Judge James C. Chalfant, Case 22STCV38061 2023-03-02 Tentative Ruling

Plaintiff Culver City Mall (“Culver”) applies for a right to attach order against Defendants Stephen (“Stephen”) and Dinah Wang (“Dinah”), individually and doing business as Burger King (“BK”), jointly and severally for $263,299.27. Plaintiff Valencia Town Center Venture, LP (“Valencia”) applies for a right to attach order against Defendants jointly and severally for $128,484.21. Plaintiff Plaza Bonita LLC (“Plaza”) applies for a right to attach order against Defendants jointly and severally for $148,241.68.

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

A. Statement of the Case

1. Complaint

Plaintiffs Culver, Valencia, and Plaza filed the Complaint against Defendants on December 6, 2022, each alleging breach of written lease based on the following facts.

On March 9, 2010, Culver leased portion of the premises in Westfield Culver City, 6000 Sepulveda Blvd, 18 Store No. FC1, Culver City, CA 90230 (“Culver Premises”) pursuant to a 15-year written lease to Defendants’ predecessor-in-interest (“Prior Tenant”). Between August 2011 and July 2014, Prior Tenant and Culver entered three amendments to the Culver Lease. On May 3, 2017, Prior Tenant and Culver entered an amendment that assigned the Culver Lease to Defendants (“Culver Assignment”). (The lease, lease amendments, and assignment are collectively referred to as the “Culver Lease.”)

On January 4, 2012, Valencia and Prior Tenant entered a ten-year lease for premises at Westfield Valencia Town Center, 24201 W Valencia Blvd, Store No. FC 4, Santa Clarita, CA 91355 (“Valencia Premises”). On May 3, 2017, Valencia and Prior Tenant entered an amendment that assigned the Valencia Lease to Defendants. (The lease and the assignment are collectively referred to as the “Valencia Lease.”)

On August 28, 2015, Plaza and Prior Tenant entered a ten-year lease for premises at Westfield Plaza Bonita, 3030 Plaza Bonita Road, Store No. FC 6, National City, California 91950 (“Plaza Premises”). On May 3, 2017, Plaza and Prior Tenant entered an amendment that assigned the Plaza Lease to Defendants. (The lease and assignment are collectively referred to as the “Plaza Lease.”)

Defendants defaulted on the Valencia Lease prior to November 2021 and vacated the premises when the Valencia Lease expired on November 30, 2021. At the time, Defendants owed $112,005.10 on the Valencia Lease, not including interest and late fees.

Defendants defaulted on the Plaza Lease prior to December 2021. On December 10, 2021, Plaza filed an unlawful detainer action against Defendants, San Diego Superior Court Case No. 37-2021-000051839-CU-UD-CTL (“December 2021 Plaza UD Action”). Pursuant to a stipulated judgment, Defendants vacated the Plaza Premises and returned possession to Plaza on June 30, 2022. At the time, Defendants owed $138,241.68 on the Plaza Lease, not including interest and late fees.

Defendants defaulted on the Culver Lease prior to April 2022. In April 2022, Culver filed an unlawful detainer action against Defendants, Los Angeles Superior Court Case No. 22SMUD00345 (“Culver UD Action”). Pursuant to a stipulated judgment, Defendants vacated the Culver Premises and returned possession thereof to Culver on June 7, 2022. At the time, Defendants owed $253,299.27 on the Culver Lease, not including interest and late fees.

Plaintiff Culver seeks damages of $253,299.27, Plaintiff Valencia seeks damages of $112,005.10, and Plaintiff Plaza seeks damages of $138,241.68, plus interest and attorney’s fees and costs as allowed in the respective leases.

2. Course of Proceedings

On January 14, 2023, Plaintiffs served Dinah and Stephen with the Complaint, Summons, and moving papers by substitute service, effective January 24, 2023.

On February 14, 2023, Defendants filed an 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.

All three Plaintiffs are shopping centers managed by Westfield Property Management, LLC (“Westfield”). Wiratunga Decl., ¶1. Westfield’s Senior Director of Lease Administration is responsible for overseeing tenant performance under leases for all Westfield premises, including payment of rent. Wiratunga Decl., ¶¶ 1-2.

On March 9, 2010, Culver and Prior Tenant Shihlin Electric USA Company Limited entered the lease for the Culver premises. Wiratunga Decl., ¶6, Ex. 1. The listed purpose was to operate a Burger King restaurant. Wiratunga Decl., ¶6, Ex. 1. Between August 2011 and July 2014, Prior Tenant and Culver entered into three lease amendments. Wiratunga Decl., ¶6, Exs. 2-4.

The Culver Lease lists most balances due by year, to be paid in equal monthly installments. It defines the annual Base Rent as (1) $34,301.60 from the Rent Commencement date to March 31, 2016; (2) $37,731.76 from April 1, 2016 to March 31, 2021; and (3) $41,504.94 from April 1, 2021 to the end of the lease. Wiratunga Decl., ¶6, Ex. 1. Prior Tenant was also required to pay an Indexed Rent that would start at $38.59 per square foot per year, increase by 5% on the first day of 2012, and then increase by another 5% on the same day every following year. Wiratunga Decl., ¶6, Ex. 1. The Culver premises are 809 square feet. Wiratunga Decl., ¶6, Ex. 1. The Base and Index Rent are collectively the Minimum Annual Rent. Wiratunga Decl., ¶6, Ex. 1 (§2.01).

