North Hollywood Marble Co. v. Superior Court

This proceeding in mandate presents a question of statutory construction as to whether section 489.220 of the Code of Civil Procedure allows or forbids a trial court, hearing a defendant’s motion to increase the amount of an attachment undertaking, to consider the probability that the plaintiff will not prevail in the action. Specifically, the question is whether the term “probable recovery for wrongful attachment” is intended to mean: (1) the total damages defendant will probably sustain presuming that the attachment issued on a meritless action or (2) that the trial court has discretion to consider the probability that the plaintiff will prevail in the action and to adjust the amount of the total expected damages to defendant according to that probability factor.

The facts are not in material dispute.

Plaintiff, Globe Marble and Tile, Inc., sues defendant, North Hollywood Marble Co., Inc., for breach of contract, account stated, and open book account for $272,938 allegedly owed by defendant for marble and granite supplies defendant ordered and received from plaintiff on an intermittent basis. Defendant filed an answer to the verified complaint denying that a balance…