Judge: James C. Chalfant, Case: 25STCV03783, Date: 2025-05-27 Tentative Ruling

Case Number: 25STCV03783    Hearing Date: May 27, 2025    Dept: 85

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).

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.

C. Statement of Facts

1. Torosian’s Evidence

On or about October 11, 2023, Torosian agreed to sell the Assets to Mack, pursuant to the written Agreement.  Torosian Decl., ¶3, Ex. 1.  Mack and Torosian worked together to prepare the Agreement, which called for a purchase price of $350,000.  Torosian Decl., ¶3, Ex. 1.  The Agreement provides that Torosian remains the owner of the Assets until the entire purchase price is paid.  Torosian Decl., ¶3, Ex. 1.  The Agreement further provides that, in the event Mack defaulted by failing to make a payment within 30 days after due, Torosian could terminate the Agreement and Mack must return the equipment.  Torosian Decl., ¶3, Ex. 1.

The Assets included high-end exercise equipment, premium appliances, and customized artwork.  Torosian Decl., ¶4.

In or about August of 2024, Torosian saw on social media pictures of the Gym exercise equipment in another gym.  Torosian Decl., ¶5.  At that time, Mack had not paid the entire $350,000 purchase price.  Torosian Decl., ¶5.  Thereafter, in or about August 2024, Torosian inspected the Gym and discovered Mack had converted it from a traditional weightlifting Gym to a personal training gym.  Torosian Decl., ¶6.  This change included altering the décor and artwork and selling approximately $100,000 of the equipment.  Torosian Decl., ¶¶6-7.  The change alienated existing customers.  Torosian Decl., ¶6.

Mack performed under the Agreement by making monthly payments of $11,666.67 by the first of the month through October 2024.  Torosian Decl., ¶8.  Mack did not make the payment due on November 1, 2024, nor any subsequent payment.  Torosian Decl., ¶9.  As of the default, Mack still owed $163,324.  Torosian Decl., ¶9.

In December 2024, Torosian and Mack met, and Mack promised to pay the $163,324 remaining by January 2025.  Torosian Decl., ¶10.  Torosian noted that Mack had impermissibly sold Assets.  Torosian Decl., ¶10.  Mack admitted to and apologized for selling Assets, which he said he did to make payments on the Agreement.  Mack admitted he was unable to make payments on his debts and needed to sell the Assets for that purpose.  Torosian Decl., ¶10.

Mack has acknowledged the debt and his failure to make timely payments, including by text messages on December 2 and December 27, 2024 when Mack promised to pay as soon as possible.  Torosian Decl., ¶¶ 11-12, Ex. 2-3.  Mack has not fulfilled his promises, so in or around January of 2025, Mack verbally terminated the Agreement and demanded Mack return the Gym and remaining Assets.  Torosian Decl., ¶13.  Mack neither returned the Gym and its Assets, nor made any further payments.  Torosian Decl., ¶13.

Torosian does not see attachment for any purpose other than to secure his claim against Mack.  Torosian Decl., ¶14.  Torosian fears Mack is insolvent and nearing bankruptcy.  Torosian Decl., ¶14.

2. Mack’s Evidence

Mack is a successful gym owner with significant experience in fitness and weight-training.  Mack Decl., ¶2.  Mack agreed to purchase Torosian’s Assets, but already owned and operated a successful gym and so did not need most of the equipment.  Mack Decl., ¶2.  Mack primarily sought the space of the Gym Property, not the equipment itself.  Mack Decl., ¶2.  Mack understood from conversations with Torosian’s landlord (“Landlord”) that the Gym was failing and Torosian could no longer afford to pay rent, leading to Torosian’s agreement to vacate the Gym Property.  Mack Decl., ¶2, Ex. A.

The Gym equipment was old, damaged, or redundant, and had been powder-coated twice.  Mack Decl., ¶3.  Mack recoated the equipment to match his branding and his existing equipment.  Mack Decl., ¶3.  Mack was never informed that he could not sell unnecessary equipment.  Mack Decl., ¶3.  Mack removed some of the Assets and sold or discarded them to better match the aesthetic and quality he desired for the Gym.  Mack Decl., ¶3.

