Judge: Mary H. Strobel, Case: 22STCV06238, Date: 2023-04-04 Tentative Ruling

Case Number: 22STCV06238    Hearing Date: April 4, 2023    Dept: 82

            Defendants Claremont Capital Partners, LLC (“Claremont”) and Casey Dalton (“Dalton”) (collectively, “Defendants”) move for reconsideration of this court’s order  granting writs of attachment in favor of Plaintiff RCB Equities #19, LLC (“Plaintiff”) in the amounts of $1,058,079.92 against Claremont and $136,795.82 against Dalton.  Defendants also request “the Court clarify the assignment of costs as to Defendant Casey Dalton.” 

Judicial Notice

Plaintiff’s Request for Judicial Notice (“RJN”) Exhibits 1-17 – Granted.  (Evid. Code § 452(b), (c), (d), (h).

Defendants’ objections to the RJN are all overruled.  The court records, which relate to the applications for attachment for which Defendants seek reconsideration, are subject to judicial notice and are relevant.  Defendants do not object to any specific evidence as hearsay.  Admissions made by Defendants in their pleadings may be considered for their truth.  Ordinance No. 716 is relevant to Defendants’ arguments in the motion for reconsideration and subject to judicial notice.

Plaintiff’s Evidentiary Objections

Declaration of Kevin J. Connelly

1 -2 Sustained

3-5 Overruled

Declaration of Casey Dalton

6-14 Overruled

Declaration of Viviana Esparza

(15)-(16) Overruled. 

Declaration of Ralph Vivero

(17)-(21) Overruled. 

Supplemental Declaration of Kevin J. Connelly

22-26 Overruled

Defendants’ Evidentiary Objections

Declaration of Avi Ryzman

Sustained: 1, 3, second sentence of 15, 3^rd sentence of 20

Overruled:  Remainder

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. 

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. 

On September 6, 2022, Plaintiff filed its applications for writ of attachment.  The court 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, and was untimely.  (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 occurred on 5:00 p.m. Friday, December 2, 2022, p.m. to Sunday, December 4, 2022, at 5:00 p.m.  The court continued the hearing to January 24, 2023, so that the court could consider the reply.  The court ordered no further papers to be filed. 

On January 24, 2023, after a hearing, the court granted Plaintiff’s applications for writs of attachment.  The court’s minute order dated January 24, 2023, is not repeated here but incorporated by reference (hereafter “Ruling”). 

On February 3, 2023, Defendants filed and served the instant motion for reconsideration.  The court has received Plaintiff’s opposition and Defendants’ reply. 

Analysis 

Legal Standard

Code of Civil Procedure section 1008 governs applications to reconsider and provides, in relevant part:

(a)  When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

….[¶]

(e) This section specifies the court's jurisdiction.... No application to reconsider any order … may be considered by any judge or court unless made according to this section.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law’ which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. . . .A motion for reconsideration will be denied absent a strong showing of diligence.”  (Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202.)

“A trial court may not grant a party’s motion for reconsideration that does not comply with section 1008.’”  (Cox v. Bonni (2018) 30 Cal.App.5th 287, 312.)

No Grounds for Reconsideration

Plaintiff contends that Defendants have not presented any new facts, circumstances, or law that justify reconsideration, and that Defendants do not satisfy the reasonable diligence requirement.  (Oppo. 9-18.)  The court agrees on both points. 

When a motion for reconsideration is based on alleged new or different facts, it is not sufficient for the moving party merely to adduce facts not previously presented to the court.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690.) Facts that were known to a party at the time of the hearing or ruling on the order sought to be reconsidered, by their very nature, are not “new” or “different.”  (Id. at 690.) Furthermore, that party must show that diligence was used in uncovering all pertinent facts before the original motion was made.  (Forrest v. State of California Dept. of Corporations (2007) 150 Cal.App.4th 183, 202, disapproved of on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164.) This diligence requirement also applies to motions on the basis of different law and is not satisfied where the moving party presents a legal principle based on a case that was available and could have been provided to the trial court prior to the initial ruling.  (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1196-1197.)

