Judge: Christian R. Gullon, Case: 23PSCV01027, Date: 2025-05-06 Tentative Ruling

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Case Number: 23PSCV01027    Hearing Date: May 6, 2025    Dept: O

Tentative Ruling

Plaintiff’s RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT AFTER HEARING is DENIED without prejudice/CONTINUED to allow for the filing of the requisite material.

Background

This is an unlawful detainer/breach of commercial lease agreement case.

On April 5, 2023, Plaintiff filed CELIA C. BARRERA, as Trustee of the Celia C. Barrera Living Trust filed suit against Defendant DANIEL BETANCOURT for UD arising from the alleged breach of the parties’ March 8, 2021 written commercial lease agreement. (The lease term was 7 years but Defendant allegedly breached the agreement by failing to pay in April 2023.)

On July 10, 2023, a notice of settlement was filed.

On January 13, 2025, Plaintiff filed a ‘DECLARATION OFDARREN P. TRONEIN RESPONSETO OSC RE DISMISSAL AFTERSETTLEMENT’ stating, in relevant part, the following: “Defendant DANIEL BETANCOURT was ultimately unable to complete the terms of the written settlement agreement between the parties. On or about December 9, 2024, Plaintiff regained possession of the property when  BETANCOURT surrendered the keys to Plaintiff. Possession of the property is no longer in issue, and no other person other than Plaintiff is in possession of the property. Plaintiff plans to file an amended complaint to reclassify this action from unlawful detainer to general unlimited civil.”

On February 6, 2025, Plaintiff filed a first amended complaint (FAC) for breach of commercial lease for unpaid leasehold obligations of approximately $68,475.69 and for the sum of$712,000 for the unpaid rent and all other amounts (and other costs). The FAC alleges, inter alia, that “In or about June 2023, the parties entered into a written tentative settlement agreement that allowed BETANCOURT to retain possession of the Premises based on certain conditions, primarily the repayment of $94,304.76 in back rent, late fees, CAM charges, utilities and fees. On or about October 31, 2024, a fire occurred at the Premises due to faulty electrical wiring installed by BETANCOURT. In or about December 2024, BETANCOURT further breached the lease by abandoning the Premises and ceasing to pay any further rent under the terms of the Lease and settlement agreement.” (FAC p. 3.)

On March 7, 2025, Plaintiff filed the instant application.

On March 14, 2025, Plaintiff made a request for entry of default, which was denied on 3/19 due to the failure to service Defendant with the FAC.

On April 23, 2025, Plaintiff filed a POS.

Legal Standard

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.”  (CCP § 484.010.) 

The application shall be executed under oath and must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and (5) a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment.  (CCP § 484.020.)  

“The application [for a writ of attachment] 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.”  (CCP § 484.030.) 

The Court shall issue a right to attach order if the Court finds all of the following: 

(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. 

CCP § 484.090. 

“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.”  (CCP § 481.190.) In determining the probable validity of a claim where the defendant makes an appearance, 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 Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.) 

At the times prescribed by CCP section 1005(b), the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence.  (CCP § 484.040.)   

“The Attachment Law statutes are subject to strict construction.”¿(Epstein v. Abrams¿(1997) 57 Cal.App.4th 1159, 1168.)¿ 

Discussion

The application for writ of attachment is denied without prejudice or otherwise continued for the failure to comply with most of the foregoing. In fact, Plaintiff has not informed the court of the amount that is to be secured by the bond aside from that Plaintiff seeks a writ of attachment for the “Fire insurance proceeds payable to Daniel Betancourt per State Farm General Insurance Company, Claim no. 75-76G4-77V.”

Conclusion

Based on the foregoing, the application is denied without prejudice/continued for the filing of the necessary application material.