Judge James C. Chalfant, Case Number: 22STCV37071, Date: 2023-05-25 Tentative Ruling

Plaintiff Shamim Seifzadeh (“Seifzadeh”) applies for a right to attach order against Defendant Elan Jagdish Dassani (“Elan”) for $226,000.

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

A. Statement of the Case

1. Complaint

On November 23, 2022, Seifzadeh filed the Complaint against Defendants Elan Jagdish Dassani (“Elan”) and Rajeev Jagdish Dassani (“Rajeev”) collectively, “Dassani Brothers”), alleging (1) violation of Corporate Securities Law of 1968 (Corp. Code Section 25000, et seq.); (2) violation of Securities Act of 1933, section 12(a)(1); (3) violation of Securities Act of 1933, section 12(a)(2); (4) violation of Securities Exchange Act of 1934, section 10(B); (5) breach of fiduciary duty; (6) fraud; (7) constructive fraud; (8) negligent misrepresentation; (9) breach of written contract; and (10) conversion by embezzlement. The Complaint alleges in pertinent part as follows.

Seifzadeh and Rajeev began a romantic relationship in February 2020 and moved in together in March 2020. In January 2021, Rajeev’s twin brother Elan presented himself as a knowledgeable investor and options trader who had figured out how to earn 5% weekly profits. Rajeev vouched for Elan and offered that Seifzadeh could invest through Elan. The Dassani Brothers promised that it would be highly profitable, so Seifzadeh decided to invest with Elan.

At first, Elan offered to implement his strategy through Seifzadeh’s trading account with TD Ameritrade. By February 2021, Elan complained that it was a hassle to do the same trades on both of their accounts and convinced Seifzadeh to transfer her funds to his account where he could manage them. Elan promised to (1) give Seifzadeh access to his trading account at all times and (2) track the investments with an Investment Tracker he would update weekly. Seifzadeh transferred $85,821 from her trading account to Elan’s account on February 16, 2021.

In March 2021, Elan presented a profit update on the Investment Tracker, which showed that Seifzadeh’s principal and profits totaled $111,000. Based on this, the Dassani Brothers convinced Seifzadeh to sell her house and invest the sale proceeds with Elan. As Seifzadeh began the sale process in March and April 2021, the Dassani Brothers continued to produce weekly updates that showed Seifzadeh’s profits. She finalized the sale on April 30, 2021, and wired the $310,000 equity proceeds to Elan’s account on May 7, 2021.

On May 20, 2021, Seifzadeh and Elan signed an Investment Agreement (“Investment Agreement”) where Elan acknowledged that he had received $401,000 from Seifzadeh. This total reflected both $395,821 that Seifzadeh transferred to Elan and $5,179 in unpaid rent and household expenses the Dassani Brothers owed her. The Investment Agreement allowed her to withdraw her funds at any time, subject to a 10% fee on the profits to compensate Elan for his services.

On May 26, 2021, Rajeev ended his relationship with Seifzadeh while she was out of town for work. Elan stopped updating the Investment Tracker three weeks after the parties signed the Investment Agreement.

On June 10, 2021, Seifzadeh notified Elan that she wanted to withdraw all her funds from the investment account. The Dassani Brothers told her they needed more time. Around August 2021, they borrowed $100,000 from their father and paid it to Seifzadeh.

In late October 2021, the Dassani Brothers sent Seifzadeh a Repayment Agreement (“Repayment Agreement”) with a schedule of payments to begin on December 1, 2021. Elan again failed to pay as promised.

In January 2022, Seifzadeh advised the Dassani Brothers that she would lodge a complaint with the U.S. Securities and Exchange Commission (“SEC”). On January 24, 2022, Elan issued a $100,000 check to Seifzadeh. This check bounced the next day. On January 26, 2022, Sheifzadeh lodged a SEC complaint. Elan then provided multiple payments to Sheifzadeh totaling $190,000.

The Dassani Brothers still owe Seifzadeh $111,000 of her investment principal under the Investment Agreement and $210,000 under the Repayment Agreement.

