Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County., No. RIC480752, Michael B. Donner, Judge.
Jay R. Stein for Defendants, Cross-complainants and Appellants.
Reid & Hellyer and Michael G. Kerbs for Plaintiffs, Cross-defendants and Respondents.
OPINION
MILLER, J.
Barbara Feinstein, Mervin Feinstein, Janet Sandquist, and Allan Sandquist (collectively referred to as “the Feinsteins”) sued Dwight Chrismer, Suzanne Chrismer, Ronald Stearns, Alicia Stearns, and SoCal Executives, Inc. (collectively referred to as “the Chrismers”). The Feinsteins made nine claims against the Chrismers, which included claims for breach of contract, breach of a promissory note, and fraud. The trial court granted the Feinsteins’s writ of attachment against the Chrismers. The Chrismers moved the trial court to vacate, discharge, and/or quash the writ of attachment (the motion to discharge). The trial court denied the motion to discharge.
Attachment is a prejudgment, provisional remedy which allows a creditor who has established a prima facie claim to have a debtor’s assets seized and held until final adjudication at trial. (Lorber Industries v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535; Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476 (Kemp).)
The Chrismers contend the trial court erred by denying their motion to discharge the writ because (1) the trial court incorrectly found that the “improper and irregular” standard for discharging writs of attachment was not applicable; (2) the trial court incorrectly concluded that the filing of an answer and/or cross-complaint is not a mandatory condition precedent for determining offsets; (3) the trial court applied an incorrect definition of the term “offset”; (4) the trial court incorrectly found that the Feinsteins were not estopped from arguing that the Chrismers’s motion to discharge the writ was merely a repeat of the Chrismers’s opposition to the writ of attachment; (5) the trial court abused its discretion by concluding that a motion to vacate a writ is subject to Code of Civil Procedure section 1008, subdivision (a); (6) the trial court abused its discretion by finding that there was no basis for the requested offsets because the Feinsteins’s alleged damages are not supported by sufficient evidence; (7) the trial court failed to exercise its inherent authority to reconsider its decision to grant the writ of attachment following the disqualification of the Feinsteins’s trial attorney; and (8) the trial court’s cumulative errors denied the Chrismers due process. We affirm the judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
In March 2001, Barbara Feinstein and Janet Sandquist owned a Realty Executives International, Inc. franchise, in Riverside. The Feinsteins’s franchise was known as Pacific Executives, Inc. On or about August 1, 2005, Dwight Chrismer and Ronald Stearns (Chrismer and Stearns) bought the franchise from Barbara Feinstein and Janet Sandquist. The Chrismers gave the Feinsteins $490,000 in the form of a cashier’s check, and a promissory note for $1,500,000. On June 1, 2006, Chrismer and Stearns renewed the franchise agreement with Realty Executives International, for the Riverside area.
On September 29, 2006, the California Department of Real Estate (the Department) filed an accusation against Pacific Executives, Barbara Feinstein and Linda Tucker. The accusation alleged that Pacific Executives, Barbara Feinstein and Linda Tucker (1) received undisclosed compensation through an earning credit arrangement with Union Bank; (2) failed to maintain accurate records of trust funds; (3) permitted unlicensed and unbounded individuals to be signatories on trust accounts; (4) used the fictitious name of “Mission Escrow” to conduct licensed activities without holding a license bearing the name “Mission Escrow”; and (5) failed to disclose Pacific Executive’s financial interest and ownership in Mission Escrow to all parties. In the accusation, the Department asserted that the foregoing violations constituted cause for “the suspension or revocation of the real estate license and license rights” of Pacific Executives, Barbara Feinstein and Linda Tucker.
In February 2007, Chrismer and Stearns changed the name of Pacific Executives to SoCal Executives, and transferred the assets of Pacific Executives to SoCal Executives.
