Judge: Mark H. Epstein, Case: 22SMCV00685, Date: 2023-04-18 Tentative Ruling

Case Number: 22SMCV00685    Hearing Date: April 18, 2023    Dept: R

The application for a writ of attachment is GRANTED in the amount prayed. 

Essentially, plaintiff contends that it was a broker representing the tenants in a deal to rent space from defendant landlord.  Exhibit A to the complaint is a straightforward and short agreement, signed by both parties, stating that in the event that a particular tenant signs with the landlord, plaintiff will receive a commission.  Plaintiff alleges that the tenant in question did sign a lease, and that lease is also attached to the complaint.  However, defendant refuses to pay the commission.  Surprisingly, none of these facts is disputed.

In opposition, the landlord claims that the contract is invalid for want of consideration.  While it is true that the written contract does not specify the consideration, consideration for a written contract is presumed.  Nor is it difficult for the court to infer that the consideration is that plaintiff would endeavor to get the specified entity to enter into a lease (after all, plaintiff would be entitled to nothing from the contract absent a signed lease).  There is certainly no evidence in the record that would rebut the presumption of consideration.

Defendant also claims that plaintiff represented that it would be the landlord’s broker, and thus owed the landlord fiduciary duties that plaintiff breached.  Other than defendant’s conclusory say-so, there is no evidence to support the claim.  (In an attachment proceeding, unlike summary judgment, the court may weigh the evidence.)  Plaintiff alleges that it represents only tenants as a business model precisely to avoid conflicts of interest like the one asserted.  The court has no reason to doubt it (and plaintiff’s name sort of says the same).  The lease also identifies the tenant’s brokers as “Mintz,” whom the court presumes (but will verify) are associated with plaintiff; nothing is said about the landlord’s brokers (and plaintiff is certainly not identified as such).  In short, the court gives no weight to defendant’s unsupported declaration that plaintiff claimed that it would represent the landlord. 

Defendant also declares that he provided plaintiff with trade secret information that plaintiff misused.  But the assertion is so vague that the court can not give it weight.  The court agrees that defendant need not spread the trade secret in the public record.  But at least a little hint as to what kind of trade secret might have been disclosed would be helpful.  And defendant also needs to state how plaintiff allegedly mis-used the trade secret.  Further, none of that is really a defense to a breach of contract.  It might be a cross-action (although there is no cross-complaint filed in this case) or perhaps an affirmative defense (in the set-off sense), but there would have to be more information to give such an argument any heft.

Finally, defendant states that plaintiff actually used its influence to convince the tenant who previously leased the space to move.  That might well be the case—plaintiff does not really deny it.  But even if that is the case, the court does not see how that defeats plaintiff’s claim here.  True, if defendant’s assertion has merit it might be an offset to the extent that there is some duty owed by plaintiff to defendant, and the court would consider such an offset in deciding whether to grant the writ and the amount thereof.  But far more detail is needed than has been provided that would show that a tenant’s broker has some affirmative duty to the landlord to put the landlord’s interest above that of the tenant and the extent of any harm that might have caused. 

In short, then, the court finds that this is a contract action, the amount sought is a sum certain, that it is not zero, that the writ is not being sought for an improper purpose, and that plaintiff is more likely than not to prevail.  Accordingly, the application is GRANTED.  Bond is $10,000.