Judge Stephen I. Goorvitch, Case Number: 23STCV11238, Date: 2024-08-28 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCV11238, Date: 2024-08-28 Tentative Ruling

Plaintiff Barry Maiten (“Plaintiff”) moves for writs of attachment against Defendants Anat Ebgi and Joshua Michael Rosenblatt (“Defendants”) in the amount of $63,074.42.[1] Defendants oppose the applications, which are granted.

“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.” (Code Civ. Proc. § 484.010.) “The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

“Except as otherwise provided by statute, an 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.) 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.” (Code Civ. Proc. § 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.” ¿(Code Civ. Proc. § 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.)

Code of Civil Procedure section 482.040 states in pertinent part: “The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein. As to matters shown by information and belief, the affidavit shall state the facts on which the affiant's belief is based, showing the nature of his information and the reliability of his informant. The affiant may be any person, whether or not a party to the action, who has knowledge of the facts.”

A. Notice – Plaintiff has provided sufficient notice, and Defendants filed oppositions to the applications.

The application is based on Plaintiff’s cause of action for breach of written contract (lease). To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach of the contract; and (4) damages incurred by plaintiff as a result of the breach. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.)

Plaintiff submits evidence that he entered a commercial lease with Defendants in February 2017, and that Defendants ceased paying the monthly rent of $2,636.38 on April 1, 2020, after the Covid-19 pandemic commenced. (See Maiten Decl. ¶¶ 3-4 and Exh. A, including Option to Extend, and Exh. B.) Plaintiff also submits evidence of the following: Defendants provided a 30-day notice on October 5, 2020, but continued their occupancy of the premises after the 30 days had expired. In January 2021, Defendants sent an email to Plaintiff’s representatives indicating that Defendants would vacate the premises in 30 days. When the 30 days had expired, Defendants did not surrender the keys or confirm that they had vacated the premises. They continued to keep the utilities in their name and pay the utility bills. Plaintiff discovered that Defendants had abandoned the premises on or about July 31, 2021. (Maiten Decl. ¶¶ 5-8.)

Plaintiff seeks recovery of principal damages for 16 months (April 2020 to July 2021) of unpaid rent of $2,636.38, for a total of $42,182.08 in unpaid rent. Plaintiff also seeks recovery of late fees of $6,854.59; interest of $4,218.21; and attorney’s fees and costs (pursuant to a fee provision in the lease) of either $13,644.8 or $15,000. Plaintiff also indicates that Defendants are entitled to a credit of $3,825.34 for their security deposit (after subtracting $1,000 in labor and material for water damage to the premises). (Id. ¶¶ 8-13.)

The court cannot discern from Plaintiff’s declaration how the interest was calculated. Further, Plaintiff appears to have confused the calculation of late charges pursuant to paragraph 13.4 (10% of overdue amount or $100, whichever is greater), with the calculation of interest under paragraph 13.5. (See Maiten Decl. ¶¶ 9-10.) The court will grant attachment of late charges of $4,218.21, as that amount is clear under the lease. ($42,182.08 x 10%). The court does not grant attachment of any interest, as Plaintiff’s calculations are deficient. Further, Plaintiff’s applications are unclear as to whether attorney’s fees of $13,644.8 or $15,000 are requested. The court grants attachment of fees and costs in the lesser amount.

Defendants have not persuasively opposed Plaintiff’s evidence of a probably valid contract claim for unpaid rent from April 2020 to July 2021. Defendants concede that they failed to pay rent starting March 29, 2020, and retained possession of the premises until at least January 2021. (Ebgi Decl. ¶¶ 3-6.) Defendants concede that they served a 30-day notice in October 2020, but did not vacate. (Ibid.) They also implicitly concede that they did not return the keys until July 2021. (Id. ¶ 7.) Defendants do not submit evidence of any notice or written communications between January and July 2021 showing that they informed Plaintiff that they vacated. (See Ebgi Decl. ¶¶ 4-7 and Exh. A.) The court is not persuaded that the pandemic prevented Defendants from returning the keys in some fashion or giving notice that they were vacating. (See Maiten Decl. ¶ 7.)

Based on the foregoing, Plaintiff shows a probably valid claim against Defendants in the reduced amount of $56,219.75 ($42,182.08 + $4,218.21 + $13,644.8 - $3,825.34).

C. Basis of Attachment Probable – Plaintiff establishes a sufficient basis for attachment. “[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, Plaintiff’s application for writ of attachment is based on a contract claim for which the total amount allegedly due is in excess of $500. The claim is not secured by real property. Plaintiff’s claim arises from Defendants’ conduct of a trade or business, i.e. commercial art gallery.

Defendants argue that Plaintiff’s damages are not fixed and readily ascertainable because the number of months of unpaid rent, among other issues, are “in dispute.” (Oppo. 1.) Plaintiff’s damages are fixed and readily ascertainable from the terms of the lease and Plaintiff’s declaration. A dispute about the amount of damages does not mean that the damages cannot be readily ascertained and calculated from the lease terms. At heart, Defendants raise issues about the probable validity of Plaintiff’s claim, not whether the damages are fixed and ascertainable.

D. Purpose and Amount of Attachment – The court finds that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachments is based and the amount to be secured by the attachment is greater than zero.

E. Reduction of Amount to be Secured, and Exemptions – Defendants do not argue, or show, that the amount of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b). Defendants have not claimed any exemptions.

Plaintiff requests attachments against Defendants, natural persons, of items listed in Code of Civil Procedure section 487.010(c) and (d). (Application ¶ 9c.) That request is proper. Plaintiff is not required by section 484.020(e) to describe the property sought for attachment with further specificity. (See Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal. App. 3d 260, 267-268 [“all-inclusive” application satisfies CCP section 484.020(e)].)

Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. Section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000. Neither party has argued for a different amount of undertaking.

1. The application for writ of attachment is granted in the reduced amount of $56,219.75 against each defendant. Although the court is issuing separate writs, Plaintiff shall not attach more than $56,219.75, i.e., the writs are intended to be joint and several.

3. Plaintiff’s counsel shall prepare and lodge revised “Right to Attach Order After Hearing and Order for Issuance of Writ of Attachment” on Forms AT-120 reflecting the court’s ruling.

4. Plaintiff’s counsel shall provide notice and file proof of service with the court.

[1] Plaintiff filed four applications for writ of attachment on May 22, 30, and 31, 2024, three against Rosenblatt and one against Ebgi. All four applications seek attachment of $63,074.42, albeit three seek attorney’s fees of $13,644.88, while one (against Rosenblatt) seeks attorney’s fees of $15,000. The court treats these applications as one application seeking attachment of $63,074.42 against both Rosenblatt and Ebgi, jointly and severally.