On September 18, 2007, the Feinsteins filed the complaint against the Chrismers. The Feinsteins alleged that the Chrismers (1) obtained money intended for the Feinsteins and withheld business records reflecting such actions; (2) breached the promissory note by not making payments and by transferring the assets of Pacific Executives to SoCal Executives; (3) breached the covenant of good faith and fair dealing by transferring Pacific Executives’ assets to SoCal Executives; (4) committed fraud; (5) improperly converted Pacific Executives’ money, in the approximate amount of $1,900,000 to SoCal Executives’ accounts; (6) fraudulently conveyed Pacific Executives’ assets to SoCal Executives, because the promissory note was secured by the Chrismers’s stock in Pacific Executives and a lien on Pacific Executives’ accounts receivable—the Feinsteins alleged that the security was rendered valueless after Pacific Executive’s assets were transferred to SoCal Executives. The Feinsteins sought a variety of damage awards, including an award in excess of $2,000,000. Attorney John Boyd represented the Feinsteins and filed the complaint on their behalf.
On September 26, 2007, First Bank informed Chrismer and Stearns that it could not provide financing to them due to the Chrismers’s personal financial history and Pacific Executives financial history. First Bank found that the individuals and business did not generate sufficient cash flow to meet the bank’s debt servicing requirements. Chino Commercial bank also denied a loan application from Chrismer and Stearns.
On September 28, 2007, Barbara Feinstein and Janet Sandquist filed an unlawful detainer action against Pacific Executives and SoCal Executives, for failure to pay past-due rent in the amount of $376,194. Boyd filed the unlawful detainer complaint on behalf of Barbara Feinstein and Janet Sandquist.
On October 19, 2007, Realty Executives sent letters to Dwight Chrismer, informing him that Realty Executives planned to terminate the franchise agreements for (1) the Rancho Cucamonga area, due to Chrismer’s failure to pay $31,500 in franchise fees; (2) the Redlands area, due to Doug Chrismer’s failure to pay $11,724 in monthly franchise fees; and (3) the Hesperia area, due to Chrismer’s failure to pay $11,724 in franchise fees
On October 22, 2007, counsel for Pacific Executives agreed with the Department to voluntarily surrender Pacific Executives’ real estate broker license, and the Department accepted the surrender.
On September 27, 2007, the Feinsteins petitioned for a writ of attachment against the Chrismers. The Feinsteins alleged that $1,302,784 was still owed on the Chrismers’s promissory note, and that, with interest, the Chrismers owed a total of $1,352,207. The Feinsteins sought to attach two real properties located in Rancho Cucamonga and another real property located in Fontana. The Feinsteins asserted that the writ of attachment was necessary because the Chrismers’s debt was unsecured.
The Chrismers opposed the writ petition. The Chrismers contended that the Feinsteins sold them a “floundering” franchise, and that the Feinsteins intentionally withheld and/or misrepresented material information that directly affected the value of the franchise. The Chrismers argued that the trial court should not grant the writ of attachment because it was not likely that the Feinsteins would prevail on their breach of contract claim, and because the amount of the Chrismers’s debt was not fixed or readily ascertainable. Further, the Chrismers alleged that the writ should not be granted because the Feinsteins had an ulterior motive in seeking the writ, which was to “overwhelm” the ability of the Chrismers to defend against the lawsuit of the Feinsteins. Finally, the Chrismers asserted that the writ petition should be denied because the Feinsteins did not prove that the Chrismers’s debt had become worthless. The Chrismers alleged that the Feinsteins agreed to the transfer of assets from Pacific Executives to SoCal Executives, and therefore they could not claim a devaluation of the debt.
On December 5, 2007, the trial court found that the Chrismers’s debt was commercial and unsecured. Additionally, the trial court found that the value of the debt was fixed and ascertainable. The trial court granted the writs of attachment. The writs issued on January 2, 2008, and January 4, 2008.
On March 12, 2008, the Chrismers moved to disqualify Boyd from representing the Feinsteins. The Chrismers argued that Boyd should be disqualified because he represented Pacific Executives, and during the course of his representation, Boyd obtained confidential information regarding the business activities of the Chrismers. The Chrismers alleged that the confidential information obtained by Boyd was being used to build the Feinsteins’s case against the Chrismers. Further, the Chrismers asserted that Boyd did not obtain a conflict waiver from Pacific Executives and the Feinsteins, or Pacific Executives and the Chrismers. The trial court granted the Chrismers’s motion to disqualify Boyd.
