Judge James C. Chalfant, Case 22STCV27631 2023-03-09 Tentative Ruling

Plaintiff US 1902 Wilshire Owner, LLC (“US 1902”) applies for a right to attach order against Defendant David Haimof (“Haimof”) in the amount of $307,713.04.

The court has read and considered the moving papers, opposition,[1] and reply, and renders the following tentative decision.

A. Statement of the Case

1. First Amended Complaint

Plaintiff US 1902 filed the Complaint against Defendants Haimof and Saeed Zerehi (“Zerehi”) (collectively, “Tenants”) on August 24, 2022. The operative pleading is the First Amended Complaint (“FAC”) filed on September 19, 2022, alleging breach of lease. The FAC alleges in pertinent part as follows.

On September 15, 1991, Composite Properties (“First Landlord”) and the Tenants entered into a 20-year lease (“Lease”) for 1902 Wilshire Boulevard, Santa Monica, CA 90404 (“Property”). The parties also entered an addendum to the Lease (“Addendum”). On July 16, 2008, First Landlord and Tenants entered into an amendment to the Lease (“First Amendment”) that extended the term of the Lease for ten years. On November 9, 2011, First Landlord and Tenants entered into an amendment to the Lease (“Second Amendment”) that adjusted the Fixed Minimum Monthly Rent.

On January 1, 2013, First Landlord assigned the Lease to Boas Err, LLC (“Boas”). On March 7, 2017, Boas and Tenants entered into an amendment to the Lease (“Third Amendment”). US 1902 is the current owner of the premises and rights to the Lease as Landlord.

The Lease defined the Monthly Minimum Rent as $4,587.85 from March to November 2020, $5,100.00 from December 2020 to January 2021, and $5,100.78 from February 2021 to November 2021, the end of the Lease term. The Lease thereafter imposed a Holdover Rent double the Monthly Minimum Rent from the month before, or $10,201.48.

The Lease also required Tenants to pay a pro-rata share of Common Area Maintenance (“CAM”) expenses based on landlord’s yearly estimate. This was $628.63 per month from March 2020 and December 2021 and $604.00 per month from January to May 2022.

Tenant has failed to pay Monthly Minimum Rent, Holdover Rent, and CAM expenses totaling $177,822.78. Any amounts owed shall also bear interest at a rate 2% higher than the prime rate the local Bank of America charges. Because Bank of America charges 5.5%, US 1902 has calculated that Tenants owe $13,630.05 in interest based on a 7.5% rate. Total damages are $191,130.36.

On March 2, 2022, US 1902 served a Notice of Pay Rent on Tenants. On March 23, 2022, US 1902 filed an unlawful detainer action (“UD Action”) for immediate restitution and possession of the premises plus attorney’s fees and costs. Under the Lease, the successful party may recover its attorney’s fees and costs. As of August 2022, US 1902 has incurred $11,968 in attorney’s fees and costs.

Tenants also caused $30,000 of damages to the Property. The Lease requires that Tenants surrender the premises in the same condition as delivered.

On August 11, 2022, US 1902 served a Demand for Payment of Rent for all amounts owed. Tenants have failed to comply.

US 1902 seeks damages of no less than $191,130.36 for unpaid rent and CAM expenses, $11,968 for attorney’s fees and costs from the UD Action, and $30,000 to repair and restore the Property. US 1902 also seeks attorney’s fees and costs.

2. Course of Proceedings

On September 4, 2022, US 1902 served Defendants Haimof and Zerehi with the Complaint and Summons by substitute service, effective September 14, 2022.

On September 19, 2022, US 1902 filed and served the FAC.

On October 26, 2022, Department 16 (Hon. Lia Martin) rejected US 1902’s request for entry of default against Zerehi.

On November 6, 2022, US 1902 served Zarehi with the Complaint, Summons, and FAC by substitute service, effective November 16, 2022.

On January 12, 2023, Department 16 entered default against Zerehi.

On January 13, 2023, Haimof filed his Answer.

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 24, 2023, the County of Los Angeles’s (“County”) Board of Supervisors (“Board”) enacted an updated version of its existing COVID-19 Tenant Protections Resolution (“Resolution”). RJN Ex. A. Like its predecessors, the Resolution was enacted in response to the serious health and economic impacts of the COVID-19 pandemic. RJN Ex. A. The enactment extended the Protections Period to March 31, 2023. RJN Ex. A, §IV(L).

