Judge James C. Chalfant, Case Number: 24STCV00423, Date: 2024-12-12 Tentative Ruling

Artful Dodger v. Kristina Ho, et al.,

24STCV00423

Tentative decision on application for writ of possession: denied or continued

Plaintiff Artful Dodger, Inc. (“Artful Dodger”) seeks a writ of possession against Defendant Star Source International (USA), Inc. (“Star Source”) for two pallets of hardwood flooring purchased by Artful Dodger from KRB Beverly Hills LLC (“KRB”).

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

On January 8, 2024, Plaintiff Artful Dodger filed the Complaint against Defendants KRB and Kristina Ho (“Ho”) alleging claims for breach of written contract, claim and delivery, conversion, common count, negligence, and quasi-contract restitution. The Complaint alleges in pertinent part as follows.

In or about November of 2018, Wayne Marmorstein (“Marmorstein”) on behalf of Artful Dodger contacted KRB and spoke with Ho as to the purchase of hardwood flooring for a construction project (the “Flooring”). Plaintiff is informed and believes, and upon that basis alleges, that Ho subsequently handled the transaction on behalf of KRB.

On or about December 3, 2018, Artful Dodger entered into a written contract with KRB with KRB in the form of invoices for the purchase of hardwood flooring from KRB (the “Contract”). The Contract was modified on or about December 7, 2018, and subsequently again on or about April 25, 2019. The Contract contains an attorney’s fees provision. The final purchase price of the Flooring, including $750 shipping and delivery and 9.50% California sales tax, was $79,880.97. Artful Dodger paid an initial deposit of $51,922.63, and it paid the balance in January of 2020.

Plaintiff is informed and believes, and upon that basis alleges, that in or about February of 2020 the Flooring was delivered by KRB to a warehouse of Star Source which KRB used in order to store flooring of its customers. In February of 2020, Artful Dodger had one-half of the shipment picked up from the warehouse and delivered to the job site where the Flooring was to be installed.

In or about July of 2023, Artful Dodger attempted to obtain the balance of the Flooring from the warehouse but was unable to do so despite multiple demands. Artful Dodger ultimately was informed that the missing Flooring was not at the warehouse. Plaintiff is informed and believes, and upon that basis alleges, that Ho caused and/or allowed the missing Flooring to be removed from the warehouse.

Artful Dodger has performed all terms and conditions required of it under the Contract except for any additional terms and conditions which were excused by reason of KRB’s material breach of contract and/or other lawful excuse. KRB has materially breached the Contract by failing to provide the missing Flooring upon request.

Plaintiff is informed and believes, and upon that basis alleges, that the cost of replacing the missing Flooring is now greater than the original price, and is at least $54,852. As a direct and proximate result of the foregoing breach of contract, Artful Dodger has been damaged in an amount according to proof, but which Artful Dodger estimates to be in the principal amount of at least $118,249.00, along with interest thereon.

On June 26, 2024, Defendant Star Source filed a Cross-Complaint against KRB, Ho, and Artful Dodger alleging claims for breach of written contract, unjust enrichment, common count, quantum meruit, alter ego, and declaratory relief. The Cross-Complaint alleges in pertinent part as follows.

On or around February 19, 2020, Star Source and KRB entered into a written storage contract agreement for KRB to store certain property with Star Source in exchange for KRB to pay certain monthly fees to Star Source. Ho signed the agreement on behalf of KRB.

Pursuant to the agreement, KRB began storing hardwood flooring with Star Source starting in February 2020. By October 2020, KRB had stopped paying the full amount of monthly fees to Star Source. On or around September 30, 2021, KRB stopped paying monthly fees to Star Source altogether. As of June 2024, KRB owes Star Source a monetary sum in accrued monthly fees in excess of $38,000.

From February 19, 2020 to the present, KRB has always had certain pallets of wooden flooring in storage with Star Source. Based on the instructions of KRB, Star Source would occasionally release certain pallets of hardwood flooring to parties designated by KRB to receive such pallets. Star Source still maintains storage of certain pallets of wooden flooring for KRB, despite the lack of payment for such storage services.

On June 26, 2024, Defendant Star Source filed its Answer as well as the Cross-Complaint.

On July 23, 2024, Artful Dodger filed its Answer to Star Source’s Cross-Complaint.

On July 24, 2024, Defendant Ho filed her Answers to Plaintiff’s Complaint and Star Source’s Cross-Complaint.

A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. See Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1288. As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment.

A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. See CCP §1281.7.

Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession. Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding. (Judicial Council Forms CD-100 et seq.).

A plaintiff must make a written application for a writ of possession. CCP §512.010(a), (b); (Mandatory Form CD-100); CCP §512.010(a). A verified complaint alone is insufficient. 6 Witkin, California Procedure, (5th ed. 2008) §255, p.203. The application may be supported by declarations and/or a verified complaint. CCP §516.030. The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. Id.

The application must be executed under oath and include: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiff’s best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief. If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property. Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure. CCP §512.010(b).

Before noticing a hearing, the plaintiff must serve the defendant with all of the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration. CCP §512.030(a). If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint. CCP §512.030(b).

Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing. CCP §512.050. At the hearing, the court decides the merits of the application based on the pleadings and declarations. Id. Upon a showing of good cause, the court may receive and consider additional evidence and authority presented at the hearing, or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities. Id.

The court may order issuance of a writ of possession if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) The undertaking requirements of CCP section 515.010 are satisfied. CCP §512.060(a). “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” CCP §511.090. This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. Witkin, California Procedure, (5th ed. 2008) §261, p.208. A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it. RCA Service Co. v. Superior Court, (1982) 137 Cal.App.3d 1, 3.

