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Paul D. Spillman v. the Superior Court of Riverside County

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 21, 2010

PAUL D. SPILLMAN, PETITIONER,
v.
THE SUPERIOR COURT OF RIVERSIDE COUNTY, RESPONDENT; ROBERT WIGHT ET AL., REAL PARTIES IN INTEREST.

The opinion of the court was delivered by: Hollenhorst J.

Spillman v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Randall Donald White, Judge. (Super.Ct.No. INC10005767)

Petition granted in part; denied in part.

INTRODUCTION

In this matter, we have reviewed the petition, the opposition filed by real parties in interest, and petitioner's reply. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

DISCUSSION

We agree with the trial court that real parties in interest established their right to an attachment, and that most of the errors asserted by petitioner are inconsequential; we acknowledge that the declaration from petitioner's former bookkeeper is almost entirely speculative and incompetent, but the trial court could hardly have failed to recognize this. However, we believe the trial court erred in granting an attachment in the full sum of $89,000, where the promissory note at issue does not contain an acceleration clause.

Real parties in interest's reliance on petitioner's somewhat confusing claim that no payments were ever made (because petitioner denies any obligation) is misplaced. They alleged and showed that no payments had been made since a specified date. The amounts to be secured by attachment should reflect amounts unpaid at the time of the order, although we do not say that the trial court could not build a "cushion" into the order to avoid the need for issuing a stream of additional orders as time passes and additional payments are missed. The distinction is significant because the amount of the attachment affects the amount of undertaking that petitioner would be obliged to post to release the attachment under Code of Civil Procedure section 489.310.

DISPOSITION

Accordingly, the petition for writ of mandate is granted in part. Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to vacate its order fixing the attachment at $89,000, and to set proceedings for determining the appropriate amount of attachment in accordance with the views expressed in this opinion. The petition is otherwise denied.

Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

The previously ordered stay is lifted. In the interests of justice, the parties shall bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: RAMIREZ P. J. RICHLI J.

20101221

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