On June 20, 2008, the Chrismers filed a cross-complaint against the Feinsteins. In the cross-complaint, the Chrismers sought, in part, an award of damages in excess of $3,000,000.
On July 17, 2008, the Chrismers moved the trial court to vacate, discharge, or quash the writs of attachment. The Chrismers argued that the writs should be discharged because they were “improperly or irregularly issued.” Specifically, the Chrismers asserted that the writs should be discharged because, (1) the Feinsteins’s failure to disclose the pending action by the Department essentially forced the Chrismers to establish SoCal Executives as an alternate business, and therefore, because the Feinsteins failed to disclose the pending action when selling the franchise, the Feinsteins were estopped from arguing that the Chrismers’s security was worthless; (2) the Feinsteins did not establish the probable validity of their claims; (3) the Feinsteins sought the writ for an ulterior purpose; (4) Boyd’s conflict of interest tainted the writ proceedings; and (5) the Chrismers filed a cross-complaint seeking damages in excess of $3,000,000, which, when offset from the Feinsteins’s $2,000,000 damages claim, reduced the Feinsteins’s damages to zero.
At a hearing on August 25, 2008, the trial court stated that its tentative ruling was to deny the Chrismers’s motion to discharge the writs. The trial court found that the Chrismers’s motion to vacate included the same arguments that had been ruled upon at the hearing on the writ petition. Additionally, the trial court concluded that the Chrismers’s seven-month delay in seeking to vacate the writ was too long, because the writ should have been challenged earlier if it were improperly issued. Finally, the court found that the evidence submitted to prove the Chrismers’s alleged $3,000,000 damage claim was insufficient, because it consisted only of the unsupported declaration of Dwight Chrismer; therefore, the court concluded that there would be no basis for offsetting the amount of the writ.
In response to the trial court’s tentative ruling, trial counsel for the Chrismers asserted that arguments at the hearing on the writ petition were not complete because the Chrismers had not yet filed their cross-complaint, and therefore, could not have argued for an offset at the prior hearing. The Chrismers argued that the issue of offsets had only recently matured, due to the filing of the cross-complaint. The Chrismers asserted that they could not have filed the cross-complaint sooner, because they had to wait for their demurrer to be heard. Further, the Chrismers argued that the trial court improperly applied the 10-day filing deadline for a motion to reconsider (§ 1008, subd. (a)), rather than the “reasonable” time filing deadline associated with section 1008, subdivision (b). Additionally, trial counsel for the Chrismers informed the trial court that he believed the court “misconstrued the attachment statute.” In response, the trial court asked the Chrismers’s trial attorney to submit a supplemental brief regarding how the court misconstrued the attachment statute; the court also gave the Feinsteins’s attorney an opportunity to file a supplemental opposition brief.
In the Chrismers’s supplemental brief to their motion to discharge, they argued that the trial court (1) incorrectly concluded that the “improper and irregular” standard did not apply to the proceeding on the motion to discharge the writs; (2) incorrectly ruled that section 1008, subdivision (a), did apply to the proceeding; (3) misinterpreted section 483.015, subdivision (b)(2), which concerns offsets; and (4) denied the Chrismers due process.
On October 31, 2008, the trial court held a hearing on the supplemental briefs. The trial court found that both parties fully argued their points at the hearing on the writ petition, and that the Chrismers’s motion to discharge the writs was repetitive of their arguments opposing the writ petition, and therefore, the arguments had already been ruled upon. The trial court informed the Chrismers that the appropriate remedy would have been to file an appeal, rather than a motion to discharge the writ. Further, the trial court found that the lack of a cross-complaint at the time of the hearing on the writ petition was not detrimental to the Chrismers, because they could have argued for an offset despite the cross-complaint not having been filed. Finally, the trial court concluded that the Chrismers “failed to provide any competent facts establishing damages worth $3[,000,000], or any other amount. Therefore, the [c]ourt [found]... no competent evidence to reduce the amount of the writ.” The trial court denied the motion to discharge.
DISCUSSION
A. “Improper and Irregular” Standard
The Chrismers contend the trial court erred by concluding that the “improper and irregular” standard did not apply to the motion to discharge the writs of attachment. We disagree.
