARATION OF AARON LAVINE

DECLARATION OF PHILMA CHAVEZ IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/30/2018: DECLARATION OF PHILMA CHAVEZ IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Ex Parte Application

10/30/2018: Ex Parte Application

Declaration

11/7/2018: Declaration

Opposition

7/1/2019: Opposition

Ex Parte Application

7/2/2019: Ex Parte Application

Request for Judicial Notice

7/10/2019: Request for Judicial Notice

COMPLAINT FOR DAMAGES, RESTITUTION AND INJUNCTIVE RELIEF FOR: 1. NEGLIGENCE; ETC

10/30/2014: COMPLAINT FOR DAMAGES, RESTITUTION AND INJUNCTIVE RELIEF FOR: 1. NEGLIGENCE; ETC

SUMMONS

10/30/2014: SUMMONS

STATEMENT OF DAMAGES

2/9/2015: STATEMENT OF DAMAGES

PROOF OF SERVICE SUMMONS

2/9/2015: PROOF OF SERVICE SUMMONS

REQUEST FOR ENTRY OF DEFAULT

2/9/2015: REQUEST FOR ENTRY OF DEFAULT

ORDER RE: DEMURRER

2/6/2017: ORDER RE: DEMURRER

DEFENDANT YOUNAN'S REQUEST FOR JUDICIAL NOTICE

2/28/2017: DEFENDANT YOUNAN'S REQUEST FOR JUDICIAL NOTICE

ORDER RE: DEFENDANT EDWARD YOUNAN'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

3/29/2017: ORDER RE: DEFENDANT EDWARD YOUNAN'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PLAINTIFF'S CONSOLIDATED REPLY TO DEFENDANT YOUNAN'S OPPOSITION RE MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, REQUEST FOR ADMISSONS AND REQUESTS FOR PRODUCTION, AND FOR IMPOSITION OF

7/28/2017: PLAINTIFF'S CONSOLIDATED REPLY TO DEFENDANT YOUNAN'S OPPOSITION RE MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, REQUEST FOR ADMISSONS AND REQUESTS FOR PRODUCTION, AND FOR IMPOSITION OF

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

8/3/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

Minute Order

9/12/2017: Minute Order

152 More Documents Available

 

Docket Entries

  • 10/21/2019
  • Hearingat 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/14/2019
  • Hearingat 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/12/2019
  • Docketat 09:30 AM in Department 56; Jury Trial - Not Held - Continued - Stipulation

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  • 07/23/2019
  • Docketat 08:30 AM in Department 56; Final Status Conference - Held - Continued

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  • 07/23/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 07/23/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Clerk

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  • 07/23/2019
  • DocketNotice (of Non-Opposition to Plaintiffs Motions in Limine 1 - 3); Filed by Jorge, Jr. Guzman (Plaintiff)

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  • 07/22/2019
  • Docketat 08:30 AM in Department 56; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 07/22/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Jorge, Jr. Guzman (Plaintiff)

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  • 07/18/2019
  • DocketWitness List; Filed by Jorge, Jr. Guzman (Plaintiff)

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308 More Docket Entries
  • 02/09/2015
  • DocketDefault Entered; Filed by Plaintiff/Petitioner

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  • 02/09/2015
  • DocketStatement of Damages (Personal Injury or Wrongful Death); Filed by Plaintiff/Petitioner

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  • 02/09/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/09/2015
  • DocketREQUEST FOR ENTRY OF DEFAULT

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  • 02/09/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/09/2015
  • DocketSTATEMENT OF DAMAGES

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  • 02/09/2015
  • DocketProof-Service/Summons; Filed by Jorge, Jr. Guzman (Plaintiff)

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  • 10/30/2014
  • DocketCOMPLAINT FOR DAMAGES, RESTITUTION AND INJUNCTIVE RELIEF FOR: 1. NEGLIGENCE; ETC

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  • 10/30/2014
  • DocketSUMMONS

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  • 10/30/2014
  • DocketComplaint; Filed by Jorge, Jr. Guzman (Plaintiff)

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Tentative Rulings

Case Number: BC562564    Hearing Date: March 10, 2020    Dept: 85

Jorge Guzman v. Hector Chavez, et al., BC562564

Tentative decision on applications for right to attach orders: denied

Plaintiff Jorge Guzman (“Guzman”) applies for right to attach orders against Defendants Edward Younan (“Younan”) and Avalon Foods, Inc. (“Avalon”).

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

A. Statement of the Case

1. Complaint

Plaintiff Guzman commenced this action on October 30, 2014 against Defendants Hector Chavez and Philma Alvarez,[1] alleging causes of action for (1) negligence, (2) intentional infliction of emotional distress, and (3) violation of Bus. & Prof. Code section 17200. The Complaint alleges in pertinent part as follows.

