Judge: Curtis A. Kin, Case: 23STCV18230, Date: 2023-09-21 Tentative Ruling

Case Number: 23STCV18230    Hearing Date: September 21, 2023    Dept: 82

APPLICATION FOR RIGHT TO ATTACH ORDER

Date:       9/21/23 (1:30 PM)                                     

Case:       Moossa Naim, as Trustee v. Chengming Zheng (23STCV18230)

TENTATIVE RULING:

Plaintiff Moossa Naim, as Trustee of the Moossa and Laura Naim Family Trust Dated December 15, 2009’s see a Right to Attache Order and Order for Issuance of Writ of Attachment.

On 9/7/23, the Court continued the hearing on the application to 9/21/23, because plaintiff had not shown that defendant Chengming Zheng was served with a copy of the summons and complaint, as required under CCP § 484.040. (9/7/23 Minute Order.) The Court ordered petitioner to serve and file supplemental filings on or before 9/13/23 and allowed any opposition to be served and filed on or before 9/18/23. (Ibid.)

Based on the proof of service of summons filed on 9/11/23, defendant was personally served with the summons and complaint on 9/10/23, as well as notice of the continued hearing date and a copy of the moving papers.

Having received no opposition from defendant, pursuant to CCP §484.090, the Court finds:

1) the claim is one upon which attachment may be issued;

2) plaintiff has established the probable validity of the claim;

3) attachment is not sought for any purpose other than recovery on the claim;

4) the amount to be attached is greater than zero.

As for the amount subject to attachment, plaintiff Moossa Naim asserts that defendant leased the subject property, but defendant has not paid amounts under the agreement totaling $164,167.88. (Naim Decl. ¶¶ 20-28 & Ex. H; ¶ 6 & Ex. A, §§ 4.3 [rent], 13.4 [late charge], 13.5 [interest for late rent].) The claimed amount is not fully supported or explained.

The calculation of late charges for the period April 2020 to January 2021 appears to be inflated. Section 13.4 of the lease agreement provides for a 10% late charge for any overdue amount. (Id. ¶ 6 & Ex. A at § 13.4.) From April 2020 to January 2021, the overdue amount was $3,500.00. (Id. ¶¶ 8, 20 [paid $11,500] & Exs. B [amended rent to $15,000].) Ten percent of $3,500.00 is $350.00. However, plaintiff claims late charges of $450.00. (Id. ¶ 28 & Ex. H.)  Accordingly, for April 2020 to January 2021, the claimed late charges appear to be overstated by $1,000 (i.e., $100 for ten months).

Plaintiff also claims interest of $9,651.95 owed.  (Naim Decl. ¶ 28 & Ex. H.)  The Court recognizes the lease provides for interest of 10% for unpaid rent. (Id. ¶ 6 & Ex. A at § 13.5.)  However, plaintiff provides no explanation for the claimed amount of interest, and how plaintiff calculated $9,651.95 as due and owing is not readily apparent.

Accordingly, plaintiff’s application is GRANTED IN PART.  The Court will issue an Order for Attachment in the amount of $153,515.93 ($164,167.88 claimed, minus $1,000 in overstated late fees and $9,651.95 in unexplained interest).  In accordance herewith, plaintiff shall submit a proposed Order on the applicable Judicial Council form within 5 court days and provide Notice.