“California’s Attachment Law [§ 482.010 et seq.] is purely statutory and is strictly construed.” (Kemp, supra, 146 Cal.App.4th at p. 1476, fn. omitted.) Statutory law does not allow for a writ of attachment, which was issued following a noticed hearing, to be discharged because the writ was “improperly or irregularly” issued. Therefore, we conclude that the trial court did not err by not applying the “improper or irregular” standard, because the standard is not included in California statutory law, and California’s attachment law is purely statutory and strictly construed.
The “improper and irregular” standard was set forth in former section 556, which was repealed in 1977. (See Fairbanks, Morse & Co. v. Getchell (1910) 13 Cal.App. 458, 460, citing section 556; Stats. 1974, ch. 1516, § 12, p. 3377; Stats. 1975, ch. 200, §§ 1, 2, pp. 573-574.) The Chrismers argue that the “improper and irregular” standard is still applicable to the current statute (§ 484.060), because the reviewing court in Peck v. Hagen (1989) 215 Cal.App.3d 602, wrote: “While an attachment may be discharged if it is improperly or irregularly issued [citations], these are not the sole grounds for discharging the attachment.” (Id. at pp. 608-609.) The Peck court did not cite to any statutory authority for the proposition that the improper and irregular standard is applicable to the current statute. (Ibid.)
The Chrismers’s argument is not persuasive because it ignores the rule that California’s Attachment Law is purely statutory. In other words, we must rely on statutes, not cases, when determining the grounds for discharging a writ of attachment. (Lewis v. Steifel (1950) 98 Cal.App.2d 648, 651 [“The courts may not add to the statutory grounds for the discharge of attachments.”].) Accordingly, because the “improper and irregular” standard is no longer included in the statutory scheme related to writs of attachment, we conclude that the trial court did not err by not applying the “improper and irregular” standard.
At oral argument, the Chrismers acknowledged that the discharging of a writ is a statutory remedy. Nevertheless, the Chrismers argued that this court should not follow a “strict construction” of the statute, because a strict interpretation would effectively cause this court to condone the alleged wrong that has been done to the Chrismers. We do not find this argument persuasive because, as noted ante, the discharging of a writ is a statutory remedy, and therefore, we cannot provide relief that is not authorized by the statute, i.e., we are bound to strictly construe the statute.
B. Offset Procedure
The Chrismers contend the trial court erred by concluding that the filing of an answer and/or cross-complaint is not a condition precedent to determining whether a defendant is entitled to an offset. We disagree.
The trial court allegedly made an error in a legal ruling, i.e., it interpreted statute based upon undisputed facts. Accordingly, we apply the independent standard of review. (321 Henderson Receivables Origination LLC v. Siotec (2009) 173 Cal.App.4th 1059, 1070.)
Section 483.015, subdivision (b), permits the amount of potential damages being secured by the writ of attachment to be reduced, i.e., offset, by (1) the amount of debt that the defendant claims the plaintiff owes the defendant, which has been claimed in a cross-complaint, and/or (2) the amount of any claim the defendant has asserted as an affirmative defense in his answer, if the defendant’s claim is one upon which an attachment could be issued.
At the hearing on the motion to discharge, the Chrismers argued that the hearing on the writ petition was incomplete because the Chrismers had not yet filed their cross-complaint, and therefore could not argue for the trial court to grant an offset. In response to the Chrismers’s argument, the trial court made the following comments: “I thought [the Chrismers’s argument regarding the cross-complaint] was moving the analysis away from what I saw in the file and moving towards an argument about a lack of a pleading which really didn’t [a]ffect what occurred. And I don’t think your client[s’] rights to present [their] side of the argument were prejudiced in any way by the lack of that cross-complaint. [¶] In other words, you vigorously defended against the writ. [¶] Finally, and as previously stated in my prior hearing, the declaration of Dwight Chrismer... simply, in my opinion, failed to provide any competent facts establishing damages worth $3[,000,000], or any other amount. Therefore, the court finds that there’s no competent evidence to reduce the amount of the writ.”
