Filed 10/12/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JULIE PARK et al.,

Plaintiffs, Cross-defendants 

and Respondents,

v.

NMSI, INC.,

Defendant, Crosscomplainant and Appellant.

 B323063

 (Los Angeles County

 Super. Ct. No. 

 21STCV42599)

APPEAL from an order of the Superior Court of 

Los Angeles County, Mary H. Strobel, Judge. Affirmed.

Lee, Hong, Degerman, Kang & Waimey, Eric D. Olson and 

Soojin Youn for Defendant, Cross-complainant and Appellant.

Kingfisher Law, Nithin Kumar; Cohen Williams, Marc S. 

Williams, Alyssa D. Bell and Martin J. Christopher Santos for

Plaintiffs, Cross-defendants and Respondents.

_________________
2

At the request of plaintiffs and cross-defendants Julie Park 

and Danny Chung, the trial court issued prejudgment right to 

attach orders (RTAO) in the aggregate amount of $7,192,607.16

against their former employer, NMSI, Inc. Appealing the orders

as authorized by Code of Civil Procedure section 904.1, 

subdivision (a)(5),1 NMSI contends Park and Chung failed to 

establish the probable validity of their claims because, contrary 

to the allegations in their first amended complaint, the 

agreements underlying their breach of contract causes of action 

had been modified through an exchange of emails, as well as by 

the parties’ subsequent conduct. NMSI also contends the 

amounts to be attached were not readily ascertainable and the 

court erred in considering documents incorporated by reference 

into the applications for a writ of attachment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Park’s and Chung’s Revenue-sharing Agreements

NMSI is a residential mortgage lender licensed in 26 states 

with six regional fulfillment centers in this country and a foreign 

branch in Korea. NMSI funded loans exceeding $5.5 billion in

2020 and $5.6 billion in 2021.2

1 Statutory references are to this code unless otherwise 

stated.

2 “A real property loan generally involves two documents, a 

promissory note and a security instrument. The security 

instrument secures the promissory note. This instrument 

‘entitles the lender to reach some asset of the debtor if the note is 

not paid. In California, the security instrument is most 

commonly a deed of trust (with the debtor and creditor known as 

trustor and beneficiary and a neutral third party known as 

trustee). The security instrument may also be a mortgage (with 

mortgagor and mortgagee, as participants). In either case, the 
3

Park and Chung were both employed in NMSI’s Brea office. 

Chung was the company’s chief marketing officer; Park was the 

executive vice president. In January 2019 Chung and Park 

entered into almost identical, but separate, branch manager/sales 

manager employment agreements with NMSI (2019 agreements). 

Pursuant to their 2019 agreements, Park and Chung were both 

responsible for the operation of the branch, including hiring and 

paying operating expenses. In consideration Park and Chung

were jointly entitled to 75 percent of the net revenue generated 

by loans originated by their branch office provided the net 

revenue of the office was greater than $90,000. Under the terms 

of the 2019 agreements, revenue included loan origination fees, 

discount points, rebates, processing fees, any other fees charged 

to the borrower at the time of closing, branch margin built-in on 

top of NMSI’s wholesale rate sheet, net premiums gained through 

the sale of branch loans in the secondary market and any net 

revenue gained on the lender’s fee. Expenses included rent, 

utilities, taxes and payroll. 

The 2019 agreements were fully integrated and provided 

they could be modified only by the written agreement of the 

parties. Section 24.5 of each agreement stated, “This agreement 

constitutes the entire understanding between the parties hereto 

. . . and shall not be terminated . . . or amended, except in a 

writing executed by the parties hereto.” Section 24.13 reiterated 

that “[t]his agreement may be modified only by a further writing 

that is duly executed by both parties.” 

creditor is said to have a lien on the property given as security, 

which is also referred to as collateral.’” (Alliance Mortgage Co. v.