The Resolution covers the Protected Time Period of March 4, 2020 through January 31, 2022, during which the commercial tenant was unable to pay rent due to financial impacts related to COVID-19. RJN Ex. A, §IV(J)(2). The Resolution applies to nonpayment eviction notices, no-fault eviction notices, rent increase notices, unlawful detainer actions served or filed on or after March 4, 2020, and other civil actions, including but not limited to actions for repayment of rental debt accrued on or after March 4, 2020. RJN Ex. A, §V(A).

The Resolution provides protection from eviction for tenants impacted by the COVID-19 crisis. RJN Ex. A, §VI. Commercial tenants with nine employees or fewer can self-certify their inability to pay to avoid eviction – which the landlord must accept -- provided that the inability to pay stems from financial hardship related to COVID-19. RJN Ex. A, §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. A, §VI(A)(1). Eviction protections for commercial tenants expire on January 31, 2022. RJN Ex. A, §VI(A)(1).

A commercial tenant with nine employees or fewer has until January 31, 2023 to repay unpaid rent incurred during the Protected Time Period. RJN Ex. A, §VI(C)(2)(a). During the repayment period, the landlord is prohibited from enforcing a personal guaranty for rent. RJN Ex. A, §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. A, §IV(I).

Commercial tenants with between ten and 100 employees must provide written documentation of financial hardship. RJN Ex. A, §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. A, §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. A, §VI(D). Any waiver of those rights is void as contrary to public policy. RJN Ex. A, §XVII.

No Landlord shall impose any late fees or interest on unpaid rent during the Protections Period. RJN Ex. A, §VIII.

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

The Resolution also prohibits various harassment and retaliation protections. RJN Ex. A, §IX. The maximum civil penalty for any such harassment or retaliation is $5,000 per day per violation, with an additional $5,000 per day per violation if the aggrieved tenant is disabled or over 65 years old. RJN Ex. A, §XI.

A tenant may raise the protections of the Resolution as an affirmative defense to any civil action seeking repossession and repayment of rental debt. RJN Ex. A, §XI(C). The tenant has the burden of proving the basis of the affirmative defense, including the merit of any self-certification of a Financial Impact Related to COVID-19 made pursuant to this Resolution. RJN Ex. A, §XI(C).

Any waiver of rights under the Resolution are void as contrary to public policy. RJN Ex. A, §XVII.

The County’s Department of Consumer and Business Affairs has a list of Guidelines to Aid in the Implementation of the Los Angeles County COVID-19 Tenant Protections (“Guidelines”), last revised June 10, 2022. RJN Ex. B. The Guidelines state that during the Protected Time Period, a commercial tenant with nine or fewer employees can conclusively establish a financial impact related to COVID-19 if the tenant provides a landlord with written, signed self-certification establishing a financial impact. RJN Ex. B, §6.7(D)(1). Failure to do so does not preclude the tenant from establishing the financial impact through other means, including through verbal notice to Landlord. RJN Ex. B, §6.7(D)(1).

For purposes related to the Resolution, the number of employees of a commercial tenant as a sole proprietor is the number of employees at any business location, including outside of the County, as of March 4, 2020. RJN Ex. B, §§ 7.1-7.2.

On September 15, 1991, First Landlord and Tenants entered into the 20-year Lease for 930 square feet within the Property (“Premises”). Hawley Decl., ¶3, Ex. A. The Monthly Minimum Rent, due on the first of each month, started at $2,092.50 per month and increased by 5% annually from December 1, 1993. Hawley Decl., ¶3, Ex. A. If the Tenants remained in possession after the Lease expired, they must pay Holdover Rent that is double of the Monthly Minimum Rent for the month immediately before the lease expired. Hawley Decl., ¶3, Ex. A.

Section 9.1 required Tenants to pay their share of CAM expenses. Hawley Decl., ¶16, Ex. A. Tenants will pay one-twelfth of the landlord’s reasonable estimate of CAM expenses for the year, based on CAM expenses the previous year and annual increases to expenses in recent years. Hawley Decl., ¶16, Ex. A.

Any amounts not paid when due accrue interest. Hawley Decl., ¶19, Ex. A. The interest rate shall be the prime rate charged by Bank of America’s Los Angeles Main Branch plus 2%. Hawley Decl., ¶19, Ex. A.

