Judge James C. Chalfant, Case Number: 24STCV05171, Date: 2024-12-10 Tentative Ruling

6611-6637 Hollywood (LA) OZ Owner, LLC v. M.D.F. International, Inc., 24STCV05171

Tentative decision on application for right to attach order: denied

Plaintiff 6611-6637 Hollywood (LA) Oz Owner, LLC (“Hollywood Oz Owner” or “Landlord”) applies for right to attach orders against Defendant M.D.F. International (“MDF” or “Tenant”) in the amount of $539,666.51.

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

On or about March 12, 2015, Plaintiff Hollywood Oz Owner, as landlord, and MDF, as tenant, entered into a written 6633 Triple Net Lease (the “Lease”) (a) for an initial term of four years, (b) for real property commonly known by the street address 6633 Hollywood Boulevard, Los Angeles, California 90028, specifically approximately 13,500 rentable square feet on three levels of space (the “Premises”).

On or about May 22, 2019, Landlord and Tenant entered into the First Amendment to Lease (the “First Amendment”).

On or about November 11, 2019, Landlord and Tenant entered into the Second Amendment to Lease (the “Second Amendment), whereby among other things, the Lease Term was extended to October 31, 2024 (“Extension Expiration Date”) and the base rent was modified.

As set forth in the Lease, Tenant is required to cause the payment of the Monthly Base Rent to be received by Landlord on or before the first day of each month. Specifically, pursuant to the terms of the Lease at Section 3.1, which states in pertinent part that, “Tenant shall pay to Landlord the Base Rent specified in Section 1.5, in advance on or before the first day of each calendar month during the Term without demand, deduction or setoff, except as otherwise expressly set forth herein.” (“Base Rent”).

Pursuant to the Second Amendment, the monthly Base Rent for the period of November 1, 2020 to October 31, 2021 shall be $19,642.82, thereafter increasing for the period of November 1, 2021 to October 31, 2022 to $20,323.11, and thereafter increasing for the period of November 1, 2022 to October 31, 2023 to $20,839.07.

The Lease at Section 3.2 provides that “[t]his Lease is what is commonly referred to as a triple net lease, and it is the intention of the parties that Tenant pay all the costs related to the Premises as well as its share of certain CAM/Operating Costs in addition to the Base Rent.” The Lease at Section 3.3, provides in pertinent part: “In addition to the Base Rent, commencing on the Rent Commencement Date, Tenant shall pay in monthly installments an amount equal to Tenant's Proportionate Share of the CAM/Operating Costs for such year…” (“Additional Rent”).

As of December 2023, Tenant has failed to pay the Base Rent for the months of March 2020 to July 2021, November 2021 to July 2023, and November 2023 in the total amount of $341,832.99.

The estimated monthly installment of the Additional Rent for the period of March 2020 to April 2020 totals $4,083.84, for the period of May 2020 to February 2021 totals $3,849.54, and from March 2021 to December 2023 totals $3,937.35. Tenant has failed to pay the monthly Additional Rent charges for the months of March 2020 to July 2021 in the total amount of $97,833.52.

Tenant has been delinquent on Rent payments since March 2020. For the month of March 2020 to July 2021, November 2021 to July 2023, and November 2023, Tenant owes total Rent in the amount of $439,666.51.

On or about February 10, 2023, Landlord’s counsel served on Tenant a Demand for Payment of Rent pursuant to the Lease.

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., (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.

Landlord is the owner of the real property located 6633 Hollywood Boulevard, Los Angeles, California 90028 and holds all rights, title and interests therein. Jones Decl., ¶4. On or about March 12, 2015, Landlord, and Tenant, entered into the Lease for a period of four years for the Premises, specifically that certain approximately 13,500 rentable square feet on three levels of space. Jones Decl., ¶5, Ex. A.

On or about May 22, 2019, Landlord and Tenant entered into the First Amendment. Jones Decl., ¶6, Ex. B.

On or about November 11, 2019, Landlord and Tenant entered into the Second Amendment whereby, among other things, the Lease Term was extended to October 31, 2024 and the Base Rent was modified. Jones Decl., ¶7, Ex. C.

