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Hinson v. Calvary Records, Inc.

United States District Court, E.D. California

March 23, 2017

RONALD A. HINSON, Plaintiff,
v.
CALVARY RECORDS, INC., et al. Defendants.

          ORDER

          TROY L. NURLEY UNITED STATES DISTRICT JUDGE

         This 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.[1] For the reasons set forth below, the Application is DENIED.

         I. Procedural Background

         This 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.)

         The FAC 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.)

         Also on 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.)

         II. Legal Standard

         Federal 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.

         In 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)).

         “Except 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).

         “The 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 11, 2016).

         III. Plaintiff's Affidavit and Request ...


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