Judge Lee W. Tsao, Case Number: 23NWCV02516, Date: 2024-01-02 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV02516, Date: 2024-01-02 Tentative Ruling

Case Number: 23NWCV02516 Hearing Date: January 30, 2024 Dept: C

CNNA, LLC vs Steven J. Hoffman

Case No.: 23NWCV02516

Hearing Date: January 30, 2024 @ 10:30 AM

Tentative Ruling

Plaintiff CNNA, LLC’s motion for writ of attachment is GRANTED.

Plaintiff to post an undertaking of $10,000.

Plaintiff to give notice.

Background

The Complaint was filed on August 10, 2023. This is a collections case by former-landlord/Plaintiff CNNA, LLC (“Plaintiff”) against tenant/Defendant STEVEN J. HOFFMAN (“Defendant”). Defendant was a tenant of the premises Plaintiff used to own and sold to a third party in October 2022. Under the agreement between Plaintiff and the third-party buyer, Plaintiff was to collect unpaid rents from Defendant until the month of October 2022. (Chang Decl. ¶ 5-6; Ex. A.)

Plaintiff engaged an attorney in or around March 2023, and on March 16, 2023, Defendant promised that he would pay the sum on or before April 12, 2023, or he would be liable for twelve (12) percent interest. However, Defendant was unable to obtain the loan necessary to keep his promise. The current balance for unpaid rent is in the sum of $34,975.00. Plaintiff also argues that Defendant is liable for attorneys’ fees, costs, and interest for the unpaid balance at the rate of twelve (12) percent. (Chang Decl. ¶ 10; Ex. B and D.)

On November 27, 2024, Plaintiff filed a motion for issuance of a writ of attachment.

On January 2, 2024, this Court continued the hearing for the instant motion to allow Plaintiff to produce original contract between parties that would indicate whether Defendant signed a valid lease and if the right to attorney fees was included in the contract.

As of January 29, 2024 this motion is unopposed.

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.)

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 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.)

In determining the probable validity of a claim where the defendant makes an appearance, 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.” (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)

At the times prescribed by CCP section 1005(b), the defendant must be served with summons and complaint, notice of application and hearing, and the application and supporting evidence. (CCP § 484.040.)

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

Discussion

The application is based on claims for unpaid rents totaling $34,975.00. On March 16, 2023, Defendant promised to pay the sum of the unpaid rent on or before April 12, 2023, or he would be liable for 12 percent interest. Plaintiff’s attorneys’ fees and costs are also recoverable under the lease agreement, and Plaintiff requests that the cost for the attachment would exceed $10,000.00, and the attorneys’ fees will exceed $30,000.00. (Lee Decl. ¶ 11.)

Here, the Court is persuaded that the claim is one the attachment may be issued. 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).) Here, there is a contract for rent of a commercial property.

Given the supplemental evidence, the Court is persuaded that Plaintiff has established the probable validity of the claim. The Court notes that Defendant in email correspondence indicates that he believes a rent is owed. Plaintiff also attaches to the Chang Declaration, as Exhibit B, an invoice for the owed rent which shows a balance of $34,975.00. The supplemental briefings filed on January 5, 2024, show an original contract between parties that indicates Defendant signed a valid lease with Plaintiff. (Chang Decl., Ex. H.) Paragraph 17 of said contract indicates that the prevailing party has the right to attorney fees. (Chang Decl., Ex. H ¶ 17.)

The Court is also persuaded that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

Further, the amount to be secured by the attachment is $74,975.00, which is greater than zero.

Accordingly, Plaintiff’s motion is GRANTED.

Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. Code of Civil Procedure section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000. The parties have not argued that a different amount of undertaking should be required.