Judge Mitchell L. Beckloff, Case Number: 22STCV38447, Date: 2024-02-09 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCV38447, Date: 2024-02-09 Tentative Ruling

Plaintiff, John E. Bouzane dba Fast Eviction Service, applies for writs of attachment against Defendants, Golden Management Services, Inc. dba Golden Management Services XLIX, Inc. (Golden Management), Pama Management, Inc. (Pama Inc.), and Nijjar Realty, Inc. (Nijjar; collectively, Defendants) in the amount of $296,503.37. The applications are unopposed as Defendants have not filed any opposition.

On December 9, 2022, Plaintiff filed a complaint against Golden Management, Pama Inc., and Nijjar, as well as several other defendants, for common counts.

On February 15, 2023, Plaintiff filed proofs of service of the summons and complaint on Defendants.

On January 8, 2024, Plaintiff filed the applications for writs of attachment and notices of hearing. Plaintiff filed and served a memorandum of points and authorities in support of the applications. Plaintiff filed proofs of service, signed under penalty of perjury by “B. Smith,” indicating service of the moving papers on Defendants’ attorney on January 5, 2024.

Defendants failed to oppose the applications. (Code Civ. Proc., § 484.060, subd. (a).)

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” (Id. at § 484.010.)

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.

“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.” (Id. at § 481.190.) “The application 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.”¿(Id. at § 484.030.)¿“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.”¿(Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.)

In his declaration, Plaintiff states he is an attorney who represents landlords and property owners in unlawful detainer and real estate litigation matters. (Bouzane Decl. ¶ 3.)[1] Plaintiff declares, in or about 2008, he “began doing Unlawful Detainer cases and General Civil Litigation cases involving landlord/tenant issues for Defendants and each of them.” (Id. ¶ 9.) “Essentially, Plaintiff would invoice Defendants for fees and costs at the close of every case referred to by Defendants to Plaintiff on a monthly basis and it was the usual practice for Defendants to pay those invoices upon within 30-90 days upon receipt of the invoice.” (Id. ¶ 11.) “Within the last four years the balance on the open book account had grown substantially because Defendants and each of them refused to honor their agreement to pay invoices upon the close of each case.” (Id. ¶ 12.)

In or about July 2022 ta [sic] dispute over the payment of the unpaid invoices came to a head and Plaintiff and Defendants agreed that Plaintiff would no longer do any eviction or civil cases for Defendants and each of them. . . . In July of 2022 Defendants requested that Plaintiff submit an invoice on all completed matters which would be paid upon receipt in a timely manner. (A true and correct copy of the invoice mailed to Golden Property Management Services, Inc, Pama Property Management Services, and Nijjar Realty is attached hereto and marked as Exhibit “1”[.)]. . . Plaintiff has made a demand on Defendants and each of them for $296,503.37; which represents the sum of all invoices submitted to Defendants and each of them on all closed matter[s] up to the end of July 2022. This balance includes the fees and costs advanced by Plaintiff on Defendants[’] behalf and the agreed upon attorney fees for work to be done on each of those cases. (Attached herein and marked as Exhibit “2” is a Summary of Invoice submitted to the Defendants[.)] (Id. ¶¶ 13-15.)

Plaintiff also describes the following exhibits that were purportedly attached to his declaration:

Attached hereto and marked as Exhibit “3” is a true and correct copy of an Excel Spread Sheet of all legal matters handled and invoiced. . . . Attached hereto and marked as Exhibit “4” is a true and correct copy of the Open Book Account totaling the sum of $296,503.37. . . . I am informed and believe and based thereon state that multiple attempts have been made since July 2022 to resolve this matter amicably without success. Attached hereto and collectively marked as Exhibit “5” is a series of letters and emails documenting the attempts at resolution. (Id. ¶¶ 16-18.)

Plaintiff has not met his initial burden to prove a probably valid claim for contract damages against Defendants for several reasons.