On January 11, 2014, Guzman was employed by Defendants as a driver of fast-food trucks owned by Defendants Chavez and Alvarez, serving Mexican food at various locations in and around the City of Los Angeles under Alvarez’s supervision. Alvarez negligently instructed Guzman to retrieve a serving table in a manner that subjected Guzman to being struck by a car and severely injured.

Defendants breached a duty of care owed to Guzman not to place him needlessly in danger while carrying out the duties of his employment, resulting in him suffering severe and permanent injuries, including being rendered comatose for nearly three months, severe pain, mental and emotional suffering, medical costs and expenses, loss of earnings, loss of earning capacity, disfigurement, and other special and general damages for which Defendants are jointly and severally liable.

In April of 2014, following Guzman’s emergence from his comatose state and recuperation sufficient to be discharged to home care, Alvarez appeared at Guzman’s church and handed him $200, intimating that was all was owed to him for his work-related injuries. Alvarez was attempting to fool Guzman into believing that $200 was fair and final compensation for his severe and permanent injuries which could potentially total hundreds of thousands of dollars.

2. Course of Proceedings

According to proofs of service on file, Defendant Avalon was served with the Summons and Complaint via substitute service on August 29, 2016. The documents were thereafter mailed the same day. Defendant Younan was served with the Summons and Complaint via substituted service on October 14, 2016.

Avalon and Younan were served with the moving papers for the instant application via mail on December 10, 2019.

On October 24, 2019, a jury in this case determined that Guzman was an employee of Avalon and Younan at the time he was struck by a car.

B. Applicable Law

1. Entity Defendants

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, (12986) 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 §484.030.

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 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, 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.

2. Individual Defendant

In addition to the foregoing, if the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. 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). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

C. Governing Law

Liability for worker’s compensation shall exists against an employer for any injury sustained by his or her employees arising out of and in the course of the employment where, inter alia, (1) at the time of the injury, the employee is performing service growing out of, and incident to, his employment and is acting with in the course of his employment, and (2) the injury is proximately caused by the employment, with or without negligence. Labor Code §3600(a).

Every private employer shall secure the payment of worker’s compensation by being insured or by obtaining a certificate of consent for self-insurance from the Director of Industrial Relations. Labor Code §3700. If any employer fails to secure the payment of worker’s compensation, any injured employee may bring an action at law against the employer for damages as if the workers’ compensation statutory scheme did not apply. Labor Code §3706.

The injured employee may in such action attach the property of the employer, at any time upon or after the institution of such action, in an amount fixed by the court, to secure the payment of any judgment ultimately obtained. The provisions of the Code of Civil Procedure that are not inconsistent with this division, shall govern the issuance of, and proceedings upon, such attachment. Labor Code §3707.

In an action under Labor Code section 3707, it is presumed that the injury to the employee was the direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant. No contract or regulation shall restore to the employer any of the foregoing defenses. Labor Code §3708.

D. Statement of Facts

1. Plaintiff’s Evidence[2]

Guzman secured a jury verdict against Defendants on October 24, 2019 on the issue of Guzman’s employment. Lavine Decl. ¶3. The remaining phase of the trial, which includes allegations sufficient to establish punitive damages, is pending. Lavine Decl. ¶4. A status conference and OSC re: second phase of trial was set for February 11, 2019.[3] Lavine Decl. ¶5.

Guzman alleged in the Complaint that Defendants Younan and Avalon were his employers, which was disputed by Defendants. Lavine Decl. ¶9.

On October 21, 2019, pursuant to Defendants’ motion for bifurcation, the first phase of trial before a jury began on the issue of whether Defendants where Guzman’s employers at the time Guzman suffered injury. Lavine Decl. ¶10. The jury found that both Younan and Avalon were Guzman’s employers at the time of his injury. Lavine Decl. ¶11.

A copy of a preliminary lien notice from Medi-Cal is attached as Exhibit 1. Lavine Decl. ¶12.

Guzman testified at trial that he paid $500 per week and that he now makes $100 per week selling odds and ends to food trucks. Lavine Decl. ¶14. Guzman is also entitled to lost past wages in an amount well in excess of $124,800, based on a conservative wage loss of $400 per week for six years since the date of the collision. Lavine Decl. ¶14. Plaintiff also suffered a future lost earning capacity in the amount of $592,569. Lavine Decl. ¶14, Ex. 3.

The attachment is not sought for a purpose other than the recover on a claim upon which attachment is based; Plaintiff does not seek attachment for an improper purpose. Lavine Decl. ¶¶ 18, 19.

