Judge: John J. Kralik, Case: 23BBCV01693, Date: 2023-12-01 Tentative Ruling

Case Number: 23BBCV01693    Hearing Date: December 1, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Pawnee Leasing Corporation (“Plaintiff”) alleges that on April 3, 2023 Defendant AM Executive Group Inc. (“AM Executive”) entered into a written Equipment Finance Agreement (“EFA”) with Plaintiff’s assignor, Hampton Ridge Financial, LLC, for the finance of 147 Alexa Dining Chair-Chrome.  Plaintiff alleges that Hampton assigned all of its rights, title, and interest in and to the EFA to Plaintiff.  Plaintiff alleges that AM Executive agreed to make payments as set forth in the EFA for 60 months.  Plaintiff alleges that on May 15, 2023, AM Executive failed to make the monthly payment, such that Plaintiff has accelerated the receivable balance declaring all amounts due and owing.  As of July 18, 2023, it alleges that the total amount of rental payments owing, discounted at 4% pursuant to paragraph 11, totals $35,242.20.  Plaintiff also seeks additional charges for returned payment, miscellaneous charges, and a termination fee, for a total of $28,062.95.

Plaintiff also alleges that Defendants Artak V. Ghandilyan aka Artak Ghandilyan (“Ghandilyan”) and Arayik Arshakyan (“Arshakyan”) executed a written Guaranty of the EFA.  Thus, Plaintiff alleges that Ghandilyan and Arshakyan are indebted to Plaintiff in the amount of $38,062.95.

The complaint, filed July 26, 2023, alleges causes of action for: (1) breach of written agreement; (2) breach of personal guaranty; (3) open book account; (4) reasonable value; (5) account stated; (6) indebtedness; (7) unjust enrichment; (8) claim and delivery; and (9) conversion.

B.     Relevant Background and Applications for Writs of Attachment

On October 17, 2023, Plaintiff filed proofs of service showing that the summons and complaint were served on Defendants Ghandilyan, AM Executive, and Arshakyan by substituted service on October 6, 2023 at 1:15 p.m. by leaving the documents with the person in charge, Edgar Manissian, at 137 S. Glenoaks Blvd., Burbank, CA 91502.  The documents were thereafter mailed on October 7, 2023.  Service was effectuated by I. Anis, a registered California process server. 

On July 27, 2023, Plaintiff filed 3 applications for writ of attachment against Defendants Ghandilyan, AM Executive, and Arshakyan. 

The Court is not in receipt of an opposition brief from Defendants.

LEGAL STANDARD

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.”  (CCP § 484.010.)

The application shall be executed under oath and must include:

(1)               a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued;

(2)               a statement of the amount to be secured by the attachment;

(3)               a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based;

(4)               a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and

(5)               a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment.

(CCP § 484.020.)

“The application [for a writ of attachment] shall 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.)  Statutory attachment procedures are purely creations of the legislature and as such “are subject to ‘strict construction.’”  (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79 [citing Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882]; see also Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.)  A judge does not have authority to order any attachment that is not provided for by the attachment statutes.  (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1466.)  “The declarations in the moving papers must contain evidentiary facts, stated ‘with particularity,’ and based on actual personal knowledge with all documentary evidence properly identified and authenticated.”  (Hobbs, supra, 73 Cal.App.4th at 79–80 [citing CCP § 482.040].)  “In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”  (Id. at 80 [ellipses and quotation marks omitted].)  “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 § 481.190.) 

The Court shall issue a right to attach order if the Court finds all of the following:

(1)               The claim upon which the attachment is based is one upon which an attachment may be issued.

(2)               The plaintiff has established the probable validity of the claim upon which the attachment is based.

(3)               The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

(4)               The amount to be secured by the attachment is greater than zero.

(CCP § 484.090(a).) 

A claim of exemption must describe the property to be exempted and specify the statute section supporting the claim.  (CCP § 484.070(c).)  The plaintiff has the burden of opposing the defendant’s claim of exemption, and if the plaintiff fails to oppose a claim of exemption, “no right to attach order or writ of attachment shall be issued as to the property claimed to be exempted.”  (CCP § 484.070(f).)

DISCUSSION

A.    Probable Validity of Plaintiff’s Claims

Plaintiff’s application for writ of attachment against Defendants Ghandilyan, AM Executive, and Arshakyan. 

“The standard elements of a claim for breach of contract are: “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom. [Citation.]”  (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) 

In support of the application, Plaintiff provides the declaration of Kenny Fitzgerald, who is employed by Plaintiff and Vice President Legal and Asset Management.  (Fitzgerald Decl., ¶1.)  Mr. Fitzgerald states that he is the custodian of records.  (Id., ¶¶2-3.) 

