Judge James C. Chalfant, Case Number: 23STCV20673, Date: 2024-10-24 Tentative Ruling

Plaintiff H&H Retail Owner (“Landlord” or “H&H”) applies for right to attach orders against Starline Tours of Hollywood (“Tenant” or “Starline”) in the amount of $970,769.53.

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. Complaint

Plaintiff filed this Complaint against Defendant Starline on August 29, 2023, alleging causes of action for breach of lease. The Complaint alleges in pertinent part as follows.

a. A201 Lease

On or around May 31, 2013, Landlord’s predecessor-in-interest, CIM/H&H Retail (“CIM”), and Tenant entered into a written lease agreement (“A201 Lease”) for a term of five years plus the option for Tenant to extend for two extended terms if it so chose. The lease was for a retail space identified as “Space No. A2-201A” (“Space A201”) which contained approximately 6,093 square feet of total floor area. Among other items, the A201 Lease obligates Tenant to pay Minimum Annual Rent and Additional Rent (collectively referred to as “A201 Rent”). The A201 Lease provides that Tenant’s failure to pay A201 Rent by the date due constitutes a Default. The A201 Lease gives Tenant three days to cure a Default after written Notice from Landlord.

On or around August 21, 2015, Landlord and Tenant entered a Storage Space Lease (“A201 Storage Lease”), wherein Tenant leased certain storage space which was used by Tenant in connection with its tenancy pursuant to the A201 Lease. The original terms of the A201 Storage Lease ran from September 1, 2015 to August 31, 2016. Following this period, the A201 Storage Lease would continue a month-to-month basis unless either party terminated said lease upon 30 days’ prior written notice. Tenant was required to pay monthly rent for the A201 Storage Lease in the amount of $520. Tenant relinquished possession of the A201 Storage Lease premises on or around May 2, 2023.

On or around March 20, 2018, Landlord and Tenant entered into the First Amendment to the A201 Lease (“A201 First Amendment”). On or around January 17, 2023, Landlord and Tenant entered into the Second Amendment to the A201 Lease (“A201 Second Amendment”). Pursuant to the A201 Second Amendment, Landlord abated unpaid A201 Rent as of January 2022 in the total amount of $151,281.06 (“A201 Abated Rent”). Additionally, the A201 Second Amendment deferred $200,000 in unpaid rent as of January 2022 into a repayment period of 18 months beginning July 1, 2022. The repayment period would run through December 1, 2023 and required Tenant top pay $11,111.11 per month.

Landlord alleges that Tenant owes a total of $707,868.38 with respect to the A201 Lease. This amount consists of the A201 Lease rent in the total estimated amount of $501,031.77, $55,555.55 for the remainder of the A201 Lease deferred amount for the period of August to December 2023, and $151,281.06 for the A201 Abated Rent.

b. A207 Lease

On or around February 22, 2007, CIM and Tenant entered into a written Lease Agreement (“A207 Lease”) for a term of five years for a retail space currently identified as “Space No. A-2- 207” (“Space A207”). The A207 Lease obligates Tenant to pay Minimum Annual Rent and Additional Rent (collectively referred to as “A207 Rent”). The A207 Lease was amended a total of three times, with the third and final amendment (A207 Third Amendment”) taking place on December 14, 2022. Pursuant to the A207 Third Amendment, Landlord abated unpaid A207 Rent owed by Tenant as of January 1, 2022 in the total amount of $105,814.69 (“A207 Abated Rent”).

Tenant owes Landlord $219,227.68 with respect to the A207 Lease. This amount consists of A207 Rent in the total estimated amount of $113,412.99 and $105,814.69 for the A207 Abated Rent.

2. Course of Proceedings

On August 29, 2023, Landlord filed the Complaint and Summons.

Landlord initially filed its application for right to attach order for hearing on February 22, 2024. The parties subsequently stipulated multiple times to continue the hearing to the instant date.

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.

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 or around May 31, 2013, CIM and Tenant entered into a written Lease Agreement (a) for a term of approximately five years (plus two extended terms if exercised by Tenant), (b) for that certain retail space currently identified as “Space No. A2-201A” containing approximately 6,093 square feet of total Floor Area, consisting of approximately 1,464 square feet of Floor Area on Level 1, making up the office space, and 4,629 square feet of Floor Area on Level 2, making up the retail space, (collectively, the “A201 Premises”) in the project known as “Ovation Hollywood”. Gomez Decl. ¶3, Ex. A.

Pursuant to Article 4 of the A201 Lease, the A201 Lease obligates Tenant to pay Minimum Annual Rent and Additional Rent (“A201 Rent”). Gomez Decl., ¶4.

On or around August 21, 2015, Landlord and Tenant entered into the A201 Storage Lease wherein Tenant leased certain storage space from Landlord containing approximately 145 square feet, designated as Unit 169 H located at the Premises (“A201 Storage Lease Premises”), and which was used by Tenant in connection with its tenancy pursuant to the A201 Lease. Gomez Decl., ¶5, Ex. B. Pursuant to Section 2 of the A201 Storage Lease, the original term of lease ran from September 1, 2015 to August 31, 2016. Gomez Decl., ¶5, Ex. B. Thereafter, the A201 Storage Space Lease would continue from month-to-month unless either party terminated said lease upon 30 days’ prior written notice. Gomez Decl., ¶5, Ex. B.

