Judge James C. Chalfant, Case Number: 24STCV28163, Date: 2025-04-10 Tentative Ruling

Plaintiff Century City Mall LLC (“Century City”) applies for right to attach orders against Defendants Retained Steak Holdings, LLC doing business as Del Frisco’s Double Eagle Steak House (“Del Frisco’s”) and Del Frisco’s Restaurant Group, Inc. (“DFRG”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. The Complaint

Plaintiff Century City filed the Complaint on October 28, 2024 against Defendants Del Frisco’s and DFRG with claims of breach of contract by Del Frisco’s and breach of guaranty by DFRG. The Complaint alleges in pertinent part as follows.

On or about March 1, 2018, Century City as landlord and Del Frisco’s predecessor-in-interest as tenant entered into a written lease, later amended and assigned, (“Lease”) for 10250 Santa Monica Boulevard, Space no. 1700, Los Angeles, California 90067 (the “Premises”). Compl., ¶10, Ex. 1. DFRG concurrently guaranteed the full, faithful, and timely payment of rent and performance of obligations under the Lease (“Guaranty”). Compl., ¶11, Ex. 2.

Subsequent to the Lease execution, Del Frisco’s took possession of the Premises. Compl., ¶12.

The Lease requires Del Frisco’s or DFRG to pay rent monthly, as well as certain other expenses including taxes and utilities (collectively, “Rent”). Compl., ¶13.

Under the Lease, failure to pay Rent more than ten days after written notice from Century City constitutes a material breach and a default. Compl., ¶¶ 11, 15.

Del Frisco’s failed to pay Rent from December 31, 2021 through December 31, 2024, Compl., ¶24. On or about October 14, 2024, Century City sent written notice of default stating Del Frisco’s breach by failing to pay Rent, including reconciliation charges of $636,534.38. Compl., ¶19, Ex. 3.

Century City has performed all obligations under the Lease except as excused by law or by conduct of Del Frisco’s or DFRG. Compl., ¶22.

DFRG, as guarantor of the Lease under the Guaranty, is liable for Del Frisco’s obligations under the Lease as well as any damages caused by Del Frisco’s breach. Compl., ¶¶ 27, 30. DFRG breached its obligations by failing to pay Century City any amount owing under the Lease. Compl., ¶31.

The Lease and Guaranty allow Century City to recover attorney fees if it prevails. Compl., ¶¶ 25, 33.

Century City prays for (1) money damages in an amount according to proof, but not less than $636,534.38; (2) interest at the maximum legal rate on all amounts past due and owing; (3) reasonable attorney fees; (4) costs of suit; and (5) such other relief as the court finds just and proper.

2. Course of Proceedings

Proofs of service on file show that Defendants Del Frisco’s and DFRG were served with the Summons and Complaint by personal service on October 30, 2024. A proof of service on file shows Del Frisco’s and DFRG were served with the moving papers via electronic mail to their counsel on March 7, 2025.

B. Applicable Law

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP §481.010 et seq.) that meets the due process requirements set forth in Randone v. Appellate Department, (1971) 5 Cal.3d 536. See Western Steel & Ship Repair v. RMI, (12986) 176 Cal.App.3d 1108, 1115. As the attachment statutes are purely the creation of the Legislature, they are strictly construed. Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.

A writ of attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500). CCP §483.010(a). A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).

All property within California of a corporation, association, or partnership is subject to attachment if there is a method of levy for the property. CCP §487.010(a), (b). While a trustee is a natural person, a trust is not. Therefore, a trust’s property is subject to attachment on the same basis as a corporation or partnership. Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, supra, 197 Cal.App.3d at 4.

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint. CCP §484.010. Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing. See ibid.

The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115). The application must be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based. CCP §484.030.

Where the defendant is a corporation, a general reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). A specific description of property is not required for corporations and partnerships as they generally have no exempt property. Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (1989) 207 Cal.App.3d 260, 268.

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing. CCP §484.050(e). The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).

The plaintiff may file and serve a reply two court days prior to the date set for the hearing. CCP §484.060(c).

At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment. The defendant may appear the hearing. CCP §484.050(h). The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence. Bank of America, supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. CCP §482.040. The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed. See Bank of America, supra, at 271, 273.

The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP §484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP §484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP §484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP §484.090(a)(4)).

A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. CCP §481.190. In determining this issue, the court must consider the relative merits of the positions of the respective parties. Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484. The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order. CCP §484.050(b).

Except in unlawful detainer actions, the amount to be secured by the attachment is the sum of (1) the amount of the defendant’s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys’ fees under CCP section 482.110. CCP §483.015(a); Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852. This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant’s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest’s value. CCP §483.015(b). A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a prima facie showing that the claim would result in an attachment against the plaintiff.

Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. CCP §489.210. The undertaking ordinarily is $10,000. CCP §489.220. If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment. CCP §489.220. The court also has inherent authority to increase the amount of the undertaking sua sponte. North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.