Seifzadeh seeks (1) recission of all contracts underlying the Dassani Brothers’ scheme, (2) judgment for Seifzadeh’s investments less amounts already paid, (3) prejudgment interest at a 10% annual rate from the date of each of her investments, (4) punitive damages, and (5) attorney’s fees and costs.

2. Course of Proceedings

On December 8, 2022, Seifzadeh served Rajeev with the Complaint and Summons. Seifzadeh also served Elan with the Complaint and Summons by substitute service, effective December 18, 2022.

On December 23, 2022, pursuant to, Department 1 (Hon. Michelle Williams Court) granted Seifzadeh’s ex parte application for a temporary protective order a temporary protective order prohibiting Elan from transferring, hiding, selling, refinancing or otherwise dissipating any property or assets until a hearing on this application for a right to attach order.

On January 24, 2023, the Dassani Brothers filed separate Answers.

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.

Seifzadeh and Rajeev began a romantic relationship in February 2020 and moved in together at Seifzadeh’s home in March 2020. Seifzadeh Decl., ¶2. In January 2021, Rajeev’s twin brother Elan presented himself as a knowledgeable investor and options trader who had figured out how to earn 5% weekly profits. Seifzadeh Decl., ¶3. Rajeev vouched for Elan and offered for Seifzadeh to invest through Elan. Seifzadeh Decl., ¶3. The Dassani Brothers promised that it would be highly profitable, so Seifzadeh decided to invest with Elan. Seifzadeh Decl., ¶3.

At first, Elan offered to implement his strategy through Seifzadeh’s trading account with TD Ameritrade. Seifzadeh Decl., ¶4. By February 2021, Elan complained it was a hassle to do the same thing on both of their accounts and convinced Seifzadeh to transfer her funds to his account so that he could manage them from there. Seifzadeh Decl., ¶4. Elan promised to (1) give Seifzadeh access to his trading account at all times and (2) track the investments with an Investment Tracker he would update weekly. Seifzadeh Decl., ¶4. Seifzadeh transferred $85,821 from her trading account to Elan’s account on February 16, 2021. Seifzadeh Decl., ¶5.

In March 2021, Elan presented a profit update on the Investment Tracker, which showed Seifzadeh’s principal and profits totaling $111,600. Seifzadeh Decl., ¶6. Based on this, the Dassani Brothers convinced Seifzadeh to sell her house and invest the sale proceeds with Elan. Seifzadeh Decl., ¶6. As Seifzadeh began the sale process in March and April 2021, the Dassani Brothers continued to produce weekly updates showing Seifzadeh’s profits. Seifzadeh Decl., ¶7. This further reassured her of her decision to sell her house. Seifzadeh Decl., ¶7. She finalized the sale on April 30, 2021 and wired the $310,000 equity proceeds to Elan’s account on May 7, 2021. Seifzadeh Decl., ¶8. At the time, the Investment Tracker showed a total of $128,989.73 and the additional $310,000 brought this total to $438,989. Seifzadeh Decl., ¶9.

On May 20, 2021, Seifzadeh and Elan signed an Investment Agreement whereby Elan acknowledged that he had received $401,000 from Seifzadeh – $91,000 on February 16 and $310,000 on May 10. Seifzadeh Decl., ¶10, Ex. A. This amount reflected $395,821 that Seifzadeh transferred to Elan and $5,179 in unpaid rent and household expenses that the Dassani Brothers owed her. Seifzadeh Decl., ¶10.

The Investment Agreement allowed Seifzadeh to withdraw her funds from the investment account at any time, subject to a 10% fee on the profits to compensate Elan for his services. Seifzadeh Decl., ¶11, Ex. A. Either party could terminate the agreement immediately, at which point Elan would transfer to Seifzadeh her original investment plus any profits after his fees. Seifzadeh Decl., ¶10, Ex. A.

On May 26, 2021, Rajeev ended his relationship with Seifzadeh while she was out of town for work. Seifzadeh Decl., ¶13.

Elan last updated the Investment Tracker on June 4, 2021, three weeks after the parties signed the Investment Agreement. Seifzadeh Decl., ¶12.