On or around March 20, 2018, Landlord and Tenant entered into the A201 First Amendment. Gomez Decl., ¶6, Ex. C. On or around January 17, 2023, Landlord and Tenant entered into the A201 Second Amendment. Gomez Decl., ¶7, Ex. D. Pursuant to the A201 Second Amendment, Landlord abated unpaid A201 Rent owed by Tenant as of January 2022 in the total amount of $151,281.06. Gomez Decl., ¶8. Further, Section 6.2 of the A201 Second Amendment deferred $200,000.00 in unpaid rent owed by Tenant as of January 2022 into a repayment period of 18 months beginning July 1, 2022 through and including December 1, 2023, in the amount of $11,111.11 per month (the “A201 Deferred Amount”). Gomez Decl., ¶8.

Tenant is required to pay monthly rent during the term of the A201 Lease. Gomez Decl., ¶9. Beginning in July 2018, pursuant to Section 3 of the A201 First Amendment, the Minimum Annual Rent for the Retail Space was $21,960 for each lease year and per Section 4, the Minimum Annual Rent for the Office Space was $204,912. The Minimum Annual Rent increased 3% each subsequent year. Gomez Decl., ¶11.

Pursuant to Section 3.2 of the A201 Second Amendment, the Minimum Annual Rent for the Retail Space was $26,756.13 for the first year of the term, July 2023 through June 2024, while the Minimum Annual Rent for the Office Space, per Section 3.1, was $257,581.44 for the first year of the term, July 2023 through June 2024. Gomez Decl., ¶13.

Without accounting for partial payments and reverse charges, Tenant has accrued A201 Minimum Annual Rent charges for the A201 Office Space from February 2020 to January 2024 in the total amount of $974,210.88. Gomez Decl., ¶14. Without accounting for partial payments and reverse charges, Tenant has accrued A201 Minimum Annual Rent charges for the A201 Retail Space from May 2020 to January 2024 in the total amount of $94,101.58. Gomez Decl., ¶15.

During the term of the A201 Lease, Tenant was also required to pay Additional Rent. Gomez Decl., ¶ 16. Specifically, Section 4.4 of the A201 Lease provides that Additional Rent includes tax and insurance expenses, utilities and chilled water, and common area maintenance. Gomez Decl., ¶16, Ex. A.

Without accounting for partial payments and reverse charges, Tenant has accrued A201 Utilities and Chilled Water charges for the A201 Office Space from July 2020 to July 2020 in the total amount of $566.39. Gomez Decl., ¶22. Without accounting for partial payments and reverse charges, Tenant has accrued A201 Utilities and Chilled Water charges for the A201 Retail Space from May 2020 to January 2024 in the total amount of $11,546.40. Gomez Decl., ¶23.

Tenant also was obligated to pay Common Area Maintenance (“CAM”) charges. Tenant has accrued A201 Common Area Maintenance charges for the A201 Office Space from February 2020 to January 2024 in the total amount of $0. Gomez Decl., ¶25. Without accounting for partial payments and reverse charges, Tenant has accrued A201 Common Area Maintenance charges for the A201 Retail Space from May 2020 to January 2024 in the total amount of $587,739.46. Gomez Decl., ¶26.

Pursuant to Section 4.7 of the A201 Lease, Tenant’s untimely payment of any Minimum Annual Rent or Additional Rent when due would subject tenant to interest and late charge penalties. Gomez Decl., ¶27. Landlord reserves the right to determine the amounts of, and pursue, all late charge penalties and interest owed by Tenant under the A201 Lease at the time of trial. Gomez Decl., ¶¶ 28-29.

Per A201 Second Amendment, Landlord abated unpaid rent in the total amount of $151,281.06. Gomez Decl., ¶30. Further, Section 6.2 of the A201 Second Amendment deferred $200,000 in unpaid rent Tenant into a repayment period of 18 months beginning July 1, 2022, through December 1, 2023, in the amount of $11,111.11 per month. Gomez Decl., ¶30. Tenant failed to comply with repayment terms for the A201 Deferred Amount. Gomez Decl., ¶32. Landlord therefore reclaimed the A201 Abated Rent in the amount of $151,281.06. Gomez Decl., ¶32.

Tenant is required to pay monthly rent during the term of the A201 Storage Lease. Gomez Decl., ¶33. The A201 Storage Lease provides that Tenant is to pay Landlord A201 Storage Lease rent in the amount of $520.00 per month in advance on the first day of each month. Gomez Decl., ¶33. Tenant relinquished possession of the A201 Storage Lease Premises on or around May 2, 2023. Gomez Decl., ¶34. Without accounting for partial payments and reverse charges, Tenant has accrued A201 Storage Lease rent from May 2020 to May 2023 in the total amount of $19,240. Gomez Decl., ¶ 35. This amount, the amount for Tenant’s partial payments, and the amount for reverse charges all in connection with the A201 Storage Lease are included within Tenant’s current A201 Rent balance. Gomez Decl., ¶35.

