Judge: Mary H. Strobel, Case: 22STCV06238, Date: 2023-01-24 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 22STCV06238    Hearing Date: January 24, 2023    Dept: 82

            Plaintiff RCB Equities #19, LLC (“Plaintiff”) moves for writs of attachment against Defendants Claremount Capital Partners, LLC (“Claremont”) and Casey Dalton (“Dalton”) (collectively, “Defendants”) in the amounts of $1,499,765.11 and $136,795.82, respectively. 

Claremont’s and Dalton’s Evidentiary Objections to Declarations of Avi Ryzman

(1)  Overruled. 

(2)  Overruled. 

(3)  Sustained. 

(4)  Sustained. 

(5)  Sustained. 

Plaintiff’s Objections to Declaration of Casey Dalton

(1)  – (13) Overruled. 

(14) Sustained as to “As a direct result of RCB’s actions, Claremont Capital has incurred at least the following damages in the following approximate amount of $1,700,000.00 in monies wrongfully paid out to RCB.”  Overruled as to remainder. 

(15)-(21) Overruled. 

Relevant Procedural History

On June 29, 2022, Plaintiff filed the operative, first amended complaint (“FAC”) for breach of contract, breach of implied covenant, and breach of guaranty. 

On July 8, 2022, Claremont filed an answer asserting numerous affirmative defenses.  As relevant to the applications for attachment, the Third Affirmative Defense for Breach of Contract alleges that “Plaintiff breached the Standard Industrial/Commercial Single-Tenant Gross Lease … and as such, Claremont Capital is relieved of its payment obligations, if any, under the Lease.”  Relatedly, the Thirty-Second Affirmative Defense alleges that Plaintiff failed to perform its obligations under the Lease.  (See also Claremont Oppo. 13, citing 7^th, 13^th, 28^th, 32^nd, and 35^th affirmative defenses.) 

On August 3, 2022, Claremont filed a cross-complaint.  On October 3, 2022, the trial court (Judge Richard Fruin) overruled Plaintiff’s demurrer to the cross-claim for breach of commercial lease.  On October 21, 2022, Claremont filed a first-amended cross-complaint with additional allegations for its fraud and UCL causes of action.  (See Claremont Oppo. 10:1-6.)

On September 6, 2022, Plaintiff filed its applications for writ of attachment.  The court has received Defendants’ oppositions and Plaintiff’s reply. 

Plaintiff electronically filed its reply at 12:00 am on December 5, 2022, the day before the hearing.  The reply was due by Friday, December 2, 2022.  (CCP § 484.060.) 

At the hearing on December 6, 2022, the court conferred with counsel regarding counsel for Plaintiff's inability to e-file a reply, due to a planned service interruption which was in effect from 5:00 p.m. Friday, December 2, 2022, p.m. to Sunday, December 4, 2022, at 5:00 p.m.  In light of the service interruption, the court continued the hearing to January 24, 2023, so that the court could consider the reply. 

Summary of Applicable Law

“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.) 

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

“The court’s determinations [for an application for writ of attachment] shall have no effect on the determination of any issues in the action other than issues relevant to proceedings [for attachment]. The court’s determinations under this chapter shall not be given in evidence nor referred to at the trial of any such action.”  (CCP § 484.100.)

Analysis 

1.    Probable Validity of Plaintiff’s Claims

The applications are based on Plaintiff’s causes of action for breach of contract and breach of guaranty.  To establish a claim for breach of contract, a plaintiff must generally prove: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach of the contract; and (4) damages incurred by plaintiff as a result of the breach.  (Durell v. Sharp Healthcare, (2010) 183 Cal.App.4th 1350, 1367.) 

In support of the applications, Plaintiff has submitted declarations of property manager Avi Ryzman to prove its contract claims, and also declarations of Niv Davidovich to support Plaintiff’s estimate of attorney fees.  Ryzman’s declarations include a copy of the lease between Plaintiff and Claremont (“Lease”), the guaranty signed by Dalton (“Guaranty”), and Plaintiff’s “most recent ledger for the Lease/Premises.”  (See Ryzman Decl. Exh. A, B.)  In opposition, Defendants submit a declaration of Dalton, with exhibits, and a declaration of attorney Kevin Connelly, with exhibits. 

