Nakasone v. Randall

• Decision Date: 15 March 1982
• Citation: 129 Cal.App.3d 757,181 Cal.Rptr. 324
• Court: California Court of Appeals Court of Appeals
• Parties: Francis NAKASONE, Plaintiff, Cross-Defendant and Respondent, v. Verlie RANDALL, as Administrator of the Estate of Evelyn Day Zyara, deceased, Defendant, Cross-Complainant and Appellant. Civ. 63332.

Page 324

181 Cal.Rptr. 324

129 Cal.App.3d 757

Francis NAKASONE, Plaintiff, Cross-Defendant and Respondent, v. Verlie RANDALL, as Administrator of the Estate of Evelyn Day Zyara, deceased, Defendant, Cross-Complainant and Appellant.

Civ. 63332.

Court of Appeal, Second District, Division 1, California.

March 15, 1982.

Rezac, Stroud & Suhr, a Professional Law Corporation, and Randy L. Kuckuck, Los Angeles, for defendant, cross-complainant and appellant.

Davis & Davis and M. Stephen Davis, Los Angeles, for plaintiff, cross-defendant and respondent.

LILLIE, Acting Presiding Justice.

Defendant appeals from order denying motion to quash a prejudgment writ of attachment. The primary appellate issue is whether the claim upon which the cause of action is based arose out of the defendant's conduct of a trade, business or profession.

On May 5, 1980, plaintiff filed suit to recover damages for breach of contract for sale of real property by defendant, a resident of Guadalajara, Jalisco, Mexico. The complaint alleges that on September 24, 1979, plaintiff agreed in writing to buy and defendant agreed to sell a certain piece of real property for $340,000. Concurrently with filing the complaint plaintiff sought and was issued an ex parte order for issuance of writ of attachment (nonresident [§ 492.010, Code Civ.Proc.] ) pursuant to section 485.210, Code of Civil Procedure. A supporting declaration asserted that defendant informed plaintiff she was disposing of all of her real property because she had moved to Guadalajara, Mexico; and that she was in the process of doing so in that on January 9, 1980, she sold the real property, the subject of this lawsuit, to Chen C. Wang, on April 3, 1980, she closed escrow on real property located in Palmdale, and on a date unknown made a third sale of other property located in Palmdale. The properties attached consisted of real property at 143 N. Bixel Street and 119 Douglas Street in Los Angeles.

Following the filing of defendant's answer she moved for an order to set aside right to attach order, to quash writ of attachment and to release the attached property. In her supporting declaration dated August 21, 1980, defendant asserted that she resides in Mexico at a given address and currently resides in the Hospital Del Carmen in Guadalajara having entered December 26, 1979; she is suffering from a broken hip, arthritis and general geriatric ailments, and her hospital stay is for an indefinite duration; ¹ she is 86 years of age and has never been and is not now engaged in the trade, business or profession of selling real property. In opposition, the declaration of plaintiff's counsel asserted that the proceeds of the sale of real property are being sent directly to defendant in Mexico, defendant is in the process of selling 143 N. Bixel Street and the records of the Los Angeles County Recorder disclose defendant has either sold or is in the process of selling her real property; and the declaration of Frederic Kim alleged that he is a real estate broker and handled negotiations for the sale of the property the subject of this lawsuit, and during negotiations (Sept. 1979) defendant told him she was a real estate broker and intended to dispose and was in the process of disposing of all of her real property and intended to have all proceeds sent directly to her in Mexico. Defendant's application was taken under submission and subsequently denied.

Plaintiff obtained an ex parte right to attach order and order for issuance of writ of attachment on the showing that defendant was a nonresident (§ 492.010, subd. (a)) and he would suffer great and irreparable injury in that there was a danger the property sought to be attached would be sold and made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice. (§ 485.010, Code Civ.Proc.) Nonresident attachment is designed to operate where personal jurisdiction of a defendant cannot be obtained but quasi in rem jurisdiction can be obtained by seizure of the nonresident's property in the state. (2 Witkin, Cal. Procedure (2d ed. 1981 supp. to vol 2) Nature and Purpose, § 376A, p. 329.) However, use of the nonresident statute (§ 492.010, Code Civ.Proc.) is limited to its purpose, i.e., to obtain quasi in rem jurisdiction. Thus if the defendant appears, quasi in rem jurisdiction is no longer necessary and the attachment should be made under the ordinary procedures and subject to the ordinary limitations. (2 Witkin, Cal. Procedure (2d ed. 1981 supp. to vol. 2) Motion to Set Aside and Quash, § 380A, p. 332.) Accordingly, section 492.050, subdivision (c) provides that if defendant files a general appearance, the right to attach order must be set aside "unless the plaintiff shows that his right to attach is authorized by a provision other than Section 492.010 [nonresidency]." In brief, the right to attach order must be set aside unless it can be supported by the sections on ordinary attachment; the burden of showing such support is on the plaintiff.