Section 26.1 stated that any notice, demand, or communication desired or required to be made with respect to this Lease shall not be effective unless and until given in writing and sent by registered or certified mail, with return receipt requested. Hawley Decl., ¶19, Ex. A. Under section 22.1, the landlord is not charged with default in performance of its obligations hereunder unless and until it fails to perform within 30 days of written notice by Tenant. Hawley Decl., ¶19, Ex. A.

The Lease’s force majeure clause, section 31.9, excuses performance under the Lease when due to any prevention, delay or stoppage due to causes beyond the reasonable control of the party obligated to perform any term other than a payment of money. Hawley Decl., ¶19, Ex. A.

The Lease also provided that in any litigation based on the Lease, the successful party may recover reasonable attorney’s fees and costs from the opposing party. Hawley Decl., ¶25, Ex. A.

Upon termination of the Lease, Tenants shall surrender the Premises in the same condition as they received it. Hawley Decl., ¶25, Ex. A.

Also on September 15, 1991, First Landlord and Tenants executed an Addendum that increased the Monthly Minimum Rent adjustment on December 1, 1993 to 10% but kept future years’ increase at 5%. Hawley Decl., ¶4, Ex. B.

On July 16, 2008, First Landlord and Tenants executed the First Amendment, which extended the term of the Lease by ten years to November 30, 2021. Hawley Decl., ¶5, Ex. C.

On November 9, 2011, First Landlord and Tenants executed the Second Amendment, which adjusted the Minimum Monthly Rent. Hawley Decl., ¶6, Ex. D. The Minimum Monthly Rent became $3,500 a month from November 2011 to October 2012 and reverted to the amount defined by the Lease afterwards. Hawley Decl., ¶6, Ex. D.

On January 1, 2013, First Landlord signed an Assignment and Assumption of Landlord’s Interest Under Lease. Hawley Decl., ¶7, Ex. E. Through it, First Landlord assigned its interest in the Property and Premises to Boas and Farbach, LLC (“Farbach”). Hawley Decl., ¶7, Ex. E.

On March 7, 2017, Boas, Farbach, and Tenants entered the Third Amendment, which adjusted the Minimum Monthly Rent from March 2017 to February 2019. Hawley Decl., ¶8, Ex. F. After February 2019, the Minimum Monthly Rent would revert to the terms of the Lease. Hawley Decl., ¶8, Ex. F.

On February 3, 2021, Boas, Farbach, and US 1902 entered into an Assignment and Assumption of Leases for the Lease at issue. Hawley Decl., ¶10, Ex. H. This made US 1902 the holder of all rights, title, and interest as landlord. Hawley Decl., ¶10, Ex. H. On February 4, 2021, Boas recorded a grant deed transferring its interest in the Property to US 1902. RJN Ex. 1.

Tenants have not paid rent since March 2020. US 1902 has calculated the Monthly Minimum Rent as $4,587.85 from March to November 2020, $5,100.00 from December 2020 to January 2021, and $5,100.78 from February 2021 to November 2021, the end of the Lease term. Hawley Decl., ¶15. The Holdover Rent from December 2021 to May 2022 is $10,201.48. Hawley Decl., ¶15.

US 1902 has calculated the CAM expenses as $628.63 per month from March 2020 and December 2021 and $604.00 per month from January to May 2022. Hawley Decl., ¶17.

The principal amount owed by Tenants is the sum of the Monthly Minimum Rent, CAM Expenses, and Holdover Rent, which is a total of $177,822.78. Hawley Decl., ¶18.

Because the current prime interest rate charged by Bank of America is 7.75%, US 1902 can collect interest at a rate of 9.75%, a total of $17,922.26. Hawley Decl., ¶¶ 20-21. The total amount of unpaid rent, CAM expenses, Holdover Rent, and interest as of January 2023 is $195,745.04. Hawley Decl., ¶22.

On March 23, 2022, US 1902 filed the UD Action for immediate restitution and possession of the Premises plus attorney’s fees and costs. Hawley Decl., ¶24, Ex. I; Shakouri Decl., ¶3, Ex. A.

On August 11, 2022, US 1902 served a Demand Notice for Tenants to pay all amounts owed. Shakouri Decl., ¶6, Ex. B. It asserted that Tenants owed Monthly Minimum Rent at $4,587.85 from March to November 2020, $5,100.00 from December 2020 to January 2021, and $5,100.78 from February 2021 to May 2022. Shakouri Decl., ¶6, Ex. B. They also owed CAM expenses of $628.63 per month from March 2020 and December 2021 and $604.00 per month from January to May 2022. Shakouri Decl., ¶6, Ex. B. When combined, the total past rent due was $147,218.34. Shakouri Decl., ¶6, Ex. B.

