Judge James C. Chalfant, Case Number: 23STCV21382, Date: 2024-02-13 Tentative Ruling

Plaintiff H&H Retail Owner, LLC (“H&H” or “Landlord”) applies for a right to attach order against CWHH Inc., doing business as Cabo Wabo Cantina (“CWHH” or “Tenant”) for $1,092,707.56.

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

A. Statement of the Case

1. First Amended Complaint

Plaintiff Landlord filed a Complaint for unlawful detainer on September 5, 2023. The operative pleading is the First Amended Complaint (“FAC”), filed on October 16, 2023, against Defendants CWHH, Catchris LLC, Catchris, Inc, Cristcat Hollwood, Inc., the Cristcat Group, Inc., CW on the Blvd, Inc., doing business as Cabo Wabo Cantina (“CW”), Robert Azinian (“Robert”), Christina Azinian (“Christina”); Catyana Azinian (“Catyana”); and Karine Azinian (“Karine”). The FAC alleges a breach of lease, a breach of fiduciary duty, aiding and abetting the breach of fiduciary duty, approval and receipt of illegal distributions, fraudulent transfers in violation of Civil Code sections 3439.04 and 3439.05, money had and received, constructive trust, and unjust enrichment. The FAC alleges in pertinent part as follows.

Tenant is Catchris LLC’s successor-in-interest. The other Defendants are Tenant’s alter egos.

a. Lease History

On November 1, 2017, Landlord and Catchris LLC entered into an Amended and Restated Lease (“Lease”) for Space No. C4-416 at 6801 Hollywood Blvd., Suite 411, Los Angeles, CA 90028 (“Premises”).

In March 2020, Landlord and Tenant entered into a Lease Amendment No. 1 (“First Amendment”).

On June 18, 2021, Landlord and Tenant entered into a COVID-19 Rent Relief Amendment (“Second Amendment”) extending the Lease for two years to October 31, 2024. The Second Amendment also abated the rent owed from April through June 2020 (“Abated Charges”).

b. Lease Terms

Section 4.2 of the Lease requires Tenant to pay the Minimum Annual Rent (“MAR”) in monthly installments. Section 1(a) of the First Amendment changes the MAR to $300,000, or $25,000 per month.

The Second Amendment waived the requirement to pay the MAR between July 1, 2020 and the earlier of June 30, 2021 and when Tenant’s monthly Gross Sales equaled or exceeded $175,000. Until then, Tenant was instead to pay a Percentage Rent equal to 10% of the monthly Gross Sales for the preceding month, up to $20,000. The Second Amendment also raised the monthly MAR payment to $26,250 from November 2021 to October 2022, $27,562.50 from November 2022 to October 2023, and $28,940.63 from November 2023 to October 2024.

The Lease required Tenant to pay “Additional Rent,” which referred to all sums of money required to be paid or reimbursed by Tenant to Landlord under the Lease.

Section 12.1 of the Lease required the Tenant to repair, maintain in good and tenantable condition, and replace, as necessary, the Premises and every part thereof at its own cost and expense. This included any piping exclusively serving the Premises even if not located therein. Under section 12.3, if Tenant did not fulfill this duty, Landlord had the right to enter the Premises and make such repairs on behalf of and for the account of Tenant.

Section 16.1 defines the failure to pay any MAR or Additional Rent as an event of default. Section 16.2 requires Landlord to provide three days’ written notice and demand to cure such default to Tenant. If Tenant then fails to do so, Landlord could terminate the Lease, repossess the Premises, and pursue any other rights or remedies under state law.

Article 24 of the Lease allows the prevailing party in any action based on a breach of the Lease to recover attorney’s fees and costs from the non-prevailing party. This includes any costs of collecting unpaid rent from the Tenant.

c. Breach and Damages

On July 31, 2023, Landlord sent Tenant a Demand for Payment of Rent (“July 31 Rent Demand”) for all amounts due and owed through July 2023 and prospectively through August 2023. Landlord gave Tenant until August 7, 2023 to pay all amounts owed. Failure to do so would allow Landlord to initiate an action for breach of the Lease, apply for a writ of attachment, and pursue other remedies. Tenant failed to pay any of the amounts owed.

Also on July 31, 2023, Landlord sent a second Demand for Payment of Rent asking Tenant to remove and replace an old cast iron pipe and fittings below the Premises within 5 days. Landlord included a $186,750 estimate from Curtis Plumbing for such replacement. Tenant was welcome to arrange for the repairs with either Curtis Plumbing or another company, but failure to do so would lead Landlord to contract with Curtis Plumbing and bill Tenant. Tenant failed to make arrangements for the repairs.

