JUSTIN KOHANOFF VS HACOPIAN DESIGN& DEVELOPMENT GROUP, LLC., A LIMITED LIABILITY COMPANY, ET AL.

Tentative Rulings

Case Number: *******1237 Hearing Date: November 30, 2022 Dept: 207

Background

Plaintiff Justin Kohanoff (“Plaintiff”) brings this action to collect on two loans to Defendant Hacopian Design & Development Group, LLC (“HDDG” or collectively with Defendant Ando Hacopian “Defendants”) which Plaintiff alleges were never repaid. Plaintiff filed his Complaint on July 28, 2022, alleging causes of action against Defendants for breach of contract, fraud and deceit, unjust enrichment, and common count.

Plaintiff previously applied for a writ of attachment on his cause of action for breach of contract. The Court denied Plaintiff’s application on October 19, 2022, finding Plaintiff had not established timely and proper service on Defendants as required by the Code of Civil Procedure. The Court’s denial of the application was without prejudice and permitted Plaintiff to refile the application with proper notice to Defendants.

Plaintiff now submits a new application for writ of attachment on his cause of action for breach of contract against Defendant HDDG in the amount of $176,200. Plaintiff’s application is unopposed.

Legal Standard

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 (C.C.P. 481.010 et seq.) which meets the due process requirements set forth in Randone v. Appellate Department (1971) 5 Cal.3d 536. (See Western Steel & Ship Repair v. RMI (1986) 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. (C.C.P. 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. (C.C.P. 487.010(a), (b).) 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. (C.C.P. 484.010.) Notice of the application must be given sixteen court days before the hearing pursuant to Code Civ. Proc. 1005. (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. (C.C.P. 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. (C.C.P. 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. (C.C.P. 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.)

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by Code Civ. Proc. 484.060 not later than five court days prior to the date set for hearing. (C.C.P. 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. (C.C.P. 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 at the hearing. (C.C.P. 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. (C.C.P. 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 (C.C.P. 484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (C.C.P. 484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (C.C.P. 484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (C.C.P. 484.090(a)(4)).

A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. (C.C.P. 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. (C.C.P. 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 Code Civ. Proc. 482.110. (C.C.P. 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. C.C.P. 483.015(b).

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. (C.C.P. 489.210.) The undertaking ordinarily is $10,000. (C.C.P. 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. (C.C.P. 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.)

To obtain a writ of attachment, the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence by the times prescribed by Code Civ. Proc. 1005(b). (C.C.P. 484.040.)

Analysis

On November 4 Plaintiff filed proofs of service showing timely and proper service on Defendants pursuant to Code Civ. Proc. 484.040. Plaintiff has also submitted evidence of the following facts, which are undisputed by Defendants as no opposition has been filed to Plaintiff’s application. On October 22, 2021, Plaintiff entered into a written contract with HDDG. (Kohanoff Decl. at 3.) This contract called for Plaintiff to invest $100,000 into a real estate development project which the parties referred to as “the PCH Project.” (Ex. 1 to Kohanoff Decl.) In return, Plaintiff was to receive a fixed profit in the amount of $25,000. (Id.) The contract further provided the “investment duration is expected to last 1 Construction Draw cycle, which equates to roughly 1.5 - 2 weeks.” (Id.)

Plaintiff and HDDG subsequently entered into a second contract on February 4, 2022, under which Plaintiff would invest $30,000 in “the PCH Project Refinance” in return for a fixed profit of $10,000. (Ex. 3 to Kohanoff Decl.) The contract states “The investment duration is expected to last no more than 30 days, at which time $30,000 and $10,000 will be paid.” (Id.)

Plaintiff states he transferred the money to HDDG as required by the contracts, but HDDG has failed and refused to make any payment to Plaintiff under the contracts. (Kohanoff Decl. at 3-5; Exs. 2 & 4 to Kohanoff Decl.)

Plaintiff seeks a right to attach order in the amount of $176,200 against HDDG, calculated as:

1. $170,000 for the principal due under the contracts;

2. $5,000 in estimated costs; and

3. $1,200 in attorney’s fees.

1. A Claim Based on a Contract

Plaintiff’s claims against HDDG are based on contractual obligations stemming from the October 22, 2021, and February 4, 2022, contracts between HDDG and Plaintiff. Accordingly, the Court finds Plaintiff raises claims based on contracts. As set forth above, such claims are properly subject to attachment.

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.)

Plaintiff’s claims here concern amounts purportedly due under contracts between the parties, and thus the Court finds they satisfy the ascertainability element as they can be determined by reference to those contracts, which expressly state the amount to be paid to Plaintiff under their terms. However, the Court finds Plaintiff’s calculation of these damages is incorrect. Plaintiff seeks to attach $170,000, arguing under the October 2021 contract HDDG was to pay Plaintiff $130,000, and under the February 2022 contract HDDG was to pay Plaintiff $40,000. (MPA at 2.) However, as set forth above, the October 2021 contract obligates HDDG to pay Plaintiff $125,000, not $130,000. (Ex. 1 to Kohanoff Decl.) Accordingly, Plaintiff is entitled to attach a principal amount of $165,000 not $170,000.