            Defendants identify the new or different facts justifying reconsideration, as follows: (1) “On January 10, 2023, RCB’s counsel admitted RCB has been unable to re-let the Premises”; and (2) “Defendants discovered on January 10, 2023, that the City of Commerce initiated a Code Enforcement Case against the Premises Defendants leased from RCB for the unpermitted structures Defendants repeatedly requested RCB remedy, which RCB did not.”  (Mot. 2.)  Defendants contend that “[t]hese new facts—which were discovered after Defendants filed their Oppositions to the Writs on November 29, 2022, and after the initial hearing set for December 6, 2022—demonstrates RCB has failed to mitigate its damages, which means RCB did not show its damages were fixed or readily ascertainable.”  (Mot. 2; see Connelly Decl. ¶ 3.)  Defendants also contend that the Code Enforcement Case, among other evidence, is relevant to “show that RCB breached the implied covenant of good faith and fair dealing.”  (Mot. 2.) 

January 10, 2023, Admission of Plaintiff’s Counsel Is Not a New or Different Fact

In the applications for attachment, Plaintiff sought to attach “future rent through the end of the Lease term of $729,631.91.”  (Ruling at 6.)  Plaintiff thereby admitted in the applications that it had not re-let the Premises.  (See also RJN Exh. 7 [Ryzman Decl.] ¶¶ 4, 8, 22.)  The admission of Plaintiff’s counsel on January 10, 2023, that Plaintiff had not re-let the Premises was not a new or different fact within the meaning of CCP section 1008.  Further, with reasonable diligence, Defendants could have learned that Plaintiff had not re-let the Premises in time to include such evidence in their oppositions to the applications for writ of attachment. 

The Code Enforcement Case Is Not a New or Different Fact; and Defendants Do Not Show Reasonable Diligence

In his moving declaration, Defendants’ attorney, Kevin Connelly, states: “Defendants discovered the Code Enforcement Case for the first time on January 10, 2023. Defendants vacated the Premises on May 30, 2022, and therefore had no reason to know about the Code Enforcement Case, which was initiated on July 21, 2022.”  (Connelly Decl. ¶ 3.)  Thus, Defendants admit the Code Enforcement Case was initiated about two months before Plaintiff filed the applications for attachment on September 6, 2022, and more than four months Defendants filed their oppositions on November 29, 2022. 

Connelly asserts that Defendants had no reason to know of the Code Enforcement Case because they vacated the Premises on May 30, 2022.  However, Defendants contend that the Code Enforcement Case is relevant to their defense for failure to mitigate damages.  (Mot. 2.)  Under the Lease and California law, Defendants have the burden to prove that Plaintiff failed to mitigate its damages.  (Dalton Decl. Exh. 1 ¶ 13.2 [Remedies]; Polster, Ins. v. Swing (1985) 164 Cal.App.3d 427, 433.)  Defendant Claremont’s answer, filed July 8, 2022, alleges failure to mitigate damages as a defense.  Dalton’s answer also alleges that defense.  In their opposition to the applications for writ of attachment, Defendants argued that “RCB has not provided any evidence that it has taken efforts to lease the Premises once Claremont Capital vacated the Premises.”  (RJN Exh. 8 at 13.)  In its ruling, the court found that Defendants “fail to develop [the] point” and “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.’”  (Ruling at 10.)

As Defendants acknowledge, the Code Enforcement Case is a matter of public record.  (See Peiffer Decl. ¶¶ 3-9.)  Further, in her declaration for this motion, Defendant Dalton admits that City discovered the unpermitted structures on the Premises in February 2020 and that she was in regular communication with City and Plaintiff concerning the issue.  (Dalton Decl. ¶¶ 9-17.)  “On June 17, 2020 at 3:12 P.M., [Dalton] emailed Avi Ryzman informing him that the City of Commerce would not allow the unpermitted structures to remain.”  (Id. ¶ 13.)  Dalton declares that 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.”  (Id. ¶ 17.)  This evidence shows that Defendants had compelling reasons to investigate their defense for failure to mitigate damages, including any City code enforcement related to the unpermitted structures that would prevent Plaintiff from re-letting the Premises, well before their oppositions to the application for writ of attachment were filed on November 29, 2022.

 In his moving declaration, attorney Connelly provides no evidence that Defendants could not, with the exercise of reasonable diligence, discover the Code Enforcement Case prior to November 29, 2022.  Neither does law clerk Bailey Peiffer.  She merely declares, without elaboration, that “[o]n or about December 14, 2022, Kevin J. Connelly, Esq. of Buchalter, instructed me to travel to the City of Commerce’s City Hall to request the permit file and any code enforcement documents regarding” the Premises.  (Peiffer Decl. ¶ 2.) 

