On 03/24/2021 ANIL YALAMANCHI filed a Contract - Debt Collection lawsuit against MANHATTAN BEACHWEAR, INC , A DELAWARE CORPORATION. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are VIRGINIA KEENY and HUEY P. COTTON. The case status is Pending - Other Pending.
Pending - Other Pending
HUEY P. COTTON
YALAMANCHI ANIL DBA SHIMMER CLOTHING & LINEN COMPANY A CALIFORNIA SOLE PROPRIETORSHIP
MANHATTAN BEACHWEAR INC. A DELAWARE CORPORATION
KURTZ STEVEN NEIL
MALONEY PATRICK M.
8/30/2021: Notice of Ruling
8/30/2021: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil
8/30/2021: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)
8/30/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION TO BE RELIEVED ...)
8/20/2021: Declaration - DECLARATION DECLARATION OF GREGORY M. SMITH IN REPLY TO PLAINTIFFS OPPOSITION TO THE MALONEY FIRM APC BEING RELIEVED AS COUNSEL
8/23/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO BE RELIEVED AS COUNSEL BY ...)
8/24/2021: Notice of Ruling
8/13/2021: Case Management Statement
8/19/2021: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil
8/19/2021: Motion to Be Relieved as Counsel
8/19/2021: Ex Parte Application - EX PARTE APPLICATION TO BE RELIEVED AS COUNSEL BY STIPULATION OF COUNSEL AND CLIENT
8/20/2021: Opposition - OPPOSITION OPPOSITION TO EX PARTE APPLICATION TO BE RELIEVED AS COUNSEL
7/6/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 07/06/2021
7/6/2021: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)
7/2/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON APPLICATION FOR WRIT OF ATTACHMENT (CCP 484.040); ...) OF 07/02/2021
7/2/2021: Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR WRIT OF ATTACHMENT (CCP 484.040); ...)
6/10/2021: Declaration - DECLARATION OF GREGORY M. SMITH RE: MEET AND CONFER REQUIREMENT BEFORE FILING DEMURRER, PER CCP430.41
6/10/2021: Demurrer - without Motion to Strike
Hearing11/29/2021 at 08:30 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Status ConferenceRead MoreRead Less
Hearing11/29/2021 at 08:30 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Case Management ConferenceRead MoreRead Less
Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Motion to be Relieved as Counsel - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Nunc Pro Tunc OrderRead MoreRead Less
Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Motion to be Relieved as Counsel - Held - Motion GrantedRead MoreRead Less
Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Case Management Conference - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Case Management Conference; Hearing on Motion to be Relieved ...)); Filed by ClerkRead MoreRead Less
DocketOrder Granting Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Manhattan Beachwear, Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketNotice of Ruling; Filed by Manhattan Beachwear, Inc., a Delaware Corporation (Defendant)Read MoreRead Less
DocketMinute Order ( (Nunc Pro Tunc Order)); Filed by ClerkRead MoreRead Less
DocketDeclaration (of Yalamanchi in Supp. of Writ of Attachment); Filed by Anil Yalamanchi (Plaintiff)Read MoreRead Less
DocketApplication for Right to Attach Order, Temporary Protective Order, etc.; Filed by Anil Yalamanchi (Plaintiff)Read MoreRead Less
DocketMemorandum of Points & Authorities; Filed by Anil Yalamanchi (Plaintiff)Read MoreRead Less
DocketNotice of Application and Hearing for Writ of Attachment (CCP 484.040); Filed by Anil Yalamanchi (Plaintiff)Read MoreRead Less
DocketUndertaking ($10,000.00)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by Anil Yalamanchi (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Anil Yalamanchi (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by Anil Yalamanchi (Plaintiff)Read MoreRead Less
Case Number: 21VECV00390 Hearing Date: August 30, 2021 Dept: W
ANIL\r\nYALAMANCHI v. MANHATTAN BEACHWEAR, INC.\r\n\r\n
motion to be relieved as counsel\r\n\r\n
Date of Hearing: August\r\n30, 2021 Trial\r\nDate: N/A\r\n\r\n\r\n
Department: W Case\r\nNo.: 21VECV00390\r\n\r\n