As set forth in the Lease, Tenant is required to cause the payment of the Monthly Base Rent to be received by Landlord on or before the first day of each month. Jones Decl., ¶8. Specifically, Section 3.1 states in pertinent part: “Tenant shall pay to Landlord the Base Rent specified in Section 1.5, in advance on or before the first day of each calendar month during the Term without demand, deduction or setoff, except as otherwise expressly set forth herein.” Jones Decl., ¶8. Section 1.5 provides: “Base Rent: $9,000.00 per month (‘Base Rent’), payable on the 1st day of each month commencing September 1, 2021” (the “Base Rent”). Jones Decl., ¶8.

Section 2 of the Second Amendment states in pertinent part: “Effective on the Extension Commencement Date, Section 3.1.2 of the Original Lease shall be deleted in its entirety and shall be of no further force or effect. Commencing on the Extension Commencement Date, and continuing throughout the Extended Term, tenant shall pay Base rent for the Premises as follows: …” Jones Decl., ¶9.

The Lease at Section 3.2 provides: “This Lease is what is commonly referred to as a triple net lease, and it is the intention of the parties that Tenant pay all the costs related to the Premises as well as its share of certain CAM/Operating Costs in addition to the Base Rent.” Jones Decl., ¶13.

The Lease at Section 3.3, provides in pertinent part: “In addition to the Base Rent, commencing on the Rent Commencement Date, Tenant shall pay in monthly installments an amount equal to Tenant's Proportionate Share of the CAM/Operating Costs for such year…” Jones Decl., ¶14.

The estimated monthly installment of the Common Area Expenses for the period of March 2020 to April 2020 totals $4,083.84, for the period of May 2020 to February 2021 totals $3,849.54, and from March 2021 to December 2023 totals $3,937.35. Jones Decl., ¶15. Tenant has failed to pay the monthly Additional Rent charges for the months of March 2020 to July 2021 in the total amount of $97,833.52. Jones Decl., ¶16. This amount includes 2020, 2021, and 2022 Common Area Expense Reconciliations which have been applied to Tenant’s account. Jones Decl., ¶16. Accordingly,

In sum, tor the month of March 2020 to July 2021, November 2021 to July 2023, and November 2023, Tenant owes Rent in the amount of $439,666.51. Jones Decl., ¶17.

The waiver by any party of any term, covenant, agreement or condition herein contained shall be effective only if in writing and shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, agreement or condition herein contained, nor shall any custom or practice which may develop between the parties in the administration of this Lease be construed to waive or to lessen the right of any party to insist upon the performance by the other party in strict accordance with all of the terms, covenants, agreements and conditions of this Lease. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant, agreement or condition of this Lease, other than the failure of Tenant to timely pay, the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such Rent. Jones Decl., ¶18.

Defendant remitted partial payments for some months and the total amount owed is offset by these payments. Jones Decl., ¶19.

Tenant has been delinquent on Rent payments since March 2020. Jones Decl., ¶20. On or about February 10, 2023, Landlord’s counsel served on Tenant a Demand for Payment of Rent pursuant to the Lease. Jones Decl., ¶21. The Demand Notice advised that Tenant had failed all amounts owed under the Lease in the amount of $436,675.76 and that if Tenant did not pay the amount due within three business days, Landlord would proceed with all of its rights and remedies under the Lease, at law or inequity, including initiating an action for breach of Lease. Jones Decl., ¶21, Ex. D. Notwithstanding, Tenant failed to deliver the Rent to Landlord. Jones Decl., ¶22. Pursuant to Section 11.2 of the Lease, “Tenant’s failure to pay any Rent due or to make any other monetary payment imposed under the terms of the Lease, for a period of 3 business days after written notice from Landlord” shall constitute a default and material breach of the Lease. Jones Decl., ¶23.

“If either party becomes involved in litigation or arbitration arising out of this Lease or the performance thereof, the court in such litigation or arbitrator in such arbitration shall, award legal expenses (including, but not limited to attorneys and other professional and paraprofessional fees incurred) to the prevailing party, including all such costs and attorneys' fees incurred as a result of any appeal filed by the non-prevailing party. In the event of Landlord's involvement in a bankruptcy proceeding, Landlord shall also be entitled to an award of its attorneys' fees incurred in connection with such proceeding.” Jones Decl., ¶24.