In his reply declaration, attorney Connelly declares: “As part of my continuing investigative efforts into this case, and given that trial was not scheduled until August 7, 2023, I first recognized in early December 2022, that attempting to inquire with the City of Commerce about any Code Enforcement Case or ‘red-tagging’ could be beneficial for this case’s development. This was the reason why the Code Enforcement Case was not discovered before Defendants filed their Oppositions to RCB’s Applications for Right to Attach Orders and Writs of Attachment on November 29, 2022.”  (Suppl. Connelly Decl. ¶ 7.)

“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Pursuant to CCP section 1008(a), the party seeking reconsideration “shall” provide an affidavit explaining the basis for reconsideration.  Defendants do not show good cause to present new evidence in reply concerning the reasons they could not discover the Code Enforcement Case in time to include it in their oppositions.  Thus, paragraph 7 of Connelly’s reply declaration is improper.  Further, even if considered, Connelly’s reply declaration does not show reasonable diligence.  As noted, Defendants had the initial burden to prove a viable defense for failure to mitigate damages in opposition to the applications for writ of attachment.  Connelly does not explain whether he conducted investigation of that defense defense prior to November 29, 2022.  If Defendants did conduct that investigation, Connelly does not explain why, in the exercise of reasonable diligence, he would not have inquired about City’s code enforcement given the unpermitted structures.  If Defendants did not conduct any investigation of the defense prior to November 29, 2022, that would also show a lack of reasonable diligence.

In reply, Defendants argue that this case is similar to Mink v. Superior Court (1992) 2 Cal.App.4th 1338.  (Reply 3-5.)  The court disagrees.  In Mink, the defendant moved for summary adjudication on the grounds that the statute of limitations had run on January 17, 1987, three days before the complaint was filed.  The trial court granted the motion.  Plaintiffs moved for reconsideration because, after summary adjudication was granted, Plaintiffs’ attorney “discovered that January 17, 1987, was a Saturday, and the following Monday, January 19, was a court holiday in celebration of Martin Luther King, Jr.'s Birthday.”  (Id. at 1342.)  “As a result, the last day to file suit was Tuesday, January 20, 1987, the date it was filed.”  (Ibid.)  The Court of Appeal concluded that these facts were new and that the reasonable diligence requirement was met.  The Court reasoned:

The focus of the summary adjudication motion was the date which triggered the statute. All of the parties were operating under the assumption that if the statute was triggered on the date the city conducted its final inspection, January 17, 1977, it ran on January 17, 1987. We assume the summary adjudication motion was brought in good faith and that Arnel also inadvertently overlooked the intervening weekend and court holiday when it represented to the court that the statute of limitations ran on January 17, 1987. Arnel is in no position to argue that the same mistake, when made by its adversary, is inexcusable…. Both parties should have simply acknowledged their mutual error and Arnel conceded the statute had not run. There was an adequate excuse for not discovering the new facts and the trial court abused its discretion.

Furthermore, as a matter of law the new facts presented were sufficient to require the trial court to reconsider its ruling on the summary adjudication motion and ultimately to revoke its prior order. Regardless of the adequacy of counsel's excuse for not discovering the true facts earlier, the effect of the trial court's ruling was to dismiss Mink and Wentworth's potentially meritorious causes of action as barred by the statute of limitations even though the statute had not run. Such a ruling does nothing to advance the interests of justice.

(Id. at 1342-43.)

The instant case is not similar to Mink.  Defendants and their attorney did not make a mistake in the calculation of a statute of limitations.  Nor did Plaintiff or their attorney make a similarly incorrect assumption concerning a legal or fact issue.  Rather, Defendants failed to discover a matter of public record, the Code Enforcement Case, which they now contend is relevant to a defense they raised in opposition the application for writ of attachment.  Defendants had compelling reasons to investigate whether City initiated code enforcement, as analyzed above. 

In these circumstances, the court finds that Defendants and their attorneys did not act with reasonable diligence when they did not investigate and discover the Code Enforcement Case in time to submit such evidence with their oppositions filed November 29, 2022.  Accordingly, reconsideration based on such evidence is not permitted by CCP section 1008.

The Declarations of Casey Dalton, Viviana Esparza, and Ralph Vivero Are Not New or Different Facts; and Defendants Do Not Show Reasonable Diligence

Defendants also argue that “the Declarations of Defendant Casey Dalton, Viviana Esparza, Ralph Vivero, which clarify underlying facts, show that RCB breached the implied covenant of good faith and fair dealing.”  (Mot. 2 [bold italics added].)  This evidence is not “new or different” and Defendants do not satisfy the reasonable diligence requirement. 