US 1902 calculated the interest on this as $12,953.56 based on a rate of 7.5%. Shakouri Decl., ¶6, Ex. B. The total amount of unpaid rent, CAM expenses, Holdover Rent, and interest was $159,849.43. Hawley Decl., ¶28, Ex. J. Shakouri Decl., ¶6, Ex. B.

US 1902 also requested attorney’s fees for the UD Action, which totaled $11,968. Shakouri Decl., ¶6, Ex. B. It also submitted pictures that showed that the dry-cleaning facility inside the Premises was damaged and not in the condition Tenants received it. Shakouri Decl., ¶6, Ex. B. US 1902’s counsel said that it would cost $30,000 to restore the Premises for future tenants, and it added this to the total damages. Shakouri Decl., ¶6, Ex. B.

The Demand Notice gave tenants five business days to pay $170,817.43 to avoid litigation for a breach of the Lease. Hawley Decl., ¶28, Ex. J.

On October 18, 2022, counsel for US 1902 served various forms of discovery in this action. Shakouri Decl., ¶9, Ex. C. After extensions to respond, on December 22, 2022, Haimof replied with objections to every interrogatory, request for production, and request for admission. Shakouri Decl., ¶10, Ex. D.

Counsel for US 1902 charges $495 per hour for partners, $225 to $400 per hour for associates, and $95 per hour for clerks. Shakouri Decl., ¶11. It estimates attorney’s fees of $90,000 and costs of $10,000 for this action. Shakouri Decl., ¶12.

Haimof will be 73 years old as of March 1, 2023. Haimof Decl., ¶3. At the relevant times, he and Zarehi were commercial tenants of the Premises and had less than nine employees. Haimof Decl., ¶¶ 4-5. Defendants self-certified to both US 1902 and Prior Landlord an inability to pay rent due to COVID-19. Haimof Decl., ¶6.

Haimof has raised the Resolution as an affirmative defense in his Answer to the FAC. Nozar Decl., ¶3. In response to discovery before this application, Haimof informed US 1902 that he was unaware of any corporate entity that conducts business at the Property. Nozar Decl., ¶4.

Haimof plans to file a Cross-Complaint but has not done so yet. Nozar Decl., ¶5. US 1092 has propounded voluminous discovery requests in this action. Nozar Decl., ¶5. Although Haimof answered them, US 1092 has propounded additional interrogatories and requests for admission that are largely duplicative. Nozar Decl., ¶5.

The parties are engaged in settlement discussions to explore informal resolution. Nozar Decl., ¶5. US 1902 never mentioned during these conferences that it planned to file an application for a right to attach order. Nozar Decl., ¶5.

Haimof’s family has lived in the real property at 4612 Via Apuesta, Tarzana, CA 91356 (“Haimof Property”) for over 30 years. Haimof Decl., ¶7. He supports his wife and 23-year-old daughter. Haimof Decl., ¶7. He is no longer part of the dry-cleaning business that operated from the Premises and does not conduct business out of his home. Haimof Decl., ¶8. Everything in his home and all the property described in the application for a right to attach order is necessary to support Haimof and his family. Haimof Decl., ¶9.

In response to interrogatories propounded in this action, Haimof denied that he entered into any Amendments to the Lease and stated that someone forged his signature on any such amendments. Shakouri Reply Decl., ¶2, Ex. A. In 2016, Haimof defended himself in a small claims case pertaining to garments dry cleaned on the Premises. Reply RJN Ex. 1.

US 1902’s claim against Haimof is based on the Lease and is for damages of $207,713.04, not including attorney’s fees and costs. Hawley Decl., ¶16, Ex. A. US 1902 has a claim on which to base attachment.

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).

US 1902 argues that Haimof cannot challenge the damages because under Lease section 22.1, the landlord is not charged with default in performance of its obligations hereunder unless and until it fails to perform within 30 days of written notice by Tenant. Hawley Decl., ¶19, Ex. A. Haimof does not provide evidence of such written notice. Reply at 10. This argument is spurious. Haimof is not contending that US 1902 has defaulted on its obligations, he is contending that US 1902’s calculations are in error.

