Judge Curtis A. Kin, Case Number: 24STCV28075, Date: 2025-03-25 Tentative Ruling

Judge: Curtis A. Kin, Case: 24STCV28075, Date: 2025-03-25 Tentative Ruling

Case Number: 24STCV28075 Hearing Date: March 25, 2025 Dept: 86

APPLICATION FOR RIGHT TO ATTACH ORDER

Date: 3/25/25 (1:30pm)

Case: Santa Clarita Auto Sound, Inc., et al. v. Hampartsum Tchakerian, (24STCV28075)

TENTATIVE RULING:

Plaintiffs Santa Clarita Auto Sound, Inc. (“Company”) and David Tchakerian’s (“David”) application for right to attach order with respect to defendant Hampartsum Tchakerian aka Henry Tchakerian (“Henry”) 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; AND

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

As a preliminary matter, the Court notes that defendant’s opposition papers were untimely. Pursuant to CCP 484.060(a), the opposition was due five court days prior to the 3/25/25 hearing, i.e., by no later than 3/18/25. Defendant, however, filed his papers on 3/19/25. Defendant and his counsel are admonished to comply with the applicable rule and deadlines. The Court would be well within its rights to disregard untimely filings now or in the future, but, in this instance, where plaintiffs filed a substantive Reply to the opposition, the Court exercises its discretion to consider the late-filed papers. (CRC 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

Plaintiffs Santa Clarita Auto Sound, Inc. and David Tchakerian’s claim for attachment is based on monies wrongfully withdrawn and taken by Henry from the Company’s account. Plaintiff David, CEO and CFO of the Company, owns 50% of the Company, and defendant Henry owns the other 50%. (David Tchakerian Decl. ¶ 3.) On October 22, 2024, Henry withdrew $300,000 from the Company’s bank account without authorization, reducing the balance from $453,203.64 to $153,203.64. (David Tchakerian Decl. ¶ 4; Ex. A.) That same day, Henry also took the keys to the Company’s safety deposit box at Chase Bank, which contained over $140,000 in precious metals. (David Tchakerian Decl. ¶¶ 4, 6.) On October 30, 2024, Chase Bank drilled the safety deposit box, which was found empty, and the bank confirmed that Henry had accessed it. (David Tchakerian Decl. ¶ 6.)

Although the operative Complaint asserts six purported causes of action for (1) breach of fiduciary duty, (2) conversion, (3) civil stalking, (4) defamation, (5) temporary restraining order and preliminary injunction, and (6) appointment of receiver, the Court finds plaintiffs have asserted a contract claim upon which attachment may be based. (See CCP 483.010(a) [“A]n attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied . . .”].) Established case law makes clear that, even where a contract claim has not been asserted, attachment may be had under circumstances where a contract may be implied-in-law. (Klein v. Benaron (1967) 247 Cal.App.2d 607, 609 [noting “several other cases” “in which attachments were found possible on the implied-in-law theory, although fraud, conversion, failure of an agent to turn over money . . . had inspired the actions”]; see also Hill v. Superior Court (1940) 16 Cal.2d 527, 530-31 [“[W]here the facts show misappropriation of funds one may waive the tort and sue upon an implied contract for money had and received. Such an action is based upon the tort of embezzlement, yet the action is one ex contractu, in which the plaintiff may have a writ of attachment”]; Los Angeles Drug Co. v. Superior Court (1936) 8 Cal.2d 71, 74 [finding attachment permissible because “[i]t is well settled that where personal property is converted the injured party may waive the tort and sue in assumpsit” because “while the tort is the cause of injury, yet the action is one ex contractu”].)

Here, the claim for attachment of $300,000 is based on Henry having taken the Company’s money from the Company’s bank account without authorization. Henry has an obligation to return the Company’s money as an Ex Contractu promise implied by law to repay or return money belonging to the Company. (See Klein, 247 Cal.App.2d at 608-09.) Accordingly, notwithstanding the absence of a cause of action for breach of contract in the Complaint, plaintiff has sufficiently made out a claim upon which attachment may issue.

Plaintiffs also demonstrates the probable validity of the claim. Corroborating David Tchakerian’s declaration regarding Henry’s taking $300,000, plaintiffs present evidence, including records from the Company’s account at JPMorgan Chase, confirming defendant’s actions. (David Tchakerian Decl. ¶¶ 7-9; Exs. B, C, D.) Henry had no authorization to withdraw the funds, and no board meeting approved these actions. (David Tchakerian Decl. ¶ 11.) Henry has not returned any of the Company’s money. (David Tchakerian Decl. ¶ 13.) Even if, as a 50% owner of the Company, Henry might ultimately be entitled to his rightful share of monies from the Company in the form of shareholder distributions or profits, that right does not translate into a unilateral right for an owner to transfer money out of the Company’s account as he pleases without authorization. Indeed, Henry confirms that he took the money, stating: “[O]n or about October 22, 2024, I withdrew $300,000 from Company funds.” (Henry Tchakerian Decl. ¶ 11.) Moreover, he explains that his motivation to do so was “to protect my rightful financial share of the business,” which, even if viewed as a logical reason to move the money, is nonetheless a concession that Henry did not have authorization from the Company to take the $300,000. (See Henry Tchakerian Decl. ¶ 11.) On this record, the Court thus finds plaintiffs have demonstrated they are likely to prevail on their claim that Henry wrongfully took the Company’s money.

As for defendant’s other arguments in opposition to the application for a right to attach order, the Court finds them unavailing. Defendant argues that “[p]laintiff’s application fails to specifically identify any non-exempt assets.” (Opp. at 7.) The burden to demonstrate the exemption of certain property from attachment lies with the defendant. (CCP 484.070.) Where, as here, defendant has not sought or demonstrated any exemption, plaintiffs may attach any of the categories of property listed in CCP 487.010(c) [property of a natural person]. Defendant next argues that plaintiff’s failure to post an undertaking “alone is grounds to deny the Application.” (Opp. at 8.) While it is true that plaintiffs must post a $10,000 undertaking before any writ of attachment shall issue (CCP 489.220(a)), the failure to post an undertaking in advance of the application being heard is not grounds to deny the request for attachment. Defendant also argues that “plaintiff failed to demonstrate risk of dissipation or concealment (CCP 485.010).” (Opp. at 8.) The showing of great or irreparable injury under CCP 485.010 applies to attachment sought on an ex parte basis, and the instant application was brought on Notice. Lastly, defendant contends that plaintiffs are using attachment as litigation leverage and that their own purported misconduct preclude equitable relief. (Opp. at 8-9.) The Court finds that defendant has failed to demonstrate in any meaningful way that either of these claims are true.

As for the amount of attachment, plaintiffs seek a Writ of Attachment for the unsecured amount of $300,000, plus interest, attorneys’ fees, and costs, totaling $312,864.87. (David Tchakerian Decl. ¶ 17.) Defendant provides no argument in opposition to the amount of the attachment. The Court finds the attorney’s fees and costs to be a reasonable for purposes of attachment.

Based on the foregoing, the plaintiffs’ application will be granted in the amount of $312,864.87 ($300,000 outstanding balance + $9,369.87 interest at rate of 10% since October 22, 2024 + $3,000 in attorney’s fees + $495.00 in costs). Before any Writ will issue, plaintiffs must post a bond in the amount of $10,000. (CCP § 489.220.) Within five (5) court days, plaintiffs shall submit a Proposed Order on the applicable Judicial Council form in accordance with the ruling herein.