In its cross-complaint and first amended cross-complaint, filed August 3 and October 21, 2022, Defendant Claremont asserted a cross-claim for breach of implied covenant of good faith and fair dealing.  Similar to the claim made in the motion for reconsideration, Defendant alleged, inter alia: “RCB also failed to make timely repairs to the Premises after Claremont Capital’s multiple requests, which lead to the destruction of some of Claremont Capital’s property all of which eventually lead Claremont Capital to justifiably cease rent payments. Additionally, RCB refused to cooperate with Claremont Capital’s architects relating to improvement at the Premises, which deprived Claremont Capital of the benefits of the Lease because Claremont Capital was not given a fully usable facility from which to operate its business. Because of RCB’s conduct, it disrupted Claremont Capital’s economic relationship with its customers and other third-parties. RCB refused and continued to refuse to remedy the conditions at the Premises, which only RCB could rectify as the landlord and owner of the Premises.”  (FACC ¶ 41.) 

Thus, well before the oppositions to the applications for writ of attachment were filed, Defendant had already alleged its claim for breach of implied covenant.  In support of that claim, the new Dalton, Esparza, and Vivero declarations, and attached exhibits, present voluminous evidence concerning matters that occurred between 2019 and July 2022, including Plaintiff’s execution of a Development Agreement in June 2019 and ongoing communications between Plaintiff, Defendants, and City concerning unpermitted structures on the Premises.  (See Dalton Decl. ¶¶ 4-17; Esparza Decl. ¶¶ 1-16, Exh. A-C; Vivero Decl. ¶¶ 1-9.)  All of this evidence could have, with reasonable diligence, been submitted in opposition to the applications for writ of attachment. 

The new Dalton, Esparza, and Vivero declarations, and attached exhibits are not new or different facts or circumstances within the meaning of section 1008.  Defendants do not satisfy the reasonable diligence requirement.  Defendants’ submission of this evidence in a request for reconsideration directly contravenes both the spirit and letter of section 1008.  (See California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 45-47 [“seriatim” requests for relief are improper; “without a diligence requirement the number of times a court could be required to reconsider its prior orders would be” unlimited].) 

Court’s Non-Adoption of its First Tentative Ruling After December 6, 2022, Hearing is Not a New or Different Fact or Circumstance

Finally, Defendants suggest that the court’s decision not to grant the tentative ruling issued on December 6, 2022, to deny the applications, is in itself a new or different fact or circumstance justifying reconsideration.  (Mot. 18:9-11, citing Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 772-773.)  The court disagrees.  The first tentative ruling was issued without consideration of the reply, which was not timely filed due to a planned service interruption in the court’s e-filing system.  The court granted the applications only after giving Defendants an opportunity to respond to its tentative ruling to grant the applications at the January 24, 2023, hearing.  The court did not “abruptly” reverse a final ruling without notice or hearing.  Gravillis did not hold that a court’s non-adoption of a tentative ruling is a basis for reconsideration. 

CCP section 1008 “specifies the court's jurisdiction” to reconsider a prior order upon motion of a party.  (CCP § 1008(e).)  “A trial court may not grant a party’s motion for reconsideration that does not comply with section 1008.”  (Cox v. Bonni (2018) 30 Cal.App.5th 287, 312.)  Because the requirements of CCP section 1008(a) have not been met, the court lacks jurisdiction and the motion for reconsideration must be denied. 

The Court Does Not Reconsider Its Order Sua Sponte

            Defendants point out that a court “is entitled to reconsider its previous order on its own motion” if it believes the order “was erroneous.”  (Mot. 18, citing Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.)  The court does not grant reconsideration on its own motion. 

Defendants’ Request for Oral Testimony

            On March 28, 2023, Defendants filed a request to present oral testimony of Casey Dalton at the hearing on April 4, 2023.  Defendants estimate the oral testimony will require 10 to 15 minutes.  They describe the nature and extent of the anticipated oral testimony as follows:

1. Defendant Dalton’s email and telephonic communications with Avi Ryzman of RCB throughout Claremont Capital’s tenancy at the Premises relating to the unpermitted structures and the Premises’ main building deficiencies, and Defendant Dalton’s requests that RCB assist to have them removed or permitted;

2. Defendant Dalton’s interactions with the City of Commerce relating to the unpermitted structures and the Premises’ main building deficiencies, and that the City of Commerce did not provide documentation regarding the unpermitted structures or the Premises’ main building deficiencies; and,

3. Why Defendant Dalton did not discover the Code Enforcement Case before Defendants filed their respective Oppositions to RCB’s Applications for Right to Attach Orders and Writs of Attachment.

