Judge: Stephen I. Goorvitch, Case: 23STCV14200, Date: 2025-03-26 Tentative Ruling

Case Number: 23STCV14200    Hearing Date: March 26, 2025    Dept: 82

Afifa Soliman                                                                           Case No. 23STCV14200

v.                                                                     Hearing: March 26, 2025

                                                                        Location: Stanley Mosk Courthouse

                                                                                    Department: 82                                                  Santa Maria Pharmacy, Inc., et al.                                Judge: Stephen I. Goorvitch

[Tentative] Order Granting Plaintiff’s Application for Writ of Attachment

Plaintiff Afifa Soliman (“Plaintiff”) moves for a writ of attachment against Defendant Marcos Soliman (“Defendant”) in the amount of $2,868,833.99.  Defendant does not oppose the application.  The application is granted. 

LEGAL STANDARD

“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.)  “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.

(4)   The amount to be secured by the attachment is greater than zero.  

(Code Civ. Proc. § 484.090.) 

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

DISCUSSION

A.        Notice – Plaintiff provided notice of this application.

B.        Attachment Standard for Elder Abuse Claim

Plaintiff seeks a writ of attachment against Defendant based on her second cause of action—Financial Elder Abuse—under Welfare and Institutions Code section 15657.01.  This is permissible notwithstanding Code of Civil Procedure section 483.010.  (See Royals v. Lu (2022) 81 Cal.App.5th 328, 347.) 

            C.        Probable Validity of Plaintiff’s Claims

            Plaintiff demonstrates that her claim of financial elder abuse has probable validity.  Welfare and Institutions Code defines an elder as “any person residing in this state, 65 years of age or older.”  (Welf. & Inst. Code, § 15610.27.)  Plaintiff states that she is 74 years old.  (Soliman Decl. ¶ 2.) 

The statutory scheme “broadly defines financial abuse of an elder as occurring when a person or entity ‘[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder’ for ‘a wrongful use or with intent to defraud, or both,’ as well as ‘by undue influence....’ (§ 15610.30, subds. (a)(1), (a)(3).)” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 656, citation and footnote omitted.)  “Thus, a party may engage in elder abuse by misappropriating funds to which an elder is entitled under a contract.”  (Id. at p. 657.)  To establish a ‘wrongful use’ of property to which an elder has a contractual right, the plaintiff must demonstrate two things: (1) A breach of contract or other improper conduct, and (2) The defendant knew or should have known that the conduct is likely to be harmful to the plaintiff.  (Ibid.) 

            Plaintiff satisfies these requirements in this case.  In 2013, Defendant asked Plaintiff to work for Santa Maria Inc. and Plaintiff agreed. (Soliman Decl., ¶ 5.) Plaintiff and Santa Maria Inc. entered into a Partnership and Non-Exempt Employment Agreement (the “Agreement”), which Defendant signed on behalf of the company. (Soliman Decl., ¶ 5.) According to the Agreement, the parties agreed to the following terms.

a.      Plaintiff would be compensated with bi-weekly salary of $6,250, and that the salary would increase by seven percent (7%) annually.

b.     Plaintiff would be categorized as a non-exempt employee and entitled to overtime pay.

c.      Santa Maria, Inc. shall contribute an additional forty-five percent (45%) of its net profit from the practicing branch (in Pomona, California) which was to be paid to Plaintiff on a quarterly basis for managing, growing and keeping the business profitable.

d.     Santa Maria, Inc. would pay Plaintiff an additional ten percent (10%) of her bi-weekly salary if she was not paid on the scheduled basis.

(Soliman Decl. ¶ 6; Exh. 2 at ¶¶ 2-5.)  Plaintiff performed her duties competently from November 2013 until December 23, 2022, at Santa Maria, Inc.’s Pomona location, but was never compensated for her services.  (Id. ¶¶ 8-9.)  Despite repeatedly demanding payment, Defendant would delay and avoid paying her, claiming that Santa Maria, Inc. was not performing well financially, and asking Plaintiff (as his mother) to be patient with him.  (Id. ¶¶ 9-10.)  Plaintiff has never been compensated despite Defendant acknowledging her hard work and dedication to her duties.  (Id. ¶ 11.)  

            In response to Plaintiff’s requests for admissions (“RFAs”), Defendant admitted to the following facts.  (Galliver Decl., ¶ 10 & Exh. 8.)  

·       He is Plaintiff’s son as well as the sole shareholder and corporate officer of Santa Maria, Inc.  (RFA Nos. 1, 2, 3.)  

·       He has not paid Plaintiff any wages since December 1, 2013.  (RFA No. 7, 9, 10.)

·       His duties at the company include payment of wages to employees.  (RFA No. 13.)

·       During Plaintiff’s employment, he knew that not paying Plaintiff her wages would be harmful to her.  (RFA No. 17.)  

·       In his letter dated May 25, 2020, he represented that he would provide payments to Plaintiff using his personal assets.  (RFA No. 27.)  

·       In another letter, dated February 22, 2021, he represented that his personal assets are a secure source of payment for Plaintiff’s employment wages.  (RFA No. 30.)  

·       He co-mingled assets with Santa Maria, Inc. (RFA No. 38.)

·       The Agreement is genuine.  (RFAs, p. 7:17-20 [Request for Genuineness Nos. 1].)

            Plaintiff seeks recovery of principal damages of $1,819,225.19 (representing wages from December 2014 through December 2022), prejudgment interest of $990,092.45, attorneys’ fees of $59,456.35, and a filing fee of $60, which total $2,868,833.99.  (Memorandum of Points and Authorities (“Motion”) at 12-15; see also Galliver Decl. ¶¶ 11-19 & Exh. 9.)  Plaintiff is entitled to attorneys’ fees under Welfare and Institutions Code section 15657.5(a).  Plaintiff’s attorneys’ fee calculation is based on the schedule provided by the Superior Court of  Los Angeles, Local Rules, rule 3.214(a).  (Motion, pp. 8:26-9:7.)  Independently of that schedule, the court finds the estimate to be eminently reasonable. 

            Based upon the foregoing, the court finds that Plaintiff has established that her claim has probable validity in the requested amount of $2,868,833.99.

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 attachment is based and the amount to be secured by the attachment is greater than zero. 

E.         Reduction of Amount to be Secured, and Exemptions – Defendant has neither claimed an exemption nor filed an opposition arguing that the amount of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b). 

F.         Subject Property

Plaintiff requests attachments against Defendant, natural persons, of items listed in CCP section 487.010(c).  (Application ¶ 9c.)  This is sufficient.  Plaintiff is not required by Code of Civil Procedure 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 section 484.020(e)].)

G.        Undertaking

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.

CONCLUSION AND ORDER

 The application for writ of attachment is GRANTED in the amount of $2,868,833.99 against Defendant Marcos Soliman.  Plaintiff shall post an undertaking of $10,000 for Defendant. 

IT IS SO ORDERED

Dated: March 26, 2025                                               ______________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge