United States District Court, E.D. California
RONALD A. HINSON, Plaintiff,
CALVARY RECORDS, INC., et al. Defendants.
L. NURLEY UNITED STATES DISTRICT JUDGE
matter is before the Court pursuant to Plaintiff Ronald A.
Hinson's (“Plaintiff”) application for right
to attach order and order for issuance of writ of attachment
(the “Application”). (ECF No. 8.) The San Joaquin
County Sheriff, Coroner, Public Administrator (the
“Public Administrator”), in his representative
capacity as the Special Administrator of the Estate of Nelson
S. Parkerson, Jr., filed an opposition. (ECF No. 22.)
Plaintiff filed a reply. (ECF No. 23.) The Court has
carefully considered the arguments raised by the
parties. For the reasons set forth below, the
Application is DENIED.
case arises out of the alleged misappropriation of royalties
for songs copyrighted by Plaintiff. Plaintiff filed this suit
on October 26, 2015. (Compl., ECF No. 1.) On January 11,
2016, Plaintiff filed his first amended complaint
(“FAC”) naming as defendants Calvary Records,
Inc., a California corporation (“Calvary
Records”), dba The Calvary Music Group dba Songs of
Calvary; Songs of Calvary, an entity whose form of
organization is unknown (“Songs of Calvary”);
Calvary Music Group, Inc., a Tennessee corporation
(“Calvary Music”); Nelson S. Parkerson, Jr.
(“Parkerson”), deceased, by and through the
Public Administrator, as special administrator of
Parkerson's estate, Phyllis Bradhurst
(“Bradhurst”); Warner Chappell Music, Inc., a
Delaware corporation (“Warner Chappell”); and
Does 1 to 50, inclusive (collectively,
“Defendants”). (ECF No. 7.)
contains the following ten causes of action: (1) violation of
the Copyright Act, 17 U.S.C. §§ 101 et
seq., against all Defendants; (2) breach of fiduciary
duty (constructive fraud) against all Defendants except for
Warner Chappell; (3) conversion against all Defendants; (4)
declaratory relief against all Defendants except for Warner
Chappell; (5) breach of contract against all Defendants
except for Warner Chappell; (6) rescission of contract
against all Defendants except for Warner Chappell; (7)
negligence against all Defendants; (8) common counts - money
had and received against all Defendants except Warner
Chappell; (9) common counts - money had and received against
Warner Chappell and Does 1 to 50; and (10) accounting against
all Defendants. (See ECF No. 7.)
January 11, 2016, Plaintiff filed the Application seeking to
attach a particular Wells Fargo bank account (the
“Account”) “in the name(s) of Calvary
Records, Inc. dba The Calvary Music Group dba Songs of
Calvary; Calvary Music Group, Inc.; Songs of Calvary; Nelson
S. Parkerson, Jr.; Phyllis M. Bradhurst; or any one or
combination of them.” (ECF No. 8 at 2.) To the extent
the “account balance is insufficient or [the] account
has been closed, ” Plaintiff also seeks to attach
“the net proceeds of the sale” of certain real
property in Fresno, CA, more particularly described in the
Application, in the amount of $171, 000.00. (ECF No. 8 at 2.)
Rule of Civil Procedure 64 provides in pertinent part:
At the commencement of and throughout an action, every remedy
is available that, under the law of the state where the court
is located, provides for seizing a person or property to
secure satisfaction of the potential judgment . . . . The
remedies available under this rule include . . . attachment .
. . .
Fed. R. Civ. P. 64. The effect of Rule 64 is to incorporate
state law to determine the availability of prejudgment
remedies for the seizure of property to secure satisfaction
of a judgment ultimately entered. Granny Goose Foods Inc.
v. Bhd. of Teamsters & Auto Truck Drivers, Local No. 70
of Alameda Cty., 415 U.S. 423, 436 n.10 (1974). Thus,
California law provides the rules governing the Application.
California, the procedures and grounds for obtaining orders
for prejudgment writs of attachment are governed by
California Code of Civil Procedure §§ 481.010-
493.060. Blastrac, N.A. v. Concrete Sols. &
Supply, 678 F.Supp.2d 1001, 1004 (C.D. Cal. 2010).
Attachment is a purely statutory remedy. Pos-A-Traction,
Inc. v. Kelly-Springfield Tire Co., 112 F.Supp.2d 1178,
1181 (C.D. Cal. 2000) (citing Jordan-Lyon Prods., Ltd. v.
Cineplex Odeon Corp., 29 Cal.App.4th 1459, 1466 (1994)).
The burden is on the applicant to establish each element
necessary for an attachment order by a preponderance of the
evidence. Blastrac, 678 F.Supp.2d at 1004-05 (citing
Loeb & Loeb v. Beverly Glen Music, Inc., 166
Cal.App.3d 1110, 1116 (1985)).
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 $500.00. Cal. Civ.
Proc. Code § 483.010(a). California Code of Civil
Procedure § 484.090 provides that before an attachment
order is issued, the court must find all of the following:
(1) the claim upon which the attachment is based is one upon
which an attachment may be issued; (2) the applicant 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 recovery on the claim upon
which the request for attachment is based; and (4) the amount
to be secured by the attachment is greater than zero. Cal.
Code Civ. Proc. § 484.090(a).
application for a right to attach order must be supported by
an affidavit or declaration showing that the applicant, on
the facts presented, would be entitled to a judgment on the
claim upon which the proposed attachment is based.”
Pos-A-Traction, Inc., 112 F.Supp.2d at 1182 (citing
Cal. Code Civ. Proc. § 484.030). “The affidavit or
declaration must state the facts ‘with
particularity.'” Id. (citing Cal. Code
Civ. Proc. § 482.040). Additionally, a writ of
attachment will not be issued if the property to be attached
is exempt. Cal. Code Civ. Proc. § 484.090(b); Gen.
Elec. Capital Corp. v. Rhino Bus. Sys., Inc., No.
2:16-cv-00029-KJM-CMK, 2016 WL 2743557, at *3 (E.D. Cal. May
Plaintiff's Affidavit and Request ...