California Rules of Court, Rule 3.1306(a) states: “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.”  Rule 3.1306(b) states: “A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing.” 

            Defendants satisfied the notice requirements of section 3.1306(b) in their request to present oral testimony.  However, Defendants do not show good cause to depart from the usual restriction on oral testimony for a law and motion matter. 

As noted, the party seeking reconsideration “shall” provide an affidavit explaining the basis for reconsideration.  (CCP § 1008(a).)  For reasons discussed above, Defendants do not show grounds for reconsideration in their declarations.  It follows that the oral testimony that Dalton seeks to submit in topics 1 and 2 is irrelevant.  Furthermore, in topics 1 and 2, Dalton apparently seeks to submit evidence concerning interactions with Plaintiff and City from 2019 to prior to November 29, 2022.  That evidence is not new and could have, with reasonable diligence, been presented with the oppositions to the applications for writ of attachment.

In topic 3, Dalton seeks to provide further explanation of why she “did not discover the Code Enforcement Case before Defendants filed their respective Oppositions to RCB’s Applications for Right to Attach Orders and Writs of Attachment.”  Such evidence should have been presented by declaration.  (CCP § 1008(a).)  The court does not find good cause for oral testimony where Defendants did not meet their initial burden under section 1008(a).  Dalton could have sufficiently explained, in her declaration, any reasons she did not discover the Code Enforcement Case earlier. 

The request for oral testimony is denied.

Defendants’ Request for Clarification

            Defendants request “the Court to confirm whether it intended to allocate the $36,795.82 in attorneys’ fees to Defendant Casey Dalton, and not Claremont Capital.”  (Mot. 24.)  The Ruling clearly shows that the court granted attachments against Claremont in the amount of $1,058,079.92, including $36,795.82 in fees, and $136,795.82 against Dalton, including $36,795.82 in fees.  (Ruling 6 and 10-11.)  No clarification is required.  Accordingly, the request for clarification is denied.

            Although clarification is not required, the court notes that the Lease and Guaranty both authorize an award of attorney’s fees to the prevailing party in an enforcement action.  (Dalton Decl. Exh. 1.)  Thus, an estimate of recoverable fees could be included in the attachments granted as to both defendants.  (CCP § 483.015(a).)  If Defendant Dalton is now arguing that the $100,000 cap on liability includes any award of fees, that argument could have, with reasonable diligence, been presented in opposition to the application for writ of attachment.  Defendant Dalton does not show grounds for reconsideration of that issue. 

Plaintiff’s Admission to Mitigation of Damages in the Amount of $98,000

            In its opposition, Plaintiff admits that it re-let the Premises on March 1, 2023, for $14,000 per month starting May 2023 and that Defendants are entitled to an offset of $98,000 for mitigation of damages through November 2023.  (Ryzman Decl. ¶ 25.) 

            In reply, Defendants now argue that Plaintiff “failed to come forward with a copy of that new lease showing the rental figure, the lease commencement date, or that the new tenant was provided free rent for March and April 2023.”   They contend that Plaintiff’s “failure to include the new lease prevents the calculation of a readily ascertainable amount of attachment because without knowing the true amount RCB is collecting from a new tenant, RCB’s supposed mitigation cannot be readily ascertained.” (Reply 6.)  Relatedly, Defendants contend that Ryzman’s declaration “introduced a completely new fact, namely, that RCB has re-let the Premises,” which means Plaintiff’s damages are no longer fixed or readily ascertainable.  (Reply 8.)    

These arguments do not persuade.  Defendants have the burden to prove that Plaintiff failed to mitigate its damages.  (Dalton Decl. Exh. 1 ¶ 13.2 [Remedies]; Polster, Ins. v. Swing (1985) 164 Cal.App.3d 427, 433.)  Thus, if Defendants contend that Plaintiff obtained, or could have reasonably obtained, more in rent mitigation, the burden was on Defendants to prove such fact.  Absent rebuttal in reply, the Ryzman declaration is competent evidence that Plaintiff re-let the Premises on March 1, 2023, and will obtain rent of $98,000 through November 2023.  After including this offset for $98,000, Plaintiffs’ damages remain fixed and readily ascertainable. 

As agreed by all parties, the court may reduce the amount of attachment against Claremont by $98,000 to $960,079.92 ($1,058,079.92 - $98,000.00).  (Oppo. 19; Reply 11.)

Conclusion

The motion for reconsideration is denied.  The request for clarification is denied.  The request for oral testimony is denied. 

The court reduces the amount of attachment against Claremont by $98,000 to $960,079.92.