Judge James C. Chalfant, Case 21STCV22712 2022-09-13 Tentative Ruling

Plaintiff H&H Retail Owner (“Landlord”) applies for right to attach orders against Defendants Clover & Co., doing business as Whealthy (“Tenant”) and Modern Motors, Inc. (“Guarantor”) in the amount of $711,474.51.

The court has read and considered the moving papers[1] and opposition[2] (no reply was filed) and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Landlord filed this Complaint against Defendants Tenant and Guarantor on June 17, 2021, alleging causes of action for: (1) breach of lease and (2) breach of guaranty, both for non-payment of rent. The Complaint alleges in pertinent part as follows.

On July 15, 2016, Landlord and Tenant entered into a ten-year Lease (“Lease”) for a 1,625 square-foot property called “Space No. 3-A-321C” (“Premises”) in the Hollywood & Highland (“Shopping Center”). The Lease set the Minimum Annual Rent (“Minimum Annual Rent”) at $65 per square foot for the first year, to increase by 3% for every year thereafter and to be paid in 12 monthly installments. The Lease holds Tenant responsible for other charges (“Additional Rent”), which include (a) a monthly Chilled Water Charge based on Landlord’s estimate, with Tenant to pay any amount by which the actual expense exceeds the estimate at the end of the calendar year and (b) Common Area Expenses for the non-exclusive license to use the Common Area, and (2) a Marketing Assessment as a monthly contribution to market the Shopping Center, to be paid in 12 monthly installments and to increase by 3% every year.

On the same date, Landlord and Guarantor entered the Form Guaranty of the Lease (“Guaranty”) whereby Guarantor agreed to be liable for all rent and other sums owed by Tenant.

On November 14, 2016, Landlord and Tenant entered into a written amendment to the Lease (“First Amendment”).

Between March 2020 and June 2021, Tenant defaulted for failure to pay Rent owed under the Lease. The Minimum Annual Rent amounted to $9,115.16 per month from March 2020 to January 2021 and $9,338.62 per month from February 2021 to June 2021. Chilled Water Charges during this period totaled $202.46, all for March 2020. Common Area Expenses totaled $9,193.62 per month from March through December 2020 and $12,459.07 per month from January through June 2021. The Marketing Assessment totaled $280.47 per month from April through December 2020 and $288.88 per month from January to June 2021. The total amount owed (“Past Due Rent”) is $316,540.74, and Landlord anticipates Tenant will incur $265,638.84 in additional Past Due Rent by June 2022 (“Future Rent”).

On March 3 and 30, 2021, Landlord served letters demanding payment of the Past Due Rent at the time. The Lease also entitled Landlord to attorney’s fees connected to attempts to enforce the Lease. Landlord seeks (1) Past Due Rent and Future Rent less any partial rent the Defendants pay before judgment; and (2) attorney’s fees and costs.

2. Course of Proceedings

On September 9, 2021, Landlord served Tenant with the Complaint and Summons by substitute service, effective September 19, 2021.

Also on September 9, 2021, Landlord served Guarantor with the Complaint and Summons.

On October 12, 2021, Dept. 45 (Hon. Mel Recana) entered default against Guarantor.

On November 4, 2021, Tenant filed an Answer.

On January 27, 2022, the parties stipulated to vacate the default against Guarantor, which filed its Answer with the stipulation and refiled the Answer on February 10, 2022.

B. Applicable Law

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP §481.010 et seq.) that meets the due process requirements set forth in Randone v. Appellate Department, (1971) 5 Cal.3d 536. See Western Steel & Ship Repair v. RMI, (12986) 176 Cal.App.3d 1108, 1115. As the attachment statutes are purely the creation of the Legislature, they are strictly construed. Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.

A writ of 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). CCP §483.010(a). A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).

All property within California of a corporation, association, or partnership is subject to attachment if there is a method of levy for the property. CCP §487.010(a), (b). While a trustee is a natural person, a trust is not. Therefore, a trust’s property is subject to attachment on the same basis as a corporation or partnership. Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, supra, 197 Cal.App.3d at 4.

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint. CCP §484.010. Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing. See ibid.

The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115). The application must 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. CCP §484.030.

Where the defendant is a corporation, a general reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). A specific description of property is not required for corporations and partnerships as they generally have no exempt property. Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (1989) 207 Cal.App.3d 260, 268.