Tenant’s A201 Rent balance as of January 2024, after accounting for partial payments and reverse charges, is $651,185.49. Gomez Decl., ¶¶ 39-45, Ex. H, I. This amount represents the combined total of (a) Tenant’s A201 Office Space and A201 Retail Space balances, and (b) the value of the reclaimed A201 Abated Rent. Gomez Decl., ¶¶ 39-45, Ex. H, I.

Despite Tenant’s outstanding A201 Rent balance and despite Landlord’s issuance of several demand letters to Tenant that have not been complied with, at no point throughout any period of Tenant’s tenancy under the A201 Lease has Landlord ever disturbed Tenant’s possession of the A201 Premises contrary to the terms of the A201 Lease. Gomez Decl., ¶46.

On or about February 22, 2007, CIM and Tenant entered into a written A207 Lease for a term of approximately five years and for a retail space identified as “Space No. A-2-207” containing approximately 528 square feet of Floor Area (“A207 Premises”) in the project known as “Ovation Hollywood”. Gomez Decl., ¶47, Ex. J. As set forth in the A207 Lease, Tenant is required to pay rent during the term of the A207 Lease. Gomez Decl., ¶53.

On or around March 2, 2012, Landlord and Tenant entered into the Lease Amendment No. 1 to the A207 Lease (the “A207 First Amendment”). Gomez Decl., ¶ 49, Ex. K. On or around September 9, 2014, Landlord and Tenant entered into a Second Amendment to the A207 Lease (the “A207 Second Amendment”). Gomez Decl., ¶50, Ex. L. On or about December 14, 2022, Landlord and Tenant entered into the third and final amended lease, A207 Third Amendment. Gomez Decl., ¶ 51, Ex. M. Pursuant to the A207 Third Amendment, Landlord abated unpaid A207 Rent owed by Tenant as of January 1, 2022, in the total amount of $105,814.69. Gomez Decl., ¶52.

During the term of the A207 Lease, Tenant was required to pay Additional Rent. Gomez Decl., ¶ 58. Pursuant to Section 4.4(a) of the A207 Lease, Tenant was required to pay Landlord each month the amounts Landlord estimated as Tenant’s obligation for A207 Additional Rent. Gomez Decl., ¶59. Pursuant to section 4.4(b) of the A207 Lease, Tenant was entitled to a reconciliation of Landlord’s estimate of Tenant’s A207 Additional Rent for each lease year, which would result in credits or debits to Tenant’s lease ledger. Gomez Decl., ¶60.

Pursuant to Section 5 of the A207 Lease, Tenant’s obligation for A207 Additional Rent includes the payment of Tenant’s share of tax and insurance expenses. Gomez Decl., ¶61. Tenant does not have an outstanding balance for any A207 Tax and Insurance Expenses under the A207 Lease. Gomez Decl., ¶61.

Pursuant to Sections 6.2 and 6,4 of the A207 Lease, Additional Rent includes a utilities charge, which was to be paid in accordance with Section 4.4 of the A207 Lease, as well as a chilled water charge, which was also to be paid in accordance with Sections 4.4 of the A207 Lease. Gomez Decl., ¶64. Without accounting for partial payments and reverse charges, Tenant has accrued A207 Utilities and Chilled Water charges under the A207 Lease from July 2020 to July 2020 in the total amount of $670. Gomez Decl., ¶65.

Pursuant to Section 7.3(a) of the A207 Lease, Additional Rent includes Tenant’s common area expenses in connection with the use, ownership, operation and maintenance of the common area to the Premises. Tenant’s share of common area expenses was to be paid in in accordance with Section 4.4, and calculated based upon Section 7.3(b) of the A207 Lease. Gomez Decl., ¶66. Without accounting for partial payments and reverse charges, Tenant has accrued A207 Common Area Maintenance charges under the A207 Lease from January 2020 to January 2024 in the total amount of $215,886.48. Gomez Decl., ¶67.

Pursuant to Section 4.7 of the A207 Lease, Tenant’s untimely payment of any Minimum Annual Rent or Additional Rent when due subjects Tenant to interest and late charge penalties. Gomez Decl., ¶68. Landlord reserves the right to determine the amounts of and pursue all late charge penalties and interest owed by Tenant under the A207 Lease at the time of trial. Gomez Decl., ¶¶ 69-70.

Pursuant to the A207 Third Amendment, Landlord abated unpaid rent in the total amount of $105,814.69 (“the A207 Abated Charges”). Gomez Decl., ¶71. By reason of Tenant’s failure to pay all rent due under the A207 Lease when due following its execution of the Second Amendment, Tenant now owes Landlord $105,814.69 for the A207 Abated Charges. Gomez Decl., ¶73.

