Judge: Curtis A. Kin, Case: 24STCV14197, Date: 2025-02-11 Tentative Ruling
Case Number: 24STCV14197 Hearing Date: February 11, 2025 Dept: 86
APPLICATIONS (2) FOR RIGHT TO ATTACH ORDERS
Date: 2/11/25
(1:30 PM)
Case: Alber K. Karamanoukian et al. v.
Mullen Technologies, Inc. et al. (24STCV14197)
Plaintiff Alber K. Karamanoukian et
al.’s application for right to attach order with respect to defendant Mullen
Technologies, Inc. is GRANTED IN PART.
Plaintiff Alber K. Karamanoukian et
al.’s application for right to attach order with respect to defendant David
Michery is GRANTED IN PART.
I.
FACTUAL BACKGROUND
On June 22, 2022, plaintiffs Albert K. Karamanoukian, as both
an individual and trustee of the Alber Karamanoukian Trust (hereinafter “plaintiff”),
and defendant Mullen Technologies, Inc. (“Mullen”) entered into a written
commercial lease agreement (“Lease”), whereby Mullen leased premises located at
922 S. Myrtle Ave. and 133-135 E. Maple Ave. (collectively “Premises”), both in
Monrovia. (Karamanoukian Decl. ¶ 7 & Ex. 1.) Defendant Michery guaranteed
Mullen’s performance under the Lease. (Karamanoukian Decl. ¶ 8 & Ex. 2.)
The term of the Lease is from August 15, 2022, to August 14, 2025.
(Karamanoukian Decl. ¶ 7 & Ex. 1 at ¶ 1.3.)
According to plaintiff, defendants breached the Lease in two
ways. First, on or about August 1, 2024, defendants abandoned the Premises
without “providing a commercially reasonable level of security” or “reasonable
assurances to minimize potential vandalism.” (Karamanoukian Decl. ¶¶ 14,
15 & Ex. 1 at ¶ 13.1(a).) Second, for the period commencing March 15, 2024,
defendants have not paid rent due under the Lease. (Karamanoukian Decl. ¶¶
17-22 & Ex. 1 at ¶ 13.1(b).)
In the instant applications, plaintiff seeks to attach
$1,697,593.37, which includes the following: (1) $828,791.00 in principal base
rent from March 15, 2024 to November 22, 2024, the date of filing of the
instant applications (Karamanoukian Decl. ¶ 21); (2) $21,469.48 in interest
through November 22, 2024 (Karamanoukian Decl. ¶¶ 12, 24); (3) $82,879.10 in
late charges (Karamanoukian Decl. ¶¶ 11, 24); (4) $754,199.81 in future rent
adjusted to present value (Karamanoukian Decl. ¶¶ 31, 32, 41); (5) $2,272.50
expended to re-let the Premises (Karamanoukian Decl. ¶ 34); and (6) $7,981.48
in attorney fees to enforce the Lease (Karamanoukian Decl. ¶¶ 36, 37, 39).
II.
ANALYSIS
Defendants’ evidentiary objections are OVERRULED.
Pursuant to CCP § 484.090, with respect to both
applications, the Court finds:
With respect to the probable validity of plaintiff’s claim,
plaintiff demonstrates that the Lease provides for payment of rent and that
Michery guarantied Mullen’s performance under the Lease. (Karamanoukian Decl.
¶¶ 8, 10 & Exs. 1 at ¶ 51(III), 2.) The Lease has an expiration date of
August 14, 2025. (Karamanoukian Decl. ¶ 7 & Ex. 1 at ¶ 1.3.) Defendants
stopped paying rent on March 15, 2024, before the expiration of the Lease.
(Karamanoukian Decl. ¶¶ 20-22.) Unpaid rent remains outstanding under the Lease
and Guaranty. (Karamanoukian Decl. ¶ 22.)
Defendants assert an affirmative defense based on failure to
mitigate damages. (See Answer, Fifth Affirmative Defense.) “A plaintiff
who suffers damage as a result of either a breach of contract…has a duty to
take reasonable steps to mitigate those damages and will not be able to recover
for any losses which could have been thus avoided.” (Shaffer v. Debbas
(1993) 17 Cal.App.4th 33, 41.)
Defendants assert that plaintiff fails to provide sufficient
evidence of reasonable efforts to mitigate. The Court agrees. Plaintiff declares: “Following Defendants’
unexcused abandonment of the Premises, Plaintiffs have actively pursued the
re-letting of the Premises and have taken commercially reasonable measures to
mitigate its damages, as more fully set forth in Paragraphs 34-35 below.” (Karamanoukian
Decl. ¶ 16.) In paragraph 34 of plaintiffs’ declaration, he declares that,
after defendants abandoned the Premises, he “engaged a real estate broker to
market the Premises and used commercially reasonable efforts to re-let the
Premises.” (Karamanoukian Decl. ¶ 34.) In paragraph 35, plaintiff declares: “As
of the date of this declaration, Plaintiffs have been unable to re-let the
Premises despite commercially reasonable efforts.” (Karamanoukian Decl. ¶ 35.)
Plaintiff does not describe the efforts that he or the real estate broker took
to market the Premises. Plaintiff’s conclusory averments do not allow the Court
to determine whether plaintiff took reasonable steps to mitigate his damages.