Guzman believes that a real property refinancing transaction was made to take cash out of the business for the purpose of hindering, delaying, or defrauding his ability to collect on his eventual damages award. Lavine Decl. ¶21.

2. Defendants’ Evidence[4]

Defendants Alvarez and her husband Chavez are the owners and operators of the catering truck. Serpik Decl. ¶2.

Avalon is a catering truck commissary where Defendant Chavez and dozens of other independently owned catering truck fleet owners park their truck as required by Health and Safety regulations. Defendant Younan is the owner of Avalon, which was incorporated in 1977 and has been continuously operating since that time. Serpik Decl. ¶4, Ex. D.

On October 30, 2014, Guzman filed a civil action against Defendants Alvarez and her husband Chavez as Plaintiff's employers, alleging that they were negligent per se under Labor Code section 3708 due to their failure to carry workers' compensation insurance. Serpik Decl. ¶ 2, Ex. A.[5] In June 2016, Guzman added Defendants Younan and Avalon to the lawsuit, alleging that they also were his employers. Serpik Decl. ¶4, Ex. C.

One of the disputed contentions was that Defendants Avalon and Younan were Guzman’s employers. Serpik Decl. ¶5. Since this was a threshold issue, the trial court ordered that the trial be bifurcated so that the issue whether Defendants were Guzman’s employers would be tried first. Serpik Decl. ¶5. The court explicitly noted that Phase I would not determine liability, but only whether there was an employment relationship between Guzman and Defendants Avalon and/or Younan. Serpik Decl. ¶5, Ex. E.

On November 25, 2019, Guzman appeared ex parte requesting that a Temporary Restraining Order and Preliminary Injunction be issued, enjoining Defendants Avalon and Younan from utilizing their assets during the pendency of the trial, based on fears that Defendants would somehow hide assets. Serpik Decl. ¶6, Ex. F. The court denied the application, finding that there was no basis for the requested relief. Serpik Decl. ¶6, Ex. G.

On December 12, 2019, Defendants Avalon and Younan filed a Motion for Summary Adjudication, arguing that Guzman’s Complaint fails as a matter of law because the undisputed facts show that: (1) Guzman was not injured during the course and scope of his employment; (2) Defendants could not be held liable for the alleged negligent acts of Guzman’s “employee-supervisor” who was not an employee of Defendants; and (3) Defendants have rebutted the presumption of Labor Code section 3708 as a matter of law. Serpik Decl. ¶7.

D. Analysis

Plaintiff Guzman applies for right to attach orders against Defendants Avalon and Younan in the amount of $5,502,898.28.

1. A Claim on Which Attachment May Issue

If any employer fails to secure the payment of worker’s compensation, any injured employee may bring an action at law against the employer for damages. Labor Code §3706. The injured employee may, at any time upon or after institution of such action, obtain attachment in an amount fixed by the court to secure the payment of any judgment which is ultimately obtained. Code of Civil Procedure provisions that are not inconsistent with this division, shall govern the issuance of such attachment. Labor Code §3707.

Guzman’s claim is that he was injured on the job while employed by Defendants due to Defendants’ negligence. Lavine Decl. ¶¶ 4-7. Attachment is statutorily authorized for Guzman’s claim by Labor Code section 3707.

2. An Amount Due That is Fixed and Readily Ascertainable

A claim is “readily ascertainable” where the damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41. The fact that the damages are unliquidated is not determinative. Id. But the contract must furnish a standard by which the amount may be ascertained and there must be a basis by which the damages can be determined by proof. Id. (citations omitted).

Guzman provides no admissible evidence establishing the amount of damages that he has or will suffer as a result of his injury. Strict compliance is required with statutory requirements for affidavits for attachment (Anaheim National Bank v. Kraemer, (1932) 120 Cal.App. 63, 65), and technical defects in a declaration for failure to comply with CCP section 2015.5 precludes its use as an evidentiary document. Witchell v. Korne, (1986) 179 Cal.App.3d 965, 975. All documentary evidence, including contracts and canceled checks, must be presented in admissible form, and admissibility as nonhearsay evidence or exception to the hearsay rule, such as the business records exception. Pos-A-Traction, Inc., v. Kepplly-Springfield Tire Co., (C.D. Cal. 2000) 112 F.Supp.2d, 1178, 1182. For business records, evidence should be presented to establish that the record was made in the regular course of business, at or near the time of the act or event, and the custodian of records or other qualified witness must identify the record and its mode of preparation, as well as the sources of information and method and time of preparation. Id.

Guzman’s attorney declaration fails to lay a proper foundation to show why he knows many of the facts set forth. As a result, numerous evidentiary objections were sustained. Guzman’s argument that the court should set an evidentiary hearing to support the amount of attachment is untenable. Reply at 3. It was his obligation to present admissible evidence with his application. The amount due is not fixed and readily ascertainable.