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing. CCP §484.050(e). The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).

The plaintiff may file and serve a reply two court days prior to the date set for the hearing. CCP §484.060(c).

At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment. The defendant may appear the hearing. CCP §484.050(h). The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence. Bank of America, supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. CCP §482.040. The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed. See Bank of America, supra, at 271, 273.

The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP §484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP §484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP §484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP §484.090(a)(4)).

A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. CCP §481.190. In determining this issue, the court must consider the relative merits of the positions of the respective parties. Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484. The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order. CCP §484.050(b).

Except in unlawful detainer actions, the amount to be secured by the attachment is the sum of (1) the amount of the defendant’s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys’ fees under CCP section 482.110. CCP §483.015(a); Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852. This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant’s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest’s value. CCP §483.015(b). A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a prima facie showing that the claim would result in an attachment against the plaintiff.

Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. CCP §489.210. The undertaking ordinarily is $10,000. CCP §489.220. If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment. CCP §489.220. The court also has inherent authority to increase the amount of the undertaking sua sponte. North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.

On January 25, 2022, the County of Los Angeles (“County”) enacted the most recent version of the LA County COVID-19 Tenant Protections Resolution (“Resolution”). RJN Ex. 1. The Resolution covers the Protected Time Period of March 4, 2020 through January 31, 2022 (“Protected Time Period”). RJN Ex. 1, §IV(L). The Resolution applies to non-payment eviction notices, no-fault eviction notices, rent increase notices, unlawful detainer actions, and other civil actions, including, but not limited to, actions for repayment of rental debt accrued on or after March 4, 2020. Ex. 1, §V.

The Resolution provides protection from eviction for tenants impacted by the COVID-19 crisis. Ex. 1, §VI. Commercial tenants with less than ten employees can self-certify their inability to pay, provided that the inability to pay stems from financial hardship related to COVID-19. RJN Ex. 1, §VI(A)(1), (B)(2)(a). The tenant must give notice of its inability to pay within seven days of the rent due date. RJN Ex. 1, §VI(A)(1). The commercial tenant has until January 31, 2023 to repay unpaid rent incurring during the Protected Time Period. RJN Ex. 1, §VI(C)(2)(a). During the repayment period, a landlord is prohibited from enforcing a personal guaranty for rent. RJN Ex. 1, §VI(C)(2)(c). A “personal guarantee” is a guarantee for a commercial tenant with nine or fewer employees by a third party who is a natural person and not a business entity. RJN Ex. 1, §IV(I).

Commercial tenants with between ten and 100 employees must provide written documentation of financial hardship. RJN Ex. 1, §VI(B)(2)(b). Such tenants have until July 31, 2022 to repay the unpaid rent incurred during the Protected Time Period in equal installments unless the landlord and tenant agree on an alternate payment arrangement. RJN Ex. 1, §VI(C)(2)(b).

A landlord must inform such a commercial tenant of its rights under the Resolution and cannot enforce a Personal Guarantee for rent incurred by a commercial tenant during the Protected Time Period. RJN Ex. 1. §VI(D).

Landlords shall not impose any late fees or interest on unpaid rent during the protected period. RJN Ex. 1, §VIII.

The Resolution applies to incorporated cities within the County and is intended to provide uniform, minimum standards protecting tenants. RJN Ex. 1, §V(B)(2). Nothing in the Resolution precludes any incorporated city within the County from imposing greater protections so long as not inconsistent with the Resolution. RJN Ex. 1, §V(B)(2)(b).

The Resolution notes that commercial tenants would not enjoy further eviction protection after January 31, 2022. RJN Ex. 1, §VI(A)(1).

On May 7, 2020, the City of Los Angeles (“City”) enacted Ordinance No. 186606 (the “Ordinance”), which modified Los Angeles Municipal Code (“LAMC”) sections 49.99.3 and 49.99.5. RJN Ex. 2.

The Local Emergency Period is defined as the period from March 4, 2020 to the end of the local emergency period as declared by the Mayor. RJN Ex. 2, §49.99.1(C).

In a heading entitled “Prohibition on Commercial Evictions”, the Ordinance prohibits a commercial eviction during the Local Emergency Period and for three months thereafter for failure to pay rent due to circumstances related to the COVID-19 pandemic. RJN Ex. 2, §49.99.1(C). Tenants shall have up to three months following the expiration of the Local Emergency Period to repay any rent incurred deferred during the Local Emergency Period. Id. Nothing in the Ordinance eliminates the tenant’s obligation to pay lawfully charged rent. Id. No owner can charge interest or a late fee on rent not paid during the period. Id.