Haimof questions how damages for Back Rent can be ascertainable when US 1902’s calculation of the amount owed has been inconsistent. Opp. at 14. The application asserts $177,822.78 in rent incurred between March 2020 and May 2022 and $17,922.26 in interest based on a rate of 9.75%. Hawley Decl., ¶¶ 18, 20-21. The FAC also asserted $177,822.78 in rent incurred but calculated the interest at $13,630.05 based on a 7.5% rate. The Demand Notice lists $147,218.34 as the back rent due and calculates interest at a 7.5% rate, which equals $12,953.56. Hawley Decl., ¶28, Ex. J.

The amount of back rent is $177,822.78. When the Tenants remained in possession after the Lease expired, the Lease charged a Holdover Rent that is double the Monthly Minimum Rent for the month immediately before the lease expired. Hawley Decl., ¶3, Ex. A. Pursuant to the First Amendment, the Lease expired on November 30, 2021. Hawley Decl., ¶5, Ex. C. From December 2021 forward, the rent increased from $5,100.78 to $10,201.48. Hawley Decl., ¶15. The Demand Notice differs because it did not invoke the Holdover Rent. Rather, it made the calculation of monthly rent at $5,100.78 from February 2021 to May 2022, six months after the Lease expired. Hawley Decl., ¶28, Ex. J. Thus, the Demand Notice undercalculated the amount owed.

The interest rate used by US 1902 varied because it was calculated at different times. Reply at 7. The Lease provides that the interest rate shall be the prime rate charged by Bank of America’s Los Angeles Main Branch plus 2%. Hawley Decl., ¶19, Ex. A. US 1902 does not provide documentary evidence that Bank of America’s interest rate is 7.75%, which would entitle US 1902 to an interest rate of 9.75%. Hawley Decl., ¶¶ 20-21. The $17,922.26 in interest is disallowed.

US 1902 seeks $11,968 for attorney’s fees incurred during the UD Action. Hawley Decl., ¶26. The Lease provided that in any litigation based on the Lease, the successful party may recover reasonable attorney’s fees and costs from the opposing party. Hawley Decl., ¶25, Ex. A.

Raimof asserts that he was the prevailing party because the UD Action was dismissed. He also contends that US 1902 does not provide any documentary evidence of the fees incurred. Opp. at 15. The court agrees and the $11,968 is disallowed.

US 1902’ attorney states that his firm charges $495 per hour for partners, $225 to $400 per hour for associates, and $95 per hour for clerks. Shakouri Decl., ¶11. He estimates attorney’s fees of $90,000 and costs of $10,000 for this action. Shakouri Decl., ¶12.

Raimof argues that $100,000 in fees and costs is unreasonable in this simple action. US 1902 has not provided any invoices or timesheets to support its estimate. Opp. at 15.

Unlike the fees in the UD Action, US 1902 need not provide detail in support of its attorney’s estimate. Nonetheless, the court agrees that $100,000 is significant for a $207, 000 debt. The $100,000 in fees and costs are ascertainable but reduced to $50,000 for purposes of attachment.

Ascertainable damages, including attorney’s fees and costs, total $227,822.78 ($177,822.78+$50,000).

The conduct of a trade, business, or profession is generally activity “which occupies the time, attention and effort. . . for the purpose of livelihood or profit on a continuing basis.” Nakasone v. Randall, (1982) 129 Cal.App.3d 757, 764 (quoting Advance Transformer Co. v. Superior Court, (1974) 44 Cal.App.3d 127, 134). “The term ‘business,’ therefore, embraces any activity engaged in for profit or for gain. The phrase ‘engaged in business,’ however, generally is held to imply business activity of a frequent or continuous nature.” Id. There is a distinction between one who spends his time and effort in carrying on an activity for livelihood or profit on a continuing basis and one who merely conserves his personal investments. Id.

Haimof asserts that he is a natural person, and that no corporate entity operates out of the Premises. Opp. at 7; Haimof Decl., ¶¶4-5; Nozar Decl., ¶4. This is not the test. A natural person can be engaged in a trade, business, or profession. Haimof admits that he was a commercial tenant. Haimof Decl., ¶5. Although he is no longer part of the dry-cleaning business operating out of the Premises, he was when he entered into the Lease and used the Premises for his business. Haimof Decl., ¶8.

Haimof entered the Lease to operate a trade, business, or profession. US 1902’s claim is a commercial one for which attachment is proper.