Tenant’s A207 Rent owed as of January 2024, after accounting for partial payments and reverse charges, is $222,584.04. Gomez Decl., ¶77. This amount represents the combined total of (a) Tenant’s most recent A207 Lease rent balance ($116,769.35), as reflected within Tenant’s most recent January 2024 ledger for the A207 Premises, and (b) the value of the reclaimed A207 Abated Rent ($105,814.69). Gomez Decl., ¶77.

Cecilia Gomez is an authorized agent of Landlord H&H. Gomez Supp. Decl., ¶1. The moving papers filed on January 25, 2024 included Gomez’s declaration with an Exhibit Q that she has now updated with Charts A and B. Gomez Supp. Decl., ¶2. Gomez has reviewed the figures in Charts A and B with Landlord’s accounting team and the figures in the charts are correct. Gomez Supp. Decl., ¶2.

Since the filing of the application the parties have continued the proceedings because they were attempting to informally resolve the unpaid rent issues without prejudice to their legal rights. Gomez Supp. Decl., ¶2. This includes the thousands of documented backup support (similar to an audit under Section 4.4(c) of the A201 and A207 leases) that Landlord has shared with Tenant for the Common Area charges. Gomez Supp. Decl., ¶2. This documented backup supports the requested amounts. Gomez Supp. Decl., ¶2. To date, however, the issues remain unresolved. Gomez Supp. Decl., ¶2.

The amount requested in moving papers was for $873,769.53 in unpaid rent, $95,000 in estimated attorney’s fees, and $2,000 in allowable costs, for a total of $970,769.53. Gomez Supp. Decl., ¶3. Chart A summarizes this requested amount and is arranged by categories of rent and credits for each of the three leases: (1) the A201 Lease, (2) the A207 Lease, and (3) the now terminated Storage Space Lease. Gomez Supp. Decl., ¶3.

Chart B is the updated figures through September 30, 2024 for the unpaid rent from the leases, and attorney’s fees and costs. Gomez Supp. Decl., ¶3. Chart B also includes the 2023 reconciliations for the charges identified in the A201 and A207 leases under Article 5 and 7 as Tax and Insurance Expenses and Common Area. Gomez Supp. Decl., ¶3. For the 2023 reconciliation, Tenant received a reconciliation credit of (a) $23,344.38 against its Rent balance for the A201 Lease, and (b) 8277.31 (sic.) against the Rent balance for the A207 Lease. Gomez Supp. Decl., ¶3.

Charts A and B reflect three categories of Rent charges for the A201 and A207 leases. Gomez Supp. Decl., ¶4. The first is Minimum Annual Rent, which is the Minium Annual Rent as defined in the A201 and A207 Leases. Gomez Supp. Decl., ¶4. The second category is for Utilities and Chilled Water, which are charges pursuant to Article 6 of the A201 and A207 leases. Gomez Supp. Decl., ¶4. The third category totals the charges allowed pursuant to Articles 5 (Tax and Insurance Expense) and 7 (Common Area). Gomez Supp. Decl., ¶4. This third category of charges are billed to Tenant as estimated charges pursuant to section 4.4(a) of the two leases. Gomez Supp. Decl., ¶4. These same charges are then reconciled pursuant to section 4.4(b) of the leases and, if Tenant paid more than the actual charges, then the terms of the reconciliation possibly provide Tenant with a credit against the balance pursuant to Sections 4.4(b) and 4.6 of the subject leases. Gomez Supp. Decl., ¶4. Charts A and B indicate any debit or credit applied to Tenant’s ledger for each of the two leases following the reconciliation of Article 5 and 7 charges for the years 2019 through 2023. Gomez Supp. Decl., ¶4.

Thus far, for the A201 Lease, Landlord has billed Tenant $24,032.62 each month this year in estimated Article 5 and 7 charges (January 2024 through September 2024) for a total of $216,293.58. Landlord will reconcile these charges next year. Gomez Supp. Decl., ¶5.

Thus far, for the A207 Lease, Landlord has billed Tenant $8,312.64 each month this year in estimated Article 5 and 7 charges (January 2024 through September 2024) for a total of $74,813.76. Landlord will reconcile these charges next year. For now they are billed as estimates as allowed under Section 4.4(a) of the A201 and A207 leases. Gomez Supp. Decl., ¶6.

Charts A and B also reflect the rent as the only category of rent that is owed under the lease for the Storage Space. Gomez Supp. Decl., ¶7. Exhibit S is the details of the reconciliations for the years 2019 through 2023 for the Article 5 and 7 charges pursuant to the A201 and A207 Leases. Gomez Supp. Decl., ¶8. Exhibit S are the details for the A201 Lease. Gomez Supp. Decl., ¶8. Exhibit T are the details for the A207 Lease. Gomez Supp. Decl., ¶8.

Landlord’s law firm charges a highly competitive rate for such services, namely $550.00 per hour for partners, $285.00 – $425.00 per hour for associates, and $95.00 per hour for law clerks. Aguirre Decl., ¶13.