On September 5, 2023, Landlord filed this unlawful detainer action. Tenant has now surrendered possession of the Premises to Landlord.

As of the FAC, Tenant owes $750,963.07 in accrued rent, not including allowable interest, late fees, and $518,509.26 in discounted future rent through the end of the Lease’s term.

Tenant has also transferred assets and other revenue generating concepts and trade secrets to the other Defendants.

d. Prayer for Relief

Landlord seeks, inter alia, $750,963.07 in damages, plus future damages of $518,509.26, consequential damages, legal interest, and attorney’s fees and costs. Landlord also seeks reversal of the Tenant’s improper distribution to the other Defendants to the extent necessary to satisfy Landlord’s claim against Tenant.

2. Course of Proceedings

On September 7, 2023, Landlord filed notice of an unlawful detainer action against Tenant for the Premises.

On September 7, 2023, Landlord served Tenant with the Complaint and Summons by substitute service, effective September 17, 2023. On September 8, Landlord served “All Unknown Occupants in Possession” of the Premises with the Complaint and Summons by substitute service, effective September 18, 2023.

On September 29, 2023, this court denied Landlord’s ex parte application for a temporary restraining order and order to show cause re: preliminary injunction enjoining Tenant from damaging the Premises or removing any improvements thereto from it.

On October 16, 2023, Landlord served CWHH with the FAC and filed it on October 26, 2023.

On November 17, 2023, Defendants CWHH, Cristcat Hollwood, Inc., CW, Robert, Christina, Catyana, and Karine filed a joint Answer to the FAC.

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., (“CIT”) (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., (“Kemp”) (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); see also CCP §483.010(b) (“an attachment may not be issued on a claim which is secured by any interest in real property arising from agreement, statute, or other rule of law…However, an attachment may be issued where the claim was originally so secured but, without any act of the plaintiff or the person to whom the security was given, the security has become valueless or has decreased in value to less than the amount then owing on the claim). 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 November 1, 2017, Landlord and Catchris LLC entered into the Lease for the Premises. Gomez Decl., ¶3, Ex. A. Catchris LLC agreed to pay an MAR of $360,000, divided into $30,000 installments due on the first of each month. Gomez Decl., ¶3, Ex. A, §4.2. It would also pay Additional Rent, defined as all sums of money required to be paid to Landlord beyond the MAR. Gomez Decl., ¶12, Ex. A.[1]

Catchris LLC agreed to repair, maintain in good and tenantable condition, and replace, as necessary, the Premises and every part thereof at its own cost and expense. Gomez Decl., ¶3, Ex. A, §12.1. This included any piping exclusively serving the Premises even if not located therein. Gomez Decl., ¶14, Ex. A, §12.1. If the tenant did not fulfill this duty, Landlord had the right to enter the Premises and make such repairs on the tenant’s behalf and account. Gomez Decl., ¶14, Ex. A, §12.3.

An event of default included failure to pay any of the MAR or Additional Rent, as well as failure to fully and promptly perform any covenant or condition of the Lease. Gomez Decl., ¶3, Ex. A, §§ 16.1(a), (c). To enforce its rights following a tenant’s default for failure to pay amounts owed, Landlord needed to give written notice of the nature of the default and demand cure of such within three days. Gomez Decl., ¶3, Ex. A, §16.2(a). The period to cure a default based on section 16(c) must be reasonable and not exceed 30 days. Gomez Decl., ¶3, Ex. A, §16.2(c).

If the tenant failed to cure the default, Landlord could terminate the Lease, repossess the Premises, and continue to recover rent as it became due notwithstanding the repossession. Gomez Decl., ¶3, Ex. A, §§ 16.3(a)-(c). Landlord’s damages include (a) all unpaid rent at the time of termination; (b) the amount of unpaid rent that would have accrued at the time of an award to that effect, less any loss the tenant proves could have been reasonably avoided; (c) the worth, at the time of award, of unpaid rent that will accrue from the time of award to the end of the Lease, less any loss the tenant proves could have been reasonably avoided; and (d) any other amount necessary compensate Landlord for, inter alia, retaking the Premises and maintaining them after default, including attorney’s fees and costs. Gomez Decl., ¶20, Ex. A, §§ 16.4(a)-(d). For purposes of subsection 16.4(c), “worth” is the amount of unpaid rent discounted at a rate equal to 1% more than the current discount rate of the Federal Reserve Bank of San Francisco (“FRB”). Gomez Decl., ¶20, Ex. A, §16.4.