“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.)

Plaintiff’s Evidence Supports All Elements of its Contract Claim

Ryzman authenticates the lease entered into between Plaintiff and Defendant Claremont on November 19, 2018 (the "Lease") with respect to commercial real property located at 1538 South Eastern Avenue, Commerce, CA 90040 (the “Premises”).  The Lease term was five years from December 1, 2018, through November 30, 2023.  Ryzman also authenticates the written guaranty of the Lease executed by Dalton (“Guaranty”).  (Ryzman Decl. ¶¶ 2-5, Exh. 1.)  Dalton’s liability under the Guaranty was capped at $100,000.  (Id. ¶ 6.)  Both the Lease and Guaranty include a provision providing for attorney’s fees to the prevailing party in an action to enforce the contract.  (Id. Exh. 1.) 

As noted in opposition (see Oppo. 11:13-14), Ryzman’s declarations do not include any express statement that Plaintiff performed its obligations under the Lease or was excused from performance.  However, Ryzman declares that “Defendants took possession on or about December 1, 2018.”  (Ryzman Decl. ¶ 4.)  Ryzman also declares that Defendants paid rent on the Lease for several years and that Claremont vacated the premises on or about May 30, 2022.  Defendants corroborate that evidence.  (Id. ¶ 10; see Dalton Decl. ¶¶ 3-20.)  Delivering possession of the Premises to Defendants was Plaintiff’s primary obligation under the Lease and Guaranty.  While Defendants contend that Plaintiff subsequently breached certain terms of the Lease, causing them damages, Defendants nonetheless remained in possession for a substantial portion of the five-year term.  “ If the tenant elects to remain in possession, his obligation to pay rent continues unless the landlord has breached some other express or implied covenant which the covenant to pay rent is dependent upon.“  (Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 847.)  In these circumstances, Plaintiff made a sufficient showing of its performance of the Lease with evidence that it delivered possession, and that Defendants paid rent and remained in possession for several years.

Plaintiff also submits evidence of Defendants’ breach and Plaintiff’s damages.  Specifically, Ryzman declares: “Defendant began to fail to pay the full amount of monthly Rent due under the terms of the Lease beginning on or about April 1, 2021 and continuing through September 2021, leaving a balance owed of $1,123.77 for each of six months. Defendant failed to pay any rent beginning October 2021 through May 2022 and thereafter surrendered possession on or about May 30, 2022. Defendants failed to tender any amount due through May 30, 2022 and owed at that time rent in the amount of $315,607.42, plus Additional Rent for Insurance, property taxes and late fees totaling $48,780.77. With Defendant’s Additional Rent, Defendant owed $364,388.19 at the time they surrendered possession.”  (Ryzman Decl. ¶ 8; see also Id. ¶ 13 [calculating late charges] and Exh. 2 [ledger showing $364,388.19 in unpaid rent and charges].) 

Plaintiff also requests future rent through the end of the Lease term of $729,631.91.  (Ryzman Decl. ¶ 15.)  Ryzman supports that calculation of future rent.  Specifically, he declares that Defendants surrendered possession on May 30, 2022, the Lease term ran through November 30, 2023, and monthly rent was $39,740.30 through November 30, 2022, and $40,932.50 thereafter.  (Ryzman Decl. ¶¶ 4, 8-10.)

Plaintiff submits a reasonable estimate of its attorneys’ fees and costs for this action in the amount of $36,795.82.  (Davidovich Decl. ¶¶ 1-6 and Exh. 3.)  The Lease and Guaranty include an attorneys’ fee provision, which states in part: “The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys' fees reasonably incurred.” (Ryzman Decl. Exh. 1 at ¶ 31 and attached guaranty.)  Given this provision and Plaintiff’s evidence its fee estimate is reasonable, the court rejects Defendants’ contention that fees should be calculated pursuant to the court’s fee schedule.  (Claremont Oppo. 15.) 

