Judge: H. Jay Ford, III, Case: 24SMCV02408, Date: 2024-10-08 Tentative Ruling

Case Number: 24SMCV02408    Hearing Date: October 8, 2024    Dept: O

  Case Name:  Dume Plaza I, LLC, et al. v. Nate Heydari

SUBJECT:                APPLICATION FOR WRIT OF ATTACHMENT

MOVING PARTY:   Plaintiffs Dume Plaza I, LLC, Dume Plaza II, LLC, and Dume Plaza III, LLC

RESP. PARTY:         Defendants Nate Heydari

TENTATIVE RULING

Plaintiffs Dume Plaza I, LLC, Dume Plaza II, LLC, and Dume Plaza III, LLC Application for Writ of Attachment as to Defendant Nate Heydari is DENIED. 

1.         Plaintiffs fail to show by competent or persuasive evidence the amount of their claim is fixed or reasonably ascertainable.

            To obtain a writ of attachment, the claim for money must be for a “fixed or readily ascertainable amount” of not less than $500 (excluding costs, interest, and attorney fees).  CCP § 483.010(a).  Plaintiff shows on 1-26-24 Plaintiffs filed a UD action against the Tenant, with the Tenant turning over possession of the Premises on or about 3-26-24 to Plaintiffs. (Id., ¶¶ 9–10.) Plaintiff shows under the First Amendment, the Monthly Rent includes  the monthly base rent of the Premises at $25,164.00 (“Base Rent”), plus Additional Rent which includes Operating expenses, Real Property Taxes, insurance, repairs and parking charges at $9,949.97 per month. (Id., ¶¶ 11–15; Shakouri Decl., ¶ 2; Ex. A (“Demand Notice”) § A.ii.) Plaintiffs declare that between March 2023 and October 2024 (Month of the writ hearing) Tenant failed to remit Rent in the amount of $111,919.92, late charges in the amount of $11,181.89, and 10% accrued interest for all delinquencies at $2,170.52, allegedly totalling $370,969.12. (Natalia Decl., ¶¶ 15–20.)   However, this $370,969.12 figure does not match the costs provided in the Natalia declaration, which when doing the math adds up to $125,272.33. Furthermore, the Shakouri Declaration includes the Demand Letter attachment that shows a total owed of $125,171.33 for dates between March 2023 and March of 2024.

            Plaintiffs declare that the according to the Lease Agreement, § 23.1(a), Plaintiffs are entitled to recover discounted future rent between 11-1-24 to 10-31-20 in addition to the Rent, in the amount of $2,177,611.99—Plaintiffs attached a spreadsheet showing their calculations totaling $2,419,472.56. (Natalia Decl., ¶¶ 21–26, Ex. E.) Plaintiffs declare that pursuant to the Lease agreement § 23.1(a)(iv) Plaintiffs are entitled to brokerage fees with an estimated total of $175,000.00.  However Plaintiffs do not provide a spreadsheet showing their calculations. (Natalia Decl., ¶¶ 28–30; Shakouri Decl., ¶ 2; Ex. A § B.)

            Plaintiffs fail to establish the amount of damages is fixed or readily ascertainable, due to contradictory declarations showing different totals and estimated expenses without providing more evidence to support those expenses (i.e broker fees, additional costs, etc…)

2.  Defendant’s show the Assignment of the lease is void.  Therefore, Plaintiffs fail to show the probable validity of their claim.

"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.

            In their opposition, Plaintiff show the asset sale never closed, and therefore the assignment of the lease is null and void.  [Heydari Decl., Ex. 3. P.1 sec 2.]  Plaintiff did not address this obvious condition precedent to the enforceability of the lease in their application and the Court has not received any reply memorandum.