On February 7, 2025,
plaintiff Karamanoukian submitted a supplemental declaration stating that
plaintiffs had entered into a new lease for a portion of the premises on
February 6, 2025, pursuant to which the new tenants would pay $16,430 per month
commencing April 1, 2025. (Karamanoukian Supp. Decl. ¶¶ 5-6.) Consequently, plaintiffs reduce their request
for attachment by $61,941.09 to $1,635,652.28. (Karamanoukian Supp. Decl. ¶¶ 7-8.) While evidence of subletting a portion of the
premises commencing eight months after Mullen vacated the property may
demonstrate some effort at mitigation, without more, the Court cannot conclude
that plaintiffs have sufficiently demonstrated reasonable efforts at mitigation
to warrant a claim for attachment of the damages they seek.
Moreover, even if plaintiffs
had provided meaningful evidence of reasonable steps to relet the Premises, the
Court notes that Mullen requested permission from plaintiff to sublet the
Premises in the summer of 2024. (Brown Decl. ¶ 7.) Paragraph 12, concerning
assignment and subletting, was stricken from the Lease. (Karamanoukian
Decl. ¶ 7 & Ex. 1 at ¶ 12.) “Unless a lease includes a restriction on
transfer, a tenant's rights under the lease include unrestricted transfer of
the tenant's interest in the lease.” (Civ. Code § 1995.210(b).) Because the
Lease was silent as to whether Mullen could sublet the Premises, it appears
Mullen has such a right under statute. Nevertheless, plaintiff refused to allow
Mullen to sublet the Premises. (Brown
Decl. ¶ 9 & Ex. A.) Because Mullen may have been able to sublet the
Premises but for plaintiff’s refusal to grant permission, which would have reduced
the outstanding rent owed under the Lease, the Court also finds that amount of
rent owed by defendants from at least the time of abandonment of the Premises
onward is not readily ascertainable, as required under CCP § 483.010(a).
For the foregoing
reasons, the amount to be attached shall be reduced by the amount of rent, late
charges, and interest claimed from August 2024 (the month when defendants
abandoned the Premises) to July 2025. From August to November 2024, plaintiff
claims $400,106.00 in base rent, $40,010.60 in late charges, and $2,654.33 in
interest, for a total of $442,770.93. (Karamanoukian Decl. ¶ 24.)
Plaintiff also claims $754,199.84 in rent due from December 2024 to July
2025. (Karamanoukian Decl. ¶ 32.) Further, because plaintiff does not describe
his efforts to relet the Premises, the amount to be attached shall also be
reduced by $2,272.50, the amount claimed for reletting expenses.
(Karamanoukian Decl. ¶ 34.) The total reduction from the requested amount of
attachment is $1,199,243.27.
Defendants assert
that plaintiff is not entitled to an award of rent for the entire Lease term
because Mullen returned the keys to plaintiff and plaintiff refused Mullen’s
request for permission to sublet the Premises. (Opp. at 6:16-21; Brown Decl. ¶
9 & Ex. A.) However, defendants do not dispute that they abandoned the
Premises on August 5, 2024. (Brown Decl. ¶ 8.) Payments were due on the
fifteenth of every month. (Karamanoukian Decl. ¶ 7 & Ex. 1 at ¶ 1.5.) Accordingly, defendants were obligated to
pay rent from August 2022, when the Lease began, to July 2024, the last monthly
payment due before defendants abandoned the Premises, because they were in
possession of the Premises during this period. The rent from August 2022 to
July 2024 remains unpaid (Karamanoukian Decl. ¶ 22), and plaintiff is entitled
to attach that amount as damages flowing from the breach of the Lease and
guaranty.
Defendants do not
state exactly when in the summer of 2024 they asked plaintiff to allow them to
sublet the Premises. (Brown Decl. ¶ 7.) Accordingly, the Court will allow the
amount of unpaid rent for the period prior to defendants’ abandonment of the Premises
to be attached. The amount to be attached shall include rent, late charges, and
interest owed for March 2024, when Mullen stopped paying rent, to July
2024, plus attorney fees incurred to collect on the Lease. (See Karamanoukian
Decl. ¶¶ 24, 36, 37, 39.)
The applications are GRANTED IN PART in the amount of $498,350.10
($1,697,593.37 - $1,199,243.27 [August 2024 to end of Lease]).
With respect to the amount of undertaking, CCP § 489.220
provides for an undertaking in the amount of $10,000. Defendants seek an
undertaking equal to at least 10% of the amount of the attachment sought on the
ground that $10,000 is “grossly inadequate to compensate Defendant in the event
the attachment is determined to be wrongful.” (Opp. at 8:1-3.) “If, upon
objection to the undertaking, the court determines that the probable recovery
for wrongful attachment exceeds the amount of the undertaking, it shall order
the amount of the undertaking increased to the amount it determines to be the
probable recovery for wrongful attachment if it is ultimately determined that
the attachment was wrongful.” (CCP § 489.220(b).) Defendants do not adequately
explain why 10% is necessary to compensate them for any wrongful attachment.
The Court will order an undertaking in the amount of $10,000
for each defendant.
The Court signs the proposed orders lodged on November 26,
2024 with modifications based on the ruling above. Further, with respect to the
proposed order as to defendant Michery, the Court strikes “Furthermore, the
real property located at 1323 El Paseo, La Habra Heights, CA 90631 (APN:
8238-027-028), pursuant to C.C.P. § 487.010(c)” from Attachment 3(C)(2).
Plaintiff provides no evidence that the referenced real property belongs to
defendant Michery.