            Defendants contend that a chart in Ryzman’s declaration and the motion miscalculated the amount of damages.  (Claremont Oppo. 14.)  In reply, Plaintiff acknowledges that the chart was inaccurate: it stated a total attachment of $1,499,765.11, but the figures totaled only to $1,130,815.92.  Plaintiff represents in reply that attachment is sought only for $1,130,815.92.  (Reply 9.)  The line-item damages described in Ryzman’s declaration add up to $1,130,815.92.  (See Ryzman Decl. ¶¶ 10-15 [$364,388.19 + $729,631.91 + $36,795.82].)  Plaintiff has shown a probably valid claim for damages in that amount.  The incorrect reference to damages of $1,499,765.11 in the chart was not prejudicial to Defendants and does not support denial of the motion.

Based on the foregoing, Plaintiff submits evidence supporting probably valid claims for breach of the Lease against Defendant Claremont in the amount of $1,130,815.92, and breach of Guaranty against Dalton in the amount of $136,795.82 ($100,000 + $36,795.82 in fees).  In opposition, Defendants contend that this amount should be entirely offset as a result of Plaintiff’s alleged material breach of the Lease and other affirmative defenses.  The court addresses those contentions below.

Defendants’ Affirmative Defenses and Claims for Offset

Defendants submit the declaration of Dalton, and argue that Plaintiff did not perform certain obligations of the Lease.  Defendants claim the premises included unpermitted sheds which the city required them to remove, substantially reducing the square footage available for their operations.  Defendants also contend there were certain structural defects in the roof and walls.  Defendants argue that Plaintiff’s non-performance resulted in a material breach, excusing Defendants from performance and causing Defendants damages of $1,700,000, which would entirely offset the attachment sought by Plaintiff.  (See Dalton Decl. ¶¶ 5-28, Exh. 2-8; Claremont Oppo. 10-18.)  However, other than a conclusory statement in Dalton’s declaration, Defendants have not supported their claim that these breaches caused them damages of $1,700,000.

“[T]o sustain reduction in a writ amount, most courts require that the defendant provide enough evidence about its counterclaims and/or defenses to prove a prima facie case [for attachment against Plaintiff].”  (Ahart, California Practice Guide: Enforcing Judgments and Debts, ¶ 4:64 (1998 rev.).)  Defendant has the burden of proof to satisfy the requirements of attachment for any offset claim.  (See CCP § 483.015 and Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.)  Because Defendants have not provided sufficient evidence that they were damaged by any breach in any specific amount, Defendants do not prove that the attachment should be reduced.

Given that Defendants do not present sufficient evidence of damages to reduce the attachment, it is unnecessary for the court to decide other aspects of Defendants’ affirmative defenses and claims for offset.  Nonetheless, for purposes of oral argument, the court provides the following additional analysis of those issues.

Unpermitted Improvements

Defendants contend that Plaintiff “knowingly made and/or maintained unpermitted improvements at the Premises that do not comply with the applicable building codes and/or zoning laws before Claremont Capital executed the Lease,” and that Plaintiff did not remedy these issues upon demand.  Defendants contend that this violated paragraph 2.3 of the Lease and also reduced the square footage Defendants expected to receive pursuant to the Lease terms.  (Claremont Oppo. 11-12, 13.) 

Paragraph 2.3 states, in pertinent part: “Lessor warrants that to the best of its knowledge the improvements on the Premises comply with the building codes, applicable laws, covenants or restrictions of record, regulations, and ordinances (‘Applicable Requirements’) that were in effect at the time that each improvement, or portion thereof, was constructed…. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same at Lessor’s expense. If Lessee does not give Lessor written notice of a non-compliance with this warranty within 6 months following the Start Date, correction of that non-compliance shall be the obligation of lessee at Lessee’s sole cost and expense.”

Dalton declares that “the Premises featured unpermitted and illegal sheds located along the northern face of the Premises,” and that “City of Commerce required these unpermitted and illegal portions be remedied in order for Claremont Capital to complete the necessary and planned improvements.”  (Dalton Decl. ¶¶ 12-13, 28.)  She declares that Defendants informed Ryzman of these issues on June 17, 2020, and August 4, 2020, and Plaintiff “did not cooperate to remedy the unpermitted portions of the Premises which prevented Claremont Capital from being able to fully obtain or operate all four use (4) permits, thus significantly harming its business.”  (Id. ¶¶ 14-16.)