The amount to be secured must be reduced by the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff. CCP §483.015(b)(2).

Haimof does not dispute that he was a tenant under the Lease (Haimof Decl., ¶4) and that he failed to pay rent beginning March 2020 through May 2022.

The Resolution provides protection from eviction for tenants impacted by the COVID-19 crisis. Def. RJN Ex. A, §VI. The Protected Time Period for a commercial tenant unable to pay rent due to COVID-19 impacts is March 4, 2020 through January 31, 2022. Ex. A, §IV,(J). There are temporary protections during the Protected Time Period for commercial tenants with nine employees or fewer who self-certify their inability to pay – which the landlord must accept -- stemming from financial hardship related to COVID-19. Ex. A, §VI(B)(2)(a). The tenant must give notice of its inability to pay within seven days of the rent due date. Ex. A, §VI(A)(1). A commercial tenant with nine employees or fewer then has until January 31, 2023 to repay unpaid rent incurred during the Protected Time Period of March 4, 2020 to January 31, 2022. Ex. A, §VI(C)(2)(a).

In contrast, commercial tenants with between ten and 100 employees must provide written documentation of financial hardship. Ex. A, §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. Ex. A, §VI(C)(2)(b).

The Resolution applies to civil actions, including but not limited to actions for repayment of rental debt accrued on or after March 4, 2020. Ex. A, §V(A). Landlords may not seek late charges or interest on unpaid rent during the Protected Time Period and may not retroactively impose them following termination of the Resolution. Ex. A, § VIII.

US 1902 asserts that Haimof waived the right to raise the Resolution as a defense based on Lease section 26.1, which states that any notice, demand, or communication desired or required to be made with respect to this Lease shall not be effective unless and until given in writing and sent by registered or certified mail, with return receipt requested. Hawley Decl., ¶19, Ex. A. Haimof has not presented evidence of a written notice or demand. Reply at 5.

While parties may waive statutory rights in most cases except when otherwise declared (Civ. Code §3268), the Resolution has declared that tenants cannot waive it. Any waiver of tenant rights under the Resolution is void as contrary to public policy. RJN Ex. A, §XVII. Haimof may assert his rights under the Resolution, if applicable, without providing the notice required by Lease section 26.1.

Haimof has raised the Resolution as an affirmative defense in this civil action. Ex. A, §XI(C); Nozar Decl., ¶3. The defendant has the burden of proving the basis, including the merit of any self-certification of a Financial Impact Related to COVID-19 made pursuant to the Resolution. Reply at 5; Def. RJN Ex. A, §XI(C).

A commercial tenant can only self-certify if it has nine or fewer employees. Ex. A, §VI(B)(2)(a). Haimof states that his business had nine or fewer employees and that his business self-certified. Haimof Decl., ¶¶ 4-5. However, Haimof provides no actual evidence of COVID-19 financial impact.[3]

Nor does he provide written evidence of self-certification. Haimof cites the Guidelines, state that a commercial tenant with nine or fewer employees by provide a written, signed self-certification establishing a financial impact related to COVID-19. Def. RJN Ex. B, §6.7(D)(1). While oral self-certification to the landlord is not precluded, it obviously is not conclusive. See id. While Haimof claims that he self-certified to US 1902, his claim has no supporting evidence. Haimof Decl., ¶6.

Even if Haimof showed that the Resolution applies, he is wrong that US 1902 cannot charge attorney’s fees. Section VIII prohibits landlords from imposing or seeking pass-throughs, late charges, or interest on unpaid rent during the Protected Time Period and may not retroactively impose them following termination of the Resolution. It says nothing about attorney’s fees. The court has declined to impose interest or UD attorney’s fees for attachment and has no evidence of late charges imposed.

Haimof also asserts that he can prevail on cross-claims for harassment and retaliation protection under Resolution section XI in the amount of $549,000. Opp. at 13. Section IX of the Resolution awards civil penalties of up to $5,000 per day per violation, with an additional $5,000 per day per violation if the aggrieved tenant is disabled or over 65 years old. Ex. A, §XI(A). Because Haimof will soon be 73 years old, he qualifies for the increased damages of up to $10,000 per day per violation. Haimof Decl., ¶3.