Under section 8.03 of the Culver Lease, Prior Tenant was required to pay Common Area Maintenance (“CAM”) Expenses. Wiratunga Decl., ¶6, Ex. 1. Annual CAM Expenses would start at $23.69 per square foot and would increase by 5% on January 1 of each year from 2012 thereafter. Wiratunga Decl., ¶6, Ex. 1.

The Culver Lease also required Prior Tenant to pay 6% of Gross Sales above $1,000,000 per year. Wiratunga Decl., ¶6, Ex. 1 (§2.02).

Per section 16.02, Prior Tenant would also pay a Promotional Program Fee that would begin at $3,001.39 per year in 2011 and increase by 5% every year on February 1 from 2012 thereafter. Wiratunga Decl., ¶6, Ex. 1.

Section 2.04(a) required Prior Tenant to pay its share of the premises’ taxes based on square footage, plus 15%. Wiratunga Decl., ¶6, Ex. 1. Section 2.04(b) included in such taxes any instance in which a government agency assesses a tax or fee for a service such as fire protection. Wiratunga Decl., ¶6, Ex. 1. Section 12.01(a) required the Prior Tenant to pay for utilities such as water and electricity, although Landlord could furnish them and charge Tenant for their use when collecting rent for that month. Wiratunga Decl., ¶6, Ex. 1.

Under section 2.07, any overdue payment made over ten days after demand will incur a 10% late charge. Wiratunga Decl., ¶6, Ex. 1.

Per section 6.01, any alterations or improvements made to the premises by Prior Tenant are deemed attached thereto and the property of the Landlord. Wiratunga Decl., ¶17, Ex. 7. Per section 6.02, upon termination of the lease, Prior Tenant may not remove any such improvements unless the Landlord permits it to do so. Wiratunga Decl., ¶17, Ex. 7. If Prior Tenant does not comply with a direction to remove improvements, Landlord may claim title to them without compensation. Wiratunga Decl., ¶17, Ex. 7.

In the event of default, Culver can terminate the lease and recover unpaid rent at the time of termination. Wiratunga Decl., ¶6, Ex. 1 (§19.01). Culver can also recover rent which would have been earned after termination that exceeds the amount of such rental loss that Prior Tenant affirmatively proved Culver could have avoided. Wiratunga Decl., ¶6, Ex. 1 (§19.01).

If Culver resorts to litigation to enforce the Culver Lease, it entitled it to attorney’s fees and costs. Wiratunga Decl., ¶11, Ex. 1 (§27.2).

On or about May 3 ,2017, Culver, Prior Tenant, and Defendants entered into the lease assignment pursuant to which all of Prior Tenant’s rights were assigned to Defendants. Wiratunga Decl., ¶6, Ex. 5.

s Defendants defaulted on the Culver Lease prior to April 2022. Wiratunga Decl., ¶7. In April 2022, Culver filed the Culver UD Action. Wiratunga Decl., ¶8. Pursuant to a stipulated judgment, Defendants vacated the Culver Premises and returned possession to Culver on June 7, 2022 (“Culver Termination Date”). Wiratunga Decl., ¶8.

The ledger for the Culver Lease (“Culver Ledger”) shows that as of the Culver Termination Date, Defendants owed $253,299.27, not including interest and late fees. Wiratunga Decl., ¶9, Ex. 6.

In October 2021, Culver served a 60-day lease termination notice. Mirch Culver Decl., ¶4. Defendants did not vacate the Culver Premises. Mirch Culver Decl., ¶4.

On December 3, 2021 Stephen and Dinah filed a complaint that became Stephen v. URW. Culver RJN Ex. 1; Mirch Culver Decl., ¶2. It alleged nine causes of action based on the claim that Culver engaged in fraudulent conduct to amend the underlying lease terms in order to remove the Defendants from the Culver Premises without cause in favor of more profitable tenants. Culver RJN Ex. 1; Mirch Culver Decl., ¶2. Culver filed demurrer and a motion to strike, which the trial court sustained without leave to amend. Mirch Culver Decl., ¶3. The case is on appeal. Mirch Culver Decl., ¶3.

On April 6, 2022, Culver filed the Culver UD Action alleging that it served a notice of termination for the Culver Lease on February 1, 2022. Culver RJN Ex. 2. It alleged damages of $460.85 per day from April 4, 2022. Culver RJN Ex. 2.

In May 2021, the parties negotiated and entered a stipulated settlement whereby Defendants agreed to deliver possession of the Culver premises on June 7, 2022. Mirch Culver Decl., ¶4, Ex. A. Defendants also agreed to pay per diem rental of $460.85 from April 4 to June 7, 2022 for a total of $29,955.25. Mirch Culver Decl., ¶5, Ex. A. Culver agreed to dismiss the Culver UD Action upon repossession. Mirch Culver Decl., ¶4, Ex. A. Defendants vacated the premises on June 7, 2022 and paid the $29,955.25. Mirch Culver Decl., ¶6.

Defendants’ counsel has reviewed the Culver Ledger and finds it overstates that amount owed. Mirch Culver Decl., ¶7.

On January 4, 2012, Valencia and Prior Tenant entered the lease for the Valencia Premises. Wiratunga Decl., ¶12, Ex. 7. The listed purpose was to operate a Burger King restaurant. Wiratunga Decl., ¶12, Ex. 7.

The Valencia Lease lists most balances due by year, to be paid in equal monthly installments. It defined the Minimum Annual Rent as (1) $29,680 from the Rent Commencement Date of December 15, 2011 to November 30, 2016; and (2) $33,390 from December 1, 2016 to the end of the lease. Wiratunga Decl., ¶12, Ex. 7. The lease also imposes an annual Food Court charge that starts at $16 per square foot and increases by 5% every January 1 from 2012 thereafter. Wiratunga Decl., ¶12, Ex. 7. The Valencia premises are 742 square feet. Wiratunga Decl., ¶12, Ex. 7.