3. Probability of Success

Guzman asserts a probability of success on his claim, arguing that his claim is a legal certainty due to the jury’s verdict in the first phase of the trial. App. at 6. Guzman argues that because the jury verdict established that he was an employee of Defendants, it also established their liability and refuted all contributory negligence and relevant affirmative defenses pursuant to Lab. Code section 3700. App. at 6. Guzman claims that the only remaining matter in dispute is the amount of damages. App. at 6.

Guzman is wrong. As Defendants correctly note, the jury verdict does not make their liability a certainty. Younan Opp. at 8; Avalon Opp. at 7. The jury verdict for the first phase of the trial only found that an employment relationship existed between Guzman and Defendants. Lavine Decl. ¶11; Serpik Decl. ¶5. The trial court expressly noted that Phase I would not determine liability, but only whether an employment relationship existed between Guzman and Defendants Avalon and/or Younan. Serpik Decl. ¶5, Ex. E.

Contrary to Guzman’s argument, Labor Code sections 3707 and 3708 do not automatically apply simply because an employment relationship exists. To obtain a liability determination, Guzman must establish that he was injured in the course and scope of his employment, that his employers-supervisors (Chavez, Alvarez, and their supervising employee) were negligent, and that Defendants Avalon and Younan should be held vicariously liable for their actions. Defendants would also be permitted to present evidence rebutting the presumption that Guzman’s injury was the direct result of negligence by Chavez, Alvarez, or their employee supervisor under Labor Code section 3708.

Guzman has not presented any evidence to establish any of these required elements and has not established a probability of success on his claim.

4. Attachment is Based on a Commercial Claim

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. 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).

Guzman’s claim arises from injuries he suffered while employed by Younan. Lavine Decl. ¶7. As his claim for damages is necessarily premised on the existence of an employment relationship between Guzman and Defendants, it arises out of Younan’s conduct of a catering truck commissary. Serpik Decl. ¶4, Ex. D.

5. Defendant’s Younan’s Property Is Not Adequately Described

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). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

Guzman requests attachment to all property owned by Avalon, including but not limited to, business personal property, equipment, wine inventory, accounts receivables, and real property. App. at 7. Guzman requests attachment of all of Younan’s property through which he holds an interest in Avalon, specifically shares of Avalon, and any corporate property of Avalon in which Younan holds a personal interest. Mem. at 7-8.

Younan notes that Guzman did not describe any property to be attached on the Judicial Council form or in his supporting declaration and asserts that Guzman has failed to comply with the requirement to adequately describe the property to be attached. While Guzman describes the property to be attached in the memorandum supporting his application, this statement is not under penalty of perjury and is not sufficient for the purposes of CCP section 484.020(e).[6]

E. Conclusion

The applications for right to attach orders are denied.


[1] On May 16, 2016, Guzman amended the Complaint to add Kevin W. Robledo, Younan, and Avalon as Defendants.

[2] The court has ruled on Defendant Younan’s evidentiary objections by ruling on the courtesy copy of the evidentiary objections and interlineating the courtesy copy of the Declaration of Aaron Lavine where an objection was sustained. These rulings shall apply equally to Defendant Avalon’s evidentiary objections and will be available for counsels’ review after the hearing.

[3] At this status conference, a final status conference was set for October 19, 2020 and a jury trial was set for November 2, 2020.

[4] Defendants request judicial notice of the following documents filed in the instant matter: (1) Defendant’s Notice of Motion and Motion for Summary Adjudication, filed on February 10, 2020 (Ex. A); (2) Separately Bound Appendix Of Evidence In Support Of Defendants' Motion For Summary Adjudication (Ex. B); (3) Defendants’ Separate Statement Of Undisputed Facts In Support Of Motion For Summary Adjudication, filed on February 10, 2020 (Ex. C); and (4) Declaration Of Andrei Serpik In Support Of Defendants' Motion For Summary Adjudication, filed on February 10, 2020 (Ex. D). There is no need to judicially notice documents in the instant case file. A judge can always review the court file.

[5] On November 20, 2014, Guzman filed a workers’ compensation action against Defendants Alvarez and Chavez before the Workers’ Compensation Appeals Board based on the same injury. Serpik Decl. ¶3, Ex. B.

[6] Defendants point out that neither the applications nor the supporting declarations that are part of the application are dated. Opp. at 10. This is yet another reason why the applications must be denied. Without a date, the declaration does not meet the requirements of CCP section 2015.5. Guzman only replies that Defendants’ opposition is unsigned and undated. Reply at 4. This does not cure the defect in application.