On or about March 1, 2018, Century City entered into the Lease with Del Frisco’s predecessor-in-interest, Del Frisco’s of California, LLC. Schillace Decl., ¶5, Ex. 1. The Lease allowed Del Frisco’s of California, LLC to use and occupy the Premises until the Lease’s natural expiration on April 30, 2028. Schillace Decl., ¶5. The Lease requires Del Frisco’s of California, LLC to pay a minimum annual rent in equal monthly installments, as well as other sums due as part of the Rent, including common area maintenance, promotional charges, taxes, utilities, and other expenses. Schillace Decl., ¶7. Failure by Del Frisco’s of California, LLC to pay Rent within ten days of written notice from Century City constitutes a default. Schillace Decl., ¶7.

Also on March 1, 2018, DFRG executed the Guaranty for Del Frisco’s obligations under the Lease. Schillace Decl., ¶6, Ex. 2.

Century City delivered the Premises to Del Frisco’s of California, LLC after the execution of the Lease. Schillace Decl., ¶8. Once Del Frisco’s of California, LLC took possession of the Premises, Del Frisco’s became obligated to pay all Rent to Century City on or before the first of each month. Schillace Decl., ¶9.

The Lease was amended in July 2021 between Century City and Retained Steak Holdings, LLC (Del Frisco’s) as the successor-in-interest to Del Frisco’s of California, LLC. Schillace Decl., Ex. 1. DFRG signed the amendment as Guarantor. Id.

Century City has no security interest in any real property of Del Frisco’s or DFRG for amounts due under the lease. Schillace Decl., ¶11.

Century City has performed all its obligations under the Lease except where excused by law or conduct of Del Frisco’s. Schillace Decl., ¶10.

Beginning December 31, 2021, Del Frisco’s ceased paying all Rent due under the Lease. Schillace Decl., ¶12. On or about October 14, 2024, Century City sent a Notice of Default for failure to pay $636,534.38 in Rent. Schillace Decl., ¶13, Ex. 3. Century City filed the Complaint for breach of contract on October 28, 2024. Schillace Decl., ¶14.

Likewise, DFRG breached the Guaranty by failing to pay Century City any amount due and owing under the Lease. Schillace Decl., ¶18.

The Lease entitles Century City to recover damages, including unpaid Rent, in the event of a breach. Schillace Decl., ¶15, Ex 1, § 9.01. The total amount of unpaid Rent under the Lease is $636,534.38. Schillace Decl., ¶16. The Lease further entitles Century City to recover attorney fees if it prevails. Schillace Decl., ¶7.

Century City seeks an attachment for $658,035.07, consisting of $636,534.38 for unpaid Rent and $21,500.69 in attorney fees and costs. Schillace Decl., ¶21; Romeu Decl., ¶¶ 3-5. The $21,500.69 for fees and costs consists of $16,000.69 in reasonable fees calculated according to the schedule in LASC Rule 3.214 and an estimated $5,500 for filing, service fees, depositions, witness fees, and other costs in connection with prosecuting this matter to trial. Romeu Decl., ¶¶ 3-5.

Century City has continually failed its obligation to provide valet parking in accordance with the valet parking specifications contained in the Lease. Hanson Decl., ¶¶ 4, 7. Valet parking is extremely important to high-end restaurants like Del Frisco’s where parking is difficult. Hanson Decl., ¶5. This has directly contributed to the loss of customer traffic at the restaurant, resulting in lost sales. Hanson Decl., ¶7.

Plaintiff Century City applies for right to attach orders against Defendants Del Frisco’s and DFRG for $658,035.07. Del Frisco’s and DFRG oppose.

Century City’s claims are based on the Lease and Guaranty, and the $658,035.07 sought exceeds $500.

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).

Century City contends that the $658,035.07 owed is readily ascertainable from the Lease and includes the total amount of unpaid Rent as well as reasonable fees and costs. Mem. at 5; Reply at 2-3.

Defendants argue that the amount owed is not readily ascertainable because Century City provides only conclusory and generalized allegations to support the amount owed. Opp. at 3.

Defendants are correct. Strict compliance is required with statutory requirements for affidavits for attachment (Anaheim National Bank v. Kraemer, (1932) 120 Cal.App. 63, 65), and facts stated in affidavit must be set forth with particularity. CCP §482.040; 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.

A claim’s damages must 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., supra, 115 Cal.App.4th at 540-41. Century City refers to the standard in the Lease but presents only a conclusion that Defendants owe $636,534.38 in unpaid Rent without any supporting payment history or separate calculation of that amount. This is inadequate.

Century City presents evidence that Del Frisco’s is in default on its payment obligations under the Lease, and that DFRG is in default on its Guaranty. Del Frisco’s and DFRG do not argue otherwise in opposition.

Defendants argue that Century City’s failure to provide valet parking has caused Del Frisco’s damages which it is entitled to offset from the Rent. Opp. at 3.

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. Defendants have not met this standard by generally arguing damage from valet parking.

Defendants argue that Century City seeks the full amount of attachment for each of them, which could result in a double remedy. Opp. at 3-4. Century City correctly argues (Reply at 4) that this is not a defense. Defendants are jointly and severally liable and have a remedy if too much property is attached. CCP §485.240.

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). Century City seeks attachment for a proper purpose.

Century City has not shown all required elements for attachment and the applications for right to attach orders are denied.