The warranty in Paragraph 2.3 is made “to the best of [Lessor’s] knowledge.”  In reply, Plaintiff contends that there is no evidence in the opposition that Plaintiff knew the sheds were unpermitted and not built to code.  (Reply 5.)  Dalton declares that “RCB knowingly made and/or maintained unpermitted improvements at the Premises that do not comply with the applicable building codes and/or zoning laws before Claremont Capital executed the Lease.”  (Dalton Decl. ¶ 12.)  However, she provides no foundational facts for that assertion or direct evidence that Plaintiff knew of the alleged non-compliance with City’s codes.  Nor do Defendants develop a persuasive argument that knowledge should be inferred from the circumstances. 

Moreover, pursuant to paragraph 2.3, Defendants were required to give Plaintiff “written notice of a non-compliance with this warranty within 6 months following the Start Date,” which was December 1, 2018.  Defendants admittedly did not give notice until June 2020, more than six months later.  Accordingly, pursuant paragraph 2.3, “correction of that non-compliance shall be the obligation of lessee at Lessee’s sole cost and expense.”  Defendants acknowledged this Lease term in an email to Ryzman dated August 4, 2020.  (Dalton Decl. Exh. 4.)

For these reasons, in addition to the insufficient evidence of damages, Defendants do not show a probably valid defense or claim for offset based on the unpermitted improvements.

Roof and Bearing Walls

Defendants contend that Plaintiff breached paragraphs 2.2, 7.1, and 7.2 of the Lease when Defendants notified Plaintiff of alleged leaks in the roof and from the Premises’ bearing walls, and Plaintiff “made no repairs.”  (Claremont Oppo; see also Dalton Decl. ¶¶ 17-19, Exh. 5-6.) 

Paragraph 7.2 of the Lease states that “it is intended by the Parties hereto that Lessor have no obligation, in any manner whatsoever, to repair and maintain the Premises, or the equipment therein, all of which obligations are intended to be that of the Lessee, except for the surface and structural elements of the roof, foundations and bearing walls, the repair of which shall be the responsibility of Lessor upon receipt of written notice that such a repair is necessary.” 

Dalton declares that “the bearing walls at the Premises leaked” and that, on March 10, 2021, Defendants “emailed Avi Ryzman attaching a photograph of the parking lot of the Premises showing a large pool of water due to leaks from the Premises’ bearing walls.”  (Dalton Decl. ¶ 17, Exh. 5.)  She further declares that, on March 22, 2021, she “emailed RCB relaying that the roof was leaking in multiple areas, and that there could be damage after a prior storm, thus evidencing the roof leaked on prior occasions. However, RCB did not repair the roof.”  (Id. ¶ 18, Exh. 6.)  Despite the alleged leaks, Defendants remained in possession until May 30, 2022.

As Plaintiff argues in reply, Defendants’ evidence of defects in the bearing walls or roof is minimal.  Dalton does not provide any foundational facts for her assertions that the bearing walls or roofs leaked, and the picture she submits of puddles in the parking lot is not evidence that leaks in the bearing walls or roof caused the puddles.  (Dalton Exh. 5.)  In future proceedings, Defendants may be able to submit additional evidence that the bearing walls and roofs needed to be repaired.  However, they have not submitted sufficient evidence to support that claim in this application. 

Even if Defendants can show that Plaintiff breached its duty of repair in paragraph 7.2, Defendants needed to show that the breach was material.  Only a material breach of a lease is sufficient to allow the other party to suspend or be excused from its performance under the contract. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277.)  Whether a partial breach of a contract is material depends on “the importance or seriousness thereof and the probability of the injured party getting substantial performance.”  (Ibid.) 