LAMC section 49.99.5, entitled “Retroactivity”, clarifies that the Ordinance applies to non-payment eviction notices, no-fault eviction notices, and unlawful detainer actions based on such notices. RJN Ex. 2, §49.99.5. The provision reiterates that the Ordinance does nothing to eliminate any obligation to pay lawfully charged rent. Id.

As of September 6, 2022, the City Housing Department’s COVID-19 Renter Protections webpage shows that the City’s Local Emergency Period is ongoing. RJN Ex. 3.

On July 25, 2016, Landlord and Tenant entered into the ten-year Lease for the Premises, which measured 1,625 square feet. Murphy Decl., ¶2, Ex. A.

Section 25.20 made time of the essence in the performance of all covenants and conditions

of this Lease, including payment of rent. Murphy Decl., ¶2, Ex. A. Section 4.2 requires Tenant to pay the Minimum Annual Rent as an annual amount divided into 12 monthly installments. Murphy Decl., ¶2, Ex. A. Section 1.9 defines the Minimum Annual Rent as $65 per square foot for the first Lease Year, to increase by 3% for every year thereafter. Murphy Decl., ¶2, Ex. A. The first Lease Year begins on the first day of the first calendar month after the Rent Commencement Date, which is the earliest of (1) 150 days after delivery to Tenant of the Premises; (2) October 1, 2016; and (3) the date Tenant first opens business in the Premises. Murphy Decl., ¶2, Ex. A. Tenant has been in the possession of the Premises since approximately January 15, 2017. Murphy Decl., ¶6.

Section 4.4 of the Lease requires Tenant to pay Additional Rent. Murphy Decl., ¶2, Ex. A. Section 4.4(a) requires Tenant to pay Landlord estimated Chilled Water Charge charges on the first day of each month. Murphy Decl., ¶2, Ex. A.

Section 7.1 grants Tenant and its employees, contractors, licensees, agents, customers and invitees a non-exclusive license to Common Areas. Murphy Decl., ¶2, Ex. A. Per section 7.3(b), Tenant is to pay its share of Common Area Expenses based on total Common Area Expenses for all tenants multiplied by Tenant’s proportion of the Floor Area compared to all premises in the Shopping Center. Murphy Decl., ¶2, Ex. A. Any Shopping Center tenant that sells food and beverages for immediate consumption, has Premises in reasonable proximity to a dining patio, but is not a full-service sit-down restaurant must also pay Dining Patio Expenses. Murphy Decl., ¶2, Ex. A. The Lease defines the Tenant’s share of Dining Patio Expenses as a proportion of its Floor Area compared to all Tenants withing reasonable proximity of the same dining patio. Murphy Decl., ¶2, Ex. A. Any Shopping Center tenant near a common grease interceptor must also pay Common Area expenses for that interceptor, calculated the same way as Dining Patio Expenses. Murphy Decl., ¶2, Ex. A.

For both Chilled Water Charges and Common Area Expenses, section 4.4(b) provides that Landlord will provide Tenant with separate statements for Tenant’s share of the expenses at the end of each calendar year or property tax installment period, after which Tenant is to pay the amount by which they exceeded its monthly payments. Murphy Decl., ¶2, Ex. A. If the monthly payments exceeded the amount owed, section 4.6 compels the Landlord to either refund the difference or apply it to any amounts the Tenant owes. Murphy Decl., ¶2, Ex. A.

Article 8 of the Lease imposes a Marketing Assessment on Tenant as a contribution towards the Marketing Fund, payable in monthly installments. Murphy Decl., ¶2, Ex. A. Section 1.11 defines the initial annual Marketing Assessment as $2.00 per square foot, and section 8.2 increases the Marketing Assessment by 3% per year every January 1. Murphy Decl., ¶2, Ex. A.

Sections 26.1 and 1.15 of the Lease required the Tenant to pay two months of Minimum Annual Rent as a security Deposit. Murphy Decl., ¶2, Ex. A. Upon default, section 26.2 permitted Landlord to apply the deposit to any rent owed, at which point Tenant must restore the deposit to the original amount. Murphy Decl., ¶2, Ex. A.