Rothwell (1995) 10 Cal.4th 1226, 1235.)
4

2. The October 2019 Proposed Modification

In September 2019 Jae Chong, NMSI’s chief executive 

officer, first proposed a change to the compensation structure in 

the 2019 agreements. According to Chong, Chung orally agreed 

to the terms of the modifications, which were then confirmed in 

an email Chong sent Chung on October 22, 2019. The subject 

line of the email (in Korean) stated, “[R]e: what we discussed 

yesterday.” The body of the email purported to summarize the 

terms of the modified agreement and, in particular, that the 

share of branch net revenue paid to Chung and Park would be

reduced from 75 percent to a range between 25 percent and 

40 percent based on what was described as a sliding scale 

proportionate revenue sharing model. On October 23, 2019 

Chung emailed (also in Korean) stating, “All agreed. What you 

said about the profit sharing starting in January next year 

means that the loan purchase date in the P&L [profit and loss] 

will be January, right?” 

Beginning in January 2020 NMSI paid Park and Chung 

according to the October 2019 sliding scale model. Chung

promptly notified NMSI’s accounting department that neither he 

nor Park had agreed to modify their compensation structure. 

Nevertheless, the reduced compensation continued; and, as Park 

and Chung have alleged in this lawsuit, in August 2020 NMSI 

reduced their compensation even further by refusing to share 

revenues generated by loan servicing and the sales of servicing 

rights. 

On January 14, 2021 Park and Chung were advised that 

NMSI was terminating their employment. Thereafter, NMSI 

allegedly began withholding commissions owed to two other 

NMSI loan originators (Mike Koh and Ryan Kim) “for no 
5

apparent reason other than their long-time association” with 

Park and Chung. 

3. The Operative First Amended Complaint

Park, Chung, Koh and Kim sued NMSI and Chong on 

November 18, 2021 and filed a verified amended complaint on 

January 7, 2022 alleging causes of action for breach of contract, 

failure to pay wages, breach of fiduciary duty, accounting and 

violation of California’s unfair competition law (Bus. & Prof. 

Code, § 17200 et seq.). As to Park and Chung, the amended 

complaint alleged, “[I]f the proper 75% split had been applied to 

the net revenue amounts calculated by NMSI for 2020 and 2021, 

[they] would have received over $9 million additional dollars. . . . 

Of that amount, $7.5 million should have been paid . . . in 2020, 

and $1.8 million should have been paid in 2021.” The amended 

complaint attached as exhibits the 2019 agreements. 

4. The Right To Attach Order and Writs of Attachment

On February 2, 2022 Park filed an ex parte application for 

writ of attachment. Park’s application included a declaration 

describing NMSI’s breach of the 2019 revenue sharing 

agreements and asserted that she and Chung were owed past 

compensation totaling $9,624,329.39. The declaration detailed 

Park’s calculation of the amount due and was supported by what 

purported to be NMSI’s profit and loss statements for 2019, 2020 

and the first half of 2021. The trial court, finding no exigency,

denied the ex parte application without prejudice to filing a 

regularly noticed motion.

3

3 Shortly after the trial court denied the ex parte application 

for a writ of attachment, NMSI filed a cross-complaint against 

Park and Chung for breach of fiduciary duty, aiding and abetting 
6

On May 27, 2022 Park and Chung filed new applications

for an RTAO, seeking to attach $9,624,329.39 (divided equally 

between Park and Chung) on the ground they had established the 

probable validity of their breach of contract claims. They argued, 

“NMSI breached Plaintiffs’ branch manager agreements by 

failing to apply the proper compensation formula to the net 

revenues generated in 2020 and 2021, as well as by failing to pay 

any share of other revenues that were excluded from the profit[ ] 

and loss statements.” 

The application was supported by declarations from Park 

and Chung. In his declaration Chung denied he had been acting 

on behalf of Park when discussing the proposed October 2019 

modification, and insisted it was his understanding that “NMSI 

would be sending written agreements containing the exact details 

of the proposed modification, at which point Ms. Park and I 

would be able to negotiate further before signing the agreements. 

