Judge: Keri G. Katz, Case: 37-2022-00044860-CU-BC-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00044860-CU-BC-CTL CURRY ADVISORS VS BASSFORD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The application (ROA #s 82 and 83) of plaintiff CURRY ADVISORS, A PROFESSIONAL LAW CORPORATION for a right to attach order and order for issuance of a writ of attachment against defendant DAVID BASSFORD is DENIED.

'Except as otherwise provided by statute, an 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.' Code Civ. Proc., § 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. An attachment may not be issued on a claim against a defendant who is a natural person if the claim is based on the sale or lease of property, a license to use property, the furnishing of services, or the loan of money where the property sold or leased, or licensed for use, the services furnished, or the money loaned was used by the defendant primarily for personal, family, or household purposes.' (emphasis added) Plaintiff's claim in this action arises out of defendant's profession as a landlord for residential real property. Defendant and plaintiff entered into a legal services agreement through which plaintiff represented defendant as a creditor in a bankruptcy proceeding to obtain relief from the automatic stay so that defendant could evict a non-paying tenant from his rental property. This constitutes a commercial claim.

This application seeks to attach the real property located at 819 South Tremont Street, in Oceanside, and any 'deposit accounts.' Where the defendant is a natural person, any interest in real property (except leasehold estates with unexpired terms of less than one year) are subject to attachment, and deposit accounts. Code Civ. Proc., § 487.010(c)(1) and (7).

Property exempt from enforcement of a money judgment is also exempt from attachment. Code Civ.

Proc., § 487.020(a). Also exempt is '[p]roperty which is necessary for the support of a defendant who is a natural person or the family of such defendant supported in whole or in part by the defendant.' Id. at (b).

Defendant cites Code of Civil Procedure section 704.740, but this statute does not exempt real property from attachment. In fact, even an individual's principal dwelling may be attached, but only to the extent of the surplus over the total amount of all liens and encumbrances on the homestead at the time the attachment lien is created, plus the amount of the dwelling exemption. See Ahart, Cal. Prac. Guide: Calendar No.: Event ID:  TENTATIVE RULINGS

3054613 CASE NUMBER: CASE TITLE:  CURRY ADVISORS VS BASSFORD [IMAGED]  37-2022-00044860-CU-BC-CTL Enforcing Judgments & Debts (The Rutter Group 2023) at ¶ 4:107 (citing Code Civ. Proc., § 487.025(b)).

Defendant provides no evidence regarding any liens or encumbrances on the subject property; i.e., no evidence regarding whether a surplus attachable amount does not exist.

In addition, to the extent defendant claims an exemption for property or deposit accounts necessary for the support of defendant or his spouse and dependents, a financial statement form is not attached to his claim of exemption. Defendant maintains that this financial statement will be provided at the hearing of this matter. However, this would not provide the Court or plaintiff with the ability to review and address the merits of this financial statement. This is unfair and would violate plaintiff's due process rights.

Finally, a plaintiff must establish 'the probable validity of the claim upon which the attachment is based.' Code Civ. Proc., § 484.090(a)(2). In determining the probable validity of a claim a court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation. Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.

The retainer letter drafted by plaintiff provides as follows: 'Our statements are mailed at the beginning of each month covering a billing period through the end of the previous month. As a general rule, we will deliver our statements and accountings to you within the first ten (10) days of the month following the month in which the services were rendered. Thus, not only will you be able to keep your account current, but you will also be able to stay abreast of the legal expenses involved in our efforts on your behalf.' Curry Declaration, 'Exhibit 1.' Plaintiff breached this provision of the agreement. Plaintiff's 'Exhibit 3' demonstrates that attorney services were billed starting on January 31, throughout February and into March. However, a billing statement was not mailed until sometime after March 17, 2020. Plaintiff neglected to transmit the first two invoices, and the third was transmitted late. As a result, defendant was not able to 'stay abreast of the legal expenses involved.' 'A party complaining of the breach of a contract is not entitled to recover therefor unless he has fulfilled his obligations.' Pry Corp. of America v. Leach (1960) 177 Cal.App.2d 632, 639. Plaintiff's breach prejudiced defendant's ability to question the hours billed, and to terminate the relationship before more hours were billed. Arguably, this is a material breach that forecloses plaintiff's ability to enforce the agreement. As a result, plaintiff has not demonstrated the probable validity of its contract claim and the application is denied on this basis.

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