Judge Curtis A. Kin, Case Number: 22STCV22399, Date: 2023-07-20 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Plaintiff Sunset Sierra Properties, Inc. moves for a writ of attachment against defendant Yoram Globus and Ori Globus in the amount of $372,667.17.

On November 18, 2015, plaintiff Sunset Sierra Properties, Inc. (“Landlord”) and defendant Rebel Way Entertainment, Inc. (“Rebel Way”) entered into an agreement to lease office space located at 9255 Sunset Blvd., Suite 910, in West Hollywood (“Lease”). Rebel Way took possession of the premises on December 1, 2015. The Lease Agreement was twice amended on January 9, 2019, and on February 1, 2020.

Rebel Way allegedly failed to pay rent due under the Lease. Landlord is seeking more than $350,000 in damages under the Lease, including rent and late charges, as well fees and expenses to obtain a replacement tenant, including broker fees and improvement costs. On August 15, 2022, Landlord obtained possession of the premises.

Prior to executing the Lease, Landlord sought a guaranty of performance from defendant Yoram Globus (“Yoram”) as material consideration for Landlord’s agreement to lease the subject premises. Landlord believed Yoram to be an appropriate guarantor because he was an internationally known entertainment industry executive with more than adequate assets. Landlord provided a guaranty to defendant Ori Globus (“Ori”),[1] Yoram’s son, for Yoram to sign. Yoram was designated as the guarantor on the front page. The signature line on the last page had Yoram’s name. However, Ori allegedly crossed out the name of Yoram on the signature page, but not on the front page, and signed the guaranty. Ori also allegedly provided Landlord a second guaranty with a different signature and Yoram’s name not crossed out.

“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 must 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 consider the showing made by the parties, as well as the pleadings and other papers in the record. (CCP § 484.090(a), (d).) The Court shall issue a right to attach order if it 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.

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

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

Defendants raise various objections to the declaration of Kambiz Ghassemieh, which the Court addresses as follows:

Objection No. 1 is SUSTAINED. Declarant demonstrates personal knowledge based on his oversight of the subject premises. (Ghassemieh Decl. ¶ 3; see also CCP § 482.040 [“The affiant may be any person, whether or not a party to the action, who has knowledge of the facts”].) However, declarant fails to provide any basis for or breakdown of the alleged $372,667.17 in claimed damages. (See Ghassemieh Decl. ¶ 9; CCP § 482.040 [“The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity”].) It is unclear what portion of the alleged damages are for unpaid rent. Declarant also does not set forth separate amounts for broker fees and improvement costs. Nor does declarant explain the nature of the improvements that Landlord made to obtain a replacement tenant. This wholly conclusory statement of damages is insufficient for the Court to determine what, if any, claimed damages may be a basis for attachment and fails to provide the individual defendants sufficient information to defend against the requested attachment amount sought.

Objection No. 2 is OVERRULED. Declarant demonstrates personal knowledge based on his oversight of the subject premises. (Ghassemieh Decl. ¶ 3.)

Objection No. 3 is SUSTAINED. Declarant avers on information and belief that the guaranties were given as part of a business activity. (Ghassemieh Decl. ¶ 10.) “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.” (CCP § 482.040.) Declarant does not state any facts upon which the averment is based or from where he obtained such facts.

Objection No. 4 is SUSTAINED. Declarant declares that Rebel Way has defaulted on its Lease obligations two or more times during the first two years of the Lease. (Ghassemieh Decl. ¶ 13.) This averment is conclusory and lacks the particularity required under CCP § 482.040. Declarant does not state the acts that he considers a default and when such acts occurred. Accordingly, declarant fails to support his averment.

Objection No. 5 is SUSTAINED. Even if Yoram were arrested for not paying taxes on funds withdrawn from his companies, the fact of an arrest does not necessarily mean Yoram committed the crime for which he was arrested. Moreover, declarant appears to suggest that Yoram’s alleged tax evasion and “larcenous tendencies” are competent proof of failure to guaranty Rebel Way’s rent under the subject Lease. (Ghassemieh Decl. ¶ 15.) Yoram’s alleged crime is not pertinent to the requirements for Landlord to attach the property of the individual defendants.

Objection No. 6 is SUSTAINED. Declarant does not state any facts supporting the assertion that the individual defendants are reported to own numerous companies or that they can shift assets between companies and to conceal assets. (Ghassemieh Decl. ¶ 16.) The averment lacks particularity, as required under CCP § 482.040.

Objection No. 7 is SUSTAINED. Declarant does not aver to any facts supporting the assertion that the individual defendants have failed to pay numerous debts owed to plaintiff. (Ghassemieh Decl. ¶ 16.) Declarant does not describe the nature of the debts. Accordingly, the averment lacks particularity, as required under CCP § 482.040.

Objection No. 9 is OVERRULED. Based on declarant’s oversight of the subject premises, declarant is entitled to generally aver to the individual defendants’ purported breach of the guaranties. (Ghassemieh Decl. ¶ 3.)

The proofs of service attached to the moving memorandum of points and authorities indicates that service of the moving papers was timely. The individual defendants filed a consolidated opposition.

“[A]n 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.” (CCP § 483.010(a).) “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….” (CCP § 483.010(b).)