Mack had no opportunity to assess the Assets before the purchase.  Mack Decl., ¶4.  Torosian would not allow Mack to bring a third party to evaluate the Assets, and would not include any warranties, guaranties, or refund clauses in the Agreement.  Mack Decl., ¶4.  Torosian represented that the Assets were high-quality.  Mack Decl., ¶4.

Once Torosian terminated his lease for the Gym Property, Mack signed a new lease with the Landlord for the Gym Property with the Landlord.  Mack Decl., ¶5.  The Landlord was satisfied with replacing Torosian because Torosian was frequently behind on rent and caused problems with the local community.  Mack Decl., ¶5.  The Landlord supported Mack’s plans for the Gym Property.  Mack Decl., ¶5.  Mack invested in a wide range of renovations for the Gym Property, increasing its value and appeal.  Mack Decl., ¶6.

The purchase price for the Assets was significantly more than their worth.  Mack Decl., ¶7.  Mack only made the deal because he had an urgent need for a larger space, and never agreed to preserve Torosian’s business or brand.  Mack Decl., ¶7.  Mack always planned to operate a different gym with a business model, brand, and staff.  Mack Decl., ¶7.

The Gym was failing when Mack took over the Gym Property.  Mack Decl., ¶8.  Torosian had lost half of his clients, and his reputation was damaged by racist remarks to his employees, recorded and widely circulated, leading to a riot outside his Gym.  Mack Decl., ¶8.  Mack could not have operated a successful fitness business on the Gym Property unless it was clearly distinct from and unconnected to the Gym.  Mack Decl., ¶9.

Torosian would become verbally abusive and threatening any time Mack would pay rent even slightly late.  Mack Decl., ¶10.

Mack paid Torosian $192,000 over 10 months, significantly exceeding the value of the Assets, out of Mack’s personal funds.  Mack Decl., ¶11.  Mack did not sell equipment to keep the business financially stable, but rather sold items which were damaged, outdated, or unnecessary or and equipment which would cost more to repair than replace.  Mack Decl., ¶12.  Mack received $34,000 from those sales, which he reinvested into updated and branded equipment.  Mack Decl., ¶12.

Mack informed Torosian that Mack needed additional time for certain payments due to business delays, and Torosian responded by escalating his threats.  Mack Decl., ¶13.  Torosian went to the Gym Property, forcing his way in and asserting a need to inspect the facility.  Mack Decl., ¶13.  Torosian later filmed defamatory videos outside the Gym Property, which he posted to multiple Instagram pages and TikTok accounts, calling Mack a scammer and requesting the public not support Mack’s business.  Mack Decl., ¶13.

The local community widely fears Torosian because of his outbursts.  Mack Decl., ¶16.  A neighboring business owner has a restraining order against Torosian because Torosian became violent during a parking dispute.  Mack Decl., ¶16.  Online videos appear to show Torosian behaving aggressively an abusively toward his ex-wife, contributing to a public perception that Torosian is abusive and unstable.  Mack Decl., ¶16.

The local fitness community wants nothing to do with Torosian or anyone associated with Torosian.  Mack Decl., ¶17.  Torosian’s social media posts, physical intimidation, and reputation have damaged Mack’s credibility and his ability to operate and grow his business.  Mack Decl., ¶17.

Torosian has continually interfered with Mack’s business and damaged his reputation.  Mack Decl., ¶19.

3. Reply Evidence[1]

Between December 2024 and January 2025, Torosian exchanged a series of text messages with Mack.  Supp. Mack Decl., ¶2, Ex. 1.  Mack repeatedly acknowledges the existence of a debt owed to Torosian, expresses regret for delayed payments, and assures Torosian that he intends to pay the remaining balance as soon as possible.  Supp. Mack Decl., ¶2, Ex. 1.

D. Analysis

Plaintiff Torosian applies for a right to attach order against Defendant Mack for $163,324.  Mack opposes.

            1. A Claim Based on a Contract and on Which Attachment May Be Based

            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). 

            Torosian’s claims are based on the Agreement, and the $163,324 sought exceeds $500.

            2. An Amount Due That is Fixed and Readily Ascertainable

            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).

Torosian contends that the $163,324 owed is readily ascertainable from the Agreement and includes the unpaid portion of the purchase price, equivalent to the sum of unpaid monthly installments.  Mem. at 3.  Mack does not oppose on this ground.  The claim is readily ascertainable.

3. Probability of Success

            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).