Under section 8.03 of the Valencia Lease, Prior Tenant would also pay CAM Expenses. Wiratunga Decl., ¶12, Ex. 7. Annual CAM Expenses would start at $21.49 per square foot of the Valencia Premises and would increase by 5% on January 1 of each year from 2012 thereafter. Wiratunga Decl., ¶12, Ex. 7.

The Valencia Lease also required Prior Tenant to pay 6% of Gross Sales above $700,000 per year. Wiratunga Decl., ¶12, Ex. 7 (§2.02).

Per section 16.02, Prior Tenant would also pay a Promotional Program Fee that would begin at $1,484 per year in 2011. Wiratunga Decl., ¶12, Ex. 7. This would increase by 5% every January 1 after thee Rent Commencement Date. Wiratunga Decl., ¶12, Ex. 7.

Section 2.04(a) required Prior Tenant to pay for its share of the premises’ taxes based on square footage, plus 15%. Wiratunga Decl., ¶12, Ex. 7. Section 2.04(b) included in such taxes any instance in which a government agency assesses a tax or fee for a service such as fire protection. Wiratunga Decl., ¶12, Ex. 7. Section 12.01(a) required Prior Tenant to pay for utilities such as water and electricity, although Landlord could furnish them and charge Tenant for their use when collecting rent for that month. Wiratunga Decl., ¶12, Ex. 7.

Under section 2.07, any overdue payment made over ten days after demand will incur a 10% late charge. Wiratunga Decl., ¶12, Ex. 7.

If the Prior Tenant retained possession of the Valencia Premises after expiration of the Valencia Lease, section 23.01 allowed Landlord to charge the greater of twice the aggregate rent on the last month of the lease’s term and the fair market value of the Valenica Premises plus additional rent payable during the last month of the term. Wiratunga Decl., ¶17, Ex. 7.

In the event of default, Valencia was entitled to terminate the lease and to recover unpaid rent at the time of termination. Wiratunga Decl., ¶17, Ex. 7 (§19.01). Valencia can also recover rent which would have been earned after termination that exceeds the amount of such rental loss that Prior Tenant affirmatively proved Culver could have avoided. Wiratunga Decl., ¶17, Ex. 7 (§19.01).

If Valencia resorts to litigation to enforce the Valencia Lease, the lease entitled Valencia to attorney’s fees and costs. Wiratunga Decl., ¶17, Ex. 7 (§27.2).

On May 3, 2017, Valencia, Prior Tenant, and Defendants entered an amendment which assigned the Valencia Lease to Defendants. Wiratunga Decl., ¶12, Ex. 8.

Defendants defaulted on the Valencia Lease prior to November 2021 and the Valencia Lease expired on November 30, 2021. Wiratunga Decl., ¶14. Valencia repossessed the premises when Defendants vacated them on January 16, 2022 (“Valencia Termination Date”). Wiratunga Decl., ¶14.

The ledger for the Valencia Lease (“Valencia Ledger”) shows that as of the Valencia Termination Date, Defendants owed $118,484.21 on the Valencia Lease, not including interest and late fees. Wiratunga Decl., ¶15, Ex. 9.

The Valencia Ledger exceeds the amount claimed in the Complaint for this action. Stephen Valencia Decl., ¶7. It also does not credit $500,000 in renovations Defendants paid for out-of-pocket, even though these renovations remained when Valencia repossessed the premises. Stephen Valencia Decl., ¶8.

Valencia has also taken advantage of state and federal subsidy programs. Stephen Valencia Decl., ¶11.

The complaint in Stephen v. URW alleged that Valencia engaged in fraudulent conduct to amend the underlying lease terms in order to remove Defendants from the Valencia premises without cause in favor of more profitable tenants. Valencia RJN Ex. 1.

On August 28, 2015, Plaza and Prior Tenant entered the original lease for the Plaza premises. Wiratunga Decl., ¶18, Ex. 10. The listed purpose was to operate a Burger King restaurant. Wiratunga Decl., ¶18, Ex. 10.

The Plaza Lease lists most balances due by year, to be paid in equal monthly installments. It defined the annual Base Rent as (1) $15,330.00 from the Rent Commencement date of November 1, 2015 to October 31, 2016; (2) $15,789.90 from November 1, 2016 to October 31, 2017; (3) $16,263.60 from November 1, 2017 to October 31, 2018; (4) $16,751.50 from November 1, 2018 to October 31, 2019; (5) $17,254.05 from November 1, 2019 to October 31, 2020; (6) $17,771.67 from November 1, 2020 to October 31, 2021; (6) $18,304.82 from November 1, 2021 to October 31, 2022. Wiratunga Decl., ¶18, Ex. 10. Prior Tenant was also to pay an Indexed Rent that would start at $46.03 per square foot per year, increase by 5% on the first day of 2016, and then increase by another 5% on the same day every following year. Wiratunga Decl., ¶18, Ex. 10. The Plaza premises are 1,022 square feet. Wiratunga Decl., ¶18, Ex. 10. The Base and Index Rent are collectively the Minimum Annual Rent. Wiratunga Decl., ¶18, Ex. 10.

The Plaza Lease also required Prior Tenant to pay as Percentage Rental 10% of Gross Sales above $1,000,000 per year. Wiratunga Decl., ¶18, Ex. 10 (§2.02).

