Judge: Andre De La Cruz, Case: 2023-01318419, Date: 2023-08-28 Tentative Ruling

Application for Right to Attach Order/Writ of Attachment filed by West L.A. Properties on 4/28/23

Plaintiff West L.A. Properties (“Plaintiff”) filed an Application for Right to Attach Order and Order for Issuance of Writ of Attachment in the amount of $444,156.09. After the parties submitted supplemental briefing on this issue of damages, Plaintiff now seeks a Writ of Attachment in the amount of $47,296.30.

The Application is GRANTED for a Writ of Attachment in the amount of $47,296.30.

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 or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.” Code Civ. Proc., § 483.010(a).

Importantly, a court must find the following before it issues a right to attach order:

“(1) The claim upon which the attachment is based is one upon which an attachment may be issued.

(2) The plaintiff 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 on the claim upon which the attachment is based.

(4) The amount to be secured by the attachment is greater than zero.”

Code Civ. Proc., § 484.090(a).

“A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”  Loeb & Loeb v. Beverly Glen Music, Inc., 166 Cal. App. 3d 1110, 1118 (1985), citing Code Civ. Proc., § 481.190.

“The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”  Code Civ. Proc., § 484.030. Code of Civil Procedure section 484.020 sets forth the specific information that must be included in the application and executed under oath.

“The Attachment Law statutes are subject to strict construction, and where a court is required to exercise its jurisdiction in a particular manner or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void.” Pacific Decision Sciences Corp. v. Superior Court, 121 Cal. App. 4th 1100, 1106 (2004).

Here, the Court finds that Plaintiff has carried its burden pursuant to Code of Civil Procedure section 484.090. The Court agrees with Defendant that Plaintiff’s damages after the breach have likely been mitigated by the increased rent and therefore Plaintiff cannot establish the requisite “probable validity of the claim upon which the attachment is based” as to these damages.

However, the Court agrees with Plaintiff that any amount owed prior to the breach is not to be reduced by mitigation efforts. The plain language of section 1951.2(a) does not provide for a mitigation analysis of the loss that “could be reasonably avoided.” Civ. Code, § 1951.2(a). Caselaw also establishes that “[t]he duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable.” Agam v. Gavra, 236 Cal. App. 4th 91, 111 (2015). Defendant does not point to any caselaw that addresses Code of Civil Procedure section 1951.2(a)(1) as the cases Defendant cites analyze mitigation efforts that address the “rental loss” that “could have been reasonably avoided.” 

The Application is GRANTED for a Writ of Attachment in the amount of $47,296.30.

Defendant’s objections are OVERRULED.

Defendant’s request for judicial notice is GRANTED.

Plaintiff to give notice.