Construction Laborers Trust Funds for Southern California Administrative v. West Coast Structures, Inc. et al

Filing 80

Minutes in Chambers by Magistrate Judge Sheri Pym: Order to Show Cause Why Portions of Declaration of Plaintiffs Counsel Should Not Be Stricken For Lack of Personal Knowledge and Plaintiffs Application Consequently Denied. Plaintiff is hereby ORDERED to show cause, on or before March 22,2019 (SEE ORDER FOR DETAILS). (kca)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

ED CV 18-490-JGB (SPx)

Title

Construction Laborers Trust Funds for Southern California Administrative Company v.
West Coast Structures, Inc., et al.

Present: The
Honorable

Date

March 12, 2019

Sheri Pym, United States Magistrate Judge

Kimberly Carter

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Proceedings:

Attorneys Present for Defendant:

(In Chambers) Order to Show Cause Why Portions of Declaration of
Plaintiff’s Counsel Should Not Be Stricken For Lack of Personal
Knowledge and Plaintiff’s Application Consequently Denied

On March 8, 2019, plaintiff Construction Laborers Trust Funds for Southern
California Administrative Company, LLC (“Construction Laborers”) filed an ex parte
application for a Writ of Attachment, and in the alternative, for a Temporary Protective
Order (“TPO”) (docket no. 72) against defendant West Coast Structures, Inc. (“West
Coast”).1 The application is supported by various declarations, plaintiff’s Memorandum,
and exhibits. Defendants have not yet filed any response to plaintiff’s application.
Of the declarations that support plaintiff’s application, only the declaration of
plaintiff’s counsel suggests defendants are liquidating or transferring assets. In his
declaration, plaintiff’s counsel states that he and plaintiff’s office have been in touch with
several current and former employees of defendant West Coast, and that these employees
have told them that defendant Brian Skajem, West Coast’s president, was selling assets of
the company. See 3/8/2019 Sackman Decl. (docket no. 77) ¶ 2. Defendant Skajem told
these employees that he was starting a new company. Id. ¶ 2. Plaintiff’s counsel suspects

Although Local Civil Rule 5-4.5 requires chambers copies of all e-filed
documents to be delivered to the pertinent judge’s chambers copy box by noon on the
court day following the date of filing, the court has yet to see a chambers copy of this
application. Plaintiff should promptly provide one.
1

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

ED CV 18-490-JGB (SPx)

Date

March 12, 2019

Title

Construction Laborers Trust Funds for Southern California Administrative Company v.
West Coast Structures, Inc., et al.

defendant Skajem may be trying to transfer his assets to a new company to avoid his
obligations. Id. Plaintiff’s counsel also states defendant West Coast’s contractor’s
license has been suspended, which would further impair plaintiff’s ability to recover
damages. Id. ¶¶ 3-4.
Under California Code of Civil Procedure § 485.010, no right to attach order or
writ of attachment may be issued ex parte unless “it appears from facts shown by
affidavit that great or irreparable injury would result to the plaintiff if issuance of the
order were delayed until the matter could be heard on notice.” Such an affidavit or
declaration must state the facts “with particularity.” Cal. Code Civ. P. § 482.040. Except
where matters are specifically permitted to be shown upon information and belief, each
affidavit or declaration must show that the affiant or declarant, if sworn as a witness, can
testify competently to the facts stated therein. Id. “At a minimum, this means that the
affiant or declarant must show actual, personal knowledge of the relevant facts, rather
than the ultimate facts commonly found in pleadings, and such evidence must be
admissible and not objectionable.” Pos-A-Traction, Inc. v. Kelly-Springfield Tire Co.,
112 F. Supp. 2d 1178, 1182 (C.D. Cal. 2000); see also Walls Industries LLC v. United
Aryan EPZ Ltd., 2013 WL 12205045, at *3 (C.D. Cal. Apr. 4, 2013) (evidence supporting
the ex parte issuance of a writ of attachment must be admissible).
The declaration of plaintiff’s counsel suggests plaintiff faces great injury largely
based on information defendant Skajem reportedly conveyed to his employees, who later
relayed the information to plaintiff’s counsel. Plaintiff’s counsel would not be able to
testify to these facts, which are hearsay and outside his personal knowledge. The court
does not here decide whether plaintiff’s additional argument that the suspension of
defendant West Coast’s license would impair plaintiff’s recovery is sufficient by itself to
support the issuance of a Writ, but notes the difficulties of such argument.
Accordingly, plaintiff is hereby ORDERED to show cause, on or before March 22,
2019, why portions of the declaration of plaintiff’s counsel should not be stricken for lack
of personal knowledge, and why the present application should not be consequently
denied.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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