Notwithstanding this schedule, section 2.01(c) required that, from February 1, 2018 and every February 1 thereafter, Prior Tenant would pay as new Minimum Annual Rent the greater of (1) the greater of 103% of the Minimum Annual Rent for the 12 months prior to that or (2) the Minimum Annual Rent plus Percentage Rental paid from February 1, 2017 to January 31, 2018, also to increase by 3% every February 1 from 2019 thereafter. Wiratunga Decl., ¶18, Ex. 10.

Under section 8.03, Prior Tenant would also pay CAM Expenses. Wiratunga Decl., ¶18, Ex. 10. Annual CAM Expenses would start at $25.60 per square foot of the Plaza Premises and would increase by 5% on January 1 of each year from 2016 thereafter. Wiratunga Decl., ¶18, Ex. 10.

Per section 16.02, Prior Tenant would also pay an annual Promotional Program Fee that would begin at $3.24 per square foot and increase by 5% every January 1 from 2016 thereafter. Wiratunga Decl., ¶18, Ex. 10.

Section 2.04(a) required Prior Tenant to pay its share of the premises’ taxes based on square footage, plus 15%. Wiratunga Decl., ¶18, Ex. 10. Section 2.04(b) included in such taxes any instance in which a government agency assesses a tax or fee for a service such as fire protection. Wiratunga Decl., ¶18, Ex. 10. Per section 2.04(c), Plaza was to estimate these taxes and bill Prior Tenant for them but reconcile the amount billed with actual taxes at the end of each year. Wiratunga Decl., ¶18, Ex. 10.

Section 12.01(a) required Prior Tenant to pay for utilities such as water and electricity, although Landlord could furnish them and charge Tenant for their use when collecting rent for that month. Wiratunga Decl., ¶18, Ex. 10.

Under section 2.07, any overdue payment made over ten days after demand will incur a 10% late charge. Wiratunga Decl., ¶18, Ex. 10.

Per section 6.01, any alterations or improvements made to the premises by Prior Tenant are deemed attached thereto and the property of the Landlord. Wiratunga Decl., ¶17, Ex. 7. Under section 6.02, upon termination of the lease, Prior Tenant may not remove any such improvements unless the Landlord permits it to do so. Wiratunga Decl., ¶17, Ex. 7. If Prior Tenant does not comply with an order to remove it, Landlord may claim title to it without compensation. Wiratunga Decl., ¶17, Ex. 7.

In the event of default, Plaza was entitled to terminate the lease and to recover unpaid rent at the time of termination. Wiratunga Decl., ¶18, Ex. 10 (§19.1). Plaza could also recover rent which would have been earned after termination that exceeds the amount of such rental loss that Prior Tenant affirmatively proved Culver could have avoided. Wiratunga Decl., ¶18, Ex. 10 (§19.01).

If Plaza resorts to litigation to enforce the Plaza Lease, it was entitled to attorney’s fees and costs. Wiratunga Decl., ¶23, Ex. 10 (§27.2).

On May 3, 2017, Prior Tenant and Plaza entered a Plaza Assignment, which assigned the Culver Lease to Defendants. Wiratunga Decl., ¶18, Ex. 11.

Defendants defaulted on the Plaza Lease prior to December 2021. Wiratunga Decl., ¶19. On December 10, 2021, Plaza filed the December 2021 Plaza UD Action. Wiratunga Decl., ¶20. Pursuant to a stipulated judgment, Defendants vacated the Plaza Premises and returned possession to Plaza on June 30, 2022 (“Plaza Termination Date”). Wiratunga Decl., ¶20.

The ledger for the Plaza Lease (“Plaza Ledger”) from January 2018 shows that as of the Plaza Termination Date, Defendants owed $138,241.68 on the Plaza Lease, not including interest and late fees. Wiratunga Decl., ¶21, Ex. 12.

Stephen invested about $700,000 in improvements to the Plaza Premises. Stephen Plaza Decl., ¶3. He also paid a $27,148.59 deposit in November 2017. Stephen Plaza Decl., ¶6.

Someone added the provision that permits lease termination with 60-day notice to the Plaza Assignment after Stephen signed it on May 3, 2017. Stephen Plaza Decl., ¶¶ 7-8. Stephen could never have agreed to that because the Burger King corporate office would have forbidden it. Stephen Plaza Decl., ¶9.

On February 9, 2021, Plaza filed the complaint that became Plaza v. Steve and Dinah, Case No. 37-2021-000005934-CU-UD-CTL (“February 2021 Plaza UD Action”). Plaza RJN Ex. 1. It was based on a January 2021 Notice to Quit that alleged $42,612.93 in unpaid rent. Plaza RJN Ex. 2. The February 2021 Plaza UD Action reiterated that as of January 27, 2021, Defendants owed no less than $42,612.93. Plaza RJN Ex. 1. Stephen claims Plaza failed to properly serve him with the complaint, although the docket shows proof of service on March 16, 2021. Plaza RJN Ex. 6; Stephen Plaza Decl., ¶10. Plaza obtained a default and writ of possession but never executed it. Stephen Plaza Decl., ¶10.

On April 23, 2021, Stephen made the second of two payments Plaza told him would satisfy all rent obligations incurred during the COVID shut down. Stephen Plaza Decl., ¶11.

On June 8, 2021, Plaza filed the complaint in Plaza v. Steve and Dinah, Case No. 337-2021-00024978-CU-UD-CTL (“June 2021 Plaza UD Action”). Plaza RJN Ex. 3. It was based on a May 2021 Notice to Quit that alleged $45,929.63 in unpaid rent. Plaza RJN Ex. 4. Stephen claims Plaza again failed to properly serve him with the complaint, although the docket shows proof of service dated July 26, 2021. Plaza RJN Ex. 7; Stephen Plaza Decl., ¶12.