Defendants do not develop an argument that the alleged breaches of paragraph 7.2 were sufficiently material to excuse Defendants’ performance.  As noted, Defendants remained in possession for more than a year after noticing the alleged leaks, which weighs against a finding of materiality.  Furthermore, as analyzed above, Defendants do not provide sufficient evidence of damages for the alleged breach.  For these reasons, Defendants do not show a probably valid defense or claim for offset based on alleged defects in the bearing walls and roof.

Other Affirmative Defenses

Defendants summarize several of their affirmative defenses and contend that the defenses defeat Plaintiff’s probably valid claims.  (Oppo. 12-13.)  For the most part, these affirmative defenses are derivative of the arguments regarding Plaintiff’s performance of the Lease or alleged breach of paragraphs 2.2, 2.3, and 7.2, which are fully analyzed above.

Defendants also contend that Plaintiff “has not provided any evidence that it has taken efforts to lease the Premises once Claremont Capital vacated the Premises.”  (Oppo. 13.)  Defendants also contend that they rescinded the Lease and therefore Plaintiff cannot claim unpaid rent after May 2022.  (Ibid.)  Defendants fail to develop either point and have waived them for purposes of this application.  (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)   Notably, Defendants do not address the “Remedies” provision of the Lease at paragraph 13.2, which authorizes the landlord to recover rent for the “balance of the term” and places the burden on the Lessee to prove that rental loss could have been “reasonably avoided.”   

For these additional reasons, Defendants do not show a probably valid defense or claim for offset based on the affirmative defenses discussed in opposition. 

Security Deposit

Defendants contend that “[t]he amount sought by the Writ may … be offset by at least $72,736.00 because RCB has never returned the Security Deposit to Claremont Capital.”  (Claremont Oppo. 18.)  Plaintiff does not respond in reply.  (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) 

The amount to be secured by attachment may be reduced by “[t]he value of any security interest in the property of the defendant held by the plaintiff to secure the defendant’s indebtedness claimed by the plaintiff” and also the amount of any indebtedness of the plaintiff to the defendant claimed in a cross-complaint.  (CCP § 483.015(b)(2) and (4).) 

In the cross-complaint, Defendants allege that Plaintiff failed to return the security deposit of $72,736.  (FACC ¶ 27.)  Defendants submit evidence to support this allegation.  (Dalton Decl. ¶ 8, Exh. 1 [paragraph 16 required security deposit of $72,736] and ¶ 21 [“RCB has not returned the Security Deposit to me or Claremont Capital”].)  Plaintiff has not identified any justification separate from non-payment of rent for withholding the security deposit, such as damages to the Premises.  Accordingly, the amount of attachment against Claremont (the lessee) must be reduced by $72,736.  Because liability under the lease still exceeds $100,000, the security deposit does not change the amount of attachment against Dalton. 

Based on the foregoing, Plaintiff submits evidence supporting probably valid claims for breach of the Lease against Defendant Claremont in the amount of $1,130,815.92, and breach of Guaranty against Dalton in the amount of $136,795.82.  The amount of Claremont’s liability is reduced by the value of Defendants’ security deposit, to $1,058,079.92.  Defendants have not shown that the amount of attachment should be reduced by any other defense or claim for offset. 

2.    Basis of Attachment

“[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).)  “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….”  (CCP § 483.010(b).)  “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.  (§ 483.010(c); see Advance Transformer co. v. Sup.Ct. (1974) 44 Cal.App.3d 127, 143-144.)

Here, Plaintiff’s application for writ of attachment is based on a lease and guaranty where the total amount allegedly due is in excess of $500.  The lease and guaranty are not secured by real property.  Dalton executed the guaranty as part of her trade, business, or profession.  (See e.g. Dalton Decl. ¶¶ 1-10.)

The lease provides standards under which Plaintiff’s damages can be calculated and ascertained with proof.  As discussed above, Plaintiff submits evidence from which its damages are fixed and readily ascertained. 

3.    Purpose and Amount of Attachment

Code of Civil Procedure section 484.090 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.”

Plaintiff declares, and the court finds, that attachment is not sought for a purpose other than the recovery on Plaintiff’s claim.  (Appl. ¶ 4.)  The amount to be secured is greater than zero.