Upon Tenant’s failure to pay rent when due, Section 4.7 imposes a $400 late charge plus interest, calculated from earlier of the date of when such sum was due or Landlord made a demand for it. Murphy Decl., ¶2, Ex. A. The Lease defines the Interest Rate as the lesser of the maximum lawful rate in the state and two percent (2%) above the annual interest rate that the Bank of America in San Francisco last announced as its prime or reference rate. Murphy Decl., ¶2, Ex. A.

Section 16.1(a) of the Lease defines Default to include Tenant’s failure to pay Minimum Annual or Additional Rent when due. Murphy Decl., ¶2, Ex. A. Upon such default, Section 16.2 requires Landlord to provide written notice and demand that Tenant cure the default within three days before it can pursue any remedy. Murphy Decl., ¶2, Ex. A. If Tenant fails to cure the default, Section 16.3 entitles Landlord to continue the Lease, continue to recover rent from Tenant as it becomes due, and pursue any other rights and remedies available by law. Murphy Decl., ¶2, Ex. A.

In connection with the Lease, Landlord and Guarantor executed the Guaranty. Murphy Decl., ¶3, Ex. C. The Guaranty holds Guarantor liable for all rent and other payable sums under the Lease and enables the Landlord to pursue legal remedies against Guarantor without first proceeding against Tenant or providing notice to or demand upon either Tenant or Guarantor. Murphy Decl., ¶3, Ex. C. Section 5 allows the Landlord to enforce the Lease against the Tenant or Guarantor without notice of Tenant default. Murphy Decl., ¶3, Ex. C. Section 6 allows the Landlord to enforce the Lease against Guarantor without proceeding against the Tenant. Murphy Decl., ¶3, Ex. C. Section 10 reiterates that the Landlord does not exhaust its rights until Tenant and Guarantor pay and perform all indebtedness and obligations in full. Murphy Decl., ¶3, Ex. C.

On November 14, 2016, Landlord and Tenant executed the First Amendment to the Lease. Murphy Decl., ¶4, Ex. B. The First Amendment modifies the Premises to 1,540 square feet. Murphy Decl., ¶4, Ex. B. It also redefines the Rent Commencement Date as the earlier of January 15, 2017, and the date Tenant first opened for business in the Premises. Murphy Decl., ¶4, Ex. B.

Tenant defaulted for failure to pay the Minimum Annual Rent or Additional Rent on March 1, 2020. Murphy Decl., ¶7. Tenant also failed to pay either the Minimum Annual Rent or Additional Rent every month thereafter. Murphy Decl., ¶7.

Landlord served a Demand Letter on March 3, 2021. Goodkin Decl., ¶2, Ex. E. The letter claimed that Tenant and Guarantor owed $227,994.16 in Past Due Rent, including $107,835.67 in Minimum Annual Rent, $116,854.34 in Common Area Expenses, $3,101.99 in Marketing Assessments, and $202.46 in Chilled Water Charges. Goodkin Decl., ¶2, Ex. E. Landlord warned Defendants that it would invoke its right to pursue all rights and remedies under the Lease, including application for a writ of attachment, unless it paid this amount in three days. Goodkin Decl., ¶2, Ex. E.

Landlord received no response and sent a second Demand Letter on March 30, 2021 for the amount previously stated and $22,136.67 in additional Past Due Rent incurred during that month, for a total of $250,131.03. Goodkin Decl., ¶3, Ex. F. Landlord again warned Defendants that failure to pay within three days would compel it to pursue all rights and remedies under the Lease. Goodkin Decl., ¶3, Ex. F.

As of September 13, 2022, Tenant and Guarantor owe $684,511.75 in past rent. Murphy Decl., ¶10, Ex. D. This amount includes the Minimum Annual Rent, Chilled Water Charges, Common Area Expenses, and Marketing Assessment since March 2020, listed on the Landlord ledger as “Monthly Base Rent”, “Water Reimbursement,” “Estimated Monthly CAM,” and “Promotional Fund” respectively. Murphy Decl., ¶10, Ex. D.

