Judge: Mitchell L. Beckloff, Case: 21STCV41096, Date: 2022-10-12 Tentative Ruling

Case Number: 21STCV41096    Hearing Date: October 12, 2022    Dept: 86

BERESHIT INVESTMENTS, LLC v. LUCY DEVELOPMENT COMPANY

Case Number: 21STCV41096

Hearing Date: October 12, 2022

[Tentative]       ORDER GRANTING APPLICATION FOR WRIT OF ATTACHMENT

Plaintiffs, Bereshit Investments, LLC and Vayishlach Investment, LLC and 4M Investment Corporation, seek a writ of attachment against Defendant, Lucy Development Company, in the amount of $58,267.85, which includes $500 in estimated attorney fees and $7,500 in estimated costs.

Defendant opposes the application.

The application for a writ of attachment is granted.

APPLICABLE LAW

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.

    

   (Code Civ. Proc. § 484.090.)

    

   “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.” (Code Civ. Proc. § 484.030.) Statutory attachment procedures are purely creations of the legislature and as such “are subject to ‘strict construction.’” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79; see also Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) A judge does not have authority to order any attachment that is not provided for by the attachment statutes. (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1466.) “The declarations in the moving papers must contain evidentiary facts, stated ‘with particularity,’ and based on actual personal knowledge with all documentary evidence properly identified and authenticated.” (Hobbs v. Weiss, supra, 73 Cal.App.4th at 79-80.) “In contested applications, 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.” (Id. at 80 [cleaned up].)

    

   ANALYSIS

    

   Probable Validity of Plaintiffs’ Claims:

    

   “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.” (Code Civ. Proc. § 481.190.) 

    

   Plaintiffs seek an attachment based on a lease agreement.

    

   By way of background, on December 18, 2015, Plaintiffs’ predecessor-in-interest, Ventura Boulevard Partners, L.P., and Defendant entered into a Standard Multi-Tenant Office Lease (Lease) agreement, creating a tenancy for Suite number 108 at 17835 Ventura Boulevard in Encino (Property). (B. Minoo Decl., ¶ 8, Ex. A [Lease].)

    

   Over the years, Plaintiffs and Plaintiffs’ predecessor and Defendant entered into various amendments to the Lease. The various amendments extended the tenancy to additional suites at the Property and also extended the term of the tenancy. (B. Minoo Decl., ¶¶ 9-13, Exs. B-G.)

    

   On January 3, 2020, Plaintiffs and Defendant entered into the Fifth Amendment to Lease. Among other things, the fifth amendment extended the tenancy through August 31, 2021 and provided for a base rent of $16,755.95 payable per month. (B. Minoo Decl., ¶ 14, Ex. H.)

    

   On March 1, 2021, Defendant breached the Lease as amended by five amendments (Amended Lease) by failing to pay the monies due under the Amended Lease to Plaintiffs. (B. Minoo Decl., ¶ 16.)[1] Defendant owes Plaintiffs no less than $50,267.85 in rent and other charges pursuant to the Amended Lease, which is the balance of $67,023.80 in rent and charges minus a security deposit of $16,755.95. (B. Minoo Decl., ¶ 19, Ex. J.)

    

   Defendant does not dispute its obligations under the Amended Lease or that it breached the Amended Lease. Instead, Defendant contends Plaintiffs have not made reasonable attempts to mitigate their damages. Further, Defendant argues it was forced to vacate the Property before the end of the lease term as result of Plaintiffs’ gross negligence in managing the Property. Defendant filed an unverified cross-compliant to that effect.

    

   Defendant has submitted no evidence to support the allegations in its cross-complaint or its defense. The lack of evidence is fatal to Defendant’s opposition to the attachment and any claim of offset.

    

   First, with respect to Defendants’ cross-complaint, it cannot be used to offset an attachment claim as it is a claim based in tort (not contract).[2] (Code Civ. Proc. § 483.015 [reducing attachment amount based on “[t]he 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”].) Moreover, even assuming Defendant is required to pursue the claim as ones in contract, Defendant failed to submit any evidence to support the claim. The court has no evidentiary basis to find an offset is appropriate.

    

   Further, to the extent Defendant faults Plaintiffs on the issue of mitigation of damages, the burden of demonstrating a failure to mitigate is on Defendant. (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 884. [“The burden of proving a plaintiff failed to mitigate damages, however, is on the defendant, not the other way around.”] See Civ. Code § 1951.2, subdivision (a)(2) [“until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided”].) Defendant’s failure to present any evidence undermines any claimed defense based on mitigation.

    

   The court finds, for purposes of this attachment application, Plaintiffs’ evidence shows a probable validity of a breach of contract claim.

    

   Basis of Attachment:

    

   The Court shall issue a right to attach order if the claim upon which the attachment is based is one upon which an attachment may be issued. (Code Civ. Proc. § 484.090.) “[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.” (Code Civ. Proc. § 483.010, subd. (a).) “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.” (Code Civ. Proc. § 483.010, subd. (c).)

    

   Plaintiffs’ claim is based on a written contract—the Amended Lease—and is in excess of five hundred dollars. Accordingly, the court finds Plaintiffs’ claim is a proper basis for attachment.

    

   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.”

    

   Here, Plaintiffs, through declarant Bahar Minoo, attests the application for attachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based. (Form AT-105, ¶ 4.) Accordingly, the court finds Plaintiffs have complied with Code of Civil Procedure sections 484.020 and 484.090.

    

   Subject Property:

    

   Code Civil Procedure section 487.010, subdivision (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.

    

   Plaintiffs properly identify the property subject to attachment as the property identified in item 9(a) of the Judicial Council attachment application.

    

   CONCLUSION

    

   Based on the foregoing, the court will grant the application for a writ of attachment as to Defendant in the amount of $58,267.85 upon the filing of a $10,000 undertaking. (Code Civ. Proc. §§ 489.210, 489.220.) The court will also grant Plaintiffs’ request that Defendant turn over all documentary evidence reflecting title to its assets, as well as any debts owed to it by third parties, pursuant to Code of Civil Procedure section 482.020, subdivision (a).

    

   IT IS SO ORDERED.

    

   October 12, 2022                                                                  ________________________________

                                                                                                                      Hon. Mitchell Beckloff

                                                                                                                      Judge of the Superior Court