On June 10, 2021, Seifzadeh learned that Rajeev started seeing other people before their breakup. Seifzadeh Decl., ¶13. She notified Elan that she wanted to withdraw all her funds from the investment account. Seifzadeh Decl., ¶13. Elan agreed but told Seifzadeh he needed two weeks, or until June 24, 2021, to close the pending trades and cash out her share. Seifzadeh Decl., ¶13. He advised her that she had made a profit. Seifzadeh Decl., ¶13.

On July 9, 2021, Elan advised Seifzadeh that he needed more time and the funds would be available on July 19. Seifzadeh Decl., ¶14. Seifzadeh asked for the access information to the account, but Elan said he was not comfortable sharing that information. Seifzadeh Decl., ¶14.

On July 17, 2021, Elan again claimed that he could not deliver the funds. Seifzadeh Decl., ¶14. The next day, the Dassani Brothers emailed Seifzadeh an offer to pay her an additional $90,000, for a total of $500,000, if she waited longer for payment so Elan could sell his Canada Apartment. Seifzadeh Decl., ¶15. They represented that the sale would be complete by August 2021. Seifzadeh Decl., ¶15. On August 26, 2021, the Dassani Brothers told her they needed more time to close the sale. Seifzadeh Decl., ¶16. Around this time, they borrowed $100,000 from their father and paid it to Seifzadeh. Seifzadeh Decl., ¶16.

In late October 2021, the Dassani Brothers sent Seifzadeh a Repayment Agreement whereby Elan acknowledged that he owed her $400,000. Seifzadeh Decl., ¶17, Ex. B. Elan would pay (1) $200,000 on December 1, 2021, (2) $100,000 on January 1, 2022, and (3) $100,000 on February 1, 2022. Seifzadeh Decl., ¶17, Ex. B. The payment schedule assumed that Elan had funds available through the sale of his Canada apartment. Seifzadeh Decl., ¶17, Ex. B.

The Repayment Agreement released Elan from any penalties incurred to date but stated that his failure to pay within ten days after the February 1, 2022 deadline would accelerate the amount owed. Seifzadeh Decl., ¶17, Ex. B. If litigation arose under the Repayment Agreement, the successful party would be entitled to legal fees. Seifzadeh Decl., ¶17, Ex. B. Except where the Repayment Agreement specifically said otherwise, the Investment Agreement remained in effect. Seifzadeh Decl., ¶17, Ex. B.

Elan failed to pay as promised in the Repayment Agreement. Seifzadeh Decl., ¶18. In January 2022, Seifzadeh advised the Dassani Brothers that she would lodge a SEC complaint. Seifzadeh Decl., ¶18. On January 24, 2022, Elan issued a $100,000 check to Seifzadeh. Seifzadeh Decl., ¶18. This check bounced the next day. Seifzadeh Decl., ¶18.

On January 26, 2022, Seifzadeh lodged a SEC complaint. Seifzadeh Decl., ¶19. Elan then provided multiple payments to Seifzadeh through February 17, 2022, totaling $190,000. Seifzadeh Decl., ¶19.

Elan still owes Seifzadeh $111,000 of her investment principal under the Investment Agreement and $210,000 under the Repayment Agreement. Seifzadeh Decl., ¶20. This does not include interest, profits, or attorney’ fees. Seifzadeh Decl., ¶20.

Rajeev and Elan are writers, directors, and producers in Hollywood. Rajeev Decl., ¶3; Elan Decl., ¶6. Elan is a member of the Directors Guild of America and Writers Guild of America. Elan Decl., ¶¶ 11, Ex. A. The Dassani Brothers started working together in 2009 and have since worked on VFX, international shoots, and directing and producing projects through present day. Rajeev Decl., ¶¶ 4-6; Elan Decl., ¶¶ 7-10. Recent projects include directing the film “Evil Eye” and serving as executive producers for the Netflix series “Jinn.” Elan Decl., ¶¶ 12-14, Exs. B-D.