According to the ledger (Exhibit D), the Minimum Annual Rent was $9,115.16 per month from March 2020 to January 2021, $9,338.62 per month from February 2021 to January 2022, and $9,670.28 from February 2022 to September 2022. Murphy Decl., ¶10, Ex. D. Landlord has assessed Chilled Water Charges of $202.46 for only March 2020. Murphy Decl., ¶10, Ex. D. Common Area Expenses totaled $9,193.62 per month from March through December 2020, $12,459.07 per month from January through December 2021, and $16,191.42 per month from January through September 2022. Murphy Decl., ¶10, Ex. D. The Marketing Assessment totaled $280.47 per month from March through December 2020, $288.88 per month from January to December 2021, and $297.55 from January through September 2022. Murphy Decl., ¶10, Ex. D.

There are no statutory reductions to the amounts Defendants owe, and they have not claimed any debts against the Landlord. Murphy Decl., ¶9. Landlord remains the owner of the Premises and Tenant remains in possession. Murphy Decl., ¶¶ 5-6.

If either party of the Lease institutes actions or proceedings against the other to enforce its rights under the Lease, including collection of rent, Article 24 of the Lease requires the non-prevailing party to reimburse the prevailing party for all related fees and costs. Murphy Decl., ¶2, Ex. A. Counsel for Landlord charges $450.00 per hour for partners, $325-345 per hour for associates, and $95.00 per hour for law clerks. Goodkin Decl., ¶7. As of August 15, 2022, Landlord has incurred $13,962.76 in attorney’s fees and expects to incur $3,000 more through this application. Goodkin Decl., ¶8.

Tenant used the Premises to operate Whealthy, a fast casual restaurant, in the Shopping Center. Lee Decl., ¶4.

Tenant was dissolved on August 30, 2018, and Guarantor was dissolved on October 21, 2019. Lee Decl., ¶3. Tenant did not have any employees from 2020 thereafter. Lee Decl., ¶5.

COVID-19 impacted the restaurant business due to government ordered closures, reduced sales, and labor shortages. Lee Decl., ¶6. Governor Gavin Newsom’s order on March 19, 2020 for all individuals to stay at home to avoid a fine or imprisonment shut down the entire Shopping Center. Lee Decl., ¶¶ 6-7. Tenant followed the order and halted all operations, which left it unable to pay rent. Lee Decl., ¶8.

Before Landlord filed this lawsuit, Tenant had many discussions, oral and written, with Landlord to address the rent issue. Lee Decl., ¶9. Lee Decl., ¶9. Tenant asked for a significant rent reduction and stated that it could not survive without a rent adjustment. Lee Decl., ¶9.

In February 2021, Tenant informed Landlord that it could repossess the Premises. Lee Decl., ¶6.

Tenant has not recovered from the effects of the pandemic and related closures. Lee Decl., ¶10.

Plaintiff Landlord applies for a right to attach order against Defendants Tenant and Guarantor in the amount of $711,474.51, including $10,000 in costs and $16,962.76 in attorney’s fees.

Landlord’s claim is based on the Lease entered into by Tenant and the Guaranty signed by Guarantor. Murphy Decl., ¶¶ 2, 3, Ex. A, C. Landlord has a claim on which attachment can be based.

A claim is “readily ascertainable” where the damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41. The fact that the damages are unliquidated is not determinative. Id. But the contract must furnish a standard by which the amount may be ascertained and there must be a basis by which the damages can be determined by proof. Id. (citations omitted).

Landlord seeks to attach unpaid Minimum Annual Rent, Chilled Water Charges, Common Area Expenses, and Marketing Assessment. Murphy Decl., ¶10, Ex. D. Landlord claims that between these four charges, Tenant owes $684,511.75 in past rent. Murphy Decl., ¶10, Ex. D. Because the Guarantor is liable for all damages and unpaid debts of the Tenant through the Guaranty, the analysis of the ascertainable damages is identical. Murphy Decl., ¶3, Ex. C.

The Lease provides that the Minimum Annual Rent begins at $65 per square foot and increases by 3% every year after the first Lease Year, which begins on the first day of the first calendar month after the Rent Commencement Date. Murphy Decl., ¶2, Ex. A. The First Amendment changed the Rent Commencement Date to mid-January 2017, so the increase occurs every February from 2018 thereafter. Murphy Decl., ¶4, Ex. B.