Landlord’s counsel estimates that the allowable attorneys’ fees to litigate this action through trial will be $95,000 (fees are currently approximately $36,000). Aguirre Decl., ¶14. Counsel estimates the costs to litigate this action to be $2,000 (costs are currently approximately $534.66), which include the filing fee, fees for filing the writ of attachment, and the costs to serve Defendant, among other potential costs leading up to trial. Aguirre Decl., ¶14.

Shoeleh Sapir (“Sapir”) is Starline’s Chief Financial Officer. Sapir Decl., ¶1. Starline originated in 1935 and is the original hop-on, hop-off, tour bus service provider in Los Angeles, providing sightseeing opportunities for countless tourists over the years. Sapir Decl., ¶2.

Starline leases retail and office space, along with several open-air sales kiosks/carts, at the Hollywood and Highland Mall (“H&H Mall”). Sapir Decl., ¶3. The H&H Mall is around 400,000 square feet. Sapir Decl., ¶3. Starline has been leasing a portion of the H&H Mall since 2007, approaching nearly two decades. Sapir Decl., ¶3. It has increased its rental space at the H&H Mall over the years. Sapir Decl., ¶3.

The A201 and A207 Leases were with CIM. Sapir Decl., ¶4. Sapir does not recall ever having seen an assignment of those Leases or any other document transferring an interest in the property from CIM to H&H Retail Owner, LLC. Sapir Decl., ¶4.

Over the last several years, Sapir began to notice that the charges that Starline was being charged on the Leases differed from previous years. Sapir Decl., ¶5. The amount seemed significantly larger for CAM charges and included items that Sapir had not previously seen included in CAMs like salaries, pool maintenance, management fees, accounting software, and other administrative fees. Sapir Decl., ¶5. Because the Leases do not provide a fixed square footage for the H&H Mall on which to base the Additional Rent, those numbers fluctuate without explanation. Sapir Decl., ¶5.

Because the Leases are complex and require certain information to determine the actual amounts owed, such as who are major tenants and licensees, what contributions they make, and what premises are open and leased, Starline asked to see the underlying documentary support for the Additional Rent, including CAMs. Sapir Decl., ¶5. Sapir still does not understand the calculations used to apportion Starline’s charges from other tenants at the H&H Mall and does not believe the charges are accurate. Sapir Decl., ¶5.

Landlord claims CAM charges owed of nearly $600,000 for approximately four years for the 201A retail lease. Sapir Decl., ¶5. That is over six times the amount of the base rent charged for the same space, and that retail space is less than 1500 sq. ft. Sapir Decl., ¶5. The charges do not make sense to Sapir and are not in line with the charges Starline incurred prior to 2019 under their Leases. Sapir Decl., ¶5.

Starline has also asked for an explanation how Starline’s payments were applied to the various leases. Sapir Decl., ¶6. Sapir is concerned that Starline’s payments were not properly applied. Sapir Decl., ¶6. The ledgers provided appear to credit or apportion the payments across the various Leases in differing amounts and without explanation. Sapir Decl., ¶6.

When the Covid-19 pandemic hit in 2020, Starline’s operations were shut down and the H&H Mall was completely closed for months. Sapir Decl., ¶7. Starline could not even access its leased spaces during that period. Sapir Decl., ¶7. Starline was permitted to resume operations in October and November 2020, but then was ordered to shut down again from December 2020 to March 2021. Sapir Decl., ¶7. Despite the closed mall and government mandates, Starline continued to be charged not just base rent but massive amounts for CAM charges. Sapir Decl., ¶7. The Additional Rent Starline was required to pay under the Leases is based on calculations that depend in part on which leased spaces were “open.” Sapir Decl., ¶7. No explanation or calculation has been provided to show what spaces were open and leased during that period or that the charges for Additional Rent are correct given the number of closed businesses during the Covid period. Sapir Decl., ¶7. As a result, Sapir disagrees with the charges accrued during the COVID-19 pandemic and the following months. Sapir Decl., ¶7.

Sapir has observed that large portions of the H&H Mall are vacant. Sapir Decl., ¶8. Sapir has serious concerns that Landlord is trying to cover the cost of these vacancies at the expense of the current tenants. Sapir Decl., ¶8. This has put an unfair and undue burden on the few remaining tenants, particularly with regard to the CAM charges. Sapir Decl., ¶8. Despite these difficulties, Starline is still a tenant at the H&H Mall and continues to pay rent for the leased spaces. Sapir Decl., ¶9.

The parties have engaged in several meet and confer efforts, including the exchange of documents, to try and reach an agreement as to what, if any, charges are owed by Tenant. Rhyne Decl., ¶5. The review of those documents is ongoing, and includes the review of receipts/invoices, ledgers, spreadsheets, and other various documents provided by Landlord for multiple years. Rhyne Decl., ¶5. Further discovery is needed to ascertain the veracity of the calculations, including a deposition of someone with knowledge of the complex rent formula and the apportionment performed for Starline's share, a single tenant at a very large mall. Rhyne Decl., ¶5.

