Judge: H. Jay Ford, III, Case: 22SMCV00451, Date: 2023-04-18 Tentative Ruling

Case Number: 22SMCV00451    Hearing Date: April 18, 2023    Dept: O

  Case Name:  Falcon Enterprises, LLC v. 8210 Western Ave 26, LLC, et al.

SUBJECT:                (4) APPLICATION FOR WRIT OF ATTACHMENT

MOVING PARTY:   Defendants/Cross-Complainants 8210 S. Western Ave 26, LLC, Mama Moti, LLC, YHK 18, LLC, Javid Somekh and Yehezkel Kashanian

RESP. PARTY:         Plaintiff/Cross-Defendant Falcon Enterprises, LLC and Cross-Defendants Rami Vardi, David Zemach and Yaniv Shlomof

TENTATIVE RULING

            Defendants/Cross-Complainants 8210 S. Western Ave 26, LLC, Mama Moti, LLC, YHK 18, LLC, Javid Somekh and Yehezkel Kashanian’s Applications for Writs of Attacment as to (1) Falcon Enterprises, LLC; (2) Rami Vardi; (3) David Zemach; and (4) Yaniv Shlomof are DENIED. 

Cross-Defendants’ Evidentiary Objections to the Dec. of J. Somekh are SUSTAINED.

1.  The Claim: The money claim must be for a “fixed or readily ascertainable amount” of not less than $500 (excluding costs, interest, and attorney fees).  CCP § 483.010(a).  “If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession.”  CCP §483.010(c).  CCP §483.010(c)).  “A purpose of the attachment statutes is to confine attachments to commercial situations and to prohibit them in consumer transactions.”  Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4. 

The damages need not be liquidated. But they must be measurable by reference to the contract itself and the basis for computing damages must be reasonable and certain.  CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541 (master lease and corresponding lease schedules provided clear formula for computation of damages: monthly rent multiplied by unexpired term). 

Cross-Complainants fail to submit admissible evidence regarding the amount of their claims for breach of lease and guaranty.  Cross-Complainants’ evidence consists of a declaration for Javid Somekh, managing member of Cross-Complainant 8210 S. Western Ave.  Cross-Complainants cut and paste the memo of points and authorities into Somekh’s declaration. 

Also, based on the testimony regarding damages, the amount of attachment sought is not “readily ascertainable,” i.e. measurable by reference to the contract itself and the basis for computing damages are reasonable and certain.  Cross-Complainants seek $38,154,378 according to their proposed Writs of Attachment.  See Writ of Attachment submitted on 2-22-23.  However, they only argue and submit evidence for $36,575,428.  See Dec. of J. Somekh, pp. 13-17.

The testimony regarding damages and how they were calculated also lacks foundation and is incomprehensible.  Based on the inadmissible testimony, the $36,575,428 figure was not arrived at by measurement referencing the contract and reasonable and certain damage computations.  See Dec. of J. Somekh, pp.13-17.  Somekh’s use of a “gross rent multiplier” to project the property’s value lacks foundation, is uncertain and not tied to measurement by reference to the lease agreement. 

Cross-Complainants are also seeking damages for the entire lease period of 15 years without providing any admissible testimony regarding attempts at mitigation.  The $5,000,000 amount for “Lost Value of the Subject Property” is uncertain and unsupported by reasonable or certain methods of calculation.

2.  Probable Validity of the Claim: Is the claim supported and/or does the defendant have a viable argument in opposition to the claim?  If the application is unopposed, that appears to be a basis for finding that plaintiff has met his/her burden.  "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."  (CCP §481.190.). 

The court has the power to determine disputed facts on the basis of a preponderance of the evidence as disclosed in the affidavits and declarations (unlike summary judgment motions, for example, in which the court has no power to weigh the evidence).  See Hobbs v. Weiss (1999) 73 Cal. App.4th 76, 80 (court must “consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation”).  The trial court is not required to accept as true the sworn testimony of any witness or undisputed affidavit testimony. It may make contrary findings based on inferences drawn from other evidence.  See Bank of America v. Salinas Nissan (1989) 207 Cal.App.3d 260, 273.

Cross-Complainant’s only evidence in support of the probable validity of its claims is the inadmissible testimony of Somekh.  Cross-Complainant fails to establish the probable validity of its claims.

In addition, Cross-Defendants submit admissible evidence that the property was not delivered to them as promised in the Lease Agreement and that the preconditions necessary to trigger their lease payment obligations were never satisfied.  See Dec. of C. Frieda, ¶¶2-8; Dec. of T. Hanigan, ¶¶3-4.  Specifically, the leased property was to be used as a cannabis cultivation, manufacturing and distribution location, which required certain accommodations like a C1D1 room that was in good condition and properly permitted.  Id. at ¶¶3-4. Falcon discovered after execution of the Lease that there were several code violations on the property, including the C1D1 room.  Id.  Cross-Defendants evidence rebuts any showing that the Cross-Complainant’s claims are probably valid. 

At best, even if Cross-Complainant’s inadmissible, incomprehensible evidence were considered, there is an equal chance of either party prevailing and Cross-Complainants establish the possible validity of its claims.  Cross-Complainant was required to establish the probable, not possible, validity of its claims.

3.  Suit for Damages.  Yes. 

4.  Property to be Attached:  Where the defendant is an individual, the application must specify the particular property sought to be attached.  (See CCP §487.010.)  Defendant must be able to identify the property that plaintiff seeks to attach, so that the defendant can determine whether he desires to make a claim of exemption as to that property.  However, the requirement of a specific description does not prohibit the plaintiff from targeting for attachment all of the property of an individual defendant.  See Bank of America v. Salinas Nissan (1989) 207 Cal.App.3d 260, 268. 

However, all property within California held by a corporation, partnership or unincorporated association is subject to attachment if there is a statutory method of levy for the property (CCP §487.010(a),(b)).  By logical extension, the above requirement also should apply to limited liability companies.  See CCP §481.170 (defining “person” for attachment purposes to include corporations, partnerships, unincorporated associations and limited liability companies.)

When a plaintiff notices a hearing on an attachment application, the defendant must assert any exemption claims for targeted personal property five days before the hearing or such claims are deemed waived, absent a change of circumstances.  (CCP §§484.070(a), (e); 482.100.)

Cross-Complainant specifically identifies the properties to be attached.  See Proposed Writs of Attachment submitted on 2-22-23, Item 5.  However, Cross-Defendants submit admissible evidence establishing that two specific pieces of real property are not owned by any of the Cross-Defendants—7100 Sophia Avenue and 17329 Muskrat Avenue.  See Dec. of C. Frieda, ¶¶12-13. 

5.  Undertaking:  An undertaking is required pursuant to CCP §489.210 which provides that, "Before issuance of a writ of attachment . . ., the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action."  A flat amount of undertaking is provided for by statute: $10,000 (CCP §489.220(a)).  The Court may set a higher amount pursuant to CCP §489.220(b) if there is an objection to the undertaking.

No undertaking provided. 

6.  Claim of Exemption.  None.