I never intended to waive the requirement in my branch manager 

agreement that any modifications to the agreed-upon terms be 

made only pursuant to an executed written agreement, nor did I 

ever sign anything in the writing modifying my branch manager 

agreement.” Park’s declaration similarly denied modification and 

asserted she had “repeatedly informed Jae Chong that Mr. Chung 

was not authorized to negotiate on my behalf.” Park also 

reaffirmed her February 2, 2022 declaration, submitted with the 

ex parte application, which “remains true and accurate and is 

incorporated by reference as if set forth herein.” 

NMSI opposed the motion, arguing Park and Chung “have 

not and cannot establish the ‘probable validity’ of their claims or 

breach of fiduciary duty, breach of contract and unfair 

competition. 
7

that their damages are in a ‘readily ascertainable’ amount 

because the very formula for calculating those purported 

damages is the central issue in dispute in this case. Moreover, 

Plaintiffs claim for themselves a purported right to attach over 

$9.6 million as purported damages that differs from the amount 

of damages claimed in the verified complaint, and which were 

calculated by combining the claims of all plaintiffs,” including 

Koh and Kim who were not parties to the motion for writ of 

attachment. Finally, Chong contended in his declaration that his 

email exchange with Chung confirmed they had agreed to the 

modified revenue sharing, a modification that was also confirmed 

by Park’s and Chung’s subsequent conduct. Chong also asserted 

“it was common practice for Chung to communicate . . . on both 

his and Park’s behalf.” 

The trial court on July 26, 2022 found Park and Chung had 

established the probable validity of their breach of contract 

claims and issued right to attach orders and authorized writs of 

attachment on behalf of Park and Chung for $3,596,303.58 each 

(a combined total of $7,192,607.16). The court concluded (using 

the probable validity standard) the 2019 agreements had not 

been modified as argued by NSMI, finding that Chung “did not 

insert an electronic signature or other symbol showing intent to 

sign a modified agreement by his email” and, in addition, Chung 

did not have authority to enter into any modification agreement 

on behalf of Park. The court also found the 2019 agreements had 

not been modified by the subsequent conduct of Park and Chung. 

In setting the amount to be attached, the court, after 

concluding there was sufficient evidence NMSI had breached the 

2019 revenue sharing agreement, found that Chung and Park 

had submitted “undisputed evidence that they jointly suffered 
8

damage of $6,681,150.82.” The court noted that NMSI did “not 

provide any responsive declarations about damages or argue that 

Park’s calculations of damages under the profit-sharing plan 

from the January 2019 agreement are inaccurate.” The court 

also found that NMSI had failed to rebut Park and Chung’s claim

an additional $163,688.94 was due for selling mortgage servicing 

rights and $347,767.33 for outstanding branch reserves that were

to be paid within 30 days of termination of the 2019 agreements. 

However, the court agreed a material disputed issue existed 

whether Park and Chung were entitled to compensation for 

servicing one type of loan product (“KVOE loans”) (75 percent of 

$3,242,296.32) and, on that basis, concluded they had failed to 

show a probable validity of prevailing on that aspect of their 

damage claim.

4 

DISCUSSION

1. Governing Law and Standard of Review

“Attachment is an ancillary or provisional remedy to aid 

the collection of a money demand by seizure of property in 

advance of trial or judgment as security for satisfaction of a 

judgment for the attaching party.” (Burke v. Superior Court

(1969) 71 Cal.2d 276, 279, fn. 3; accord, Rreef America Reit II 

Corp, YYYY v. Samsara Inc. (2023) 91 Cal.App.5th 609, 616-617 

(Rreef America); Kemp Bros. Construction, Inc. v. Titan Electric 

Corp. (2007) 146 Cal.App.4th 1474, 1476.) With exceptions not 

applicable here, “an attachment may be issued only in an action 

on a claim or claims for money, each of which is based upon a 

contract, express or implied, where the total amount of the claim 

4 Park and Chung each posted an undertaking of $10,000, as 

ordered. 
9

or claims is a fixed or readily ascertainable amount.” (§ 483.010.) 

