2

3

UNITED STATES DISTRICT COURT

4

FOR THE EASTERN DISTRICT OF CALIFORNIA

5

6 GREAT AMERICAN INSURANCE 1:19-cv-00414-LJO-EPG COMPANY, an Ohio corporation, 7 REQUEST FOR SUPPLEMENTAL Plaintiff, BRIEFING RE MOTION FOR RIGHT 8 TO ATTACH ORDER AND ORDER v. FOR ISSUANCE OF WRIT OF 9 ATTACHMENT (ECF NO. 8) BENJAMIN EDWARD CASSINETTO, an 10 individual,

11 Defendant.

12

13 Great American Insurance Company (“GAIC” or “Plaintiff”) filed a breach of contract action in

14 this Court on March 29, 2019, alleging that Benjamin E. Cassinetto (“Defendant”) breached an

15 indemnity agreement Defendant signed in consideration of GAIC’s issuance of a surety Executor’s bond

16 to Defendant in the amount of $1,020,000.00. ECF No. 1 at ¶¶ 5-8. Defendant required the bond as part

17 of his service as the executor of a large estate in Tuolumne County, California. See id. The Complaint

18 alleges that various legal judgments that exceed the amount of the bond have been entered against

19 Defendant in an underlying state court dispute over that estate (“Estate Action”). Id. at ¶ 8. The

20 Complaint further alleges that Defendant has failed to indemnify GAIC as promised in the indemnity

21 agreement. Id. at ¶ 10. The Complaint invokes the diversity jurisdiction of this Court. Id. at ¶ 3. The case

22 is still in its early stages. Judgment has yet to be entered.

23 Before the Court for decision is GAIC’s motion for a right to attach order and order for issuance

24 of writ of attachment pursuant to California’s prejudgment attachment statutory scheme, set forth at

25 2 provides for prejudgment attachment and other prejudgment remedies. A United States district court,

3 addressing a motion for prejudgment attachment in a diversity action, generally applies the law of the

4 state in which the district court sits. See Fed. R. Civ. P. 64; Granny Goose Foods, Inc. v. Brotherhood of

5 Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 436-437 (1974); United States v. Van

6 Cauwenberghe, 934 F.2d 1048, 1063-64, n. 13 (9th Cir. 1991).

7 Generally, a prejudgment writ of attachment may be issued to secure the amount of the claimed

8 indebtedness, as well as the estimated costs and allowable attorney’s fees. Cal. Code Civ. Proc.

9 § 482.110(b). The burden is on the moving party to establish entitlement to a writ of attachment. Loeb

10 and Loeb v. Beverly Glen Music, Inc., 166 Cal. App. 3d 1110, 1116 (1985). Pursuant to California law,

11 an attachment may be issued “in an action on a claim or claims for money, each of which is based upon

12 a contract, express or implied, where the total amount of the claim or claims is a fixed or readily

13 ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's

14 fees.” Cal. Civ. Pro. Code § 483.010(a). Critically, however, if an attachment is sought against a

15 defendant who is a “natural person,” as opposed to a corporation or other corporate form,” the claim

16 must arise “out of the conduct by the defendant of a trade, business, or profession.” Cal. Code Civ. Proc.

17 § 483.010(c)(emphasis added); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, 197 Cal. App. 3d

18 1, 4 (1987). “What constitutes a ‘trade, business or profession’ has yet to be definitively construed.”

19 Douglas, 2010 WL 1734903, at *2. Generally, however, it means an activity carried on “for the purpose

20 of livelihood or profit on a continuing basis.” Nakasone v. Randall, 129 Cal. App. 3d 757, 764 (1982)

21 (emphasis added).

22 Here, the Court’s review of the record does not reveal any obvious connection between

23 Defendant’s conduct as the Executor and his engagement in a trade, business or profession. To the

24 contrary, there is information in the record that suggests Defendant was merely a relative of the decedent

25 in the underling estate dispute. ECF No. 8-3 at 35 of 62. While it appears to be undisputed in the 2 regularly engaged in estate planning. Id. at 51 of 62 (indicating that Defendant conceded he did not have

3 an attorney review the will he drafted).

4 Accordingly, on or before October 1, 2019, Plaintiffs are instructed to file a supplemental brief

5 and/or declaration directing the Court’s attention to information in the record or supplementing the

6 record with information demonstrating satisfaction of the “trade, business or profession” requirement.

7

8 IT IS SO ORDERED.

9 Dated: September 24, 2019 /s/ Lawrence J. O’Neill _____

UNITED STATES CHIEF DISTRICT JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25