These damages available in Section XI(A) apply to claims under Sections V-IX of the Resolution. Haimof alleges violations of section VI because US 1902 seeks rent during the Protected Time Period. If he shows that he is protected by the Resolution, he may be able to recover penalties for US 1902 improperly claiming interest during the Protected Time Period. He provides no calculation of what the violations are or what the penalty would be, however. The purported cross-claim does not offset US 1902’s claim for attachment.

Based on the current evidence, Haimof has not demonstrated a probability of success on either a cross-claim or an affirmative defense based on the Resolution.

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). This application for a right to attach order does not seek attachment for any purpose other than to recover upon US 1902’s claims in this action. Mot. at 10-11.

Haimof argues, without evidence, that US 1902 bought the Property to demolish it and build a mixed-use residential and commercial building. It did not purchase the Property with the intention to keep the existing tenants and therefore this application serves only to harass and badger Haimof. Opp. at 1.

Aside from the lack of evidence, there is nothing wrong with buying a property with future development plans while at the same time collecting rent from existing tenants and suing them for rent when they fail to pay. US 1902 seeks 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.

US 1902 seeks to attach Haimof’s property, including all 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 personalty in estates of decedents.

Haimof argues that, with the exception of his home at 4612 Via Apuesta, Tarzana, Ca. (“Haimoff Property”), US 1902 does not provide a reasonably adequate description because it fails to provide particularity. Opp. at 11. A plaintiff is entitled to seek everything the defendant owns in attachment and US 1902’s description of attachable property is adequate. Reply at 8-10.

The property exempt from attachment consists of (a) all property exempt from enforcement of a money judgment,[4] (b) property which is necessary for the support of a defendant who is a natural person or the family of such defendant supported in whole or in part by the defendant, (c) “earnings” as defined by CCP section 706.011, and (d) all property not subject to attachment pursuant to CCP section 487.010. CCP §487.020.

If the defendant claims that any personal property described in the application is exempt from attachment, the defendant may include that claim in the notice of opposition to the right to attach order (CCP §484.060(a)), or may file and serve a separate claim of exemption for the property (CCP §484.070(b)). If the defendant does not do either, the claim of exemption will be barred in the absence of a showing of a change in circumstances occurring after the expiration of the time for claiming exemptions. CCP §484.070(a); Bank of America, supra, 207 Cal.App.3d at 268 (plaintiff’s failure to oppose exemption claim concedes its propriety). This waiver applies only to personal property. Thus, a homestead exemption for a dwelling is not waived by failing to make a claim for exemption. Martom v. Aboyan, (1983) 148 Cal.App.3d 826, 831.

The defendant also may obtain a determination at the hearing whether real or personal property not described in the application or real property described in the application is exempt from attachment by including an exemption claim for such property in the notice of opposition/separate claim of exemption. The defendant’s failure to claim such property as exempt does not preclude the defendant from raising the issue at a later time. CCP §484.070(b). The claim of exemption shall (1) describe the property claimed to be exempt, and (2) specify the statute section supporting the claim. CCP §484.070(c). The claim of exemption shall be accompanied by an affidavit supporting any factual issues raised by the claim and points and authorities supporting any legal issues raised. CCP §484.070(d). The defendant must file and serve the claim of exemption and supporting papers not less than five court days before the date set for the hearing. CCP §484.070(e).

A homestead exemption exists under certain conditions. “Homestead” means the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor’s spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead. CCP §704.710(c). The amount of the homestead exemption is the greater of (1) the countywide median sale price for a single-family home in the calendar year prior to the current calendar year, not to exceed $600,000, or (2) $300,000. CCP §704.730(a).

Haimof claims that the Haimof Property is his home for 30 years, where he cares for his wife and 23-year-old daughter. Haimof Decl., ¶7. Although US 1902 asserts that attachment would not deprive Haimof and his family of the property and only prevent sale or encumbrance (Reply at 4), this is irrelevant as to an exemption.

Haimof does not provide evidence of the value of the home to determine the value of the exemption. The homestead exemption therefore is denied.

The property exempt from attachment includes property which is necessary for the support of a defendant who is a natural person or the family of such defendant supported in whole or in part by the defendant.¿ CCP §487.020(b).¿¿

Haimof asserts that everything in his home and all the property described in the application for a right to attach order is necessary to support him and his family. Haimof Decl., ¶9. Haimof fails to provide any evidence of what this property is, why it is necessary for his family’s support, or a financial statement. CCP §703.530. Haimof has not met his burden of proof for the exemption.