The amount to be secured is “[t]he amount of the defendant’s 

indebtedness claimed by the plaintiff” plus an estimated amount 

for attorney fees and costs authorized by the court. (§§ 483.015, 

subd. (a)(1), (2), 482.110; see Royals v. Lu (2022) 81 Cal.App.5th 

328, 345.) 

“Before an attachment order is issued, the court must find 

all of the following: (1) the claim upon which the attachment is 

based is one upon which an attachment may be issued; (2) the 

applicant has established ‘the probable validity’ of the claim upon 

which the attachment is based; (3) the attachment is not sought 

for a purpose other than the recovery upon which the request for 

attachment is based; and (4) the amount to be secured by the 

attachment is greater than zero. [Citation.] The plaintiff has the 

burden of establishing the probable validity of the claim upon 

which the attachment is based.” (Rreef America, supra, 

91 Cal.App.5th at p. 617; accord, Royals v. Lu, supra, 

81 Cal.App.5th at p. 345; Goldstein v. Barak Construction (2008) 

164 Cal.App.4th 845, 852.) Probable validity means “it is more 

likely than not that the plaintiff will obtain a judgment against 

the defendant on that claim.” (§ 481.190.) 

“‘On appeal from an attachment order, we review the 

record for substantial evidence to support the trial court’s factual 

findings.’ [Citation.] ‘We will not disturb a determination upon 

controverted facts unless no substantial evidence supports the 

court’s determination.’ [Citation.] However, where there are no 

contested issues of fact, the issue becomes one of law subject to 

de novo review.” (Rreef America, supra, 91 Cal.App.5th at p. 617;

accord, Goldstein v. Barak Construction, supra, 164 Cal.App.4th 

at p. 853; see Santa Clara Waste Water Co. v. Allied World 
10

National Assurance Co. (2017) 18 Cal.App.5th 881, 885 [“[a] trial 

court’s finding on whether a plaintiff established probable 

validity is reviewed for substantial evidence”].) To the extent 

issuance of an RTAO raises questions of statutory interpretation, 

our review is de novo. (See In re Tobacco II Cases (2009) 

46 Cal.4th 298, 311 [questions of statutory interpretation are 

pure matters of law that we review de novo].)

2. Substantial Evidence Supports the Trial Court’s Finding 

of the Probable Validity of Park’s and Chung’s Contract 

Claims

a. The finding the 2019 agreements were not modified 

by the October 2019 email exchange

NMSI contends the trial court misinterpreted the law 

regarding electronic signatures when finding the email exchange 

between Chong and Chung did not effect a modification of the 

2019 agreements. According to NMSI, Chung’s email of 

October 23, 2019, which included “his full name, title, address, 

two phone numbers, email address, and webpage URL,” was all 

that was needed to satisfy the electronic signature requirement of

the Uniform Electronic Transactions Act (UETA) (Civ. Code, 

§ 1633.1 et seq.).

Under the UETA an electronic signature has the same legal 

effect as a handwritten signature. (Civ. Code, § 1633.7, subd. (a) 

[“[a] signature may not be denied legal effect or enforceability 

solely because it is in electronic form”]; Ruiz v. Moss Bros. Auto 

Group, Inc. (2014) 232 Cal.App.4th 836, 843; see Ni v. Slocum

(2011) 196 Cal.App.4th 1636, 1647 [“the Legislature has, through 

these provisions, expressed general approval of the use of 

electronic signatures in commercial and governmental 

transactions”].) But to be effective, an electronic signature must

be “executed or adopted by a person with the intent to sign the 
11

electronic record.” (Civ. Code, § 1633.2, subd. (h).) Thus, 

although Chung’s name was at the bottom of his October 23, 2019

email, more was required to establish he electronically signed the 

email with the intent to modify his (let alone Park’s) revenue 

sharing agreement. (See J.B.B. Investment Partners, Ltd. v. Fair

(2014) 232 Cal.App.4th 974, 988-989 (J.B.B. I) [“[a]ttributing the 

name on an e-mail to a particular person and determining that 

the printed name is ‘[t]he act of [this] person’ is a necessary 

prerequisite but is insufficient, by itself, to establish that it is an 

‘electronic signature’”].)