Mr. Fitzgerald states that on April 3, 2023, Hampton entered into the EFA with AM Executive for the finance of 147 Alexa Dining Chair-Chrome.  (Fitzgerald Decl., ¶4.)  The EFA was assigned to Plaintiff. (Id.)  Pursuant to the EFA, AM Executive is further liable to Plaintiff for taxes, fees, charges, and other obligations.  (Id., ¶6.)  On May 15, 2023, AM Executive failed to make the monthly payment due and owing on the EFA, such that Plaintiff has accelerated the receivable balance.  (Id., ¶8.)  As of July 18, 2023, the total amount of payments owing under the EFA, discounted at 4% pursuant to paragraph 11, totals $35,242.20.  (Id.)  He states that AM Executive is further liable for returned payments of $675.44, other miscellaneous charges of $2,050.31, and a termination fee of $95, creating a net payoff balance of $38,062.95, plus interest at a rate of 24% per annum and legal fees and costs pursuant to paragraph 11 of the EFA.  (Id., ¶¶9-11.)  Mr. Fitzgerald states that in order to induce Hampton to enter the EFA, Ghandilyan and Arshakyan executed the written Guaranty to the EFA.  (Id., ¶12.)  As such, he states that these individual Defendants are indebted to Plaintiff in the $38,062.95 amount, plus interest and reasonable attorney’s fees and costs.  (Id., ¶¶13-14.)  A statement of account is attached as Exhibit 2.  (Id., ¶15, Ex. 2.)  Mr. Fitzgerald states that Plaintiff is seeking $38,062.95, plus $2,000 in attorney’s fees, and $1,500 in costs, for a total amount of $41,562.95.  (Id., ¶17.) 

Based on the declaration of Mr. Fitzgerald, the Court finds that Plaintiff has established the probable validity of its breach of the EFA and Guaranty claims.  Plaintiff has shown each of the elements of a breach of contract claims by way of the declaration of Mr. Fitzgerald and the attached exhibits.  The motion is not opposed and no contradictory evidence has been presented.

Accordingly, Plaintiff has established the probable validity of its claims upon which the attachment is based.

B.     Basis of Attachment

The Court shall issue a right to attach order if the claim upon which the attachment is based is one upon which an attachment may be issued.  (CCP § 484.090.)  “[A]n 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) exclusive of costs, interest, and attorney’s fees.”  (CCP § 483.010(a).)  “If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession.”  (CCP § 483.010(c).)

This first requirement has been met.  Plaintiff’s claim is based on Defendants’ outstanding debt owed to Plaintiff as a result of breaches of the EFA and Guaranty.  The amount Plaintiff seeks to be secured by the attachment is $41,562.95 (which includes attorney’s fees and costs), which is greater than $500.00.  (See AT-105, §8.) 

C.     Purpose and Amount of Attachment

CCP § 484.090(a)(3)-(4) states that the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.”

In this case, Plaintiff attests on AT-105 Forms that the attachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based.  (AT-105, §4.)  Also, it is clear from the evidence presented that the amount to be secured is greater than zero.  There is no indication that the application is sought for any other purpose, and Defendants do not argue that the action is brought for any other purpose. 

Accordingly, the Court determines that Plaintiff has complied with CCP §§ 484.020 and 484.090.

D.    Subject Property

CCP § 484.020(e) provides, as follows:

Where the defendant is a corporation, a reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the requirements of this subdivision. 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” satisfies the requirements of this subdivision. Where the defendant is a natural person, the description of the property shall be reasonably adequate to permit the defendant to identify the specific property sought to be attached.

(CCP § 484.020(e).) 

            Plaintiff seeks the following property from Defendant AM Executive: “Any property of a defendant who is not a natural person.”  (AT-105 Form re AM Executive, ¶9(a).)

Plaintiff seeks the following property from Defendant Ghandilyan: “(1) Deposit accounts pursuant to CCP Section 488.455; (2) Any accounts receivable or general intangibles pursuant to CCP Section 488.470; (3) Real property pursuant to CCP Section 488.315 and/or 488.415 – commonly known as 7978 Bellaire Avenue, North Hollywood, CA 91605, and legally described on the attached Grant Deed.”  (AT-105 Form re Ghandilyan, ¶9(c).) 

Plaintiff seeks the following property from Defendant Arshakyan: “(1) Deposit accounts pursuant to CCP Section 488.455; (2) Any accounts receivable or general intangibles pursuant to CCP Section 488.470; (3) Real property pursuant to CCP Section 488.315 and/or 488.415.”  (AT-105 Form re Arshakyan, ¶9(c).)

Plaintiff has properly described the property sought to be attached. (See CCP § 487.010.)

E.     Exemptions

As the motions are not opposed, Defendants have not stated whether they are claiming an entitlement to any exemptions.  Accordingly, the Court finds that Defendants are not entitled to any exemptions. 

CONCLUSION AND ORDER

Plaintiff’s applications for writ of attachment against Defendants AM Executive Group Inc., Artak V. Ghandilyan aka Artak Ghandilyan, and Arayik Arshakyan are granted in the total amount of $36,012.64.  At this time, the Court declines to grant the writs of attachment for miscellaneous fees ($2,050.31), attorney’s fees ($2,000) and costs ($1,500) incurred to bring the applications. 

CCP § 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment.  CCP § 489.220 provides that “the amount of an undertaking filed pursuant to this article shall be ten thousand dollars ($10,000).”  The Court may increase this amount “to the amount it determines to be the probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful.”  (CCP § 489.220(b).)  Accordingly, upon granting the applications, Plaintiff is ordered to post an undertaking in the amount of $10,000.00 prior to the issuance of the writs of attachment against Defendant.

Plaintiff shall provide notice of this order.

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