Tenant owes rent in the amount of $439,666.51. Jones Decl., ¶25. Tenant is a corporation, and Landlord seeks attachment of all property which is subject to attachment pursuant to subdivision (b) of the Code of Civil Procedure section 487.010. Jones Decl., ¶26.

On March 1, 2024, Plaintiff filed this instant action for Breach of Lease against Tenant for failing to pay the rent due and owed under the Lease. Shakouri Decl., ¶2.

On or about October 14, 2024, Plaintiff propounded Form Interrogatories--General (Set No. One), Requests for Admission (Set No. One), Requests for Production (Set No. One), Special Interrogatories (Set No. One) on Defendant MDF (collectively, the “Discovery”). Shakouri Decl., ¶4. Tenant failed to respond to the discovery. Shakouri Decl., ¶5.

On or about November 19, 2024, Plaintiff’s counsel sent a letter to defense counsel informing counsel that Defendant’s objections had been waived. Shakouri Decl., ¶6. Plaintiff’s counsel requested Defendant to provide responses by November 26, 2024, but no responses have been received. Shakouri Decl., ¶6, Ex. B.

On or about March 14, 2024, Plaintiff filed an unlawful detainer action against Defendant. Shakouri Decl., ¶7. Plaintiff elected to dismiss the action without prejudice and pursue a breach of lease action. Shakouri Decl., ¶7. Before the dismissal, Defendant responded to the discovery and authenticated the documents attached to the Complaint. Shakouri Decl., ¶8, Ex. C-D.

On or about May 21, 2015, MDF negotiated and executed the Lease with Plaintiff. Herczeg Decl., ¶3. The pertinent terms in the Lease included: an initial Base Rent of $15,000.00 per month commencing on September 1, 2015; the Tenant’s proportionate share of CAM/Operating Costs to be paid monthly; a four-year term expiring on August 31, 2019 with a Tenant option to renew and extend the term of the Lease; a title clause subjecting the leasehold estate to “the effect of all Laws applicable to the use and occupancy of the Premises and the Project;” and a Force Majeure clause. Herczeg Decl., ¶3.

Section 32. Force Majeure. Neither Landlord nor Tenant shall be chargeable with, nor be liable or responsible to the other for, anything or in any amount for any failure to perform or delay in performing caused by Force Majeure. Any such failure or delay due to Force Majeure shall not be deemed a breach of or default in the performance of this Lease by either party, provided that nothing herein shall relieve either party of its financial obligations hereunder. Herczeg Decl., ¶4.

“Force Majeure,” as defined in the Lease, “means fire, earthquake, explosion, flood, hurricane, the elements, acts of God or the public enemy, action, restrictions, limitations, or interference of governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes or lockouts, or any other cause or occurrence, whether similar or dissimilar to the foregoing, which is beyond the reasonable control of the Landlord.” Herczeg Decl., ¶5.

On or about May 22, 2019, MDF negotiated and executed the First Amendment to the Lease that indemnified Landlord for any liability arising from a certain Master Covenant and Agreement required by the City of Los Angeles. Herczeg Decl., ¶6.

On or about November 11, 2019, MDF negotiated and executed the Second Amendment that extended the Lease for a 60-month period until October 31, 2024, adjusted the base rents for the extended period, and provided for a Tenant “option to renew the term of the Lease for one additional five (5) year term.” Herczeg Decl., ¶6.

MDF is a restaurant and “escape room” experience. Herczeg Decl., ¶8. Its business is a single location, family-owned operation. Herczeg Decl., ¶8. It spent significant funds and effort and time in making alterations to the premises to maximize customers’ entertainment. Herczeg Decl., ¶8.

Prior to March 2020, MDF was current with payments for rent and CAM. Herczeg Decl., ¶9. On or about March 2020, however, MDF was required to cease operations when the Governor and the City of Los Angeles issued emergency closure orders due to the COVID-19 pandemic. Herczeg Decl., ¶10. From March 2020 through July 2021, MDF was closed by government decree, and it generated no revenue and was unable to pay rent and CAM for that period. Herczeg Decl., ¶10. MDF was forced to shut down abruptly, not by choice, and worked to keep the business viable during the pandemic. Herczeg Decl., ¶10.

