Judge: Melvin D. Sandvig, Case: 23CHCV03858, Date: 2024-10-10 Tentative Ruling

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Case Number: 23CHCV03858    Hearing Date: October 10, 2024    Dept: F47

Dept. F47

Date: 10/10/24

Case #23CHCV03858

WRIT OF ATTACHMENT

Applications filed on 7/16/24.

MOVING PARTY: Plaintiff University Plaza, LLC

RESPONDING PARTY: Defendants Kayden Ressel, Sally Butros Friedlander aka Sally Butros Khoury aka Sally Khoury and Russell Friedlander

NOTICE: ok

RELIEF REQUESTED: Right to attach orders and writs of attachment against Defendants Kayden Ressel, Sally Butros Friedlander aka Sally Butros Khoury aka Sally Khoury and Russell Friedlander with $689,992.49 as the amount to be secured by the attachment which includes estimated costs of $1,000.00 and estimated allowable attorney fees of $20,000.00.

RULING: The applications are granted as set forth below. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Defendants Kayden Ressel, Sally Butros Friedlander aka Sally Butros Khoury aka Sally Khoury and Russell Friedlander (collectively, Defendants) alleged breach of a written guarantee for a lease of commercial premises by Throw Retrieve Repeat, Inc. (TRR) from Plaintiff University Plaza, LLC (Plaintiff).

On 12/19/23, Plaintiff filed this action against Defendants for: (1) Open Book Account, (2) Account Stated and (3) Breach of Contract.  On 2/16/24, Defendants answered the complaint.  On 7/16/24, Plaintiff filed and served the instant applications seeking right to attach orders and writs of attachment against each Defendant with $689,992.49 as the amount to be secured by the attachment which includes estimated costs of $1,000.00 and estimated allowable attorney fees of $20,000.00.  Defendants have opposed the applications and Plaintiff has filed a reply to the opposition. 

ANALYSIS

Defendants’ objections to the declaration of David Moradzadeh (numbers 1-4) are overruled.

To obtain a prejudgment writ of attachment, the moving party must establish that: (1) the obligation is based upon a claim for money; (2) the obligation is based upon a contract; (3) the amount of the claim is a fixed or readily ascertainable amount in excess of $500, excluding costs, interest and attorneys’ fees; and (4) when sought against a natural person, the obligation arises out of the person’s trade, business or profession.  CCP 483.010(a), (c).

Here, the obligation due from Defendants to Plaintiff is based on the breach of a personal written  guarantee.  As such, the obligation is based on a claim for money due under a contract.  CCP 483.010(a). 

Contrary to Defendants’ assertion, the declaration of David Moradzadeh and the attached exhibits establish that the amount of the claim is a fixed or readily ascertainable amount well in excess of $500.00.  The declaration sets forth the facts to support the relief requested with sufficient particularity.  See CCP 482.040.  Additionally, the exhibit attached to the declaration sets forth each category of the debt owed by Defendants and credits given.  (See Moradzadeh Decl., Ex.B).  Plaintiff has also explained that the amount claimed in the applications differs from the amount claimed in the complaint because the complaint was filed several months before the applications and the amount owed continues to accrue.  Defendants have not provided any evidence to refute the foregoing.  As such, Plaintiff has established the probable validity of its claim as required.  See CCP 484.090(a)(2); CCP 481.190.

Further, Plaintiff has shown that the claim on which the attachment is based is one on which an attachment may be issued against natural persons such as Defendants.  See CCP 483.010(c); CCP 484.090(a)(1).  Defendants contend that Plaintiff has failed to meet the requirements set forth in Advanced Transformer Co. (1974) 44 CA3d 127 for obtaining a writ of attachment against a personal guarantor.

In Advance Transformer Co., the Court of Appeal held that:   

“In cases involving guarantees by principal shareholders of closely held corporations, consideration will necessarily be given to the degree and continuity of the guarantor's involvement in the affairs of the primary obligor out of which the indebtedness has arisen. For example, (1) if a corporation has habitually been provided with operating capital through the medium of such guarantees by the defendant, or (2) the obligation sued upon has resulted from an extension of credit in reliance upon defendant's continuing guarantee, or (3) the defendant has extensively occupied himself in the management of the primary obligor on a continuing basis and has a major stake in its success, the required ‘frequency and continuity’ may be found to exist. In short, if the sum total of the circumstances justifies the conclusion that the guarantor occupied himself to a substantial degree and on a continuing basis in promoting his own profit through provision of credit or management to the primary obligor, a guarantee executed in the course of such activity may properly be considered an obligation arising out of the conduct of the guarantor's business.” 

Advance Transformer Co., supra at 144; See also Wells Fargo Bank National Association 2021 WL 5862455, *4-5.

Recently, relying on Advance Transformer Co., it has been noted that an attachment may issue against individual guarantors who are “so involved in the primary obligor’s business that the guaranty is made to further the guarantor’s livelihood or profit on a continuing basis.”  See Rosen 2021 WL 3264144, *2.       

The opposition does not dispute that Defendants signed the written guaranty.  The written “Guarantee of Lease” specifically provides that the “Landlord is not willing to enter the Lease without this Guaranty;” that the guarantors agree that that the lease of the premises to the tenant “grants a material benefit to Guarantor[s];” and that the guarantors/Defendants executed the Guaranty “voluntarily in order to induce the Landlord to enter the Lease agreement.”  (See Moradzadeh Decl., Ex.A, pdf 54, 56). 

As such, Plaintiff has sufficiently shown that the obligation sued upon has resulted from an extension of credit in reliance upon Defendants’ continuing guarantee and that the guaranty was made to further Defendants’ profit on a continuing basis.  See Advanced Transformer Co., supra at 144.

CONCLUSION