In March 2020, Landlord and Tenant[2] entered into the First Amendment to the Lease. Gomez Decl., ¶4, Ex. B. Tenant agreed to pay Landlord a Settlement Amount of $175,000 for all Rent owed through March 1, 2020. Gomez Decl., ¶5, Ex. B. The First Amendment also changed the MAR to $300,000, or $25,000 per month. Gomez Decl., ¶9, Ex. B, §1(a).

On June 18, 2021, Landlord and Tenant entered into the Second Amendment to the Lease extending it to October 31, 2024. Gomez Decl., ¶6, Ex. C, §5. The Second Amendment also waived the requirement to pay the MAR between July 1, 2020 and the earlier of June 30, 2021 and when Tenant’s monthly Gross Sales equaled or exceeded $175,000. Gomez Decl., ¶11, Ex. C, §7. During this time, Tenant was instead required to pay a Percentage Rent equal to 10% of the monthly gross sales for the preceding month, up to $20,000. Gomez Decl., ¶11, Ex. C, §7.2. This provision remained in effect until June 1, 2021. Gomez Decl., ¶6, Ex. C.

The Second Amendment also increased the monthly MAR by 5% every year starting November 1, 2021. Gomez Decl., ¶10, Ex. C, §6.5. This increased the monthly payment to $26,250 from November 2021 to October 2022, $27,562.50 from November 2022 to October 2023, and $28,940.63 from November 2023 to October 2024. Gomez Decl., ¶10.

Section 3.1 of the Second Amendment waived Tenant’s duty to pay MAR, Additional Rent, or Percentage Rent from April to June 2020. Gomez Decl., ¶17, Ex. C. Waiver of these Abated Charges was conditioned on Tenant’s full, faithful and punctual performance of its obligations under the Lease and the Second Amendment. Gomez Decl., ¶18, Ex. C, §3.2. If Tenant defaulted and failed to cure such default, its right to the Abated Charges would cease and damages would include Landlord’s recovery of any Abated Charges. Gomez Decl., ¶18, Ex. C, §3.2.

On February 24, 2023, Landlord issued a Demand for Payment of Rent (“February Rent Demand”). Gomez Decl., ¶25, Ex. E. It alleged that since April 2020, Tenant had failed to pay $62,250 in Percentage Rent, $850,250 in MAR, and $4,178.46 in utilities. Gomez Decl., ¶25, Ex. E. After various credits, the outstanding balance was $550,323.47. Gomez Decl., ¶25, Ex. E. Tenant had three days to pay this amount before Landlord pursued all available remedies. Gomez Decl., ¶25, Ex. E.

On July 10, 2023, Landlord sent Tenant Notice of Intent regarding mandatory repairs under sections 12.1 and 12.3 of the Lease. Gomez Decl., ¶26, Ex. F. Tenant had prior notice on April 13 and June 27, 2023, but had failed to complete the repairs described therein. Gomez Decl., ¶26, Ex. F. Landlord attached a $17,750 estimate for the repair cost and asserted it would exercise its right to repair the damage and bill Tenant for it. Gomez Decl., ¶26, Ex. F. Landlord never heard a response from Tenant and never received reimbursement for the repair costs. Gomez Decl., ¶26.

The July 31 Rent Demand asserted an outstanding balance of $626,763.25. Gomez Decl., ¶27, Ex. G. This included $75,000 in Abated Charges, which the Second Amendment only had waived for as long as Tenant was not in default. Gomez Decl., ¶27, Ex. G. The balance would increase to $701,763.25 if Tenant failed to pay the MAR installment for August 2023. Gomez Decl., ¶27, Ex. G. If Tenant did not repay the balance by August 7, Landlord would pursue all available remedies. Gomez Decl., ¶27, Ex. G.

On August 29, 2023, Landlord issued a final Maintenance and Repair Letter (“Repair Final Notice”) with pictures of damages that stemmed from plumbing leaks. Gomez Decl., ¶28, Ex. H. Tenant had prior notice on June 1 and July 19, 2022, but failed to complete the necessary repairs. Gomez Decl., ¶28, Ex. H. Landlord included a $22,283.26 repair cost estimate and asserted it would exercise its right to repair the damage and bill Tenant for it. Gomez Decl., ¶28, Ex. H. Landlord never heard a response from Tenant and never received reimbursement for the repair costs. Gomez Decl., ¶28.