During the exchange of documents, Landlord claimed that the documents it provided to Tenant are "Confidential," and demanded that Starline maintain their confidentiality pursuant to the terms of the Leases related to Tenant's right to an audit. Rhyne Decl., ¶6. Accordingly, Tenant has not provided those documents in conjunction with its opposition. Rhyne Decl., ¶6.

Landlord seeks a right to attach order against Tenant in the amount of $970,769.53, which includes for past due rent on the Leases in the amount of $873,769.55, estimated attorney fees of $95,000 and estimated costs of $2000.[3]

Tenant argues that H&H has failed to demonstrate that it has an enforceable right under the Leases. The original 2007 and 2013 Leases are between Tenant and CIM. Sapir Decl., ¶4; Gomez Decl., Exs. A, J. There is no citation to any fact establishing H&H's ownership of H&H Mall. Neither supporting declaration includes any fact regarding H&H's ownership of the property, and there is no assignment or other agreement showing how H&H came to own H&H all. As such, H&H has failed to demonstrate that it is the real party-in-interest and it lacks standing to enforce any rights against Starline under the 2007 and 2013 Leases. Opp. at 10-11.

This would be a good argument except that Landlord rebuts it. Normally an assignment is required to show that a plaintiff is the successor-in-interest to a contracting party. However, H&H is correct that The A201 and A207 Leases, at Section 25.1, provide that “[t]he parties hereto agree that all the provisions of this Lease… shall bind and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, and assigns.” Gomez Decl., Exs. A, J. The Storage Space Lease has the same provision at Section 17. Gomez Decl., Ex. B.

Each amendment of the Leases herein – two for the A201 Lease and three for the A207 Lease, contains a recital that H&H is Landlord and successor-interest to CIM. Gomez Decl., Exhibits C, D, K , L, and M. Tenant signed each amendment, thereby admitting that H&H is Landlord and owner of the Premises. The parties’ course of dealing also demonstrates Tenant’s recognition of H&H as Landlord. Reply at 5.

Landlord’s claim is based on Tenant’s breach of the three Leases and the claim exceeds $500. This is a claim on which attachment may be based.

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

Tenant correctly states that an application for a right to attach order "must be supported by an affidavit or declaration showing that the applicant, on the facts presented. would be entitled to a judgment on the claim upon which the attachment is based." CCP §484.030. "The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein." CCP §482.040. In considering an application for right to attach order and writ of attachment, the must "apply the same evidentiary standard to an attachment hearing decided on affidavits and declarations as to a case tried on oral testimony." Goldstein v. Barak Construction, (200) 164 Cal.App.4^th 845, 853. Opp. at 13.

Tenant argues that Landlord’s evidence fails to present a complete picture of the parties' business and financial dealings and is insufficient to establish the elements for a writ of attachment. This is not an application based on a simple lease that provides a clear formula for calculation of the amounts owed. Rather, this landlord/tenant relationship encompasses multiple leases, some with multiple amendments. The Leases require calculations of rent based on variables not supported in the moving papers, such as open premises, types of other lessees at the H&H Mall, and proportional charges dependent on information that cannot be ascertained from the Leases themselves. Opp. at 14.

The deficiencies include the following. First, H&H has provided a convoluted amalgamation of purported charges and payments for the Starline spaces going back to 2019 that do not correspond with their own ledgers. H&H claims that the Leases at issue are for spaces designated A2-201A (retail and office) and A-2-207. Ex.A, §1.4, Ex. J, §1.4. However, the ledgers provided by H&H are for spaces 2-A-203, 2-A-300, and 2-A-207. Gomez Decl., Exs. H, I, and R. No explanation is provided for these discrepancies. Opp. at 14.

Second, it is unclear how H&H allotted Tenant’s payments to amounts owed under the various Leases. For example, in November 2021, H&H's ledgers identify a check from Starline (Chk#I099) split into three different payments on the three Leases (Ex. H $14,227.58, Ex. I 920,232.93; Ex. R $6,392.31). There is no consistency to H&H's payment allocations and no explanation for these varying applications. Starline believes that its payments were not properly credited by H&H. Sapir Decl., ¶6. These issues are critical because H&H contends that large sums are owed for charges previously deferred and charges previously abated due to non-compliance by Starline. But H&H has not demonstrated how it applied payments by Starline. Opp. at 14.

In addition, while H&H identifies the relevant portions of the Leases regarding insurance and taxes, it merely states that Starline is up to date on those charges for both Leases. Gomez Decl., ¶¶ 18-20. None of H&H's ledgers, however, include any tax and insurance information regarding charges or payments. See Exs. H, I, and R. It is unclear how H&H has been charging and crediting Starline for taxes and insurance so that Starline has no balance owed for those charges but owes balances for rent or abated/deferred charges. Opp. at 15.

H&H also combined the storage space lease charges and payments in its A201 retail rent and payments, despite the fact that they were for an independent Lease and the storage space was relinquished in 2023. See Gomez Decl., ¶¶ 33-35. There is no explanation why these rent charges were incorporated under the A20l amounts or how the payments were accounted for. This is particularly odd given that the A201 Retail and A20l Office spaces are treated as independent in the ledgers despite the fact that a single Lease governed them. Opp. at 15.