Plaza obtained a default and executed a writ of possession on August 18, 2021. Stephen Plaza Decl., ¶12. It did not return any personal property inside the Plaza Premises. Stephen Plaza Decl., ¶12. Although Stephen succeeded in a motion to set aside the default and regained possession, by then the signage and personal property were gone and the food given away. Stephen Plaza Decl., ¶13.

The February and June 2021 Plaza UD Actions were dismissed in September 2021. Plaza RJN Exs. 6-7.

In October 2021, Plaza served a 60-day notice of lease termination. Stephen Plaza Decl., ¶14. When Stephen refused to comply, on December 10, 2021, Plaza filed the December 2021 Plaza UD Action. Stephen Plaza Decl., ¶14.

On May 31, 2022, the parties entered into a settlement agreement whereby Defendants agreed to deliver possession of the Plaza Premises by June 30, 2022. Mirch Plaza Decl., ¶5, Ex. A. They would pay rental at a daily rate of $197.26 from December 7, 2021 through June 30, 2022, for a total of $40,635.56. Mirch Plaza Decl., ¶5, Ex. A. Plaza agreed to dismiss the December 2021 Plaza UD Action upon repossession. Mirch Plaza Decl., ¶5, Ex. A. Defendants vacated the premises in June 2022 and paid the $40,635.56. Mirch Plaza Decl., ¶6.

Defendants’ counsel has reviewed the Plaza Ledger and finds it overstates the amount owed. Mirch Plaza Decl., ¶7. Defense counsel has recalculated this amount by first capping damages prior to February 2021 at $45,612.93 based on the complaint in the February 2021 Plaza UD Action and removing $1,072.12 in legal fees assessed before that point. Mirch Plaza Decl., ¶7, Ex. B. She then calculated the amount charged from the December 7, 2021 stipulation to when Defendants vacated the premises. Mirch Plaza Decl., ¶7, Ex. B. This amount, $87,955.94, exceeded the $40,365.56 owed under the stipulation by $47,590.38. Mirch Plaza Decl., ¶7, Ex. B. Counsel calculated that out of the $138,241.58 in the Plaza Ledger, Defendants only owed $69,744.68. Mirch Plaza Decl., ¶7, Ex. B.

The complaint in Stephen v. URW alleged that Plaza engaged in fraudulent conduct to amend the underlying lease terms in order to remove the Defendants from the Plaza Premises without cause in favor of more profitable tenants. Culver RJN Ex. 1; Valencia RJN Ex. 1; Plaza RJN Ex. 8.

As with Valencia, Plaza has also taken advantage of state and federal subsidy programs. Stephen Plaza Decl., ¶16.

Counsel for Plaintiffs estimates attorney’s fees and costs to be $10,000 per plaintiff. Blackmar Decl., ¶2.

On February 13, 2023, Plaintiffs’ counsel emailed defense counsel to notify him that the document filed online Defendants’ opposition to Plaza’s application was just a certificate of service. Blackmar Reply Decl., ¶2, Ex. 13. Defense counsel never responded. Blackmar Reply Decl., ¶2.

The judgments entered pursuant to settlement in both the Culver UD Action and the December 2021 Plaza UD Action state that the plaintiffs reserved the right to seek damages under the pertinent lease for unpaid rent, attorney’s fees, and costs in addition to the amounts paid under each settlement. Blackmar Reply Decl., ¶¶ 3-4, Exs. 14-15.

The Zillow estimate for Stephen’s residence at 1032 S. 4th Ave, Acadia, CA 91006, is $3,174,500. Blackmar Reply Decl., ¶5, Ex. 16.

Plaintiff Culver applies for a right to attach order against Defendants Stephen and Dinah jointly and severally in the amount of $263,299.27. Plaintiff Valencia applies for a right to attach order against Defendants jointly and severally in the amount of $128,484.21. Plaintiff Plaza applies for a right to attach order against Defendants jointly and severally in the amount of $148,241.68.

The parties’ filings suffer from the fact that there are three Plaintiffs making separate claims against the same Defendants. The claims are for the breach of three different leases at three different restaurants. This court believes that Plaintiffs should have filed three separate lawsuits. Plaintiffs’ single application has resulted in three separate oppositions, one of which is not supported by a memorandum and another of which does not have a supporting declaration. The court has endeavored to parse the applications as follows.

The claims against Defendants are based on three separate leases which Prior Tenants assigned to Defendants in May 2017. Wiratunga Decl., Exs. 1, 5, 7-8, 10-11. Plaintiffs therefore have claims 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).

Culver, Valencia, and Plaza provide the Leases and Ledgers that calculate the amount owed under each Lease as $253,299.27, $118,484.21, and $138,241.68, respectively. Wiratunga Decl., Exs. 1, 6-7, 9-10, 12.

Defendants’ Valencia opposition asserts that the $118,484.21 amount exceeds the $112,005.10 in unpaid rent and related charges claimed in the Complaint. Valencia Opp. at 4. Defendants are wrong. The Complaint alleges that Valencia’s damages are “in excess of $112,005.10, plus interest thereon, all in accordance with the lease, the precise amount to be proven at time of trial.” Compl., ¶25, Prayer for Second Cause of Action. Valencia is not limited to $112,005.10. The amounts sought are readily ascertainable.