Landlord fails to provide the calculations of Minimum Annual Rent, Marketing Assessment, Chilled Water Charges, and Common Area Expenses. Instead, it only provides a ledger stating what these amounts are and carrying them forward. Murphy Decl., ¶10, Ex. D. While these calculations potentially may be made from Landlord’s exhibits, the court will not perform this task for Landlord. Because Landlord failed to calculate the pertinent amounts, it has not shown a readily ascertainable claim capable of attachment.

As of August 15, 2022, Landlord has incurred $13,962.76 in attorney’s fees and expects to incur $3,000 more through this application. Goodkin Decl., ¶8. Although Landlord’s counsel has not provided the precise hours, it has listed the hourly rates for the staff involved (Goodkin Decl., ¶7) and this suggests that $16,962.76 in attorney’s fees is reasonable. The $10,000 in costs is also reasonable given that this litigation has lasted over a year against two different Defendants based on two different contracts. Murphy Decl., ¶¶ 2, 3, Ex. A, C. If Landlord had a readily ascertainable claim, these fees and costs could be added.

Defendants assert that Tenant informed Landlord that it can repossess the Premises in February 2021. Lee Decl., ¶6. If true, Landlord has failed to mitigate damages by leasing the Premises to another Tenant and is precluded from collecting rent thereafter. Opp. at 2, fn. 3. However, Defendants provide no documentary evidence of this notice. Lee Decl., ¶6. The affirmative defense of failure to mitigated has not been adequately shown.

Defendants acknowledge that Tenant failed to pay rent from March 2020 thereafter but attribute it to the effects of the COVID-19 pandemic. Lee Decl., ¶¶ 6-8. Defendants therefore assert that under the Ordinance and the Resolution, no rent is due before January 2023 at the earliest and Tenant did not breach the Lease. RJN Exs. 1-2. Opp. at 7.

The Resolution covers the Protected Time Period of March 4, 2020 through January 31, 2022 (“Protected Time Period”). RJN Ex. 1, §IV(L). The Resolution applies to non-payment eviction notices, no-fault eviction notices, rent increase notices, unlawful detainer actions, and other civil actions, including, but not limited to, actions for repayment of rental debt accrued on or after March 4, 2020. Ex. 1, §V.

During the repayment period, a landlord is prohibited from enforcing a personal guaranty for rent. RJN Ex. 1, §VI(C)(2)(c). A “personal guarantee” is a guarantee for a commercial tenant with nine or fewer employees by a third party who is a natural person and not a business entity. RJN Ex. 1, §IV(I).

Defendants assert that they dissolved in 2018 and 2019, respectively, and Tenant therefore had no employees in 2020 and did not need to provide written documentation of financial hardship. Lee Decl., ¶¶ 3, 5. Tenant provided notice of its inability to pay multiple times before Landlord filed the Complaint and asked for a reduction of rent. Lee Decl., ¶9. Under the Resolution, Landlord cannot collect back rent from Tenant until January 2023 at the earliest. Therefore, Tenant is not in breach of the Lease for failure to pay rent until then. Opp. at 7.

Despite the claim that some of the discussions were written, Defendants provide no documentary evidence of the discussions where Tenant informed Landlord of its inability to pay. Lee Decl., ¶9. Defendants also provide no documentary evidence supporting the claim that both companies had dissolved before the pandemic and therefore had no employees during the Protected Time Period. Nonetheless, these facts appear undisputed.

However, the Resolution only provides protection for tenants impacted by the COVID-19 crisis. Ex. 1, §VI. Defendants fail to explain how COVID-19 and the business restrictions that began in March 2020 had a negative impact on entities that already had been dissolved. See Lee Decl., ¶¶ 6-8. Additionally, the protections for a personal guaranty for rent only apply to a guaranty by a third party who is a natural person and not a business entity. RJN Ex. 1, §§ IV(I), VI(C)(2)(c). Guarantor does not qualify for this protection under the Resolution. RJN Ex. 1.

Finally, Defendants correctly note that Landlord was required to provide notice to Tenant of its rights under the Resolution. Opp. at 5. They do not show, however, that Landlord failed to provide this notice.

Defendants fail to demonstrate that the Resolution excuses Tenant and Guarantor from paying rent during the Protected Time Period.

The Local Emergency Period is defined as the period from March 4, 2020 to the end of the local emergency period as declared by the Mayor. RJN Ex. 2, §49.99.1(C).

As of September 6, 2022, the City Housing Department’s COVID-19 Renter Protections webpage shows that the City’s Local Emergency Period is ongoing. RJN Ex. 3.