Plaintiff seeks attachment of $296,503.37 as damages against all three Defendants. However, Plaintiff does not clearly state in his declarations the legal services at issue were performed for all three Defendants. It would appear from Plaintiff’s declarations and complaint that Golden Management, Pama Inc., and Nijjar are three separate corporations. Presumably, Plaintiff performed different legal services for each corporation. That inference is supported by Plaintiff’s exhibits, which refer to invoices and legal cases only pertaining to “Pama Management,” not Golden Management or Nijjar. If Plaintiff is asserting all legal cases at issue were handled for all three Defendants, and the $296,503.37 in fees and costs were incurred by all three Defendants, it should have been explained more clearly in his declaration. Alternatively, if Plaintiff handled different legal cases for each of the three Defendants, Plaintiff is required to submit evidence of the legal fees and costs incurred by each of the three Defendants.

Plaintiff also does not sufficiently explain how he calculated the $296,503.37 in alleged damages, including which damages are for unpaid legal fees and which are for unpaid costs. Further, Plaintiff does not show the parties entered into a written or implied-in-fact agreement for Plaintiff to charge a specific hourly rate, or, alternatively, that the fee portion of the damages reflects the reasonable value of the services performed. (See generally Pech v. Morgan (2021) 61 Cal.App.5th 841, 850-851 [Business and Professions Code “section 6148 makes clear that the absence of a valid written or implied-in-fact fee agreement limits an attorney to the collection of a ‘reasonable fee’ for service rendered on a client's behalf . . . .

§ 6148, subd. (c) codifies the general rule that when legal services have been provided without a valid fee agreement, the attorney may recover the reasonable value of the services she performed . . . .”]) Plaintiff also does not sufficiently explain how he calculated that portion of his alleged damages relate to unreimbursed costs.

Finally, Plaintiff has not sufficiently tabbed, labeled, or explained the exhibits to his declaration. As an initial matter, it appears some of the exhibits are missing. Petitioner refers to five exhibits, but there are not five separately labeled exhibits attached to his declarations. Also, the court has not located the “series of letters and emails” submitted as Exhibit 5. (Bouzane Decl.

¶ 18.) Further, while Plaintiff contends Exhibit 4 is “the Open Book Account totaling . . . $296,503.37,” the court has not located an Exhibit 4 or an Open Book Account stating an amount due of $296,503.37.[2] (See Id. ¶ 17.)

For all these reasons, Plaintiff has not met his initial burden to prove a probably valid claim for contract damages against Defendants in any specific amount.

“[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).) “[A]n attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. The fact that the damages are unliquidated is not determinative. [Citations.] But the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.” (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541.)

Here, given the deficiencies with Plaintiff’s evidence, Plaintiff also has not shown his alleged damages are fixed and readily ascertainable from a contract. Specifically, as noted, Plaintiff does not sufficiently describe the contract terms or contractual arrangements with each of the three Defendants, including the agreed-upon hourly rate (if any). If Plaintiff is asserting he is entitled to a reasonable “lodestar” fee, he needed to submit evidence that the alleged damages reflect a reasonable fee. On this record, the amounts of Plaintiff’s damages against each Defendant do not appear fixed or readily ascertainable.[3]

[1] Plaintiff’s declarations in support of the other two applications are substantially similar. Therefore, the court relies on Petitioner’s declaration filed in support of the application for attachment against Golden Management.

[2] The first exhibit states an “Open Balance” of $276,742.12 and an “Amount” of $396,775.50. Another exhibit states an “Open Balance” of $19,761.25. A third exhibit refers to an “Open Balance” of $275,892.12. Plaintiff does not explain how these purported “Open Balances” relate, if at all, to the stated amount due for these applications. The court notes $276,742.12 plus $19,761.25 equals $296,503.37, the amount Plaintiff contends he is owed. The other figures from the first exhibit are a mystery.

[3] In his memorandum of points and authorities, Plaintiff asserts: “At the close of every year Defendants and each of them demanded a huge discount on the unpaid invoices and the parties would negotiate anywhere from a 10% to $25% on the closing invoice for the year. This practice and procedure went on until July 2022. . . .” (Memo 2:15-17.) Plaintiff’s statement raises additional questions about the nature of the parties’ agreement concerning payment for legal services rendered and suggests Plaintiff’s claim is not fixed or readily ascertainable on the record that has been presented for these applications.