NMSI’s contention the UETA does not require evidence of

an intent to sign unless the authenticity of an electronic 

signature has been called into question—and that the trial court, 

therefore, erred in finding no modification of the 2019 agreement 

had occurred—finds support in neither statutory language nor 

pertinent case law. 

The UETA only applies “to a transaction between parties 

each of which has agreed to conduct the transaction by electronic 

means. Whether the parties agree to conduct a transaction by 

electronic means is determined from the context and surrounding 

circumstances, including the parties’ conduct.” (Civ. Code, 

§ 1633.5, subd. (b); see J.B.B. I, supra, 232 Cal.App.4th at p. 988 

[“UETA applies, however, only when the parties consent to 

conduct the transaction by electronic means”].) Based on the 

evidence it received regarding the October 2019 emails, the trial 

court found that “Chung did not insert an electronic signature or 

other symbol showing intent to sign a modified agreement by his 

email” because “[t]he body of the emails . . . appears to document 

a ‘discussion’ or ‘thoughts’ about a revised compensation 

structure. . . . In the October 23 email, Chung asked a follow-up 
12

question to Chong, which suggests that the parties were still 

discussing potential terms of a modification, not that they were 

executing a final modified agreement.” We necessarily defer to 

the trial court’s credibility finding that Chung did not have an 

“intent to sign the electronic record” under Civil Code 

sections 1633.2, subdivision (h), and 1633.5, subdivision (b). (See 

Nunez v. Cycad Management LLC (2022) 77 Cal.App.5th 276, 

283-284 [“[w]hen the court weighs conflicting declarations, we 

defer to its factual determinations; we have no authority to make 

new credibility findings”]; Haraguchi v. Superior Court (2008) 

43 Cal.4th 706, 711, fn. 3 [“that the trial court’s findings were 

based on declarations and other written evidence does not lessen 

the deference due those findings”].) 

The trial court’s finding (and with it, the court’s implicit 

interpretation of the requirements of the UETA) is fully 

consistent with the decision in J.B.B. I, supra, 232 Cal.App.4th

974, in which the court concluded the defendant Fair’s typed 

name in a July 2013 email did not satisfy the “strict signature 

requirements” of Code of Civil Procedure section 664.6, which 

governs stipulated settlements. (J.B.B. I, at pp. 990-993.) In 

finding that Fair’s printed name at the bottom of the email was 

not a valid electronic signature under the UETA, the court 

explained, “Focusing only on [Civil Code] section 1633.7, the 

court appears to have simplistically assumed, as did counsel for 

plaintiffs, that because Fair admitted at deposition that the 

signature was his, and the signature was indisputably electronic, 

the printed signature on the July 4 offer was therefore an 

‘electronic signature’ within the meaning of UETA. [¶] . . . [¶] 

The exchange of e-mail messages shows that the parties clearly 

agreed to negotiate the terms of the settlement by e-mail, but 
13

plaintiffs did not demonstrate, as they must [citation], that the 

parties ever agreed to conduct transactions by electronic means 

or that Fair intended with his printed name at the end of his 

e-mail to sign electronically the July 4 offer.” (Id. at pp. 988-989.)