Neither Dassani Brother is in the business of investing, investment management, securities, or anything related to investment or securities, or has seen the other engage in such a profession. Rajeev Decl., ¶¶ 4, 8-9; Elan Decl., ¶¶ 3, 15. Elan had an interest in investing and would develop recommendations and investment strategies that he honestly believed could be successful, but these were only for himself, Rajeev, and close relatives or friends. Rajeev Decl., ¶10; Elan Decl., ¶3.

Elan met Seifzadeh because she was Rajeev’s girlfriend at the time. Rajeev Decl., ¶11. Elan’s decision to assist her with investments was a one-time act based on his research into investment strategies. Elan Decl., ¶4. At no point did Rajeev represent that Elan was an expert, encourage Seifzadeh to invest with him, or make any promise about returns. Rajeev Decl., ¶12.

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). Seifzadeh’s claim against Elan is based on breach of an Investment Agreement and a Repayment Agreement. Seifzadeh Decl., ¶¶ 10-11, 17, Exs. A-B. 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).

Seifzadeh seeks $226,000, which includes $15,000 in attorney’s fees and $1,000 in costs. Seifzadeh and Elan entered an Investment Agreement in May 2021 and a Repayment Agreement in October 2021. Seifzadeh Decl., Exs. A-B. Seifzadeh asserts that Elan still owes her $111,000 of her investment principal under the Investment Agreement and $210,000 under the Repayment Agreement. Seifzadeh Decl., ¶20.

Seifzadeh cannot claim lost profits under the Investment Agreement. In the Repayment Agreement, she released Elan from any claims previously incurred. Seifzadeh Decl., ¶17, Ex. B. That would include any claim for profits under the Investment Agreement. She may seek breach of contract damages under the Repayment Agreement, which are ascertainable.

Under the Repayment Agreement, Elan acknowledged that he owed Seifzadeh $400,000. Seifzadeh Decl., ¶17, Ex. B. Based on the assumption that the Canada apartment would be sold, he agreed to pay (1) $200,000 on December 1, 2021, (2) $100,000 on January 1, 2022, and (3) $100,000 on February 1, 2022. Seifzadeh Decl., ¶17, Ex. B. His failure to pay within ten days after the February 1, 2022 deadline would accelerate the amount owed. Seifzadeh Decl., ¶17, Ex. B. As the final payment date has passed, the full $400,000 is due with or without acceleration. Seifzadeh Decl., ¶17, Ex. B.

The $100,000 payment in August 2021 cannot apply to the $400,000 debt because it predates the Repayment Agreement. Seifzadeh Decl., ¶16. Seifzadeh therefore asserts that the only credit against the $400,000 debt is the $190,000 paid in early 2022. Seifzadeh Decl., ¶19. Damages of $210,000 ($400,000 - $190,000 = $210,000) are readily ascertainable.

If litigation arises under the Repayment Agreement, the successful party is entitled to legal fees. Seifzadeh Decl., ¶17, Ex. B. Although Seifzadeh alleges $15,000 in fees and $1,000 in costs (App. at 6-7), she does not submit an attorney declaration or other evidence to support the estimate. The $16,000 in estimated fees and costs are disallowed.

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, (“Kadison”) (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

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, (“Nakasone”) (1982) 129 Cal.App.3d 757, 764 (quoting Advance Transformer Co. v. Superior Court, (“Advance Transformer”) (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.

Although Seifzadeh asserts that the agreements arose through Elan’s business as an investment expert and options trader, the only support for that is Elan’s representation to that effect when they met. App. at 6; Seifzadeh Decl., ¶3. Elan asserts that investment management is not his trade, business, or profession and that it was not frequent or continuous. Opp. at 5-7.

The Dassani Brothers provide evidence that their business is filmmaking. Rajeev Decl., ¶¶ 4-6; Elan Decl., ¶¶ 7-14, Exs. A-D. Elan is not in any investment-related securities business and only develops recommendations and strategies for himself, his brother, and close relatives or friends. Rajeev Decl., ¶¶ 4, 8-10; Elan Decl., ¶¶ 3, 15. Seifzadeh qualified at the time because she was dating Rajeev, who never represented that Elan was an expert or promised a specific result. Rajeev Decl., ¶¶ 11-12.

