United States District Court, E.D. California
GREAT AMERICAN INSURANCE COMPANY, an Ohio corporation, Plaintiff,
BENJAMIN EDWARD CASSINETTO, an individual, Defendant.
REQUEST FOR SUPPLEMENTAL BRIEFING RE MOTION FOR RIGHT
TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT
(ECF NO. 8)
LAWRENCE J. O’NEILL, UNITED STATES CHIEF DISTRICT JUDGE
American Insurance Company (“GAIC” or
“Plaintiff”) filed a breach of contract action in
this Court on March 29, 2019, alleging that Benjamin E.
Cassinetto (“Defendant”) breached an indemnity
agreement Defendant signed in consideration of GAIC’s
issuance of a surety Executor’s bond to Defendant in
the amount of $1, 020, 000.00. ECF No. 1 at ¶¶ 5-8.
Defendant required the bond as part of his service as the
executor of a large estate in Tuolumne County, California.
See id. The Complaint alleges that various legal
judgments that exceed the amount of the bond have been
entered against Defendant in an underlying state court
dispute over that estate (“Estate Action”).
Id. at ¶ 8. The Complaint further alleges that
Defendant has failed to indemnify GAIC as promised in the
indemnity agreement. Id. at ¶ 10. The Complaint
invokes the diversity jurisdiction of this Court.
Id. at ¶ 3. The case is still in its early
stages. Judgment has yet to be entered.
the Court for decision is GAIC’s motion for a right to
attach order and order for issuance of writ of attachment
pursuant to California’s prejudgment attachment
statutory scheme, set forth at California Code of Civil
Procedure §§ 481.010, et seq. ECF No. 8.
Federal Rule of Civil Procedure 64 provides for prejudgment
attachment and other prejudgment remedies. A United States
district court, addressing a motion for prejudgment
attachment in a diversity action, generally applies the law
of the state in which the district court sits. See
Fed. R. Civ. P. 64; Granny Goose Foods, Inc. v.
Brotherhood of Teamsters & Auto Truck Drivers Local No.
70, 415 U.S. 423, 436-437 (1974); United States v.
Van Cauwenberghe, 934 F.2d 1048, 1063-64, n. 13 (9th
a prejudgment writ of attachment may be issued to secure the
amount of the claimed indebtedness, as well as the estimated
costs and allowable attorney’s fees. Cal. Code Civ.
Proc. § 482.110(b). The burden is on the moving party to
establish entitlement to a writ of attachment. Loeb and
Loeb v. Beverly Glen Music, Inc., 166 Cal.App.3d 1110,
1116 (1985). Pursuant to California law, an attachment may be
issued “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) exclusive of costs, interest, and
attorney's fees.” Cal. Civ. Pro. Code §
483.010(a). Critically, however, if an attachment is sought
against a defendant who is a “natural person, ”
as opposed to a corporation or other corporate form, ”
the claim must arise “out of the conduct by the
defendant of a trade, business, or
profession.” Cal. Code Civ. Proc. §
483.010(c)(emphasis added); Kadison, Pfaelzer, Woodard,
Quinn & Rossi v. Wilson, 197 Cal.App.3d 1, 4 (1987).
“What constitutes a ‘trade, business or
profession’ has yet to be definitively
construed.” Douglas, 2010 WL 1734903, at *2.
Generally, however, it means an activity carried on
“for the purpose of livelihood or profit on a
continuing basis.” Nakasone v. Randall,
129 Cal.App.3d 757, 764 (1982) (emphasis added).
the Court’s review of the record does not reveal any
obvious connection between Defendant’s conduct as the
Executor and his engagement in a trade, business or
profession. To the contrary, there is information in the
record that suggests Defendant was merely a relative of the
decedent in the underling estate dispute. ECF No. 8-3 at 35
of 62. While it appears to be undisputed in the underlying
Estate Action that Defendant drafted the will for the
decedent, nothing suggests he is regularly engaged in estate
planning. Id. at 51 of 62 (indicating that Defendant
conceded he did not have an attorney review the will he
on or before October 1, 2019, Plaintiffs are instructed to
file a supplemental brief and/or declaration directing the
Court’s attention to information in the record or
supplementing the record with information demonstrating