3. Probability of Success

The Court finds Plaintiff has demonstrated a probability of success on its claim for breach of contract against HDDG. To establish a claim for breach of contract, a plaintiff must show “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The Court finds the undisputed evidence submitted by Plaintiff is sufficient to show a probability of success on his claim against HDDG for breach of contract as Plaintiff has shown he entered into two written contracts with HDDG, his own performance under the contracts, and HDDG’s breach of those contracts and resulting damage to Plaintiff.

4. Attorney’s Fees and Costs

Plaintiff seeks to attach $1,200 in attorney’s fees and $5,000 in costs. “California follows the so-called ‘American rule’ when it comes to attorney fees: Parties in civil litigation bear their own unless a statute or contract provides otherwise.” (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1138.) Plaintiff does not provide any basis for an award of attorney’s fees on his claim for breach of contract. Neither contract contains a fee-shifting provision, and Plaintiff has not provided the Court with any statutory basis which would support an award of attorney’s fees in its favor on Plaintiff’s claim of breach of contract against HDDG. As for Plaintiff’s request to attach $5,000 in costs, Plaintiff has not provided the Court with any basis for this claimed amount. Absent any basis for such an estimate, the Court in its discretion finds this amount excessive and will instead allow Plaintiff to attach $2,500 to account for estimated costs.

5. Property to be Attached

Defendant HDDG is a corporate entity. Pursuant to Code Civ. Proc. 484.020(e), where the defendant is a corporation, an application for attachment does not need to specifically identify the property to be attached and instead may seek attachment of any property of the corporation. Plaintiff’s application thus properly seeks attachment of any property of Defendant HDDG. (Application at 9.)

Conclusion

Plaintiff’s application for writ of attachment is GRANTED against Defendant Hacopian Design & Development Group, LLC in the amount of $167,500 ($165,000 due under the contracts + $2,500 in estimated litigation costs = $167,500). No writ of attachment shall issue until Plaintiff posts a $10,000 bond.

Case Number: *******1237 Hearing Date: October 19, 2022 Dept: 207

Background

Plaintiff Justin Kohanoff (“Plaintiff”) brings this action to collect on two loans to Defendant Hacopian Design & Development Group, LLC (collectively with Defendant Ando Hacopian “Defendants”) which Plaintiff alleges were never repaid. Plaintiff filed his Complaint on July 28, 2022, alleging causes of action against Defendants for breach of contract, fraud and deceit, unjust enrichment, and common count. Plaintiff now brings an application for writ of attachment on his cause of action for breach of contract in the amount of $176,200.

Legal Standard

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” (C.C.P. 484.010.)

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. (C.C.P. 484.020.)

“The application [for a writ of attachment] shall 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.” (C.C.P. 484.030.)

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.

(C.C.P. 484.090.)

To obtain a writ of attachment, the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence by the times prescribed by Code Civ. Proc. 1005(b). (C.C.P. 484.040.)

Analysis

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) The Legislature enacted the current attachment statutes in response to the Court’s landmark holding in Randone v. Appellate Department (1971) 5 Cal. 3d 536, which “involved the attachment, without notice or hearing, of a bank account of the owners of a trucking company to satisfy an outstanding bill for legal services.” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79.) As a result, the attachment statutes set forth “a variety of safeguards, including the requirement of a noticed hearing to prevent the evil of depriving debtors of ‘much-needed assets for protracted periods of time during possibly meritless litigation.’” (Id. [quoting Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal. App. 3d 1108, 1115].)

Plaintiff’s application was originally set for hearing on September 14. In advance of the hearing the Court posted a tentative ruling denying Plaintiff’s application because Plaintiff’s moving papers did not demonstrate Defendants had been properly served with the application and related documents as required by Code Civ. Proc. 484.040. The Court’s tentative ruling denied Plaintiff’s application without prejudice to be refiled upon a showing of proper service. The application came on for hearing on September 14. When no party appeared, the Court issued a minute order noting the non-appearance and placing the matter off calendar. On September 15, 2022, Plaintiff filed two proofs of service, apparently in response to the Court’s tentative ruling, and re-calendared the hearing on his application for September 30.

In advance of the September 30 hearing date, the Court published a tentative ruling denying Plaintiff’s application without prejudice on the basis that the September 15 proofs of service filed by Plaintiff did not establish proper notice as required by Code Civ. Proc. 484.040 as the Court could not discern whether Defendants could be properly served at the address listed on the proofs. Following the hearing, the Court issued a minute order permitting Plaintiff to file and serve a declaration regarding service by October 7, 2022.