4.    Reduction of Amount to be Secured Based on Offset Claims or Affirmative Defenses

Code of Civil Procedure section 483.015(b) provides that the amount to be secured by the attachment shall be reduced by, inter alia:  “(2) The amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant’s claim is one upon which an attachment could be issued.”

“[T]o sustain reduction in a writ amount, most courts require that the defendant provide enough evidence about its counterclaims and/or defenses to prove a prima facie case [for attachment against Plaintiff].”  (Ahart, California Practice Guide: Enforcing Judgments and Debts, ¶ 4:64 (1998 rev.).)  Defendant has the burden of proof to satisfy the requirements of attachment for any offset claim.  (See CCP § 483.015 and Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.)  

Defendants seek to reduce the amount of attachment based on their cross-claims and claims for offset.  (Claremont Oppo. 12-18.)  As discussed above, and with the exception of the security deposit claim, Defendants have not satisfied all elements of attachment for their cross-claims, including with evidence they were damaged in a specific amount. 

5.    Subject Property

Plaintiff requests attachment against Defendant Dalton, a natural person, of items listed in CCP § 487.010(c) and (d), including interests in real property.  (Application ¶ 9c.)  That request is proper. 

Code of Civil Procedure section 487.010(a) provides that “[w]here the defendant is a corporation, all corporate property for which a method of levy is provided” is subject to attachment.   Thus, the request for attachment of all of Claremont’s property is appropriate.  (Application ¶ 9c.) 

6.    Exemptions

“If a defendant filing a notice of opposition desires to make any claim of exemption as provided in Section 484.070, the defendant may include that claim in the notice of opposition filed pursuant to this section.”  (CCP § 484.060(b).)  A claim of exemption must describe the property to be exempted and specify the statute section supporting the claim.  (§ 484.070(c).)  “The claim of exemption shall be accompanied by an affidavit supporting any factual issues raised by the claim and points and authorities supporting any legal issues raised.”  (§ 484.070(d).)

The plaintiff must oppose any claim of exemption filed by the defendant by filing a “notice of opposition” not less than two days before the hearing.  (CCP § 484.070(f).)  “If the plaintiff does not file and serve a notice of opposition as provided in this subdivision, no writ of attachment shall be issued as to the property claimed to be exempt.”  (Ibid.; see also Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270.) 

Here, Dalton timely filed claims of exemptions with respect to household furnishings, jewelry, a 2018 Cadillac Escalade, and funds in her and her husband’s bank accounts.  Dalton also claimed that real property located at 17800 Rayen Street, Sherwood Forest, California, 91325, is not subject to attachment in the amount of $1,145,292 pursuant to the homestead exemption.  While Plaintiff objected to some of Dalton’s evidence in support of the exemptions, Plaintiff did not file a “Notice of Opposition” as required by CCP section 484.070(f).   Accordingly, no writ of attachment may be issued as to any of the property Dalton claimed to be exempt. 

7.    Undertaking

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.  Neither party argues for a different amount of undertaking. 

8.    Turnover Order  

Plaintiff seeks a turnover order.  (See Proposed Order ¶ 3.d.)  “If a writ of attachment is issued, the court may also issue an order directing the defendant to transfer to the levying officer either or both of the following: [¶] (1) Possession of the property to be attached if the property is sought to be attached by taking it into custody. [¶] (2) Possession of documentary evidence of title to property of or a debt owed to the defendant that is sought to be attached.”  (CCP § 482.080.) 

            Plaintiff has not shown the applicability of this section to its attachment request or briefed the necessity of this additional remedy. The request for a turnover order is denied.

Conclusion

The applications for writ of attachment are GRANTED in the reduced amount of $1,058,079.92 against Claremont, and for the $136,795.82 requested against Dalton.   The request for a turnover order is denied.  Plaintiff to post an undertaking of $10,000 with respect to each defendant. 

Dalton’s claims of exemption are GRANTED. No writ of attachment may be issued as to all property Dalton claimed to be exempt in her claim of exemption filed November 29, 2022.  (CCP § 484.070(f).) 

Plaintiff is ordered to lodge a revised order consistent with this decision.