Contrary to NMSI’s argument, the discussion in J.B.B. I of 

the requirements for a valid electronic signature was not 

“clarified and limited” by the later opinion in the same case, 

J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1

(J.B.B. II). The court of appeal in its 2019 opinion simply 

explained that J.B.B. Investment had incorrectly attempted to 

extend its 2014 holding that Fair’s typed name did not create a 

binding settlement agreement pursuant to Code of Civil 

Procedure section 664.6 to argue the plaintiffs’ settlement offer 

had never been accepted and could not be enforced through some 

other procedural mechanism. (See J.B.B. II, at p. 13 

[“Defendants’ partial quotation from our 2014 opinion is 

misleading. We were not addressing whether Fair’s responses to 

the July 4 offer created a binding settlement agreement, but 

instead were addressing the fact that ‘[t]he plain language of the 

July 4 offer made it clear that no signature was being requested 

as the offer included no signature line or signature block, 

contained no signature by any of the plaintiffs, and advised that 

future paperwork was forthcoming,’” italics omitted].) J.B.B. I’s 

explanation of the requirements for a valid electronic signature 

under the UETA remains persuasive authority, which we follow.

b. The finding the agreements were not modified by the 

parties’ subsequent conduct

There similarly is no merit to NMSI’s argument 

challenging the trial court’s probable validity finding directed to 

NMSI’s contention the 2019 agreements were modified by the 
14

subsequent conduct of Park and Chung. Relying on Diamond 

Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal.App.4th 

1020, 1038, and the “uncontroversial principle that written 

contracts can be modified by conduct,” NMSI emphasizes that

Park and Chung both continued their employment after the 

modification and insists that on November 3, 2020 both 

“confirmed” in an email the profit and loss calculations for the 

month of October 2020. NMSI also points to a June 14, 2021 

email from Chung (after he left his employment with NMSI) in 

which he referred to the 40 percent revenue sharing modification. 

A written contract that expressly precludes oral 

modification may nonetheless “be modified by an oral agreement 

to the extent that the oral agreement is executed by the parties.”

(Civ. Code, § 1698, subd. (b); see LGCY Power, LLC v. Superior

Court (2022) 75 Cal.App.5th 844, 868 [“where, as here, a written 

agreement prohibits oral modifications, an oral modification 

nevertheless is enforceable to the extent it has been executed by 

the parties”].) Moreover, even if not modified by an executed oral 

agreement, “the parties may, by their words or conduct, waive 

contractual rights.” (Wind Dancer Production Group v. Walt 

Disney Pictures (2017) 10 Cal.App.5th 56, 78; see Biren v. 

Equality Emergency Medical Group, Inc. (2002) 102 Cal.App.4th 

125, 141 [“‘the parties may, by their conduct, waive [a no oral 

modification] provision’ where evidence shows that was their 

intent”].) “‘[T]he pivotal issue in a claim of waiver [of contractual 

rights] is the intention of the party who allegedly relinquished 

the known legal right.’” (Wind Dancer Production Group, at 

p. 78; accord, Old Republic Ins. Co. v. FSR Brokerage, Inc. (2000) 

80 Cal.App.4th 666, 678 [“[t]hus, ‘[t]he pivotal issue in a claim of 

waiver is the intention of the party who allegedly relinquished 
15

the known legal right’”]; DRG/Beverly Hills, Ltd. v. Chopstix Dim 

Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60.) 

Waiver is ordinarily a question of fact unless “there are no 

disputed facts and only one reasonable inference may be drawn.” 

(DuBeck v. California Physicians’ Service (2015) 234 Cal.App.4th 

1254, 1265.)

Substantial evidence supports the trial court’s finding that 

the November 3, 2020 email does not show that “both Chung and 

Park personally supervised the calculations of the Brea branch 

profit and loss figures . . . which reflected the modified profitsharing model, which they then sent to and confirmed with 

NMSI’s accounting team,” and its further finding that the email

did not confirm the modified revenue sharing agreement because 

it “failed to include the attachment with the cover email,” so “it 

cannot be determined from the November 2020 email what 

Plaintiffs were confirming.” Also, as the trial court explained, the 

“June 2021 email of Plaintiff Chung which refers to a ‘40:60 split’ 

. . . post-dates Plaintiffs’ departure from NMSI [and] Park was 

not copied on this email. Defendant does not show that the June 

2021 email constitutes a signed, written modification by Chung 

or Park.” (See generally Goodman v. Lozano (2010) 47 Cal.4th 

1327, 1339 [“‘“[w]hen two or more inferences can reasonably be 

deduced from the facts, the reviewing court has no authority to 

substitute its decision for that of the trial court”’”]; Goldstein v. 