No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there. CCP §512.060(b).

The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer.[1] CCP §513.010(c).

The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120). The order must notify the defendant that failure to comply may subject him or her to contempt of court. CCP §512.070. The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession. See Edwards v Superior Court, (“Edwards”) (1991) 230 Cal.App.3d 173, 178.

Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties). CCP §515.010(a). The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. Id. The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount. Id. The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property. Id.

However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP section 515.020(b). CCP §515.010(b).

In December 2018, Artful Dodger purchased the Flooring -- Legno Bastone’s St. Moritz - Italian Collection hardwood flooring -- from KRB for the total sum of $79,880.97, which was paid in full. Marmorstein Decl., ¶3, Ex. A.

At the time, KRB operated a retail store in the Pacific Design Center in West Hollywood, California. Marmorstein Decl., ¶3. Wayne Marmorstein, Artful Dodger’s Chief Executive Officer, had all dealings with KRB on behalf of Artful Dodger. Marmorstein Decl., ¶3. Mamorstein primarily interacted with Ho and Wendy Kneedler (“Kneedler”) at KRB in connection with the purchase of the Flooring. Marmorstein Decl., ¶4. Ho was a part owner of KRB and Kneedler was the former manager of the KRB store. Marmorstein Decl., ¶4.

In or about early January of 2020, Marmorstein was informed that the Flooring had been received from the manufacturer. Marmorstein Decl., ¶5. He understood that KRB would store the Flooring until Marmorstein requested that it be delivered. He did not know where it was being stored, and e did not definitively determine that it was being stored at Star Source until the 2024 deposition of Mandy Wang (“Wang”). Marmorstein Decl., ¶5.

In February 2020, Marmorstein contacted Kneedler and requested that some of the Flooring be delivered to 1861 North Crescent Heights Blvd. Marmorstein Decl., ¶5.

In or around July of 2023, Marmorstein sought to have the remaining Flooring delivered. Marmorstein Decl., ¶6. KRB was no longer in business. Marmorstein Decl., ¶6. Marmorstein called and spoke with Kneedler, and she informed him that KRB had flooring stored at Star Source. Marmorstein Decl., ¶6.

On July 13, 2023, Marmorstein called Star Source to find out if the Flooring was stored there and spoke to Wang. Marmorstein Decl., ¶7. He told Wang that he would send her the paid invoice for the Flooring and a photo of the Flooring as it appeared just before it left the manufacturers warehouse. Marmorstein Decl., ¶7. Wang provided Marmorstein with an email address, and he sent her an email with a copy of a receipt for the purchase. Marmorstein Decl., ¶7. Later that same day, Marmorstein received an email from “Alice” at Star Source which stated: “Sorry, we can’t be of any help. Please contact KRB Beverly Hills LLC dba PERFEC Floors”. Marmorstein Decl., ¶7, Ex. C.

Marmorstein also contacted Kneedler again and, thereafter, Ho, for their assistance in obtaining release of the Flooring. Marmorstein Decl., ¶8. Based upon his subsequent emails with Kneedler and Ho, he understood that Kneedler called Star Source and requested that the Flooring be released. Marmorstein Decl., ¶8. The Flooring was not released. Marmorstein Decl., ¶8.

At her deposition, Wang testified that Star Source has the Flooring as well as pallets of other flooring being stored by KRB. Marmorstein Decl., ¶9. The monthly storage charge for the Flooring is $36 per pallet. Marmorstein Decl., ¶9.

On October 3, 2024, Marmorstein sent a priority mail letter on behalf of Artful Dodger to Yu Lin Wang (“Yu Lin”) of Star Source enclosing a check payable to Star Source in the amount of $5,000. Marmorstein Decl., ¶10, Ex. D.

Artful Dodger had no contractual relationship with Star Source. Marmorstein Decl., ¶11. The price for the non-engineered flooring per square foot which Artful Dodger purchased from KRB was $13.99 per square foot, plus 9.50% tax and shipping. Marmorstein Decl., ¶12. The engineered flooring which it purchased from KRB is much more expensive. Marmorstein Decl., ¶12. The wood flooring Marmorstein saw at the Star Source warehouse in 2024 was shrink wrapped so he could not inspect individual pieces to determine how much of each is still there. Marmorstein Decl., ¶12. The current price for the same type of non-engineered flooring that Marmorstein purchased from KRB is approximately $22.99 per square foot, which is $9.00 per square foot more than he paid KRB. Marmorstein Decl., ¶12. Marmorstein thus estimates that it would now cost Artful Dodger $35,767.72 to purchase two pallets of non-engineered flooring of the same type being held by Star Source. Marmorstein Decl., ¶12.

Plaintiff Artful Dodger seeks a writ of possession for the Flooring against Defendant Star Source. No opposition is on file. A proof of service on file shows that Plaintiff served the moving papers on Star Source’s attorney by email, and on Defendant Ho by mail, on November 7, 2024.

An application for a writ of possession is a law and motion matter. CRC 3.1103(a)(2). All law and motion matters require a memorandum of points and authorities detailing the basis for the motion. CRC 3.1113(a). The absence of a memorandum may be construed as an admission that the motion is not meritorious. CRC 3.1113(a).

Plaintiff failed to file a supporting memorandum of points and authorities with his application. The application will be continued or denied. If continued, Artful Dodger’s memorandum must address whether Star Source has any legal interest in the Flooring for storage.

[1] If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).