Judge: Matthew C. Braner, Case: 37-2019-00028978-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  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00028978-CU-BC-CTL 47 INVESTMENTS INC VS LEMON GROVE PLAZA LP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff 47 Investments Inc.'s motion for assignment order is GRANTED in part.

Defendant Lemon Grove Plaza, LP's evidentiary objections are overruled.

First, the court rejects Defendant Lemon Grove Plaza, LP's contention that its appeal of this court's December 1, 2023 order granting Plaintiff's motion for discretionary undertaking operates to stay enforcement of the attorney fee award. Code of Civil Procedure section 916, subdivision (a), specifically excepts from its scope a discretionary undertaking pursuant to section 917.9. Here, the plain language of the statute establishes that where a court in its discretion requires an undertaking (as here), and such undertaking is not given, '[t]he perfecting of an appeal shall not stay enforcement of the judgment or order . . . .' (Code Civ. Proc., § 917.9, subd. (a).) Second, the court notes that it denied Plaintiff's prior request for an assignment order solely because the stay of enforcement would be lifted only if the court required an undertaking and Defendant failed to provide such an undertaking. Those requirements have now been met, leaving Plaintiff free to pursue whatever enforcement mechanisms it deems necessary, including an assignment order.

Third, Plaintiff has made a sufficient showing to justify an assignment order directed at the rights of Defendant to payments of future rent from a limited number of tenants occupying its leasehold properties located at 7963-77 Broadway (APN 480-133-04-44) and 7979 Broadway (APN 480-133-05-00) in Lemon Grove, California 91945. (Code Civ. Proc., § 708.510, subd. (a).) The reasons set forth in the court's order granting the motion for a discretionary undertaking are also relevant to the factors the court may take into consideration with respect to determining whether to grant an assignment order. (Code Civ. Proc., § 708.510, subd. (c); ROA #635, p. 2.) These include the size of the judgment and the amount remaining due, the ongoing efforts to delay payment of any portion of the costs-only judgment, and the increasing risks of asset depletion via separate but related litigation.

Moreover, the overall record in this case adequately establishes that Defendant holds a leasehold interest in the above properties and collects rent from the tenants on those properties, including from Plaintiff in the current amount of $8,712.50, which will increase to $8,930.31 on March 1, 2024. There are at least six other tenants of the two properties, other than Plaintiff, and it is reasonable to infer that rents from those tenants are comparable to the rent paid by Plaintiff. Conversely, Defendant has failed to show that any of its rights, or a portion of any right, to rent payments is exempt from enforcement of the money judgment. (Code Civ. Proc., § 708.550, subd. (a); see also Code Civ. Proc., § 703.520, subd. (b) [setting forth the six requirements to be set forth under oath when making a claim of exemption].) Calendar No.: Event ID:  TENTATIVE RULINGS

3076940  26 CASE NUMBER: CASE TITLE:  47 INVESTMENTS INC VS LEMON GROVE PLAZA LP [IMAGED]  37-2019-00028978-CU-BC-CTL Consequently, the court will grant an assignment order. However, the order will be limited to the rights to rent from Plaintiff and from one other tenant, at Plaintiff's option. The court also denies the request for a restraining order at this time, without prejudice. If Plaintiff presents evidence of efforts by Defendant to impede the assignment order, the court may reconsider whether a restraining order is necessary.

The court will hear from Plaintiff regarding the other tenant to be included in the order. Plaintiff is also instructed to provide a proposed order consistent with this ruling for the court's signature.

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