Elan misinterprets the test for a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). There is a difference “between one who spends his attention, time and effort in carrying on an activity for the purpose of livelihood or profit on a continuing basis and one who merely conserves his personal investments.” Advance Transformer, supra, 44 Cal.App.3d at 764. It is clear that Elan’s primary business is in the film industry, but that does not mean that he cannot have a business outside the entertainment world. He did not perform Seifzadeh’s investments for free. The Investment Agreement included a 10% fee on any profit obtained by Seifzadeh when she withdrew funds from his account. Seifzadeh Decl., ¶11, Ex. A. As Elan received profits from this endeavor, his investment services qualify as a business.

The business must also be of a continuing nature. Seifzadeh presents evidence that Elan provided investment services from February to June 2021, when she asked that he return her money. Seifzadeh Decl., ¶¶ 5, 13.[1] Elan asserts that his investment effort cannot be continuous because he only invested for Seifzadeh as a one-time act. Opp. at 7.

Elan’s own evidence shows that Seifzadeh was not his only customer. He admitted that he invests for family members and close friends. Rajeev Decl., ¶¶ 4, 8-10; Elan Decl., ¶¶ 3, 15. Seifzadeh qualified at the time because she was dating Rajeev. Rajeev Decl., ¶11. These facts distinguish Elan from the defendant in Nakasone, who sold her own real properties after her husband’s death and was not a business conducted on a continuing basis. 129 Cal.App.3d at 762-63. See also City of Cohen, (1954) 124 Cal.App.2d 225 (defendant who was primarily accountant but purchased receivables from single company was liable for unpaid business tax because there was both frequency and continuity in the transactions).

The evidence shows that Elan conducted an investment management business that was frequent and continuing, albeit secondary to his principal occupation and for only a limited clientele. This is sufficient to conclude that Seifzadeh’s claim is commercial in nature.

Seifzadeh entered into the Investment Agreement with Elan on May 20, 2021. Seifzadeh Decl., ¶10, Ex. A. Under this agreement, Elan agreed to manage her funds as a share of his investment account, in exchange for 10% of profits that Seifzadeh withdraws when she so chooses. Seifzadeh Decl., ¶10, Ex. A. Either party could terminate at any time, at which point Elan had to pay Seifzadeh her original investment and share of the profits less his 10% fee. Seifzadeh Decl., ¶10, Ex. A.

In late October 2021, the parties entered into a Repayment Agreement whereby Elan acknowledged that he owed $400,000. Seifzadeh Decl., ¶17, Ex. B. Pursuant to the Repayment Agreement, he was required to make three installment payments between December 2021 and February 2022. Seifzadeh Decl., ¶17, Ex. B. Elan failed to pay as promised. Seifzadeh Decl., ¶18. Elan paid $190,000 in multiple payments after Seifzadeh filed a SEC complaint, but still owes the rest. Seifzadeh Decl., ¶¶ 19-20.

Elan does not deny these allegations in his opposition. Seifzadeh has demonstrated a probability of success on the claim for breach of the Repayment Agreement.

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).¿¿As Seifzadeh seeks to recover for the breach of contract, she 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.

Seifzadeh seeks a right to attach against Elan for all his bank accounts with TD Ameritrade, Bank of America, and Wells Fargo. Seifzadeh also identifies a specific TD Ameritrade account by its last 4 digits. The description of attachable property is adequate.

The application for a right to attach order is granted in the amount of $210,000. Although Seifzadeh submitted an ex parte right to attach order, she has not submitted a right to attach order to be issued after hearing. Seifzadeh is ordered to do so within two court days or it will be waived. The TPO expires after the instant hearing. No writ shall issue until Seifzadeh posts a $10,000 bond.

[1] Seifzadeh also cites various communications and partial payments after June 2021 through February 2022. Reply at 3. As these communications and payments occurred after Elan stopped investing for Seifzadeh, they do not significantly support the commercial nature of the transaction.