Throughout the pandemic closure, MDF maintained open communications with Landlord, and was reassured by them that the Landlord recognized that the shutdown was due to circumstances beyond anyone’s control and because of the COVID-19 pandemic and resulting governmental closure orders. Herczeg Decl., ¶12.

MDF reasonably relied upon the extensive communications with Landlord during the period from March 2020 through July 2021 to not make separate financial arrangements to stay current with rent and CAM payments, which would have been an extreme financial hardship to MDF’s business. Herczeg Decl., ¶13.

When the State and the City of Los Angeles relaxed its business closure orders, MDF re-opened its business in August 2021, immediately started generating operational revenue, and immediately started making prospective monthly rent and CAM payments to Landlord, which continue to this day. Herczeg Decl., ¶14.

Whenever making a rent and CAM payment, MDF explicitly states in the payment’s memo field precisely for which month the payment applies. Herczeg Decl., ¶15.

Since re-opening in August 2021, MDF has paid nearly a million dollars in rent and CAM payments to Landlord. Herczeg Decl., ¶16. Except for anticipated CAM adjustments, made in the regular course of business, MDF is current for all rent and CAM that has come due since August 2021. Herczeg Decl., ¶16.

MDF stands ready to meet its financial obligations under the Lease and has attempted to resolve the amounts still owed, including for the period from March 2020 through July 2021. Herczeg Decl., ¶17. Landlord has not been cooperative. Herczeg Decl., ¶17.

MDF has elected to exercise the Tenant option to extend the Lease another five years that was negotiated and approved in the Second Amendment to the Lease. Herczeg Decl., ¶21. MDF has provided the required notice to Landlord and have made rent and CAM payments for November and December 2024. Herczeg Decl., ¶21. Landlord has rejected the November 2024 payment. Herczeg Decl., ¶22.

Plaintiff Landlord seeks a right to attach order against Defendant Tenant in the amount of $539,666.51 in Rent, which includes $90,000 in estimated attorney fees and $10,000 in estimated costs.

Tenant’s opposition contends that Landlord failed to serve Summons and Complaint with the moving papers in compliance with CCP section 484.040(a), which requires service of summons complaint, and moving papers in compliance with the 16 court days’ notice required by CCP section 1005. Opp. 3. Tenant is not, and cannot, object that it was not served with the Summons and Complaint. Indeed, the proof of service on file shows that Tenant was served with both on March 1, 2024 and filed its Answer on June 4, 2024. Tenant is complaining that it did not get another copy of the Summons and Complaint with the moving papers. This argument is spurious and need not be further discussed.

Tenant also complains that Landlord checked Item 14 in its application on Form AT-105 that it was seeking a TPO but did not check the TPO box in the form’s caption. Tenant contends that this defect is fatal to the application. Opp. at 3. Tenant argues too broadly. The court agrees that Landlord’s failure to seek a TPO in the caption waives that remedy, but it does not render the entire application defective.

Plaintiff Landlord seeks attachment based on breach of the Lease, as amended, in an amount that exceeds $500. This is a claim on which attachment may be based.

3. An Amount Due That Is Fixed and Readily Ascertainable/Probability of Success

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., (“CIT”) (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).

Landlord presents evidence that, pursuant to the Second Amendment, the monthly Base Rent for the period of November 1, 2020 to October 31, 2021 shall be $19,642.82, thereafter increasing for the period of November 1, 2021 to October 31, 2022 to $20,323.11, and thereafter increasing for the period of November 1, 2022 to October 31, 2023 to $20,839.07. Jones Decl., ¶10.

Tenant failed to pay the Base Rent for the months of March 2020 to July 2021, November 2021 to July 2023, and November 2023 in the total amount of $341,832.99. Jones Decl., ¶11. Tenant remitted partial payments for some months. Jones Decl., ¶12. Tenant remitted partial payments for some months and the total amount owed is offset by these payments. Jones Decl., ¶19.