Landlord contends that Yoram and Ori each signed written guaranties securing the performance of Rebel Way under the Lease. (Ghassemieh Decl. ¶ 10 & Exs. 1, 2 at § 1.1.) The individual defendants contend that Ori signed the Guaranty on behalf of Yoram and that Loren McElravy, the representative of Landlord’s property manager, had no objection. (Prout Decl. ¶¶ 2, 3 & Ex. A at 20:5-16, 22:24-23:2 [transcript of Ori’s deposition], Ex. B at 8:22-9:13 [transcript of Yoram’s deposition]; Yoram Decl. ¶ 2; compare Ghassemieh Decl. ¶ 10 & Ex. 2.) Ori also testified that he did not sign the Guaranty where his name was printed on the signature line. (Prout Decl. ¶ 2 & Ex. A at 24:8-24; Ori Decl. ¶ 3 & Ex. D; compare Ghassemieh Decl. ¶ 10 & Ex. 1.)

Even if the Court were to find that Ori signed the Guaranty with his name printed in the signature line, it is not at all clear that Ori agreed to guaranty Rebel Way’s performance under the Lease, as the first page of the Guaranty defines “Guarantor” as Yoram. (Ghassemieh Decl. ¶ 10 & Ex. 1.) There is no interlineation on the first page indicating that Ori was a guarantor. It would thus not appear that Ori was party to any written Guaranty.

Moreover, Landlord alleges that Yoram’s guaranty was a material consideration for the leasing of the premises because Yoram was an internationally known entertainment executive. (TAC ¶¶ 33(g), 59(c).) Landlord makes no similar averment that it also relied on the guaranty of Ori in entering into the Lease.

The evidence does not indicate that Ori entered into any Guaranty on his own behalf. Landlord thus fails to demonstrate that the claim against Ori is on a contract, either express or implied.

With respect to Yoram, Yoram does not dispute that the Guaranty was once effective against him; indeed, he has testified under oath that he asked Ori to sign the Guaranty on his behalf. (Prout Decl. ¶ 3 & Ex. B at 8:22-9:13 [transcript of Yoram’s deposition]; Yoram Decl. ¶ 2.) Accordingly, the Court finds that Landlord’s claim for breach of guaranty against Yoram is one upon which attachment may be issued.

“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.) “If the defendant opposes the application, ‘the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.’ [Citations.]” (Pech v. Morgan (2021) 61 Cal.App.5th 841, 855.)

For the reasons stated above, Landlord fails to state a basis to attach Ori’s property, as Ori may not have been a party to any Guaranty. Accordingly, the Court finds that Landlord fails to show a probability of the breach of guaranty claim against Ori.

With respect to Yoram, section 6 of the Guaranty states: “Provided Tenant is not then in default per the Lease or has not been in default more than two times per year during the course of the Lease, the Guarantor shall be released of all obligations of this Guaranty effective after the twenty-fourth (24) month of the Lease term.” (Ghassemieh Decl. ¶ 10 & Ex. 1.) The Lease commenced on December 1, 2015. (SAC[2] Ex. A § I.H.) Accordingly, so long as Rebel Way was not in default on December 31, 2017, or had not defaulted more than twice per year prior to that date, Yoram’s obligations under the guaranty were released.

Yoram declares that he reviewed Rebel Way’s accounting and correspondence records from 2015 and found no notices of unpaid rent between December 1,

2015 and December 31, 2017. (Yoram Decl. ¶ 3.) The basis for this averment is unclear, as Yoram declares that he never managed Rebel Way’s business. (Yoram Decl. ¶ 6.) Regardless, because the Court sustains Objection Nos. 4 and 8 to the declaration of Kambiz Ghassemieh due to the conclusory nature of the averments concerning Rebel Way’s purported defaults within the first two years of the Lease (see Ghassemieh Decl. ¶¶ 13, 18), it is not clear that Yoram is liable for any obligations under the Guaranty, given the release of obligations due to the passage of time. Landlord thus fails to demonstrate the probable validity of its claim for breach of guaranty against Yoram.

The other required findings under CCP § 484.090 are that the “attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based” and that the “amount to be secured by the attachment is greater than zero.” (CCP § 484.090(a)(3), (a)(4).)

Landlord fails to declare that attachment is not sought for a purpose other than the recovery on plaintiff’s claim. (See App. ¶ 4.) The applications, specifically the Judicial Council AT-105 forms, were not executed under oath, as required by CCP § 484.020.

With respect to the amount of the requested attachment, the amount requested by Landlord to be secured is greater than zero. However, for the reasons the Court sustains Objection No. 1 to the declaration of Ghassemieh, the Court finds Landlord fails to adequately support its requested attachment amount of $372,667.17, or any amount greater than zero. Although section 1.3. of Yoram’s Guaranty may have potentially obligated him to cover expenses arising from Rebel Way’s breach of the Lease Ghassemieh Decl. ¶ 10 & Ex. 2), such as costs incurred to find a replacement tenant, Landlord fails to set out the amount incurred for broker fees and improvement costs, as well as what improvements were made to the premises. This, combined with Landlord’s failure to set forth the specific amount of unpaid rent, renders it not possible to ascertain with any reasonable certainty Landlord’s damages for which attachment might be warranted. (Cf. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 540 [“[A]n attachment will lie upon a cause of action for 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”].)

Because plaintiff Sunset Sierra Properties, Inc. fails to demonstrate a basis to attach defendant Ori Globus’ property, fails to demonstrate the probable validity of the claim for breach of guaranty against defendants Ori Globus and Yoram Globus, failed to submit verified applications, and fails to adequately support its requested attachment amount, the applications against Yoram Globus and Ori Globus are DENIED.

[1] Because they share the same last name, defendants Yoram Globus and Ori Globus are referred to by their first names. No disrespect is intended.

[2] No leases or purported guaranties were attached to the operative Third Amended Complaint.