Third, H&H has not provided sufficient facts to support the calculations for CAM expenses. The Leases contain specific provisions about how the CAM charges are to be calculated. CAM expenses shall be reduced (prior to the calculation of Tenant's share) by the contributions of the Major Tenants and by the Licensees' Contribution. CAM expenses shall not include any costs of Landlord in connection with the original construction and installation of the Common Area. See, e.g., Exs. A and J, §7.3(a), (b). This calculation requires at least the following information: contributions of the Major Tenants and contributions of the Licensees, the square footage of the H&H Mall, the square footage of the Major Tenants and Licensees, and the other premises in the H&H Mall that are leased and those that are open. Id. H&H's application, however, contains no information on these elements. While Gomez's belated supplemental declaration provides information on the annual reconciliations (Exs. S, T), it does not explain how those amounts were calculated. Nonetheless, 40% of all amounts purportedly owed under the Leases according to H&H were designated as CAM charges ($803,513.92 out of $2,002,264.48 accrued on the Leases since January/May of 2020). The CAM charges for the A201 Retail Space are more than six times the minimum annual rent for the space ($94,101.58 v. 8587,739.46). Gomez Decl., ¶45. Opp. at 16.

Furthermore, there were significant periods of time during which the H&H Mall was closed due to the Covid-l9 pandemic, and Starline was not permitted to enter the property. Sapir Decl., ¶7. H&H continued to charge not only base rent but excessive CAM charges. Ibid. In addition, H&H has failed to explain how those closures impacted Tenant's Additional Rent calculations given that such rent is calculated based in part on open and leased premises. Ibid. Significant questions remain as to H&H's calculation of rent during the Covid-I9 pandernic, questions which H&H has not explained in its application. Opp. at 17.

Despite the parties’ discussions and Tenant’s review of the provided documents, Starline is still unclear about how and what it is being charged.

H&H has failed to establish that the amounts charged to Starline were calculated according to the terms of the Leases. Nor are those amounts readily ascertainable based on the information provided by H&H with its application. Compare CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) I 15 Cal.App.4th 537, 541 (master lease and corresponding lease schedules provided a clear and definite formula for the computation of damages) and Construction Laborers Trust Funds for Southern California Administrative Company v. West Coast Structures, Inc., (C.D. Cal., June 21, 2019, No. EDCV1849OJGBSPX) 2019 WL 4148354, at *8 (even where an agreement provides a formula for calculating damages, if the underlying input for that formula is missing, the amount is not readily ascertainable or definite). Opp. at 17.

Tenant is confusing the requirement that the Leases furnish a standard by which the amount may be ascertained with the proof to meet that standard. The Leases certainly provide the standard by which Rent and Additional Rent may be calculated. Nor is Landlord’s proof deficient. Landlord is not required to prove its case. It is only required to show a probability of success, which means a prima facie case. See post.

Landlord’s counsel estimates attorney fees to litigate this action through trial of $95,000 and estimated costs of $2,000. Aguirre Decl., ¶14. These estimates are supported by an attorney declaration and are allowed.

Tenant notes that, where a lease provides for periodic payments of rent, a separate statute of limitations runs separately as to each monthly rent payment when it becomes due. Tilson v. Peters, (“Tilson”) (1940) 4l Cal.App.2d 671, 674-75 (complaint for breach of lease is impermissibly uncertain where it alleges only the amount of the debt, the amount that has not been paid, and balance left due and owing). Like Tilson, H&H fails to properly allege any breach. H&H suggests there have been multiple breaches of different Leases and their amendments. Nowhere in the Complaint or the application does H&H identify the specific breaches of the A20l Lease, the Storage Lease, and the A207 Lease by Starline. Similarly, H&H seeks to include amounts of rent that had been previously abated or deferred and only generically states that Tenant failed to comply with repayment terms for the abatement and failed to pay all rent due under the lease, thus justifying H&H's efforts to reclaim those amounts. Gomez Decl., ¶¶ 32,73. This is inadequate to meet H&H's heavy burden to show when and how Tenant breached the terms such that H&H was entitled to reclaim those amounts. Opp. at 12.

The uncertainty in Tilson court related to whether “the property was rented for an aggregate sum which became due under the contract for the entire term...or whether the rent became due in monthly installments.” 41 Cal.App.2d at 674. Tenant’s rent under the Leases was due on a monthly basis and there is no uncertainty.

Moreover, the statute of limitations for breach of written contract is four years from the date of the breach. CCP §337(a). Defendant’s breach under the A201 Lease for the Office began in February 2020, the breach under the A201 Lease for the Retail and Storage spaces began in May 2020, and the breach under the A207 Lease began in January 2020. The Complaint was filed on or about August 29, 2023. All alleged breaches were based on Defendant’s non-payment of the amounts due under the Lease and all are within the four-year statute of limitations for breach of contract actions.