Torosian presents evidence that he agreed to sell the Assets to Mack, pursuant to the written Agreement, for a purchase price of $350,000.  Torosian Decl., ¶3, Ex. 1.  The Agreement provides that, in the event Mack defaulted by failing to make a payment within 30 days after due, Torosian could terminate the Agreement and Mack must return the equipment.  Torosian Decl., ¶3, Ex. 1.

Mack performed under the Agreement by making monthly payments of $11,666.67 by the first of the month through October 2024.  Torosian Decl., ¶8.  Mack did not make the payment due on November 1, 2024, nor any subsequent payment.  Torosian Decl., ¶9.  As of the default, Mack still owed $163,324.  Torosian Decl., ¶9.

In December 2024, Torosian and Mack met, and Mack promised to pay the $163,324 remaining by January 2025.  Torosian Decl., ¶10.  Torosian noted that Mack had impermissibly sold Assets.  Torosian Decl., ¶10.  Mack admitted to and apologized for selling Assets, which he said he did to make payments on the Agreement.  Mack admitted he was unable to make payments on his debts and needed to sell the Assets for that purpose.  Torosian Decl., ¶10.

Mack has acknowledged the debt and his failure to make timely payments, including by text messages on December 2 and December 27, 2024 when Mack promised to pay as soon as possible.  Torosian Decl., ¶¶ 11-12, Ex. 2-3.

Mack argues that the Gym equipment was old and damaged, and he was not allowed to properly assess it before the purchase.  The purchase price was significantly greater than the equipment was worth.  Mack could not operate under Torosian’s failing brand and had to change the space so that his brand had no connection to Torosian’s.  He paid $192,000 over the course of ten months which far exceeds the value of the equipment.  He did not sell equipment to keep the Gym afloat and only sold items that were damaged, outdated, or unnecessary.  Moreover, Torosian is widely feared in the local fitness community and has harassed Mack at his home.  Opp. at 3-5.  Mack argues that his cross-claims are front and center in this dispute and put Torosian in a position wherein he faces hundreds of thousands of dollars of exposure, including punitive damage claims.  Opp. at 7.

These arguments are insufficient.  Torosian is correct that Mack’s arguments are post-hoc rationalizations that are inconsistent with his acceptance of the equipment and agreements to pay.  Nor has Mack adequately shown offset.  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.  Mack does not specify the nature or legal theories of his cross-claims, and so has not made a prima facie case.  Torosian has established a probable validity of his claim.

4. Attachment Based on Commercial Claim

            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, (“Kadison”) (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

There is no question that Mack’s purchase of the Gym’s Assets was commercial in nature.

5. Attachment Sought for a Proper Purpose 

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).  Torosian seeks attachment for a proper purpose.

6. Description of Property to be Attached

            Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached.  CCP §484.020(e).  Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns.  Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268. The requirement of specificity avoids unnecessary hearings where an individual defendant is willing to concede that the described property is subject to attachment.  Ibid.  A general list of categories - e.g., “real property, personal property, equipment, motor vehicles, chattel paper, negotiable and other instruments, securities, deposit accounts, safe-deposit boxes, accounts receivable, general intangibles, property subject to pending actions, final money judgments, and personal property in decedents’ estates” – is sufficient.  Ibid.

Mack correctly objects that Torosian’s application fails to describe the property sought for attachment.  Opp. at 7.  On application item 9, Torosian checked box a. for “Any property of a defendant who is not a natural person” instead of box c. “Property of a defendant who is a natural person that is subject to attachment under Code of Civil Procedure section 497.010 (specify):” Torosian then failed to specify what property belonging to Mack he wanted to attach.

Torosian attempts to cure this defect in reply, arguing that the moving papers at page six seek to attach Gym Assets on the premises, and of Mack’s property in the state, and any receivables except as need to pay rent.  CCP §486.090.  Reply at 4.  Aside from the fact that page six of the moving papers seeks a temporary protective order, not attachment, Torosian cannot cure a defect in his application by referring to his supporting memorandum.  Strict compliance is required with statutory requirements for attachment.  See Anaheim National Bank v. Kraemer, (1932) 120 Cal.App. 63, 65.  The application fails to identify Mack’s property subject to attachment.

E. Conclusion

            Torosian has not shown all required elements for attachment and the application for a right to attach order is denied.