Judge Elaine W. Mandel, Case Number: 23SMCV05356, Date: 2024-02-02 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV05356, Date: 2024-02-02 Tentative Ruling

Case Number: 23SMCV05356 Hearing Date: February 2, 2024 Dept: P

Tentative Ruling

Oakhurst Income Fund II, LP v. Caverhill, Case No. 23SMCV05356

Hearing date February 2, 2024

Plaintiff Oakhurst Income Fund II, LP’s Application for Writ of Attachment

Plaintiff Oakhurst Income Fund alleges defendant Caverhill entered into three continuing guaranty agreements in connection with three promissory notes. Pursuant to these notes, Plaintiff loaned $1,705,000 to Rampart Resources, which defaulted. Plaintiff seeks a writ of attachment against defendant’s interest in property located at 2500 Briarcrest Road, Beverly Hills, CA 90210. No opposition was filed.

“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 [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 declarations in the moving papers must contain evidentiary facts, stated ‘with particularity,’ and based on actual personal knowledge with all documentary evidence properly identified and authenticated.” Hobbs, supra, 73 Cal.App.4th at p. 79–80 (citing Code Civ. Proc. §482.040).

The court shall issue a right to attach order if the claim is one upon which an attachment may be issued; plaintiff established the claim’s probable validity; the attachment is not sought for a purpose other than recovery on the claim upon which the attachment is based; and the amount to be secured is greater than zero. Code Civ. Proc. §484.090.

The court shall issue a right to attach order if the claim upon which the attachment is based is one upon which an attachment may be issued. Code Civ. Proc., §484.090 (a)(1). “[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, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.” Code Civ. Proc., §483.010(a).

Plaintiff’s application is based on the three continuing guarantee agreements and alleged breach thereof. Plaintiff seeks compensatory damages of $1,087,459.48, which amount is readily ascertainable. The claim is a proper basis for attachment.

Attachment is not sought for a purpose other than recovery on a claim upon which the attachment is based. AT-105 ¶ 4. The amount sought to be secured is greater than zero. Id. ¶ 8. Plaintiff seeks attachment of an interest in property located at 2500 Briarcrest Rd., Beverly Hills, CA 90210. AT-105 ¶ 9(c); Fine Decl. ¶ 8, Exh. 4. This described the property sought to be attached. Code Civ. Proc. § 487.010(c)(1).

Because an opposition has not been submitted, defendant has not claimed to be entitled to any exemptions.

“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. The court must consider the relative merits of the parties’ positions. Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1484.

The elements for a breach of contract claim are (1) the contract, (2) plaintiff’s performance, (3) defendant’s breach, and (4) damages. Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.

Scott Fine, CEO of Platinum Loan Servicing, the loan servicing agent for plaintiff, states plaintiff loaned Rampart Resources $1,705,000 based on three promissory notes executed August 31, 2022. Fine Decl. ¶ 2, Exh. 1(B). Defendant personally guaranteed these promissory notes pursuant to three separate continuing guaranty agreements. Id, Exh. 1(A). Because Rampart defaulted, plaintiff recorded notices of default. Id., Exh. 2. The principal, plus interest, costs, and expenses are outstanding. Id. at ¶ 4, Exh. 3.

Plaintiff’s evidence shows: (1) a contract; (2) plaintiff performed by funding; (3) defendant failed to make necessary payments; and (4) damage. Considering no opposition has been filed, the court finds plaintiff has shown it is more than likely than not that it will obtain a judgment.

Code of Civil Procedure § 489.210 requires plaintiff to file an undertaking before issuance of a writ of attachment. Unless an objection has been made, a writ of attachment requires the posting of a $10,000 undertaking. Code Civ. Proc. §489.220. There is no objection to the sum of $10,000. Once plaintiff submits an undertaking of $10,000, the application will be GRANTED.