Tenant argues that it should be permitted to file its defenses and claims, and H&H should be required to address those defenses and claims, before a right to attach order is issued. See Pet Food Exp. Ltd. v. Royal Canin USA Inc., (N.D. Cal., July 28,2009, No. C-09-1483 MHP) 2009 WL 2252108, at *5 (to establish probability of prevailing on breach of contract claim, plaintiff must show that defendant's defense is less than 50% likely to succeed). Opp. at 12.

This is incorrect. Tenant can raise its defenses and claims of offset in opposition to Landlord’s right to attach application. A defendant may raise a claim of offset for any indebtedness of the plaintiff to the defendant raised in a cross-complaint or affirmative defense in an answer. CCP §483.015(b)(2), (3). The defendant’s offset claim under CCP section 483.015(b)(2) or (3) must be supported by sufficient evidence to prove a prima facie case of attachment in its own right. Lydig Construction, Inc. v. Martinez Steel, (2015) 234 Cal.App.4th 937; Pos-A-Traction, Inc. v. Kelly Springfield, (C.D. Cal. 1999) 112 F.Supp.2d 1178, 1183. Landlord is not required to wait until Tenant files a cross-complaint or answers.

Turning to Tenant’s arguments under the readily ascertainable heading, Landlord shows that the Leases contain a force majeure clause and the risks of COVID for payment of rent belong to Tenant. Additionally, Tenant released any claim against Landlord for the A201 and A207 Leases when they were amended on January 17, 2023. Reply at 6-7.

Landlord has presented a prima facie case concerning the Rent and Additional Rent (including taxes and insurance, utilities and chilled water, and CAM charges) for each of the A201, A207, and A201 Storage Space Leases. This information is provided in ledgers for each Lease. Exs. H, I, R. While Tenant questions some entries, it does not show them to be in error. Tenant’s arguments about lack of “consistency”, “clarity”, or “explanation” in Landlord’s showing are insufficient.

Exhibit I identifies monthly base rent for the “office” portion of the A201 Lease, Exhibit H tracks the expenses for the “retail” space and delineates which charges pertain to the Storage Lease, and Exhibit R tracks the charges for the A-207 Lease. Thus, irrespective of the Storage Lease amounts being tracked alongside the “retail” space amounts, the amounts are clearly separated and Tenant does not allege that it owes no such amounts. Nor has Tenant shown that any check was improperly allocated between Leases.

For the CAM expenses, Tenant wants the underlying foundation of contributions of the Major Tenants and contributions of the Licensees, the square footage of the H&H Mall, the square footage of the Major Tenants and Licensees, and the other premises in the H&H Mall that are leased and those that are open. Landlord supposedly included the CAM charges calculation in Gomez Ex. Q, but it is impossible to read. However, Exhibits S and T to the Gomez supplemental declaration show the CAM charges. These exhibits show the information Tenant seeks on H&H Mall square footage, occupancy, Tenant’s square footage and percentage, and Tenant’s pro rata share. Tenant may have questions about the CAM charges, but Landlord has no obligation to include additional foundational information in its reconciliations.

Moreover, as Landlord points out (Reply at 8), Tenant had the right to audit Landlord’s books, pursuant to Section 4.4(c) of the A201 and A207 Leases pertaining to Tenant’s share of taxes, insurance, chilled water, and CAM charges within 12 months of the end of a calendar year. Tenant fails to proffer any evidence that it audited or sought to audit any of the expenses.

In reply, Landlord acknowledges that the Gomez supplemental declaration reconciles the CAM charges for 2019 to 2023 to reduce the estimated amounts by $23,344.38 for the A201 Lease and by $9,202.39 for the A207 Lease. Gomez Supp. Decl., ¶8, Chart B. Tenant should receive the benefit of these more accurate amounts. Therefore, the amount sought of $873,769.55 for past due rent on the Leases is reduced to $841,222.78 ($873,769.55 - $23,344.38 and $9292.39). With estimated attorney fees of $95,000 and estimated costs of $2000 the total amount is $938,222.78.[4]

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). Landlord seek attachment for a proper purpose.

The application for a right to attach order is granted in the amount of $938,222.78.

[1] Tenant failed to provide a courtesy copy of its opposition in violation of the Presiding Judge’s First Amended Order Re: Electronic Filing. Tenant’s counsel is admonished to follow this order in all future filings. One of the opposition documents, the Declaration of Jeremy A. Rhyne, is 247 pages long. The court has exercised its discretion to read and consider only the declaration and not its supporting exhibits.

[2] The court has ruled on Tenant’s written evidentiary objections. All of Tenant’s objections to the two Gomez declarations were overruled. The clerk is ordered to scan and electronically file the rulings.

[3] Landlord provides evidence that this amount has increased to $1,000,920.78 since the January date the application was filed but Landlord is limited to the amount sought in the application. See Gomez Supp. Decl., Chart B.

[4] The court is not adding in the rent and charges accrued since January 2024 because it is not part of the moving papers. Tenant gets the benefit of the more accurate reconciliation but does not have to suffer attachment of assets for rent incurred after the application.