Plaintiff timely filed a declaration regarding service on October 5. In his declaration, Plaintiff states Defendants “were served process by substitute service on a family member of Defendant, Ando Hacopian (“Hacopian”) in La Crescenta, California” on August 26, 2022. (Kohanoff Decl. at 3.) Plaintiff also asserts “Defendant, Ando Hacopian received actual notice of the pending lawsuit and the application for right| to attach order and writ of attachment,” because after Plaintiff served Hacopian’s family member, Hacopian sent him a text message stating “You had someone serve my mom?” (Id. at 3, Ex. 5.)

The Court finds this August 26, 2022, service on Defendants to be deficient. As set forth above, Code Civ. Proc. 484.040 requires service be made in compliance with the time requirements set forth in Code Civ. Proc. 1005(b). Under section 1005(b), Plaintiff’s moving papers had to be “served and filed at least 16 court days before the hearing” set for September 14, or no later than August 22, 2022. Plaintiff’s August 26 service was thus untimely under section 484.040. The law requires strict compliance with these statutory provisions regarding notice, and accordingly the Court DENIES Plaintiff’s application as untimely.

The same result would follow even if the Court were to ignore the untimeliness of Plaintiff’s service. Pursuant to Code Civ. Proc. 482.070(d), where a defendant has not appeared in the action, service under section 484.040 must be made “in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.” In other words, Defendants must be served with notice of the hearing in the same manner as they would ordinarily be served with a summons and complaint. This statutory scheme regarding service of the summons and complaint does not allow for substitute service at the residence of a defendant’s family member. Code Civ. Proc. 415.20(a) allows for substitute service at a defendant’s “usual mailing address.” Section 415.20(b) allows for substitute service at a defendant’s “dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box.” Section 415.20(c) allows for substitute service at “a private mailbox obtained through a commercial mail receiving agency.” Plaintiff here does not claim the Los Olivos Lane address served on August 26 was Defendants’ usual mailing address, dwelling house, usual place of abode, or usual place of business. Rather, Plaintiff concedes service was attempted at Hacopian’s mother’s house. No code section authorizes substitute service at the address of a family member’s residence in this manner.

Plaintiff argues Defendants received actual notice of this lawsuit as evidenced by Hacopian’s text message to Plaintiff. However, courts have rejected the argument that actual notice is sufficient to excuse compliance with the statutory requirements for service. “Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392.) “[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.) Accordingly, the Court finds Defendants were not properly served at the Los Olivos Lane address. This separately compels the denial of Plaintiff’s application.

The attachment statutes must be strictly construed, and Plaintiff must satisfy the safeguards in place to ensure Defendants receive full and fair notice of Plaintiff’s application and hearing date. The Court finds Plaintiff’s application does not satisfy the service requirements imposed by the Code of Civil Procedure as set forth above. The Court thus DENIES Plaintiff’s application without prejudice to refile the application with proper notice to Defendants in advance of the hearing.

Conclusion

Plaintiff’s application for a writ of attachment as to Defendants Hacopian Design & Development Group, LLC and Ando Hacopian is DENIED without prejudice.

Case Number: *******1237 Hearing Date: September 30, 2022 Dept: 207

Background

Plaintiff Justin Kohanoff (“Plaintiff”) brings this action to collect on two loans to Defendant Hacopian Design & Development Group, LLC (collectively with Defendant Ando Hacopian “Defendants”) which Plaintiff alleges were never repaid. Plaintiff filed his Complaint on July 28, 2022, alleging causes of action against Defendants for breach of contract, fraud and deceit, unjust enrichment, and common count. Plaintiff now brings an application for writ of attachment on his cause of action for breach of contract in the amount of $176,200.

Legal Standard

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” (C.C.P. 484.010.)

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. (C.C.P. 484.020.)

“The application [for a writ of attachment] shall 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.” (C.C.P. 484.030.)

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.

(C.C.P. 484.090.)

To obtain a writ of attachment, the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence by the times prescribed by Code Civ. Proc. 1005(b). (C.C.P. 484.040.)

Analysis

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) The Legislature enacted the current attachment statutes in response to the Court’s landmark holding in Randone v. Appellate Department (1971) 5 Cal. 3d 536, which “involved the attachment, without notice or hearing, of a bank account of the owners of a trucking company to satisfy an outstanding bill for legal services.” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79.) As a result, the attachment statutes set forth “a variety of safeguards, including the requirement of a noticed hearing to prevent the evil of depriving debtors of ‘much-needed assets for protracted periods of time during possibly meritless litigation.’” (Id. [quoting Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal. App. 3d 1108, 1115].)