Landlord also presents evidence that the Lease at Section 3.3 provides that Tenant shall pay in monthly installments an amount equal to Tenant's Proportionate Share of the CAM/Operating Costs for such year…” Jones Decl., ¶14. The estimated monthly installment of the Common Area Expenses for the period of March 2020 to April 2020 totals $4,083.84, for the period of May 2020 to February 2021 totals $3,849.54, and from March 2021 to December 2023 totals $3,937.35. Jones Decl., ¶15. Tenant has failed to pay the monthly Additional Rent charges for the months of March 2020 to July 2021 in the total amount of $97,833.52. Jones Decl., ¶16. This amount includes 2020, 2021, and 2022 Common Area Expense Reconciliations which have been applied to Tenant’s account. Jones Decl., ¶16.

In sum, for the month of March 2020 to July 2021, November 2021 to July 2023, and November 2023, Tenant owes Rent in the amount of $439,666.51. Jones Decl., ¶17.

Tenant objects to most of the Declaration of Sam Jones supporting Landlord’s application. Opp. at 6-8. Strict compliance is required with statutory requirements for affidavits for attachment (Anaheim National Bank v. Kraemer, (1932) 120 Cal.App. 63, 65), and technical defects in a declaration for failure to comply with CCP section 2015.5 precludes its use as an evidentiary document. CCP §482.040 (facts stated in affidavit must be set forth with particularity); Witchell v. Korne, (1986) 179 Cal.App.3d 965, 975. The court must apply the same evidentiary standard to the declarations in an attachment hearing as to a case tried on oral testimony. VFS Financing, Inc. v. CHF Express, LLC, (2009) (C.D. Cal.) 620 F.Supp.2d 1092, 1096-97. The declarant must show personal knowledge of the relevant facts, and such evidence must be admissible and not objectionable. Id. All documentary evidence, including contracts and canceled checks, must be presented in admissible form, and admissibility as non-hearsay evidence or exception to the hearsay rule, such as the business records exception. Lydig Construction, Inc. v. Martinez Steel Corp., (2015) 234 Cal.App.4^th 937, 944; Pos-A-Traction, Inc., v. Kepplly-Springfield Tire Co., (C.D. Cal. 2000) 112 F.Supp.2d, 1178, 1182. For business records, evidence should be presented to establish that the record was made in the regular course of business, at or near the time of the act or event, and the custodian of records or other qualified witness must identify the record and its mode of preparation, as well as the sources of information and method and time of preparation. Id.

The court need not rule on all of Tenant’s objections because it agrees that the Jones declaration is deficient. Jones states that he is Landlord’s authorized agent who assists in property management and tenant relations (¶¶ 2-3), but Tenant is correct that he provides no foundation for his agency such as corporate employee, broker, realtor, or agent by written agreement. Opp. at 6. Thus, he does not show how he has personal knowledge of the Lease documents and Tenant payments.

Jones also concludes (¶¶11-17) that Base Rent and Additional Rent is owed without any supporting documentation or calculation of each monthly Base Rent due, partial payment, Additional Rent due as estimated, and reconciliation. Tenant correctly objects to these failures. Opp. at 7.

Tenant further shows that Jones errs in stating (¶8) that the Based rent is $9000 commencing September 1, 2021 when Exhibit A shows it to be $15,000 commencing September 1, 2015, and in stating (¶10) that the Based Rent is $20,323.11 but actually was $20,232.11. Opp. at 7.[1]

Because of the objectionable supporting evidence, Landlord fails to show that its claim is readily ascertainable or a probability of success.[2]

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). Tenant suggests that Landlord seeks recovery for the improper purpose of preventing exercise of Tenant’s option to extend the Lease another five years. Herczeg Decl., ¶23. This argument is insufficiently supported. Landlord need not seek attachment to deny Tenant a Lease extension; its lawsuit does so.

[1] Landlord seeks estimated attorney fees of $90,000 and estimated costs of $10,000. Shakouri Decl., ¶13. These conclusions also lack foundation and are disallowed.

[2] The court need not address Tenant’s force majeure defense, which is raised only in the Declaration of Kitti Herczeg and not in the opposition itself.