Moving Party: Gregory M. Smith, counsel of record for Defendant\r\n\r\n
Responding Party: Plaintiff\r\nAnil Yalamanchi dba Shimmer Clothing & Linen Company\r\n\r\n
This action concerns plaintiff’s\r\nalleged claim for payment on certain accounts that arose from the sale of garments\r\nby plaintiff to defendant. Plaintiff alleges from on or about July 29, 2019 to\r\nDecember 6, 2019, contracts were formed between plaintiff and Manhattan whereby\r\nplaintiff caused multiple deliveries to Manhattan of the women’s swimwear, Manhattan\r\naccepted delivery of the goods, but breached its contractual duties to plaintiff\r\nby failing to issue any corresponding payments to plaintiff, despite its\r\nacceptance of said goods.\r\n\r\n
On March 24, 2021, plaintiff Anil\r\nYalamanchi dba Shimmer Clothing & Linen Company filed a complaint against\r\ndefendant Manhattan Beachwear, Inc. asserting causes of action for 1. Breach of\r\nContract; 2. Failure to Pay for Accepted Goods in Breach of California\r\nCommercial Code 2607; 3. Account Stated; 4. Open Book Account; 5. Goods Sold\r\nand Delivered; and 6. Quantum Meruit.\r\n\r\n
On August 19, 2021, Gregory M. Smith\r\n(“Counsel”) filed the instant motion to be relieved as counsel for Defendant. Defendant\r\nhas filed an opposition.\r\n\r\n
Counsel contends Manhattan Beachwear, Inc. consents, but has not\r\nyet retained new counsel, which prevents substitution via the mandatory form.\r\n\r\n
Plaintiff, in opposition to the ex parte application, argues the\r\nfact defendant consents to the withdrawal does not address why defendant is\r\nunable to seek relief pursuant to Code of Civil Procedure section 284. Code of\r\nCivil Procedure 284 provides: “The attorney in an action or special proceeding\r\nmay be changed at any time before or after judgment or final determination, as\r\nfollows: 1. Upon the consent of both client and attorney, filed with the clerk,\r\nor entered upon the minutes; 2. Upon the order of the court, upon the\r\napplication of either client or attorney, after notice from one to the other.”\r\n(CCP §284.)\r\n\r\n
The court agrees that a Motion to be Relieved was the improper\r\nmechanism. However, the court grants the Motion. Counsel has complied with the\r\nrequirements of CRC Rule 3.1362 by filing forms MC-051 and MC-052 and lodging\r\nwith the Court a copy of the proposed order on form MC-053. Counsel served defendant\r\nby mail. Counsel also submitted the\r\ndeclaration of the corporation’s CEO, consenting to the withdrawal of\r\ncounsel.\r\n\r\n
Counsel is to warn Client that it can only appear through counsel\r\nbecause it is a corporation, and corporations cannot proceed in pro per.\r\n\r\n
The court notes although there is reference to an ABC, there is no\r\nevidence of one before the court. Given\r\nthe request to withdrawal and consent by the corporation, the court seems no\r\nimpediment to granting the instant request to withdrawal. Moreover, plaintiff lacks standing to object\r\nto the withdrawal request, as it has not presented proof that it has properly\r\nregistered its fictitious business name. \r\n\r\n\r\n
Accordingly, the Motion to be Relieved as Counsel is GRANTED.'
Case Number: 21VECV00390 Hearing Date: June 1, 2021 Dept: W
ANIL YALAMANCHI v. MANHATTAN BEACHWEAR, INC.
PLAINTIFF’S APPLICATION FOR WRIT OF ATTACHMENT
Date of Hearing: June 1, 2021 Trial Date: N/A
Department: W Case No.: 21VECV00390
Moving Party: Plaintiff Anil Yalamanchi dba Shimmer Clothing & Linen Company
Responding Party: Defendant Manhattan Beachwear, Inc.
This action concerns plaintiff’s alleged claim for payment on certain accounts that arose from the sale of garments by plaintiff to defendant. Plaintiff alleges from on or about July 29, 2019 to December 6, 2019, contracts were formed between plaintiff and Manhattan whereby plaintiff caused multiple deliveries to Manhattan of the women’s swimwear, Manhattan accepted delivery of the goods, but breached its contractual duties to plaintiff by failing to issue any corresponding payments to plaintiff, despite its acceptance of said goods.