Each Lease allowed the Plaintiff to recover attorney’s fees and costs. Wiratunga Decl., Exs. 1, 7, 10. Counsel provides an estimate of $10,000 per plaintiff. Blackmar Decl., ¶2. Defendants’ oppositions in Culver and Valencia assert that an estimate is not definitive enough to be ascertainable for attachment purposes. Culver Opp. at 5; Valencia Opp. at 4. Judicial Council Form AT-105 Item 8 expressly authorizes an estimate of attorney’s fees and costs which are readily ascertainable if supported by a declaration from counsel. The ascertainable damages for each Plaintiff increase by $10,000 to the amounts of $263,299.27, $128,484.21, and $148,241.68 for Culver, Valencia, and Plaza, respectively.[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, (“Kadison”) (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

The stated purpose of all three Leases is to run a Burger King restaurant. Wiratunga Decl., Exs. 1, 7, 10. Stephen admits that he and Dinah owned and operated the three Burger King restaurants. Stephen Valencia Decl., ¶2. Defendants assumed the Leases for a commercial business purpose and the claim against them is a commercial claim.

The parties do not dispute that between 2010 and 2015, Prior Tenant and Plaintiffs entered the Culver, Valencia, and Plaza Leases. Wiratunga Decl., Exs. 1, 7, 10. On May 3, 2017, Prior Tenant assigned all three Leases to Defendants. Wiratunga Decl., Exs. 5, 8, 11. Plaintiffs present the Ledgers as evidence that Defendants defaulted on each Lease before they vacated the premises. Wiratunga Decl., ¶¶ 7-8, 13-14, 19-20, Exs. 6, 9, 12.

On December 3, 2021 Stephen and Dinah filed a complaint that became Stephen v. URW. Culver RJN Ex. 1; Valencia RJN Ex. 1; Plaza RJN Ex. 8. The complaint alleged that Culver engaged in fraudulent conduct to amend the underlying lease terms in order to remove Defendants from the Culver Premises without cause in favor of more profitable tenants. Culver RJN Ex. 1; Mirch Culver Decl., ¶2. Culver demurred, which the court sustained without leave to amend. Mirch Culver Decl., ¶3. The case is on appeal. Mirch Culver Decl., ¶3.

Defendants have attached the complaint for this action without any supporting evidence. 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. Defendants have failed to demonstrate a probability of success for their claim of offset.[5]

Stephen claims he spent $500,000 in improvements on Valencia and $700,000 on Culver. Culver Opp. at 6; Stephen Valencia Decl., ¶8; Stephen Plaza Decl., ¶6. Defendants claim that Plaintiffs must reduce damages by these expenditures, which would reduce the ascertainable damages to $0. Culver Opp. at 6; Valencia Opp. at 4-5.

Defendants do not provide sufficient evidence of these expenditures. Reply at 4. Even if arguendo they did so, the Leases expressly prohibit Defendants from relying on them. Per section 6.01, any alterations or improvements made to the premises are deemed attached thereto and the property of the Landlord. Wiratunga Decl., Exs. 1, 7, 10. Under section 6.02, upon termination of the lease, Defendants may not remove any such improvements unless the Landlord permits them to do so. Wiratunga Decl., Exs. 1, 7, 10. If Defendants do not comply with Landlord’s direction to remove improvements, Landlord may claim title to it without compensation. Wiratunga Decl., Exs. 1, 7, 10. Defendants are not entitled to credit for improvements left behind.

Another business at the Culver City Mall, an Auntie Anne’s Pretzels, received an abatement in Minimum Annual Rent, CAM expenses, and Promotional Charges between March and December 2020 that Defendants did not. Stephen Valencia Decl., ¶¶ 9-10, Ex. A. Defendants assert that Plaintiffs should have offered them the same. Culver Opp. at 6; Valencia Opp. at 5. Plaintiffs respond that they did not make this offer to Defendants because they did not negotiate or execute such amendments like other tenants did. Reply at 4-5.

This argument is irrelevant. Plaintiffs have no duty to treat each tenant identically.

Upon default, Plaintiffs were entitled to terminate the lease and to recover unpaid rent at the time of termination. Wiratunga Decl., Exs. 1, 7, 10. Plaintiffs could also recover rent earned after termination that does not exceed the amount of such rental loss that the tenant affirmatively proved Plaintiffs could have avoided. Wiratunga Decl., Exs. 1, 7, 10. Plaintiffs are not seeking future rent.

Defendants allege that Plaintiffs have taken advantage of state and federal subsidy programs. Stephen Valencia Decl., ¶11; Stephen Plaza Decl., ¶16. The court must discount the value of such aid to prevent double recovery. Culver Opp. at 6; Valencia Opp. at 5. Alternatively, Defendants assert that because Plaintiffs should have sought and obtained such aid, they breached the duty to mitigate damages and must reduce the damages the amount of available aid. Culver Opp. at 7; Valencia Opp. at 5.

Defendants does not provide evidence to support their claim or show the value of such aid. They do not show that such aid was even available for Plaintiffs to use to mitigate damages and Plaintiffs deny that it was received. Reply at 5.

In May 2021, the parties negotiated and entered a stipulated settlement whereby Defendants agreed to deliver possession of the Culver premises on June 7, 2022. Mirch Culver Decl., ¶4, Ex. A. Defendants also agreed to pay per diem rental of $460.85 from April 4 to June 7, 2022 for a total of $29,955.25. Mirch Culver Decl., ¶5, Ex. A. Defendants assert that Culver cannot now pursue $31,305.68 in damages for the period from April to June 2022, as reflected in the Culver Ledger. Culver Opp. at 6; Wiratunga Decl., ¶9, Ex. 6.

