Judge James C. Chalfant, Case Number: 21STCV45351, Date: 2024-07-18 Tentative Ruling

Barry Ben-Ron, et al. v. Maria De Lourdes Ruiz, 21STCV45351

Tentative decision on petition for writ of attachment: granted in part

Barry Ben-Ron (“Ben-Ron”) and Brian Sean Costello (“Costello”) seek a writ of attachment against Defendant Maria De Lourdes Ruiz (“Ruiz”).

The court has read and considered the moving papers (no opposition has been filed) and renders the following tentative decision.

On December 13, 2021, Ben-Ron and Costello filed a verified Complaint against Ruiz alleging (1) breach of written contract and (2) breach of implied contract. The Complaint alleges in pertinent part as follows.

On or about October, 2020, Ruiz and Ben-Ron entered into a written contract for the purchase of real property located at 212 East 24th Street, Los Angeles (the “Property”). The contract was on a C.A.R. form California Residential Purchase Agreement and Joint Escrow Instructions and a Seller Multiple Counter Offer (the “Purchase Agreement”) and signed by both the Seller Ruiz and Buyer Ben-Ron on October 10, 2020. Compl., ¶6, Ex. 1.

On or about October 26, 2020 Costello became a co-buyer with Ben-Ron under the Purchase Agreement. Compl., ¶7, Ex. 2.

As part of the purchase process, on or about October 27, 2020, Ruiz provided a C.A.R Seller Written Property Questionnaire in which she disclosed that the Property was subject to a PACE lien and related loan. In that same document, Ruiz promised that she would pay the loan related to that PACE lien through escrow. These promises became part of the terms of the Purchase Agreement. Compl., ¶8, Ex. 3.

Plaintiffs Ben-Ron and Costello relied upon Ruiz’s written promise and agreement that the PACE loan and lien would be paid off in escrow, such that the Property would be transferred to them without the lien. As a result, Plaintiffs completed their purchase of the Property under the Purchase Agreement. Compl., ¶9.

Escrow closed on or about November 25, 2020, and the Property was transferred to Plaintiffs as tenants in common by a grant deed. Compl., ¶10, Ex. 4. When escrow closed, the escrow company did not pay off the PACE loan and lien on the Property, and instead gave Ruiz the money that would have paid off the loan. Compl., ¶11.

Plaintiffs are informed and believe, and thereon allege, that representatives of the escrow company contacted Ruiz once the error was discovered and asked her to pay off the loan, but she failed to do so. Compl., ¶12. Plaintiffs also contacted Ruiz in writing and asked her to pay off the PACE loan to remove the PACE lien from the Property. Ruiz failed to do so. Compl., ¶13.

Ruiz has breached the Purchase Agreement by failing to have the loan paid off at close of escrow, by transferring the Property with the PACE lien still it, and by failing to pay off the loan after escrow closed and the failure became known. Compl., ¶14.

Plaintiffs have been damaged in an amount of at least $102,987.90, or such larger amount as may be proven at trial. Compl., ¶16.

Plaintiffs seek damages in an amount of $102,987.90 or such larger amount as proven at trial, costs of suit, attorney fees, and such other relief as the court deems just and proper.

On June 15, 2022, Ruiz filed a verified answer and a Cross-Complaint against Cross-Defendant Ben-Ron and Costello and other parties alleging (1) fraud in the inducement, (2) fraud, (3) promissory fraud, (4) breach of contract, and (5) negligence.

On April 25, 2024, the court granted One Key Escrow Corp, Manuel Morales, and Ruby Tang’s motion to enforce the terms of a settlement entered into with Ruiz. The Cross-Complaint was dismissed against all Cross-Defendants with prejudice.

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.

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.

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).

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).

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.

Plaintiffs seek a right to attach order against Ruiz for $162,167.58. No opposition is on file.

While Plaintiffs filed a notice, an application for right to attach, and a supporting memorandum, they failed to file their evidence (even though they provided a courtesy copy). They may, however, rely on their verified Complaint as evidence. People v. Superior Court, (1989) 207 Cal.App.3d 464, 469.

Plaintiffs’ claim is based on the Purchase Agreement. On or about October, 2020, Ruiz and Ben-Ron entered into the Purchase Agreement to purchase the Property. The contract was on a C.A.R. form California Residential Purchase Agreement and Joint Escrow Instructions and a Seller Multiple Counter Offer (the “Purchase Agreement”) and signed by both the Seller Ruiz and Buyer Ben-Ron on October 10, 2020. Compl., ¶6, Ex. 1. On or about October 26, 2020 Costello became a co-buyer with Ben-Ron under the Purchase Agreement. Compl., ¶7, Ex. 2. Ruiz breached the Purchase Agreement, and the claim exceeds $500. This is a claim on which attachment may 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).

Plaintiffs contacted Ruiz in writing and asked her to pay off the PACE loan to remove the PACE lien from the Property. Ruiz failed to do so. Compl., ¶13.

Ruiz has breached the Purchase Agreement by failing to have the loan paid off during close of escrow, by transferring the Property with the PACE lien still it, and by failing to pay off the loan after escrow closed and the failure became known. Compl., ¶14. Plaintiffs have been damaged in an amount of at least $102,987.90, or such larger amount as may be proven at trial. Compl., ¶16. These damages at least arguably are readily ascertainable.

Plaintiffs also claim $28,680 in attorney fees and $3,875 in costs incurred to date, and an estimated additional attorney fees of $30,000 through trial. Mem. at 3. None of these fees and costs is supported by evidence and they are disallowed.

The facts showing the Purchase Agreement, Plaintiffs’ performance, and Ruiz’s breach show a probability of success on the merits.

Plaintiffs contend that Ruiz was a landlord and owner of a rental duplex which they purchased. Mem. at 7. The Purchase Agreement in the verified Complaint states that the unit is occupied by tenants. Compl., Ex. 1 (last page). The transaction is commercial in nature and arise out of Ruiz’s conduct of a business.

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). Plaintiffs seek attachment for a proper purpose.

Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268. The requirement of specificity avoids unnecessary hearings where an individual defendant is willing to concede that the described property is subject to attachment. Ibid. A general list of categories - e.g., “real property, personal property, equipment, motor vehicles, chattel paper, negotiable and other instruments, securities, deposit accounts, safe-deposit boxes, accounts receivable, general intangibles, property subject to pending actions, final money judgments, and personal property in decedents’ estates” – is sufficient. Ibid.

Plaintiffs seek to attach a specific real property owned by Ruiz at 849 East 41^st Street, Los Angeles. This is an adequate description of property to be attached.

The application for a right to attach order is granted in the amount of $102,987.90.