On March 24, 2021, plaintiff Anil Yalamanchi dba Shimmer Clothing & Linen Company filed a complaint against defendant Manhattan Beachwear, Inc. asserting causes of action for 1. Breach of Contract; 2. Failure to Pay for Accepted Goods in Breach of California Commercial Code 2607; 3. Account Stated; 4. Open Book Account; 5. Goods Sold and Delivered; and 6. Quantum Meruit.
Plaintiff now seeks an order for issuance of a writ of attachment. Plaintiff filed an undertaking of $10,000.00.
Plaintiff’s Application for Writ of Attachment is CONTINUED.
REQUEST FOR JUDICIAL NOTICE
In opposition, defendant Manhattan requests this court take judicial notice of several documents filed with The Los Angeles County Registrar-Recorder/County Clerk and California Secretary of State's Business Records.
Defendant’s request for judicial notice is GRANTED.
Plaintiff filed an application for writ of attachment based on an unpaid balance of $408,288.98, which includes $7,500 for the estimated cost to levy Defendant’s property and $1,200 in attorney’s fees as provided for under California Civil Code section 1717.5(a).
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].)
The application shall be executed under oath and must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and (5) a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment. (CCP § 484.020.)
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. (1989) 207 Cal.App.3d 260, 268.)
“In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) The court shall issue a right to attach order if the court 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.
(4) The amount to be secured by the attachment is greater than zero. (CCP §484.090.)
“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.” (CCP §481.190.) A claim of exemption must describe the property to be exempted and specify the statute section supporting the claim. (CCP §484.070(c).) The plaintiff has the burden of opposing the Defendant’s claim of exemption, and if the plaintiff fails to oppose a claim of exemption, “no right to attach order or writ of attachment shall be issued as to the property claimed to be exempted.” (CCP §484.070(f).) “In the discretion of the court, the amount to be secured by the attachment may include an estimated amount for costs and allowable attorney’s fees.” (CCP §482.110(b).)
First, the court notes the Proof of Service shows substituted service of the summons, complaint, and applications for writ of attachment and supporting documents for defendant at least 16 days before the hearing.
Here, plaintiff has sufficiently shown that the claim upon which the attachment is based is one upon which an attachment may issue. (See CCP §484.090(a)(1).) The pleadings and evidence assert that plaintiff was damaged in an amount exceeding $500 arising from defendants’ breach of contracts, thereby setting forth a readily ascertainable amount not less than $500. Moreover, plaintiff has established the validity of its claim by demonstrating that defendant breached his obligation to pay plaintiff for its goods despite receiving the goods from plaintiff. (Yalamanchi Decl. ¶¶9-15.) Defendant has not paid $399,588.98 of the amount owed under the Invoices. (Yalamanchi Decl. ¶17.) The writ of attachment is sought only to secure the debt and costs related to this application. (Yalamanchi Decl. ¶18.)
In opposition, defendant first argues plaintiff lacks capacity and standing to sue. Defendant claims plaintiff either did business with defendant through an unregistered fictitious business name, which cannot maintain this action until it completes the registration process (Bus. & Prof. Code §17918) or did business with defendant through a suspended corporation, which lacks standing to pursue this claim (Rev. & T. Code §23301).
The court agrees plaintiff has not adequately pled legal capacity to sue. In plaintiff’s complaint, plaintiff alleges “Plaintiff is a California sole proprietorship located in Calabasas, Los Angeles County, California. Plaintiff is engaged in the business of manufacturing, through its relationships with factories located overseas, and wholesaling garments and other commodities.” (Complaint, ¶1.) In support of this application, plaintiff also asserts he is “Plaintiff Anil Yalamanchi dba Shimmer Clothing & Linen Company.” (Yalamanchi Decl. ¶1.) However, the Los Angeles County Registrar-Recorder/County Clerk's internet portal does not reflect the registration of the fictitious business name Shimmer Clothing & Linen. (RJN, Exhs. A, B.) “A fictitious business name statement shall be filed with the clerk of the county in which the registrant has his or her principal place of business in this state ....” (Bus. & Prof. Code§ 17915.)
The failure of an individual or partnership plaintiff, doing business under an assumed, fictitious, or representative name, to comply with an applicable statute requiring the filing of a prescribed affidavit or certificate, is merely a matter in abatement, until the statute is complied with. (Kadota Fig Ass’n v. Case-Swayne Co. (1946) 73 Cal.App.2d 796, 804-805.) Based on these grounds alone, the court continues the application until plaintiff has complied with the applicable statute.