The trial court’s comments do not reflect a ruling that a cross-complaint and/or answer are not a condition precedent to determining an offset. Rather, the comments reflect that, in this case, the failure to file a cross-complaint or answer prior to the hearing on the writ petition was harmless because (1) the Chrismers presented a sufficient defense at the hearing on the writ petition; (2) the cross-complaint would not have supplemented the argument made at the hearing on the writ petition; and (3) the cross-complaint did not include sufficient facts establishing that the Feinsteins were indebted to the Chrismers. Accordingly, we do not agree with the Chrismers’s contention that the trial court erred by concluding that the filing of an answer and/or cross-complaint is not a condition precedent to determining whether a defendant is entitled to an offset, because the trial court did not make such a ruling.
The Chrismers argue that the trial court erred when it remarked that it could not find any case law specifically requiring that a cross-complaint be filed prior to claiming an offset. In their opening brief, the Chrismers assert that “the facts of this case necessitate and warrant this Court to address this issue as the Attachment Law has not been interpreted as to the application of when and how offsets are... allowed to be asserted beyond the initial opposition to the application for issuance of a writ of attachment.” The Chrismers do not explain what “facts of this case necessitate” this court to address this issue. Therefore, for the reasons set forth ante, we conclude that the trial court did not err.
C. Definition of “Offset”
The Chrismers contend the trial court incorrectly interpreted the term “offset” as requiring that new and different facts be presented before an offset may be granted. Additionally, the Chrismers assert that the trial court erred by not addressing the issue of an offset, because the court concluded that the Chrismers did not present new or different facts. We disagree.
At the second hearing on the motion, the trial court stated, “[A]s previously stated in my prior hearing, the declaration of Dwight Chrismer... simply, in my opinion, failed to provide any competent facts establishing damages worth $3[,000,000], or any other amount. Therefore, the Court finds that there’s no competent evidence to reduce the amount of the writ.” The trial court ruled on the requested offset, and the ruling did not relate to the Chrismers’s alleged failure to present new or different facts. Accordingly, we are not persuaded by the Chrismers’s contention that the trial court erred by not addressing the requested offset, due to an incorrect interpretation of the term.
D. Estoppel
The Chrismers contend the trial court erred by concluding that the Feinsteins were not estopped from arguing that the motion to vacate was repetitive of the Chrismers’s argument opposing the writ petition. The Chrismers assert that the Feinsteins were estopped from making such an argument because, at the hearing on the writ petition, the Feinsteins’s trial counsel agreed that an offset could not be ruled upon until after a cross-complaint and/or answer was filed. We disagree.
“The doctrine of collateral estoppel or issue preclusion is a secondary form of res judicata. [Citation.] It prevents a party who had a full and fair opportunity to litigate a particular issue in a prior proceeding from relitigating it in a subsequent proceeding. [Citation.] ‘A prior determination by a tribunal will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits.’ [Citation.]” (McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, 1144 [Fourth Dist., Div. Two].)
At the hearing on the writ petition, the parties discussed the procedure for offsets. Trial counsel for the Chrismers argued that an offset could not be ruled upon until after a cross-complaint was filed. Trial counsel for the Feinsteins asserted that even if the Chrismers did not file a cross-complaint, it would be appropriate for the Chrismers to “repetition the Court for [a] reduction” in the amount being secured by the writ. The Feinsteins’s trial counsel then began arguing the merits of the writ petition. After the conclusion of arguments on the merits of the writ petition, the trial court said, “The application is granted. The claim is one on which an attachment may issue. The plaintiff has demonstrated the debt is commercial in nature. The debt is unsecured. The property is subject to attachment. The plaintiff has demonstrated the probable validity of the claim. The claim is fixed and ascertainable.”
At the hearing on the writ petition, the trial court did not decide that a cross-complaint is a condition precedent to determining an offset. Accordingly, a final judgment on the merits of the issue was not made. Therefore, the doctrine of collateral estoppel is not applicable.
The Chrismers argue that the Feinsteins were estopped from asserting that the Chrismers were merely repeating their opposition to the writ petition. The Chrismers’s argument is unpersuasive because trial counsel for the Feinsteins asserted that even if the Chrismers did not file a cross-complaint, it would be appropriate for the Chrismers to “repetition the Court for [a] reduction” in the amount being secured by the writ. Therefore, the argument that the Chrismers attribute to the Feinsteins—that a cross-complaint and/or answer had to be filed before analyzing a claim for an offset—is not reflected in the record. In sum, the trial court did not err by not applying the doctrine of collateral estoppel.