Barak Construction, supra, 164 Cal.App.4th at p. 853 [“[w]e will 

not disturb a determination upon controverted facts unless no 

substantial evidence supports the court’s determination”].)

To the extent NMSI contends Park’s and Chung’s continued 

employment was sufficient conduct to modify the 2019 revenue 

sharing agreements, this argument has been forfeited because it 
16

was not raised in the trial court. NMSI argued in general only 

that “there are substantial questions of contract interpretation, 

estoppel, waiver, ratification, and other legal questions” and 

insisted “[t]hese issues are not resolvable in an Attachment 

proceeding.” The trial court appropriately declined to develop 

this argument for NMSI, and it is not properly considered by this 

court in the first instance. (See Zimmerman, Rosenfeld, Gersh & 

Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1488 

[“appellate court can deem an argument raised in an appeal . . . 

waived if it was not raised below and requires consideration of 

new factual questions”]; City of Merced v. American Motorists Inc.

Co. (2005) 126 Cal.App.4th 1316, 1327 [“[s]ince this new theory 

involves an issue of fact . . . and the facts to support the theory 

were not developed below, we find the argument was waived for 

failure to raise it in the trial court”]; Rossiter v. Benoit (1979) 

88 Cal.App.3d 706, 712 [“[p]oints not urged in the trial court may 

not be urged for the first time on appeal”].)

3. The Trial Court Did Not Err in Determining the Claims 

Were for a Fixed or Readily Ascertainable Amount

As discussed, an attachment generally may be issued only 

in an action where the claim for money is for “a fixed or readily 

ascertainable amount.” (§ 483.010, subd. (a).) “‘“The fact that the 

damages are unliquidated is not determinative. [Citations.] But 

the contract sued on must furnish a standard by which the 

amount due may be clearly ascertained and there must exist a 

basis upon which the damages can be determined by proof.”’” 

(CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., 

(2004) 115 Cal.App.4th 537, 540; accord, Force v. Hart (1928) 

205 Cal. 670, 673 [“[i]t is a well-recognized rule of law in this 

state that an attachment will lie upon a cause of action for 
17

damages for a breach of contract where the damages are readily 

ascertainable by reference to the contract and the basis of the 

computation of damages appears to be reasonable and definite”].) 

In its opposition to the application for a right to attach 

order, NMSI did not challenge the calculations concerning 

revenue and expenses presented by Park upon which she and 

Chung based their damage claims. The trial court found, “[g]iven 

the level of detail provided and the lack of any opposing 

calculations,” that Park’s calculations were “credible and 

persuasive evidence under the probable validity standard.” 

Although not directly challenging the accuracy of the

revenue figures provided by Park, on appeal NMSI argues 

“highly disputed factual issues” exist and the trial court 

improperly “made judgments about what was, and what was not, 

included in the original profit-sharing agreement.” Specifically, 

NMSI contends “the servicing-related profits from ‘MSR’ loan 

sales” were not included as revenue under the terms of the 2019 

agreements. 

Park’s declaration explained “MSRs are the various rights 

associated with servicing a loan, including the right to collect 

borrower payments, issue monthly statements, manage escrow 

funds, cure defaults, foreclose, etc. [¶] When NMSI sold loans to 

investors other than Fannie Mae, the investors typically 

purchased the MSRs along with the loans. NMSI always

included the total loan proceeds for those loan sales in calculating 

the Brea branch’s monthly revenues, and never sought to exclude 

any portion of the proceeds because the MSRs were included in

the sale.” Chong disputed this, insisting in his declaration that 

“[s]ervicing fees-related issues are not part of the original 
18

agreement . . . and they were never included in the P&L 

calculations used to calculate Plaintiffs’ income.” 