Plaintiff’s application was originally set for hearing on September 14. In advance of the hearing the Court posted a tentative ruling denying Plaintiff’s application because Plaintiff’s moving papers did not demonstrate Defendants had been properly served with the application and related documents as required by Code Civ. Proc. 484.040. The Court’s tentative ruling denied Plaintiff’s application without prejudice to be refiled upon a showing of proper service. The application came on for hearing on September 14. When no party appeared, the Court issued a minute order noting the non-appearance and placing the matter off calendar. On September 15, 2022, Plaintiff filed two proofs of service, apparently in response to the Court’s tentative ruling. Plaintiff has not otherwise supplemented or refiled his original application.

The two proofs of service filed by Plaintiff purport to establish service on both Defendants on August 26, 2022. The Court questions whether the Defendants were properly served on August 26. Plaintiff attempted to serve both Defendants at 3206 Los Olivos Lane, La Crescenta, California 91214. Each proof of service contains notations from the process server indicating Defendants’ names were not on the mailbox for the property, and the occupant of the address informed the process server that Defendants do not reside there. Plaintiff attempted to serve Defendant Hacopian Design & Development Group, LLC (“HDDG”) through its registered agent for service of process, Defendant Ando Hacopian. The Court notes in its 2020 and 2022 filings with the California Secretary of State, HDDG designated 2376 Kimridge Road, Beverly Hills, CA as the address for its registered agent, as well as its principal and mailing addresses. The purported agreements attached to Plaintiff’s moving papers similarly indicate HDDG’s address is the Kimridge Road address listed on their filings with the Secretary of State.

Plaintiff’s moving papers are silent as to issue of service. Plaintiff makes no showing as to why service at the Los Olivos Lane address was proper. The Court thus has before it nothing which would indicate Defendants were properly served via substitute service at 3206 Los Olivos Lane. Indeed, the only evidence before the Court are the proofs of service themselves, which indicate 3206 Los Olivos Lane is occupied by a third party and not either of Defendants.

As set forth above, the attachment statutes must be strictly construed, and Plaintiff must satisfy the safeguards in place to ensure Defendants receive full and fair notice of Plaintiff’s application and hearing date. The Court finds Plaintiff’s application falls short of establishing the service requirements imposed by Code Civ. Proc. 484.040 have been satisfied here. Accordingly, Plaintiff’s application is DENIED without prejudice to refile the application establishing proper notice was provided to Defendants in advance of the hearing.

Conclusion

Plaintiff’s application for a writ of attachment as to Defendants Hacopian Design & Development Group, LLC and Ando Hacopian is DENIED without prejudice.

Case Number: *******1237 Hearing Date: September 14, 2022 Dept: 207

Background

Plaintiff Justin Kohanoff (“Plaintiff”) brings this action to collect on two loans to Defendant Hacopian Design & Development Group, LLC (“Defendant”) which Plaintiff alleges were never repaid. Plaintiff filed his Complaint on July 28, 2022, alleging causes of action against Defendant for breach of contract, fraud and deceit, unjust enrichment, and common count. Plaintiff now brings an application for writ of attachment on his cause of action for breach of contract in the amount of $176,200.

Legal Standard

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” (C.C.P. 484.010.)

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. (C.C.P. 484.020.)

“The application [for a writ of attachment] shall 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.” (C.C.P. 484.030.)

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.

(C.C.P. 484.090.)

To obtain a writ of attachment, the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence by the times prescribed by Code Civ. Proc. 1005(b). (C.C.P. 484.040.)

Analysis

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) The Legislature enacted the current attachment statutes in response to the Court’s landmark holding in Randone v. Appellate Department (1971) 5 Cal. 3d 536, which “involved the attachment, without notice or hearing, of a bank account of the owners of a trucking company to satisfy an outstanding bill for legal services.” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79.) As a result, the attachment statutes set forth “a variety of safeguards, including the requirement of a noticed hearing to prevent the evil of depriving debtors of ‘much-needed assets for protracted periods of time during possibly meritless litigation.’” (Id. [quoting Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal. App. 3d 1108, 1115].)

Upon review of Plaintiff’s moving papers, the Court finds Plaintiff has not shown he has satisfied the service requirement set forth at Code Civ. Proc. 484.040. Under section 484.040, Plaintiff had to serve Defendant with copies of the summons and complaint, notice of application and hearing, and the application and supporting evidence by the deadlines set forth in Code Civ. Proc. 1005(b) governing service of motions where not otherwise specified by statute. Under section 1005(b), Plaintiff had to serve defendant with these documents at least 16 court days before the hearing on Plaintiff’s application for writ of attachment. Plaintiff has not filed proofs of service showing Defendant has been served with any of the materials required by section 484.040. Accordingly, Plaintiff’s application is DENIED without prejudice to refile the application establishing proper notice was provided to Defendant in advance of the hearing.

Conclusion

Plaintiff’s application for a writ of attachment as to Defendant Hacopian Design & Development Group, LLC is DENIED without prejudice.