Judge Curtis A. Kin, Case Number: 24STCV06740, Date: 2024-04-30 Tentative Ruling

Judge: Curtis A. Kin, Case: 24STCV06740, Date: 2024-04-30 Tentative Ruling

Case Number: 24STCV06740 Hearing Date: April 30, 2024 Dept: 86

APPLICATIONS (3) FOR RIGHT TO ATTACH ORDERS

Date: 4/30/24 (1:30 PM)

Case: Tahari LLC et al. v. Wires Only, Inc. et al. (24STCV06740)

TENTATIVE RULING:

The three applications for right to attach orders are ruled upon as follows:

I. DEFENDANT WIRES ONLY, INC.

Plaintiffs Tahari LLC and Jeremey Tahari’s UNOPPOSED application for right to attach order with respect to Wires Only, Inc. is taken OFF-CALENDAR as MOOT. On April 22, 2024, Wires Only, Inc. was dismissed without prejudice pursuant to plaintiffs’ request.

II. DEFENDANT WHITTINGTON MOTORS SPORTS, INC.

Plaintiffs Tahari LLC and Jeremey Tahari’s UNOPPOSED application for right to attach order with respect to Whittington Motors Sports, Inc. is DENIED.

With respect to Whittington Motors Sports, Inc., plaintiffs fail to show that it was a party to the Resolution Agreement (see Tahari Decl. ¶ 16 & Ex. E) , which forms the basis of the instant application. (Tahari Decl. ¶ 24.) Accordingly, plaintiffs fail to show that the claim against Whittington Motors Sports, Inc. is based on a contract. (CCP § 483.010(a).) Plaintiffs argue no other basis upon which property of Whittington Motors Sports, Inc. can be attached.

III. DEFENDANT RD WHITTINGTON

Plaintiffs Tahari LLC and Jeremey Tahari’s UNOPPOSED application for right to attach order with respect to RD Whittington is GRANTED IN PART.

With respect to defendant RD Whittington, 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.

Plaintiffs’ claim against RD Whittington arises from a Resolution Agreement between plaintiffs and defendants Wires Only, Inc. and RD Whittington, dated November 10, 2023. (Tahari Decl. ¶ 13 & Ex. E [“Resolution Agreement”].) Prior to the Resolution Agreement, plaintiff Tahari LLC entered into an agreement with Wires Only, Inc. for Wires Only, Inc. to provide and deliver a custom Mercedes-Benz Metris Van. (Tahari Decl. ¶ 4.) In expectation of receiving the promised van, Tahari LLC paid a $50,000 down payment, entered into a financing agreement with a third party to cover the remaining balance of $185,085, obtained insurance, and made lease and insurance payments. (Tahari Decl. ¶¶ 4, 6, 11, 16 & Exs. A-D.) The van was never delivered. (Tahari Decl. ¶¶ 10, 12.) To avoid litigation, a Resolution Agreement was executed. (Tahari Decl. ¶ 13.)

Within 30 days of executing the Resolution Agreement, Wires Only, defined to include both Wires Only, Inc. and defendant RD Whittington, agreed to reimburse plaintiffs for all monthly loan principal and interest payments and insurance premium payments since the loan origination date. (Resolution Agreement ¶ 2.) Wires Only also agreed to repay plaintiffs their $50,000 down payment no later than 3 weeks from the date of the Resolution Agreement. (Resolution Agreement ¶ 6.) If the down payment was not repaid within 3 weeks, interest accrued at 10% per month, compounding monthly, within payment of accrued interest due within 10 days of accrual. (Resolution Agreement ¶ 6.) If the down payment or any accrued interest was not fully repaid within 7 weeks of the Resolution Agreement, a 10% monthly compounding interest rate applied to the full outstanding loan balance. (Resolution Agreement ¶ 6.)

Defendant RD Whittington guarantied Wires Only, Inc.’s performance under the Resolution Agreement. (Resolution Agreement ¶ 6.)

Plaintiffs paid a principal amount of $78,810.35, consisting of $50,000 for a down payment, lease payments totaling $24,735.35 (four lease payments of $4,974.07), and insurance payments totaling $4,075.00 (four insurance payments of $815.00). (Tahari Decl. ¶¶ 4, 11 & Exs. A, B, D; Pottier Decl. ¶ 3 & Ex. 1.) Through March 2024, defendants have not paid the entire principal amount or $34,684.65 in interest ($113,495.00 total - $78,810 principal). (Pottier Decl. ¶ 3 & Ex. 1.)

Plaintiffs also claim $69,045.00 in fees and $896.70 in costs and expenses. The claimed costs appear reasonable, but the fees are not. The Resolution Agreement contains an attorney fee provision for enforcing the agreement when sums are not paid when due. (Resolution Agreement ¶ 6 ([“If any sums go unpaid when due, . . . .Wires Only shall be responsible for payment of any and all fees or expenses, including attorney’s fees . . . in enforcing this Agreement”].) Plaintiffs do not provide any explanation of the work done by counsel, including the tasks performed, number of hours expended, and hourly rates charged. Based on the record before this Court, it would appear that, since the Resolution Agreement was executed in November 2023, plaintiffs’ counsel at most communicated a few times with counsel for Wires Only about repayment (see Pottier Decl. ¶¶ 19-21), filed the complaint on March 18, 2024, and filed the instant applications for writs of attachment. The amount for fees is reduced to $20,000.

Based on the foregoing, the application for at order of attachment with respect to RD Whittington will be granted in the amount of $134,391.70 ($78,810.35 principal + $34,684.65 interest + $20,000 fees + $896.70 costs).

No writ shall issue without the posting of a bond in the amount of $10,000. (CCP § 489.220.) The Court will sign the proposed order, electronically received 3/21/24, with modifications to the amount to be attached and the bond required.

Plaintiffs also seeks a temporary protective order pursuant to CCP § 486.010 et seq. If plaintiffs are entitled to a right to attach order, a temporary protective order may issue if plaintiffs “will suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary protective order is not issued.” (CCP § 486.020.) Plaintiffs seek a temporary protective order based on other lawsuits filed against RD Whittington. (Pottier Decl. ¶¶ 6-12 & Exs. 6-11.) However, no judgment has been entered against RD Whittington in those other lawsuits, and the allegations therein thus remain unproven as of yet. Accordingly, the Court does not find that it is in the interest of justice to issue the proposed temporary protective order. (See CCP § 486.040.) A writ of attachment sufficiently protects plaintiff’s interests.