When a defendant is a natural person, a plaintiff can seek to attach (1) interests in real property except leasehold estates with unexpired terms of less than one year; (2) accounts receivable, chattel paper, and general intangibles arising out of the conduct by the defendant of a trade, business, or profession, except any such individual claim with a principal balance of less than one hundred fifty dollars ($150); (3) equipment; (4) farm products; (5) inventory; (6) final money judgments arising out of the conduct by the defendant of a trade, business, or profession; (7) money on the premises where a trade, business, or profession is conducted by the defendant and, except for the first one thousand dollars ($1,000), money located elsewhere than on such premises and deposit accounts, but, if the defendant has more than one deposit account or has at least one deposit account and money located elsewhere than on the premises where a trade, business, or profession is conducted by the defendant, the court, upon application of the plaintiff, may order that the writ of attachment be levied so that an aggregate amount of one thousand dollars ($1,000) in the form of such money and in such accounts remains free of levy; (8) negotiable documents of title; (9) instruments, (10) securities, and (11) minerals or the like (including oil and gas) to be extracted. CCP §487.010(c).

Haimof asserts that some of the listed items in US 1902’s application cannot be attached because they exceed the limits of attachable property under CCP sections 487.010(c)-(d). Opp. at 8. Haimof asserts that he is no longer part of the dry-cleaning business and does not conduct business out of his home. Haimof Decl., ¶8. Everything in his home is necessary to support Haimof and his family. Haimof Decl., ¶9.

The court accepts that Haimoff has no property related to his business. That does not prevent US 1902 from attaching other property listed in CCP section 487.010(c).

The application for a right to attach order is granted in the amount of $227,822.78. Although no exemptions are granted, attachable property is limited to that described in CCP section 487.010(c) and (d).

[1] Defendant Haimof failed to lodge a courtesy copy of his opposition, and US 1902 has failed to lodge a courtesy copy of its reply, in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. His counsel is admonished to provide courtesy copies in all future filings. Additionally, the 16-page opposition exceeds the 15-page limit of CRC3.1113(d). The court has exercised its discretion to consider only the first 15 pages.

[2] Plaintiff US 1902 requests judicial notice of a grant deed for the Property from Boas to US 1902, recorded February 4, 2021 (Pl. RJN Ex. 1). The request is granted. Evid. Code §452(c).

Defendant Haimof requests judicial notice of (1) Resolution of the Los Angeles County Board of Supervisors (“Board of Supervisors”) Further Amending and Restating the County of Los Angeles COVID-19 Tenant Protections Resolution (“Resolution”) (Def. RJN Ex. A) and (2) Revised Guidelines to Aid in the Implementation of County COVID-19 Tenant Protections, issued by Los Angeles County Department of Consumer and Business Affairs (“Department”), last revised June 10, 2022 (Def. RJN Ex. B). The requests are granted. Evid. Code §452(b), (c).

In reply, US 1902 requests judicial notice of (1) the court file for Syedzadeh et al. v. Haimof (2016), Case No. 15S00037, in small claims court (Reply RJN Ex. 1) and ten grant deeds (Reply RJN Exs. 2-11). The request for the court file is granted. Evid. Code §452(d). The grant deeds would be subject to judicial notice but they are irrelevant and the requests are denied.

The court has ruled on Defendant Haimof’s written evidentiary objections. The clerk is directed to scan and electronically file the rulings.

[3] US 1902 asserts that Haimof has more employees because until 2022 he owned ten properties. Reply at 6; Reply RJN Exs. 2-11. This does not establish that Haimof operated the dry-cleaning business at those properties with other employees. For this reason, the court declined to judicially notice the grant deeds submitted in US 1902’s reply.

US 1902 also presents evidence that Haimof inconsistently denied that he signed any Amendments to the Lease, including the First Amendment that extended the Lease to the period at issue, and yet defended himself in small claims court as a dry cleaner on the premises. Reply at 2; Hawley Decl., ¶5, Ex. C; Shakhouri Reply Decl., ¶2, Ex. A. This inconsistency has some bearing on Haimof’s credibility.

[4] The property exempt from enforcement of a money judgment is listed in CCP section 704.010 et seq.

[5] Haimof requests an increase of the undertaking to $200,000 based on both egregious prosecution and the likelihood of success on the arguments based on the Resolution, but this has not been considered. Opp. at 16. In any event, the court does not agree that a bond greater than the ordinary $10,000 is warranted.