Judge: Curtis A. Kin, Case: 23STCV29817, Date: 2025-05-29 Tentative Ruling

24STCP02299  Luchia Tsegaberhan
The Petition will be granted.  A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Case Number: 23STCV29817    Hearing Date: May 29, 2025    Dept: 86

APPLICATION FOR WRIT OF ATTACHMENT

Date:               05/29/25 (1:30 PM) 

Case:               Derek Andersen et al. v. Ryan Elmore, et al. (23STCV29817) 

TENTATIVE RULING:

Plaintiffs Derek and Connis Andersen seek a Right to Attach Order and Writ of Attachment as to defendant Elmoro Holdings, LLC in the amount of $3,225,000, with respect to plaintiffs’ claims arising from their purchase of 4332 Dauntless Drive, Rancho Palos Verdes, CA 90275 from defendants in early 2023.

Plaintiffs acknowledge the matter has been ordered to arbitration with respect to defendant Elmoro and that the entire case is stayed pending the outcome of such arbitration, which is apparently scheduled for July 14, 2025. (Pl. Mem. at 8.)  The Court’s review of the docket confirms that the Court (Hon. Thomas D. Long) granted plaintiffs’ motion to compel arbitration as to defendant Elmoro and otherwise stayed the case pending arbitration. (6/25/24 Minute Order at 5.)

Citing a four-decades-old case, Loeb v. Loeb v. Beverly Glenn Music, Inc. (1985) 166 Cal.App.3d 1110, plaintiffs assert that “California law . . . permits the issuance of a writ, despite the pendency of the relevant claims in arbitration.” (Pl. Mem. at 9.)  While that statement is true, it is incomplete.  Code of Civil Procedure section 1281.8, which was enacted in 1989, provides that a party may seek the provisional remedy of a writ of attachment in connection with an arbitrable controversy, “but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.” (CCP 1281.8(b).)  “Under Code of Civil Procedure section 1281.8, parties to arbitration proceedings may apply to the superior court for writs of attachment and other provisional remedies if, in addition to the usual requirements for such remedies, an award to the petitioner ‘may be rendered ineffectual’ without such relief.” (California Retail Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 853, quoting CCP 1281.8(b).)

While plaintiffs present evidence in support of attachment based on a claim of rescission due to defendants’ fraud in making false statements and/or failing to disclose documents relating to the condition or repair of the property, plaintiffs present no evidence that an arbitration award in their favor would be rendered ineffectual without the requested provisional relief. (See generally D. Anderson Decl. ¶¶ 1-27; C. Anderson Decl. ¶¶ 1-23; Livermore Decl. ¶¶  1-30; Logan Decl. ¶¶ 1-25.)  Indeed, plaintiffs do not even argue the point or acknowledge the statutory requirement.  Defendant Elmoro, for its part, opposes the instant application on the ground that plaintiffs have failed to make out the probable validity of their claim, but does not address or acknowledge the requirements of section 1281.8.

The parties should be prepared to address the foregoing at the hearing on plaintiffs’ application.