On September 5, 2023, Landlord filed the unlawful detainer action against Tenant. Gomez Decl., ¶31. On October 4, 2023, Tenant surrendered the Premises to Landlord. Gomez Decl., ¶31.

On October 26, 2023, Landlord sent Tenant another Rent Demand (“October Rent Demand”) for $750,963.07, including Abated Charges. Gomez Decl., ¶29, Ex. I. If Tenant did not repay the balance by October 29, 2023, Landlord would pursue all available remedies. Gomez Decl., ¶29, Ex. I.

Tenant failed to timely pay the outstanding balance after any Rent Demand or repair notice. Gomez Decl., ¶30.

Rent accrued includes Percentage Rent of $92,145.24, MAR of $861,512.48 from July 2021 to February 2024, reclaimed Abated Charges of $75,000, and $2,350 + $2,350 + $17,750 + $525 + $18,569.38 = $41,544.38 in Additional Rent via plumbing and pipe repairs. Gomez Decl., ¶37. Of the $1,070,202.10 in Rent accrued, Tenant has paid $203,476.55. Gomez Decl., ¶37. The outstanding balance totals $1,070,202.10 - $203,476.55 = $866,725.55. Gomez Decl., ¶¶ 32, 37.

Landlord has calculated the current value of future MAR through the end of the Lease in October 2024 as $225,982.01. Gomez Decl., ¶¶ 21, 32, 37, Ex. D. Landlord’s calculations assert this is based on an FRB discount rate of 5.5%. Gomez Decl., Ex. D. Tenant therefore owes $866,725.55 + $225,982.01 = $1,092,707.56. Gomez Decl., ¶¶ 32, 37.

Counsel for Landlord estimates Landlord will incur $33,550.50 in allowable attorney’s fees and $1,000 in allowable costs. Aguirre Decl., ¶6.

Plaintiff Landlord applies for a right to attach order against Defendant Tenant for $866,725.55, or alternatively $1,092,707.50. Landlord asserts that it seeks attachment of this amount plus attorney’s fees and costs. Mem. at 16. However, its application states the $1,092,707.50 sought includes $1,000 in costs and $33,550.50 in attorney’s fees. App. at 2. H&H must be limited to the amount sought in its application.

Landlord’s claim is for breach of the Lease and Amendments thereto, for damages totaling $1,092,707.56 plus attorney’s fees and costs. Gomez Decl., Exs. A-C. Attachment may be based on this claim.

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, supra, 115 Cal.App.4th at 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).

Under the Lease, Catchris LLC agreed to pay an MAR of $360,000, divided into $30,000 installments due on the first of each month. Gomez Decl., ¶3, Ex. A, §4.2. From July 2020 to June 2021, the Second Amendment substituted a Percentage Rent equal to 10% of the monthly gross sales for the MAR. Gomez Decl., ¶¶ 6, 11, Ex. C, §7.2. It then increased the monthly MAR by 5% every year starting November 1, 2021. Gomez Decl., ¶10, Ex. C, §6.5. The Second Amendment increased the monthly payment to $26,250 from November 2021 to October 2022, $27,562.50 from November 2022 to October 2023, and $28,940.63 from November 2023 to October 2024. Gomez Decl., ¶10.

The Second Amendment waived the requirement to pay any rent from April to June 2020. Gomez Decl., ¶17, Ex. C. Waiver of these Abated Charges was conditioned on Tenant’s full, faithful and punctual performance of its obligations under the Lease and the Second Amendment. Gomez Decl., ¶18, Ex. C, §3.2. If Tenant defaulted and failed to cure such default, its right to the Abated Charges would cease, and damages would include Landlord’s recovery of any Abated Charges. Gomez Decl., ¶18, Ex. C, §3.2.

The Lease also defined Additional Rent as all sums of money required to be paid to Landlord beyond the MAR. Gomez Decl., ¶12, Ex. A. This included costs to repair, maintain in good and tenantable condition, and replace, as necessary, the Premises and every part thereof at its own cost and expense. Gomez Decl., ¶3, Ex. A, §12.1. This included any piping exclusively serving the Premises even if not located therein. Gomez Decl., ¶14, Ex. A, §12.1. If the tenant did not fulfill this duty, Landlord had the right to enter the Premises and make such repairs on the tenant’s behalf and account. Gomez Decl., ¶14, Ex. A, §12.3.

