Judge: Melvin D. Sandvig, Case: 24CHCV00734, Date: 2024-12-04 Tentative Ruling

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Case Number: 24CHCV00734    Hearing Date: December 4, 2024    Dept: F47

Dept. F47

Date: 12/4/24

Case #24CHCV00734

APPLICATION TO SET ASIDE RIGHT TO ATTACH ORDER,

QUASH WRIT OF ATTACHMENT

&

RELEASE ATTACHED PROPERTY

Application filed on 5/17/24. 

MOVING PARTY: Defendant Noureen Entertainment, Inc. and Zia Abhari

RESPONDING PARTY: Plaintiff Centennial VTC LLC

NOTICE: ok

RELIEF REQUESTED: An order setting aside the Right to Attach Order issued on 5/8/24, quashing the Writ of Attachment issued on 5/8/24 and releasing the attached property of the defendant described in the writ.

RULING: The application is denied. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Defendant Noureen Entertainment, Inc.’s (Noureen) alleged breach of a written lease entered into with Plaintiff Centennial VTC LLC’s (Plaintiff) predecessor-in-interest for property located at 24201 W. Valencia Blvd., Suite 101 in Valencia, California.  (Complaint ¶¶1, 4-6).

On 3/7/24, Plaintiff filed this action against Noureen for breach of lease and against Defendant Zia Abhari (Abhari) for breach of written guaranty of the lease.  On 4/5/24, Defendants filed and served a demurrer to the entire complaint.  On 5/2/24, Plaintiff filed an ex parte application for right to attach order and order for issuance of writ of attachment.  On 5/8/24, the Court granted the ex parte application and on 5/16/24 a writ of attachment was issued for any property of Noureen to secure $367,828.17.  (See 5/8/24 Minute Order; 5/16/24 Writ of Attachment). 

On 5/17/24, Noureen filed and served the instant application for an order setting aside the Right to Attach Order issued on 5/8/24, quashing the Writ of Attachment issued on 5/8/24 and releasing the attached property of the defendant described in the writ.  On 5/21/24, the Court overruled Defendants’ demurrer to the complaint and ordered an answer to be filed within 30 days.  On 6/28/24, Defendants filed an answer to the complaint.  On 7/29/24, Defendants filed a cross-complaint against Plaintiff, Valencia Town Center, L.P. and Roes 1-1000.  On 8/5/24, Plaintiff answered the cross-complaint.  On 11/12/24, Plaintiff filed and served an opposition to the instant application.

ANALYSIS

This application is supported solely by the declaration of Defendants’ counsel, Tyler Vance, who makes the unsubstantiated claim the that Plaintiff did not provide proper notice of the ex parte application.  Attorney Vance claims that he was served with notice via email “in violation of rules of court 2.12.04.”  (See Vance Decl. ¶¶4, 9).  First, there is no Los Angeles Superior Court Local Rule or California Rules of Court, Rule 2.1204.  Presumably, attorney Vance meant to cite California Rules of Court, Rule (CRC) 3.1204.  However, CRC 3.1204 does not indicate that email notice is improper or invalid.  CRC 3.1204 provides:

“(a) Contents of notice

When notice of an ex parte application is given, the person giving notice must:

(1) State with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application; and

(2) Attempt to determine whether the opposing party will appear to oppose the application.

(b) Declaration regarding notice

An ex parte application must be accompanied by a declaration regarding notice stating:

(1) The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203, the applicant informed the opposing party where and when the application would be made;

(2) That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or

(3) That, for reasons specified, the applicant should not be required to inform the opposing party.

(c) Explanation for shorter notice

If notice was provided later than 10:00 a.m. the court day before the ex parte appearance, the declaration regarding notice must explain:

(1) The exceptional circumstances that justify the shorter notice; or

(2) In unlawful detainer proceedings, why the notice given is reasonable.”

Additionally, Plaintiff has presented unrefuted evidence which shows that the email giving notice of the ex parte application with the moving papers attached was received and read on 5/2/24, 4 court days before the 5/8/24 hearing.  (See Ibarra Decl., Ex.1). 

Next, attorney Vance contends that the ex parte application was improperly granted because there was no exigency.  (Vance Decl. ¶¶6, 9).  The granting of the application indicates that the Court believed sufficient grounds existed to grant the relief on an ex parte basis.  Even if exigent circumstances did not exist for ex parte relief, Noureen has failed to challenge the merits underlying the issuance of the writ of attachment in the instant application.

Further, attorney Vance claims that the demurrer shows that the complaint lacks the necessary allegations to sustain a cause of action.  (Vance Decl. ¶¶7, 11).  As noted above, the Court found that the complaint sufficiently states a cause of action against Defendants when it overruled their demurrer to the entire complaint.  (See 5/21/24 Minute Order).

CONCLUSION

The application is denied.