Judge: Curtis A. Kin, Case: 23STCV30610, Date: 2024-03-19 Tentative Ruling

Case Number: 23STCV30610    Hearing Date: March 19, 2024    Dept: 82

APPLICATION FOR RIGHT TO ATTACH ORDER

Date:               3/19/24 (1:30 PM)

Case:                           8912 W Pico Blvd LLC v. Alain Cohen (23STCV30610)

TENTATIVE RULING:

Plaintiff 8912 W Pico Blvd LLC’s UNOPPOSED application for right to attach order with respect to defendant Alain Cohen is GRANTED.

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.

Plaintiff’s claim is for amounts owed under a commercial lease (“Lease”) between plaintiff’s predecessor-in-interest, Stanley R. Romain, and Kosher Foods Unlimited, Inc (“KFU”). (Hecht Decl. ¶¶ 5, 7 & Ex. 1.) Under the Guaranty of Lease, defendant Alain Cohen guaranteed KFU’s payments under the Lease. (Hecht Decl. ¶ 6 & Ex. 2.)

In 2022, after having been assigned Romain’s rights and interest in the Lease, plaintiff claimed that KFU defaulted on payment of rent under the Lease, which KFU disputed. (Hecht Decl. ¶¶ 7, 11 & Ex. 5 at 2.) The dispute was arbitrated on December 5, 2022 before the Beth Din of America (“Beth Din”). (Hecht Decl. ¶ 12 & Ex. 5.) On January 26, 2023, the Beth Din issued an arbitration award in favor of plaintiff and against KFU. (Hecht Decl. ¶ 13 & Ex. 5.) On September 28, 2023, the Court (Hon. Stephen I. Goorvitch) confirmed the arbitration award in the amount of $115,789.22. (Hecht Decl. ¶ 16 & Ex. 8.) Defendant has not paid any portion of the judgment. (Hecht Decl. ¶¶ 18, 20.)

In addition to assigning his rights under the Lease, Romain also assigned to plaintiff his interest in the Guaranty of Lease. (Hecht Decl. ¶ 7.) Because the judgment reflects the amount owed to plaintiff under the Lease, defendant’s obligation under the Guaranty of Lease to pay “all rents and other sums payable” under the lease demonstrates the validity of plaintiffs claim against defendant and entitlement to attach defendant’s assets in the amount of $115,789.22, the amount of the judgment.

In addition, plaintiff seeks to attach an additional $50,000 for attorney fees and $10,000 for costs. (Rosenbaum Decl. ¶¶ 14-16.)

With respect to attorney fees, the Guaranty of Lease allows for the recovery of fees should plaintiff be required to bring suit to enforce the guaranty. (Hecht Decl. ¶ 6 & Ex. 2 [“In the event any action be brought by said Lessor against Guarantors hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful party in such action shall pay to the prevailing party therein a reasonable attorney’s fee”].) However, the request for $50,000 is excessive.

The request to attach fees for 6 hours for preparation of the application for right to attach order is reduced by 3 hours, or $1,950 based on the asserted $650 hourly rate, as 6 hours for this task is excessive. (Rosenbaum Decl. ¶ 14(b).) The request to attach fees is also reduced by $2,025, because defendant did not file any opposition to which plaintiff was entitled to reply. (Rosenbaum Decl. ¶ 14(c).) With respect to the hearing on the application for writ of attachment, the request to attach fees is reduced by 1.5 hours, or $1,012.50, based on the asserted $675 hourly rate, as 0.5 hours is sufficient for attending the hearing. (Rosenbaum Decl. ¶ 14(d).)

Further, because proof of defendant’s obligation to guarantee amounts due under the Lease appears straightforward on its face, it is unclear why plaintiff needs 6 hours to depose defendant. The request to attach fees is reduced by $2,025 for 3 hours of fees based on the asserted $675 hourly rate. (Rosenbaum Decl. ¶ 14(f).)

In addition, plaintiff seeks fees for filing a motion for summary judgment and trial. (Rosenbaum Decl. ¶ 14(h-j).) For a relatively simple breach of written guaranty case, the total 25 hours of time that plaintiff claims for preparation of motion for summary judgment, preparation for trial, and trial is excessive. The Court attaches fees for 5 hours for the MSJ, 5 hours for preparation of trial, and 5 hours of trial, resulting in a reduction of 10 hours, or $6,750 based on the asserted $675 hourly rate.

Based on the foregoing, the request to attach $50,000 for fees is granted in part.  The amount of attachment shall be reduced by $13,762.50, resulting in the right to attach $36,237.50 for fees.

With respect to the request for costs, plaintiff seeks attachment in the amount of $10,000, including $3,000 for the transcript for two depositions and the remainder for filing fees, service of process, bond fees, levy, motion fees, potential expert fees, and the court reporter for one to two days of trial. (Rosenbaum Decl. ¶ 16.) Without having the remaining $7,000 of the costs broken down or the need for experts explained, the remaining $7,000 is insufficiently justified. Accordingly, instead of the $10,000 requested, the Court will permit attachment of $3,000 for costs.

Accordingly, the amount to be attached is $155,026.72 ($115,789.22 rent owed under the judgment + $36,237.50 fees + $3,000 costs). Within five days hereof, plaintiff 8912 W Pico Blvd LLC shall submit a proposed right to attach order consistent with the ruling herein.

The Writ shall issue upon the posting of bond in the amount of $10,000. (CCP §489.220.)