As Plaintiffs note, while the Culver Ledger gives credit for the $29,955.25 payment, the settlement agreement expressly provides that Culver is free to pursue the rest of the damages from this period. Reply at 4; Wiratunga Decl., ¶9, Ex. 6. The judgment entered in the UD case stated that Culver reserved the right to seek damages under the Lease for unpaid rent, attorney’s fees, and costs in addition to the amounts paid under each settlement. Blackmar Reply Decl., ¶3, Ex. 14. Pursuant to this stipulation, Plaintiffs were required to give Defendants credit for the per diem paid from the stipulation to June 7, 2022, and they have done so. They are not required to forego any remaining rent during this period, however.[6]

Plaintiffs have shown a probability of success on their claims for breach of all Leases.

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). Defendants do not separately argue that the purpose of the right to attach orders is fraudulent. As Plaintiffs seek to recover for the breach of the three leases, they 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.

Each Plaintiff seeks a right to attach for property including but not limited to real property, accounts receivable, chattel paper and general intangibles arising out of the conduct of a trade, business or profession; equipment; inventory; final money judgments arising out of the conduct of a trade, business or profession; money on the premises where Defendants conduct a trade, business or profession; money located elsewhere than on such premises and deposit accounts; negotiable documents of title; instruments; and securities.

Defendants assert that this is insufficient as it merely recited all property attachable under CCP section 487.010. Opp. at 8. While this is true, the descriptions are still adequate under Bankd of America.

Defendants assert that the undertaking should be greater than $10,000 because Plaintiffs seek to secure real estate through the right to attach orders. Culver Opp. at 10. Defendants misunderstand the purpose of the undertaking, which should be in an amount of the defendant’s probable recovery for wrongful attachment. Defendants do not explain how the nature of the attached property would affect their damages for a wrongful attachment. The bond will be $10,000 for each Defendant by each Plaintiff (a total of six $10,000 bonds).

Defendants seek an order permitting them to substitute a bond for any attached property under CCP section 489.310. Culver Opp. at 10. Although this application appears premature, Plaintiffs agree to it. Reply at 2. Therefore, Defendants may post a bond to avoid attachment.

Plaintiff Culver’s application is granted against Defendants Stephen and Dinah in the amount of $263,299.27, Plaintiff Valencia’s application is granted in the amount of $128,484.21, and Plaintiff Plaza’s application is granted in the amount of $148,241.68. The proposed right to attach orders filed by Culver are not separate as to each Defendant and Culver is ordered to submit new individual right to attach orders in two court days or they will be waived. No writ shall issue against a Defendant until Culver posts an undertaking for that Defendant.

Defendants declare several exemptions without supporting evidence. Culver Opp. at 10-11; Valencia Opp. at 9-10.

The property exempt from attachment consists of (a) all property exempt from enforcement of a money judgment,[7] (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). Similarly, the interest of a natural person in a dwelling may not be sold to enforce a money judgment except pursuant to a court order for sale. CCP §704.740(a).

Defendants Stephen and Dinah content they are entitled to a homestead exemption but do not identify their home or provide evidence of its value. Culver Opp. at 11. Plaintiffs present a $3,174,500 online estimate for a home at 1032 S. 4th Ave, Acadia, CA 91006. Blackmar Reply Decl., ¶5, Ex. 16. There is no evidence that this is Defendants’ home. The homestead exemption is denied.

The aggregate equity in motor vehicles is exempt up to $3,325. CCP §704.010(a). Defendants assert a vehicle exemption of $3,325 for the value of a vehicle that they do not identify. Culver Opp. at 11. Because the court cannot confirm the value of any such vehicle, the vehicle exemption is denied.

Unmatured life insurance policies, including endowment and annuity policies but not the loan value of such policies, are exempt without making a claim. CCP §704.100(a).

Defendants claim exemptions for whole life insurance policies. Culver Opp. at 11. Although Defendants have not identified the life insurance policies, the nature of the item makes it readily identifiable if attached and the exemption is granted.

Before payment, benefits from a disability or health insurance policy or program are exempt without making a claim. CCP §704.130(a). After payment, the benefits are exempt. CCP §704.130(a).

Defendants claim exemptions for health insurance benefits and disability insurance benefits. Culver Opp. at 11. Defendants do not identify these benefits but do not need to do so; they are exempt.

Jewelry, heirlooms, and works of art are exempt to the extent that the aggregate equity does not exceed $8,725. CCP §704.040.

Defendants claim an exemption of $8,725 for family heirlooms and jewelry. Culver Opp. at 11. They fail to provide any evidence identifying such items and the exemption is denied.

A defendant may elect to exempt interest, not to exceed $725 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments, that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. CCP §703.140(b)(3).

Defendants claim an exemption in household items for personal and family use. Culver Opp. at 11. Although Defendants have not identified the furniture and household items for which they claim an exemption, the nature of these items are such that they need not be identified. The exemption is granted.

The right of any person to any future payment of Social Security is not transferable or assignable, at law or in equity. 42 USC §407. Accordingly, a deposit account is exempt without making a claim in the amount of $3,500 where one depositor is the designated payee of directly deposited social security payments, and in the amount of $5,250 where two or more depositors are designated payees. CCP §704.080(b)(2).

Defendants claim an exemption in Social Security direct deposit accounts. Culver Opp. at 10. Defendants do not identify a specific Social Security account or declare the number of depositors who receive social security payments in such accounts, and the exemption is denied.

All amounts held, controlled, or in process of distribution by a public entity derived from contributions by the public entity or by an officer or employee of the public entity for public retirement benefit purposes, and all rights and benefits accrued or accruing to any person under a public retirement system, are exempt without making a claim. CCP §704.110(b). All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are also exempt. CCP §704.115(b).