E. Section 1008, Subdivision (a)
The Chrismers contend the trial court erred by treating the motion to discharge as a motion for reconsideration (§ 1008, subd. (a)), rather than as a renewal of a motion (§ 1008, subd. (b)). We disagree.
Section 1008, provides:
“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.
“(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” (Italics added.)
The trial court properly treated the motion to discharge the writ as a motion for reconsideration (§ 1008, subd. (a)) because: (1) the writ was granted, without conditions, and (2) the Chrismers were asking the trial court to revoke the order granting the writ. The motion to discharge does not fit within the criteria for renewal of a motion (§ 1008, subd. (b)) because: (1) the Feinsteins, not the Chrismers, were the party who originally made an application for the writ, and (2) the court’s order was not conditionally granted. In sum, the trial court did not err.
The Chrismers contend the trial court erred because the 10-day deadline for a motion for reconsideration (§ 1008, subd. (a)) had passed by the time the Chrismers filed the motion to discharge. Further, the Chrismers assert that the new facts alleged in the motion to discharge occurred after the 10-day deadline had expired, and therefore, the Chrismers were “statutorily unable to seek” relief from the writ. Therefore, the Chrismers argue that the trial court should have exercised its inherent authority to reconsider its prior ruling on the writ petition. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 [court’s authority].) The Chrismers’s argument is unpersuasive because the trial court did not deny the motion to discharge based upon a failure to file the motion within 10 days of the order granting the writ; rather, the trial court denied the motion to discharge because (1) both parties “had their day in court” at the hearing on the writ petition; (2) “the appropriate remedy would have been to file an appeal”; (3) the lack of a cross-complaint did not affect the Chrismers’s ability to argue against the writ petition; and (4) the declaration of Dwight Chrismer “failed to provide any competent facts establishing damages worth $3[,000,000], or any other amount,” and therefore, there was “no competent evidence to reduce the amount of the writ.”
F. Evidence of Offset Costs
The Chrismers contend the trial court erred by concluding that there was no competent evidence to support the Chrismers’s claim that the amount secured by the writ should be offset. We disagree.
If an offset will be based on an amount of indebtedness alleged in a cross-complaint, then the offset claim must be “one upon which an attachment could be issued.” (§ 483.015, subd. (b)(2).) One requirement of obtaining an attachment order is establishing “the probable validity of the claim upon which the attachment is based.” (§ 484.090, subd. (a)(2).) “A claim has ‘probable validity’ where it is more likely than not that the [cross-plaintiff] will obtain a judgment against the [cross-defendant] on that claim.” (§ 481.190.) In order to prove the probable validity of a claim, the application for an attachment order must “be supported by an affidavit showing that the [cross-plaintiff] on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.” (§ 484.030.) An affidavit must set forth facts “with particularity.” (§ 482.040.) Further, “[e]xcept where matters are specifically permitted... to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein. As to matters shown by information and belief, the affidavit shall state the facts on which the affiant’s belief is based, showing the nature of his information and the reliability of his informant.” (§ 482.040; see Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79-80.) “A verified complaint that satisfies the requirements of this section may be used in lieu of or in addition to an affidavit.” (§ 482.040.)
In two separate verifications attached to the cross-complaint, Chrismer and Stearns declared that they were “informed and believe[d] and on that ground allege that the matters stated in [the cross-complaint] are true.” In the cross-complaint, the Chrismers alleged that as result of the Feinsteins’s “material breaches of the Purchase Agreements, [the Chrismers] have been damaged in an amount in excess of $3,000,000 which amount will be proven at trial.” Further, the Chrismers alleged, “As a proximate result of the fraudulent conduct of [the Feinsteins], as [alleged in the cross-complaint, the Chrismers’s] purchase of Pacific [Executives] has been rendered worthless as they have lost the franchise that was owned by Pacific, had to change operating companies and ultimately [were] forced out of business by the conduct of the [Feinsteins]. [The Chrismers] have been generally damaged in an amount believed to be in excess of $3,000,000.” In their cross-complaint, the Chrismers continually repeat that they have “been damaged in an amount exceeding $3,000,000, to be proven at trial.”