With respect to the rent owed by Tenant,[4] LAMC section 49.99.3 is ambiguous as to whether Landlord can file an action to collect it without evicting Tenant. On the one hand, section 49.99.3 is entitled “Commercial Evictions”, suggesting that it does not apply to back rent actions. On the other hand, section 49.99.3 expressly states that a commercial tenant impacted by COVID shall have up to three months following the expiration of the Local Emergency Period to pay deferred rent. The issue becomes whether the deferred rent obligation applies to all commercial tenants impacted by COVID or only those subject to the eviction process. The Ordinance is ambiguous on this point. Section 49.99.3 may mean either that (b) an impacted commercial tenant may avoid eviction for up to three months after the Local Emergency Period ends by paying rent during that period or (b) all commercial tenants have up to three months after the Local Emergency Period ends to pay rent.

The ambiguity is resolved by LAMC section 49.99.5, entitled “Retroactivity”, which expressly states that the Ordinance applies to nonpayment eviction notices, no-fault eviction notices, and unlawful detainer actions based on such notices. RJN Ex. 2. This provision defines the scope of the Ordinance and it states nothing about civil actions to collect unpaid rent; it only concerns evictions.[5] Based on this scope, LAMC section 49.99.3 identifies “commercial evictions” as the prohibited activity. RJN Ex. 2.[6]

The Ordinance has no application to Landlord’s rent collection action against Tenant and Guarantor. Landlord sent demand letters warning Tenant and Guarantor that it would enforce its rights under the Lease if they did not cure the default, but those letters did not seek eviction. Goodkin Decl., ¶¶ 2-3, Exs. E-F. Nor is eviction or repossession listed as a desired remedy in the underlying Complaint’s Prayer for Relief.

In sum, the County’s Resolution does govern Landlord’s rent collection action, but Defendants fail to show how COVID-19 and the business restrictions that began in March 2020 had a negative impact on entities that already had been dissolved. See Lee Decl., ¶¶ 6-8. Additionally, the protections for a personal guaranty do not apply to Guarantor. The City’s Ordinance protecting commercial tenants from eviction has no application to Landlord’s rent collection action. Therefore, Defendants have not shown the affirmative defense that the action is barred by the Resolution or the Ordinance.

Attachment must not be sought for a purpose other than the recovery on the claim upon which attachment is based.¿ CCP §484.090(a)(3).¿¿Plaintiff seeks attachment for recovery of its claim for breach of both contracts, the Lease and Guaranty, which is a proper purpose.

Plaintiff Landlord’s application for right to attach orders is denied because Landlord failed to show that the amount owed is readily ascertainable.

[1] Plaintiff’s 16-page brief exceeds the page limits of CRC 3.1113(d). Plaintiff’s counsel is admonished that 15 pages does not mean 15 pages plus a signature page.

[2] Defendants failed to provide a courtesy copy of the opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Counsel is admonished to provide courtesy copies in all future filings.

[3] Defendants request judicial notice of (1) Resolution of the Board of Supervisors of the County of Los Angeles Further Amending and Restating the County of Los Angeles Covid-19 Tenant Protections Resolution, dated and adopted January 25, 2022 (“Resolution”) (RJN Ex. 1); (2) Ordinance No. 186606 passed on May 6, 2020 (“Ordinance”) (RJN Ex. 2); and (3) a screenshot of the Los Angeles Housing Department’s COVID-19 Renter Protections webpage as of September 6, 2022 (RJN Ex. 3). The requests are granted. Evid. Code §§ 452(b), (c).

[4] Although the Lease imposes a $400 late charge and interest on any rent not paid when due, Landlord does not seek attachment of either at this time. Murphy Decl., ¶¶ 2, 10, Ex. A, D. The prohibitions on late fees and interest in the Resolution and Ordinance is therefore irrelevant.

[5] In contrast, the Resolution applies to non-payment eviction notices, no-fault eviction notices, rent increase notices, unlawful detainer actions, and other civil actions, including, but not limited to, actions for repayment of rental debt accrued on or after March 4, 2020. Ex. 1, §V. Hence, the Resolution does apply to lawsuits for back rent.

[6] While not presented by either party, the court believes that the City Attorney interpreted the Ordinance as permitting unpaid rent collection actions not involving eviction when the Ordinance was proposed to the City Council.