The aggregate interest, not to exceed seven thousand five hundred dollars ($7,500), in vacation credits or accrued, or unused, vacation pay, sick leave, or family leave is exempt. CCP §704.113(b). Vacation credits means vacation credits accumulated by a state employee pursuant to Section 19858.1 of the Government Code or by any other public employee pursuant to any law for the accumulation of vacation credits applicable to the employee. CCP §704.113(a). Amounts paid periodically or as a lump sum representing vacation credits are also exempt. CCP §704.113(c).

Defendants claim an exemption in public, private, and military retirement benefits. Culver Opp. at 10. The nature of such benefits Defendants means that they do not need to be identified and the exemption is granted.

Material that in good faith is about to be applied to the repair or improvement of a residence is exempt if the equity in the material does not exceed $3,500 and was purchased in good faith for use in the repair or improvement of the judgment debtor's principal place of residence, or of the debtor’s spouse’s principal place of residence if living separate. CCP §704.030.

Defendants claim an exemption for “residential business materials”. Culver Opp. at 11. Defendants provide no evidence of the location of their home or that they have purchased to improve or repair it. The exemption is denied.

Health aids reasonably necessary to enable the judgment debtor or the spouse or a dependent of the judgment debtor to work or sustain health, and prosthetic and orthopedic appliances, are exempt. CCP §704.050(a).

Defendants claim an exemption for health aids, prosthetics, and orthopedic devices. Culver Opp. at 11. Although they do not identify such devices, the nature of these items are such that the exemption is granted.

Escrow or trust funds are not subject to enforcement of a money judgment arising out of any claim against the licensee or person acting as escrow agent, and in no instance shall such escrow or trust funds be considered or treated as an asset of the licensee or person performing the functions of an escrow agent. Financial Code §17410.

Defendants assert an exemption of trust funds. Culver Opp. at 11. Trust funds are not listed in CCP sections 704.010 et seq., and Defendants do not identify any trust accounts. The exemption is denied.

[1] Plaintiffs point out that Defendants’ oppositions were due five court days before the February 21 initial hearing (CCP §484.050(e)) and were filed a day late on February 14, 2023. Plaintiffs have suffered no prejudice as they timely filed their reply on February 16, 2023 and the court has considered the oppositions with the exception of Defendants’ separate opposition to Plaza’s application, which is only a certificate of service with a supporting declaration and request for judicial notice. See post.

[2] In opposition to Culver, Defendants request judicial notice of the complaints in (1) Stephen and Dinah v. Unibail-Rodance-Westfield et al, (“Stephen v. URW”) Case No. 21STCV44289 (Culver RJN Ex. 1); and (2) the Culver UD Action (Culver RJN Ex. 2). Both requests are granted. Evid. Code §452(d). The court does not need to judicially notice the complaint in Stephen v. URW separately for Defendants’ opposition to Valencia (Valencia RJN Ex. 1) or Plaza (Plaza RJN Ex. 8).

In opposition to Plaza, Defendants request judicial notice of (1) the complaint in Plaza v. Steve and Dinah, Case No. 37-2021-000005934-CU-UD-CTL, filed on February 9, 2021 (“February 2021 Plaza UD Action”) (Plaza RJN Ex. 1), (2) a January 2021 Notice to Quit the Plaza premises attached to the complaint in the February 2021 Plaza UD Action (Plaza RJN Ex. 2); (3) the complaint in Plaza v. Steve and Dinah, Case No. 337-2021-00024978-CU-UD-CTL, filed on June 8, 2021 (“June 2021 Plaza UD Action”) (Plaza RJN Ex. 3); (4) a May 2021 Notice to Quit the Plaza premises attached to the Complaint in the June 2021 Plaza UD Action (Plaza RJN Ex. 4); (5) Exhibit 12 to the moving papers in this action (RJN Ex. 5); (6) the court’s online docket for the February 2021 Plaza UD Action (RJN Ex. 6); and (7) the court’s online docket for the June 2021 Plaza UD Action (RJN Ex. 7). The court need not grant Request No. 5 because it is part of the court file. The other requests are granted. Evid. Code §452(d).

[3] Defendants’ opposition to Culver’s application cites a declaration from Stephen Wang, but no such declaration was filed in opposition to Culver. See Culver Opp. at 2. The court notes that there are two declarations for Stephen in opposition to Plaza.

[4] Defendants present evidence that Plaza has overstated the amount owed (Mirch Decl., ¶7, Ex. B) and that, on April 23, 2021, Stephen made the second of two payments Plaza told him would satisfy all rent obligations incurred during the COVID shut down (Stephen Plaza Decl., ¶11).

Defendants failed to file a notice of opposition or an opposition memorandum explaining this evidence and why it affects the amount owed. As a result, Defendants have conceded the validity of Plaza’s $148,241.68 claim. CCP §484.060(a). See Reply at 2. In any event, this evidence does not affect the analysis because (a) defense counsel errs in concluding that the stipulated settlement of the December 2021 Plaza UD Action capped rental damages and (b) Stephen fails to support his claim that an April 2021 payment ended his rental obligations.

[5] Stephen also alleges fraud by Plaza, which modified the Plaza Assignment after he signed it to permit lease termination with 60-day notice. Stephen Plaza Decl., ¶¶ 7-8. Stephen states that he would never have agreed to that provision because the Burger King corporate office would have forbidden it. Stephen Plaza Decl., ¶9. Stephen fails to provide evidence of fraud or how he was prejudiced by it.

[6] The same would be true for Plaza if Defendants had not waived their claim. See Blackmar Reply Decl., ¶4, Ex. 15.

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