The Chrismers do not explain what evidence supports a conclusion that they were damaged “in an amount exceeding $3,000,000.” The verifications do not show the nature of the Chrismers’s or Stearns’s information and/or the reliability of their informant(s). Accordingly, the trial court did not err by concluding that (1) the Chrismers “failed to provide any competent facts establishing damages worth $3[,000,000], or any other amount,” and (2) there was “no competent evidence to reduce the amount of the writ.”
At oral argument, the Chrismers faulted the trial court and this court for not considering the supplemental declaration of Dwight Chrismer when analyzing the evidence offered in support of an offset. (§ 484.090, subd. (d).) Dwight Chrismer’s supplemental declaration repeats the assertions from the declaration discussed ante. For example, Dwight Chrismer claims that $2,459,772.97 of debt and damages have been incurred as a result of purchasing Pacific Executives. A list of expenses, which was prepared by Dwight Chrismer, is attached to the supplemental declaration. Dwight Chrismer declared that he possessed “documents indicat[ing] the debts and payments” included on the list of expenses. Again, the declaration does not state the facts on which the declarant’s belief is based, showing the nature of his information and the reliability of his informant. Dwight Chrismer has only declared that he has some unknown documents that “indicate” the amount of damages incurred. Consequently, we are not persuaded that the addition of Dwight Chrismer’s supplemental declaration creates competent evidence for reducing the amount of the writ.
G. Prior Trial Attorney
The Chrismers contend the trial court erred by not exercising its inherent authority to reconsider its prior order granting the Feinsteins’s writ of attachment. The Chrismers assert that the trial court should have reconsidered its order because Boyd’s conflict of interest allegedly tainted the writ petition proceedings.
The trial court disqualified Boyd on April 18, 2008. On July 17, 2008, the Chrismers moved the trial court to discharge the writs of attachment. In the motion to discharge, the Chrismers argued that the trial court should discharge the writs because Boyd’s conflict of interest tainted the writ proceedings. Consequently, because the Chrismers raised the argument in their motion to discharge, and the trial court ruled on the merits of the motion, we do not understand why the Chrismers now assert that the court should have exercised its authority to raise the issue on its own motion. The Chrismers do not explain how a different result would have been achieved if the trial court had raised the issue, rather than the Chrismers. Accordingly, we find the Chrismers’s argument unpersuasive.
H. Cumulative Effect
The Chrismers contend they were denied due process as result of the cumulative effect of (1) the trial court not applying the “improper and irregular” standard; (2) the allegedly tainted writ proceedings, due to Boyd’s conflict of interest; and (3) the trial court’s refusal to follow the statutory procedures related to offsets (§ 483.015, subds. (b)(2) & (3)).
In their opening brief, the Chrismers cite the trial court’s “refusal to follow the statutory requirements of Code of Civil Procedure sections 483.015(d)(2) and (3).” We infer that the Chrismers intended to cite section 483.015, subdivisions (b)(2) and (3), because section 483.015 does not include a subdivision (d).
First, we have concluded ante, that the trial court was correct in not applying the “improper and irregular” standard. Second, it is unclear how the alleged taint of Boyd’s conflict of interest denied the Chrismers due process, since the motion to discharge was denied based upon (1) the Chrismers already having argued their case at the hearing on the writ petition, and (2) the Chrismers failure to present any competent evidence that they sustained $3,000,000 in damages. In other words, it was the Chrismers’s failures, not the alleged taint created by Boyd’s involvement, which resulted in the motion to discharge being denied. Finally, the trial court did apply the statutory procedures related to offsets. (§ 483.015, subds. (b)(2) & (3).) The trial court’s adherence to the statutory procedures is demonstrated in its finding that the offset could not be granted due to the Chrismers’s failure to present any competent facts that they sustained $3,000,000 in damages—as noted ante, the statutory scheme requires that an offset, based upon a claim in a cross-complaint, be one upon which an attachment could be issued, i.e., each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated. In sum, we conclude that the Chrismers were not denied due process.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: McKINSTER, Acting P. J., GAUT, J.