Noting that the 2019 agreements broadly defined revenue, 

which included “[a]ny other fees charged to the borrower,” “[n]et 

[p]remiums gained on lender’s fee” and “[n]et [p]remiums gained 

by sale of branch loans to the secondary market,” the trial court 

accepted Park and Chung’s position that these servicing related 

proceeds were part of the agreed-upon compensation. The court 

acted well within its discretion in finding Park’s declaration, 

rather than Chong’s, persuasive and including this item in the 

amount of the claim subject to attachment. (Cf. Ramos v. 

Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1441

[“we defer to factual determinations made by the trial court when 

the evidence is in conflict, whether the evidence consists of oral 

testimony or declarations”]; Poniktera v. Seiler (2010) 

181 Cal.App.4th 121, 130 [“we resolve all conflicts in favor of the 

judgment, even when (as here) the trial court’s decision is based 

on evidence received by declaration rather than by oral 

testimony”].) 

Finally, it is of no consequence that the amount sought in 

the application for the RTAO ($9,624,329.39) exceeded the 

amount sought in the amended complaint ($9,563,684). The total 

amount subject to attachment ordered by the trial court 

($7,192,607.16), in addition to being less than the amount sought 

in the amended complaint, was properly based on the court’s 

evaluation of the record and “the probable outcome of the 

litigation.” (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 

166 Cal.App.3d 1110, 1120 [“the court must consider the relative 

merits of the positions of the respective parties and make a 

determination of the probable outcome of the litigation”]; see 
19

§ 484.090, subd. (d) [“[t]he court’s determinations shall be made 

upon the basis of the pleadings and other papers in the record”]; 

Goldstein v. Barak Construction, supra, 164 Cal.App.4th at p. 853

[same].)

4. The Trial Court Properly Considered the Documents 

Incorporated by Reference

Park and Chung based the amounts to be subject to 

attachment on the detailed calculations and supporting schedules 

in Park’s declaration filed with the February 2022 ex parte 

application, which they incorporated into their May 2022 noticed 

applications.

5 NMSI contends such incorporation by reference is 

prohibited by section 484.040, subdivision (c); the trial court 

erred in overruling its objection to the consideration of that 

information; and, as a consequence, the orders should be 

reversed. The law is not so restrictive. 

To be sure, section 484.040 provides, “[T]he defendant shall 

be served with all of the following: [¶] . . . [¶] (c) a copy of the 

application and of any affidavit in support of the application.” 

That language does not preclude incorporation by reference of 

documents previously served on the defendant, and inferring 

such a prohibition would be inconsistent with California Rules of 

5 As discussed, in her declaration Park stated, “The 

testimony in my prior declaration remains true and accurate and 

is incorporated by reference as if set forth herein.” Chung in his 

declaration stated, “I have reviewed the Declaration of Julie Park 

filed on February 2, 2022, which contains true and accurate

information to the best of my knowledge.” Although Chung did 

not use the word “incorporated,” his reliance on Park’s prior 

declaration was sufficient to bring that information before the 

trial court in support of his application. (See Larsen v. Johannes

(1970) 7 Cal.App.3d 491, 496.) 
20

Court, rule 3.1110(d), which expressly permits reference in a 

noticed motion to previously filed papers provided they are 

identified by date of execution and title. In addition, 

section 484.090, subdivision (d), authorizes the court at the 

hearing on the application for a writ of attachment, upon good 

cause, to “receive and consider” additional evidence. As the court 

of appeal held in Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 291, 

“Consistent with these rules, a litigant may incorporate 

previously filed documents and, where practicable, should file 

them with the motion. But a litigant is not required to do so 

absent a rule precluding incorporation by reference. [Fn. 

omitted.]” The trial court did not err in overruling NMSI’s 

objection and considering the material from the earlier Park 

declaration. 

DISPOSITION

The order is affirmed. Park and Chung are to recover their 

costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

MARTINEZ, J.