Liberty Mutual Insurance Company, et al v. Himick et al

Filing 22

ORDER signed by District Judge Troy L. Nunley on 6/6/2016 FINDING that the plaintiffs have the right to attach the defendants' property in the amount of $6,196,058.47; ORDERING that the Writ of Attachment be issued upon the filing of an und ertaking in the amount of $10,000 and that said writ be issued for property of defendants who are natural persons; ORDERING the defendants to transfer to the levying officer possession of: 1) any documentary evidence in Defendants' position of title to the subject property; and 2) the property in Defendants' possession. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LIBERTY MUTUAL INSURANCE
COMPANY; SAFECO INSURANCE
COMPANY OF AMERICA,

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Plaintiffs,

No. 2:15-cv-00683-TLN-AC

ORDER

v.
DANIEL E. HIMICK and KAREN A.
HIMICK as individuals; DANIEL E.
HIMICK and KAREN A. HIMICK as
trustees of the HIMICK FAMILY TRUST;
and DOES 1–50, inclusive,
Defendants.

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On May 5, 2016, the Court held a hearing on Plaintiff Liberty Mutual Insurance Company

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and Safeco Insurance Company of America’s (“Plaintiffs”) Application for a Right to Attach

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Order and Order for Issuance of Writ of Attachment. At the hearing, the Court found the

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requirements for attachment under the California Code of Civil Procedure had been met,

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including: (1) the claim upon which the attachment is based is one upon which attachment may

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issue; (2) Plaintiffs had established the probable validity of the claim upon which the attachment

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was based; (3) attachment was not sought for a purpose other than recovery on the claim upon

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which the attachment was based; and (4) the amount to be secured by attachment was greater than

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zero. Cal. Code Civ. Proc. § 484.090.
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The Court granted Defendants Daniel and Karen Himick’s, individually and on behalf of

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the Himick Family Trust, (collectively “Defendants”) request to provide supplemental briefing on

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the amount of the undertaking. See Cal. Code Civ. Proc. § 489.220. The parties have filed

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supplemental briefing. (ECF Nos. 20 & 21.) Therein, Defendants request that the amount of the

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undertaking equal the amount sought to be attached: $6,196,058.47. However, except for

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restating Cal. Code Civ. Proc. § 489.220 itself, Defendants do not provide legal authority or cite

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to specific evidence that demonstrates this amount is appropriate. Defendants make no specific

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argument to support an objection that “the probable recovery for wrongful attachment” exceeds

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the default amount of $10,000. § 489.220(b). Therefore, the Court adheres to this default of

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$10,000 as the amount of the undertaking. § 489.220(a).

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forth at the hearing and the briefing in this matter (ECF Nos. 7, 12, 14, 20, 21), the Court

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HEREBY ORDERS:

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

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Plaintiffs have the right to attach Defendants’ property in the amount of
$6,196,058.47.1 Cal. Code Civ. Proc. § 483.015(a).

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In consideration of the arguments set

The writ of attachment shall be issued upon the filing of an undertaking in the amount
of $10,000. Cal. Code Civ. Proc. § 489.220(a).

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The writ of attachment shall be issued for property of Defendants who are natural

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persons, subject to attachment under Cal. Code Civ. Proc. § 487.010. Said property is

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described at ECF No. 7-1, Attachment “A”.

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Defendants shall transfer to the levying officer possession of: (1) any documentary

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evidence in Defendants’ position of title to property described in Attachment “A”; and

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(2) the property in Defendants’ possession, as described in Attachment “A”.

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IT IS SO ORDERED.

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Dated: June 6, 2016

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Troy L. Nunley
United States District Judge

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According to Plaintiffs, this amount represents a portion of funds provided by Plaintiffs to CC Myers Inc.,
which CC Myers Inc. used to pay suppliers and subcontractors on specific joint venture bonded projects as of March
31, 2015. (ECF No. 7-4 at 6.)

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