The present procedure for obtaining prejudgment attachment is the final legislative response to Randone v. Appellate Department (1971) 5 Cal.3d 536, 93 Cal.Rptr. 709, 488 P.2d 13 in which the California Supreme Court, invoking the rule of Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, held the original attachment statute violated procedural due process and was unconstitutional. (See Foraker v. O'Brien (1975) 50 Cal.App.3d 856, 859, 124 Cal.Rptr. 110 [involving 1972 interim statute].) In 1972, to meet the constitutional requirements of Randone, the Legislature replaced the attachment law with an interim statute. However, the Legislature directed the Law Revision Commission to continue its study which resulted in a comprehensive revision of the entire statutory attachment procedure, and the interim statute was replaced by The Attachment Law (§ 482.010 et seq., Code Civ.Proc.) effective January 1, 1977. Inasmuch as the attachment procedures are purely the creation of the Legislature, the statute is subject to strict construction. (Commercial & Farmers Nat. Bk. v. Hetrick, 64 Cal.App.3d 158, 165, 134 Cal.Rptr. 285.)

The present procedure limits the availability of prejudgment attachment to specific types of claims. (§ 483.010, Code Civ.Proc.) There are four restrictions on the kinds of actions in which attachment is authorized. (1) The action must be on a claim for money based on a contract (subd. (a)); (2) the total amount of such claim must be a fixed or readily ascertainable amount not less than $500 (subd. (a)); (3) the claim must not be secured or the security must be valueless (subd. (b)); (4) "If the action is against an individual, an attachment may be issued only on a claim which arises out of the conduct by the individual of a trade, business, or profession" (subd. (c)). Thus plaintiff was required to show, among other things, that the claim sued upon arose out of the conduct by this individual defendant of a trade, business or profession. Appellant claims that the continuance of the writ of attachment was improper because plaintiff did not make such showing. We agree.

First, as against plaintiff's efforts to establish that on September 24, 1979, defendant was engaged in the conduct of a trade, business or profession, consisting of Kim's declaration asserting that defendant told him during negotiations for the sale that she was a real estate broker and evidence of defendant's disposition of her real properties because of her move to Mexico, is evidence which compels us to hold that the implied finding ² that plaintiff's claim arises out of the conduct by defendant of the trade, business or profession of selling real estate is unsupported by substantial evidence. It is not the function of this court to reweigh the evidence but we cannot avoid our duty to determine whether the evidence constitutes substantial evidence. "Substantial evidence means more than a mere scintilla; it means 'such relevant evidence as a reasonable man might accept as adequate to support a conclusion.' [Citation.] Improbable conclusions will not be sustained where testimony is at variance with the physical facts and the repugnance is material and self-evident. [Citation.] '[I]f the word "substantial" means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case.' [Citations.]" (United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 392-393, 88 Cal.Rptr. 551; Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, 210 P.2d 757.)

The record before us reveals that defendant and her husband acquired five pieces of real estate between 1944 and 1966, and held them as joint tenants. The property, the subject of the within lawsuit, was purchased by defendant and her husband in 1950 and held in joint tenancy until his death in 1977. At most, the evidence reveals an elderly lady, because of age and physical infirmities many years past the time she would or could have engaged in a trade, business or profession, who acquired real property with her husband 30 to 35 years ago, held it in joint tenancy and became sole owner upon his death in 1977; that in contemplation of moving to Mexico (and perhaps in contemplation of death) she started disposing of her estate in Los Angeles County arranging for the proceeds to be sent directly to her in Mexico; that she negotiated with plaintiff...