The court notes defendant also claims plaintiff lacks standing to sue if plaintiff did business with defendant as a corporation. Defendant requested this court take judicial notice of two LLC registrations by Shimmer Clothing & Linen Company, LLC. (RJN, Exhs. C, D.) One registration was completed after the purchase orders and the other is suspended. If the corporation's status only comes to light during litigation, the normal practice is for the trial court to permit a short continuance to enable the suspended corporation to effect reinstatement (by paying back taxes, interest, and penalties) to defend itself in court. (Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1365-1366.) In a number of situations, the revival of corporate powers by the payment of delinquent taxes has been held to validate otherwise invalid prior action. (Ibid.; Traub Co. v. Coffee Break Service, Inc. (1967) 66 Cal.2d 368, 370.)
If plaintiff is suing as a corporation, it must allege so. Moreover, because the suspension of the corporate powers, rights, and privileges means a suspended corporation cannot maintain a legal action while its taxes remain unpaid, plaintiff must pay delinquent taxes before the court can proceed.
Next, defendant argues the matter is subject to arbitration. Defendant claims each purchase order submitted to Shimmer Clothing contains the following language: “This Purchase Order is subject to the Manhattan Beachwear, Inc. Purchase Order Terms, Conditions and Instructions as contained in the Manhattan Beachwear, Inc. Business Practices Manual which is incorporated herein by reference and NO others. Acceptance of this purchase order by product delivery or otherwise will conclusively
constitute acceptance by Vendor of the Manhattan Beach Inc. Purchase Order Terms, Conditions and Instructions.” (Colvin Decl., Exh. A, B.) The Manhattan Beachwear, Inc. Purchase Order Terms, Conditions, and Instructions contain several provisions regarding dispute resolution including a Notice of Dispute or participating in mediation before commencing any court or arbitration proceeding.
Defendant contends where, as here, the matter is to be resolved in arbitration, the party seeking provisional relief must both establish the threshold elements of the requested relief and establish that without the requested relief, the arbitration will be ineffectual. Plaintiff argues a party subject to arbitration who seeks a provisional remedy in court must meet the requirements of Code of Civil Procedure section 1281. 8(b) as “a threshold or minimum requirement for obtaining a preliminary injunction under section 1281.8” in addition to the other traditional requirements for obtaining a preliminary injunction. (Woolley v. Embassy Suites, Inc. (1991) 227 Cal.App.3d 1520, 1529.) As a result, defendant contends plaintiff has presented no compelling evidence that any resulting arbitration award will be ineffectual and the e-mail correspondence plaintiff has submitted in support of their application are over 10 months old.
Because the merits of the arbitration provision have yet to be heard, the court declines to rule on the application for writ of attachment on these grounds. The court notes based on the current application, plaintiff has not shown in its papers that any arbitration award to which plaintiff may be entitled may be rendered ineffectual without provisional relief. An arbitration award may be ineffectual if the defendant is insolvent or would be unable to pay any damages awarded in arbitration. (California Retail Portfolio fund GmbH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 857.)
Defendant also argues the amount claimed is neither fixed nor readily ascertainable and the application for a right to attach order cannot be resolved until the court rules on defendant's demurrer and motion to compel arbitration. Defendant contends plaintiff admits that the dollar amount of the attachment sought differs from the damages claimed in his complaint and the invoices plaintiff attached to support his application contain two different "totals", resulting from adding two different columns of numbers.
As for the discrepancy in the complaint and amount sought in the application, the court finds the amounts are not uncertain or too speculative based on these grounds. However, upon further review of the evidence, the court agrees the invoices do not clearly provide the amount due. There are two different columns; at first glance, the second column appears to apply a duty tax. However, the percentage listed does not equal the amount in the second column.
The court agrees the application for writ of attachment would be better suited for determination after the motion to compel arbitration/demurrer. Based on the foregoing, plaintiff’s application is CONTINUED.
 Plaintiff states their complaint erroneously identifies the total outstanding balance as $397,592.41; however, the Invoices incorporated therein clearly show that the actual outstanding balance is $399,588.98.
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