Judge: Theodore R. Howard, Case: 22-1257513, Date: 2022-12-15 Tentative Ruling

Before the Court are two requests for issuance of a Right to Attach Order and Writ of Attachment (“the Applications”), filed on 10/12/22 by Plaintiff Nano Banc (“Bank”), as to defendants Aspiration Partners, Inc. (“API”) and Andrei Cherny (“Cherny”).  Both Applications are DENIED.

With regard to API, Bank has shown that some of the requirements for attachment under C.C.P. §483.010 and §484.090 are met.  The evidence presented shows that the claim is one for money based on the written loan agreements presented (Patrick Decl. ¶¶ 2, 3; Exs. 1-6), in an amount greater than $500, which is not secured by real property, and is for an ascertainable sum.  But there is insufficient evidence presented as to the factual basis for the claim that API defaulted, and as to the sum allegedly now owed.  Bank has also failed to address  any applicable offset  based on its interest in the “Collateral,” and/or based on the Cross-Complaint filed by API on 7/5/22. The Application as to API is therefore DENIED, without prejudice to a renewed Application which adequately addresses these elements of the attachment claim.

With regard to Cherny, the Application necessarily also fails, as the claim as to him is derivative. In addition, Cherny has presented evidence to show that the Commercial Guaranty is subject to a “Nonrecourse/Limited Liability Addendum to the Guaranty” which appears to limit Bank’s recourse thereunder to “the Collateral” in the Commercial Security Agreement, and thus prevent attachment as to his personal assets. Bank has failed to even address that issue on Reply. The Application as to Cherny is therefore also DENIED

Defendants’ Evidentiary Objections, which were not properly numbered, are SUSTAINED as to what are effectively Objection Nos. 4 and 6 (directed to the Patrick Decl. at ¶¶ 5 and 7), for lack of adequate foundation and documentary support, but otherwise OVERRULED.

Counsel for Plaintiff is to give notice of these rulings.