Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This action arises from a breach of a commercial lease.  Plaintiff 3435 Ocean Park, LLC is the Landlord at 3435 Ocean Park Boulevard, Suite 110, Santa Monica, California where Defendant Heather Palleiko aka Heather Sweeney is a Tenant.  Tenant also was a guarantor on the lease.  Landlord alleges that Tenant breached the lease agreement and guaranty by failing to make rent payments and pay utilities and other operating expenses.  Landlord filed the instant action alleging a single claim for breach of the lease.   

This hearing is on Landlord’s application for writ of attachment.  Landlord argues that a writ should issue because (1) the amount at issue is fixed and readily ascertainable by resort to the lease, and (2) Landlord has established the probable validity of its claims as the evidence demonstrates there was an agreement between the parties; Landlord fully performed on the lease; Tenant breached the lease, and Landlord suffered resulting damages.  The Court previously denied Landlord’s application because they were not verified by Landlord’s representative, and instead were only signed by Landlord’s attorney.   

 

LEGAL STANDARD 

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.”¿ (Code Civ. Proc. § 484.010.)¿¿ 

The application shall be executed under oath and must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and (5) a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment.¿ (Code Civ. Proc. § 484.020.)¿¿ 

“The application [for a writ of attachment] shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”¿ (Code Civ. Proc. § 484.030.)¿¿¿ 

The Court shall issue a right to attach order if the Court finds all of the following:¿ 

(1) The claim upon which the attachment is based is one upon which an attachment may be issued.¿ 

 

(2) The plaintiff has established the probable validity of the claim upon which the attachment is based.¿ 

 

(3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.¿ 

 

(4) The amount to be secured by the attachment is greater than zero.¿ 

CCP § 484.090.¿ 

 

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”¿ (Code Civ. Proc. § 481.190.)  In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”¿ (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)¿  This procedure is “similar to a bench trial.”¿ (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 81.)   

At the times prescribed by Code Civ. Proc. § 1005(b), the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence.¿ (Code Civ. Proc. § 484.040.)¿¿¿ 

Attachment is a drastic remedy in that it provides for the collection of a debt by seizure in advance of trial and judgment, as security for the eventual satisfaction of the judgment.  Thus, under California law, attachment is a purely statutory remedy, subject to strict construction.  (Epstein v. Abrams¿(1997) 57 Cal.App.4th 1159, 1168.) 

ANALYSIS 

 

Landlord still has not filed an application verified by its representative.  Moreover, its application is supported by a declaration which references exhibits that are not attached.  Absent the exhibits, the Court cannot determine whether Landlord has a probable validity of prevailing on its claims.   

CONCLUSION 

For the foregoing reasons, the Court DENIES Landlord’s application for writ of attachment against Tenant.  

 

IT IS SO ORDERED. 

 

DATED:  September 24, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court