Landlord asserts Tenant owes $866,725.55 in rent and damages accrued to date. Gomez Decl., ¶¶ 32, 37. To calculate this amount, Landlord applied Tenant’s payments of $203,476.55 to Percentage Rent of $92,145.24, MAR of $861,512.48 from July 2021 to February 2024, reclaimed Abated Charges of $75,000, and Additional Rent of $41,544.38 via plumbing repairs. Gomez Decl., ¶37.

Landlord does not provide a payment history or other documentary evidence of the amounts Tenant owes. At most, Landlord presents Rent Demands listing the amounts owed at the time by category. Gomez Decl., Exs. E, G, I. As Tenant has not opposed, any evidentiary defect in this presentation is waived.

Upon Tenant’s default, even if the Landlord repossesses the Premises, it may recover the current worth of rent that would accrue through the end of the Lease. Gomez Decl., ¶3, Ex. A, §§ 16.3(a)-(c), 16.4(c). For such purposes, “worth” is the amount of unpaid rent less interest at a rate equal to 1% more than the FRB’s current discount rate. Gomez Decl., ¶20, Ex. A, §16.4. The Second Amendment extended the Lease to October 2024. Gomez Decl., ¶6, Ex. C, §5.

Landlord has calculated the current value of future MAR through the end of the Lease as $225,982.01. Gomez Decl., ¶¶ 21, 32, 37, Ex. D. This is based on an FRB discount rate of 5.5%. Gomez Decl., Ex. D. Landlord does not present evidence that this is the current rate. This defect also is waived.

Recoverable damages also include any costs of repossessing the Premises and maintaining them after default, including attorney’s fees and costs. Gomez Decl., ¶20, Ex. A, §16.4(d). Counsel estimates fees of $33,550.50 and costs of $1,000. Aguirre Decl., ¶6.

Ascertainable damages total $866,725.55 + $225,982.01 + $33,550.50 + $1,000 = $1,127,258.06. Because Landlord’s application only seeks attachment of $1,092,707.56, the excess damages are disallowed.

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, supra, 146 Cal.App.4th at 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).

On November 1, 2017, Landlord and Catchris LLC entered into a Lease for the Premises. Gomez Decl., ¶3, Ex. A. Landlord has demonstrated Tenant is Catchris LLC’s successor-in-interest; it signed Amendments to the Lease. Gomez Decl., Exs. B-C.

An event of default under the Lease includes failure to pay any of the MAR or Additional Rent, as well as failure to fully and promptly perform any covenant or condition of the Lease. Gomez Decl., ¶3, Ex. A, §§ 16.1(a), (c). One such condition was that Tenant repair, maintain in good and tenantable condition, and replace, as necessary, the Premises and every part thereof at its own cost and expense. Gomez Decl., ¶3, Ex. A, §12.1. This included any piping exclusively serving the Premises even if not located therein. Gomez Decl., ¶14, Ex. A, §12.1.

Before Landlord could enforce its rights under an event of default, it needed to give written notice of the nature of the default and demand cure of such default. Gomez Decl., ¶3, Ex. A, §16.2. Landlord must provide a cure period of three days for a default based on failure to pay rent, and a reasonable period of less than 30 days for default based on a breach of a covenant or condition. Gomez Decl., ¶3, Ex. A, §§ 16.2(a), (c).

Landlord sent several Rent Demands for amounts owed, each of which demanded payment by a deadline set at least three days after the Rent Demand. Gomez Decl., Exs. E, G, I. Tenant failed to timely pay the outstanding balance after any Rent Demand. Gomez Decl., ¶30. Landlord has demonstrated a probability of success on the merits.

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 seeks attachment for a proper purpose.

The application for a right to attach orders against Tenant is granted in the amount of $1,092,707.56. No writ shall issue until Landlord files a $10,000 undertaking.

[1] Section 4.7 of the Lease subjects the Tenant to late fees and interest for any overdue payments. Gomez Decl., ¶22, Ex. A. Landlord reserve the right to calculate and pursue these damages at a later point in this action (Gomez Decl., ¶¶ 23-24), and late fees and interest therefore are irrelevant to the current application.

[2] Tenant is Defendant Catchris LLC’s successor-in-interest. Gomez Decl., ¶¶ 3-4, Exs. B, C.