2013-00144069-CU-BC

650 Howe Business Center Owners vs. Hal R. & Karen A. Shores

Nature of Proceeding: Writ of Attachment

Filed By: Allen, Sean D.

Plaintiff 650 Howe Business Center Owners’ Association’s Application for Right to
Attach Order and Order for Writ of Attachment against defendant Hal R. & Karen A.
Shores, LLC is DENIED.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
Counsel for moving party is
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).

Plaintiff has previously filed prior requests for right to attach orders which were denied
by this Court on Nov. 8, 2013 and Dec. 5, 2013.
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Plaintiff’s Complaint alleges five causes of action: 1 for breach of contract; 2 for
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breach of covenants, conditions & restrictions; 3 for common counts- account stated;
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4 for common counts – open book account and 5 for foreclosure deed.

Plaintiff Association has alleged breach of contract, in that defendant has failed to pay
assessments as required by Civil Code, sec. 1366(e) and 1367.1 and CC&Rs for
almost three years. During that time defendants have continued to own and to rent out
the property (Unit 10) for profit, continued to use the common areas facilities and take
advantage of the utilities and other services which the Association must pay, but
defendant has failed to pay its assessments for Unit 10.

Plaintiff seeks a writ of attachment pursuant to C.C.P., sec. 483.010. The amount to be
secured by the attachment is $103,260.53, which includes costs of $976.21 and
attorneys’ fees of $16,884.33. The property sought to be attached is “any property of a
defendant who is not a natural person.”

An attachment may be issued only in an action on a claim for money, 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 $ 500, exclusive of costs, interest, and
attorney’s fees, which arises out of the conduct by the defendant of a trade, business,
or profession. C.C.P. section 483.010.

Moving party plaintiff has made its initial showing as to each of these elements. Here
the defendant Hal R. & Karen A. Shores LLC is the record owners of real property
located at 650 Howe Ave, two Units 5 and 10, Sacramento, California. The property is
subject to the CC&Rs recorded Sept. 13, 2006.

In opposition, defendant Hal R. & Karen A. Shores, LLC assert that attachment is
prohibited where the underlying debt is secured by a lien on real property.

C.C.P., sec. 483.010(b) provides, in pertinent part: “An attachment may not be issued
on a claim which is secured by any interest in real property arising from agreement,
statute, or other rule of law (including any mortgage or deed of trust of realty and any
statutory, common law, or equitable lien on real property, but excluding any security
interest in fixtures subject to Division 9 (commencing with Section 9101) of the
Commercial Code).”

In the Complaint here, plaintiff has specifically pled the existence of a lien on the real
property. (Comp., para. 14, Exh. 3.) Plaintiff’s complaint sought the remedy of
foreclosure on the assessment lien and sale of the property.

Since the Dec. 5, 2013 denial of a writ of attachment, plaintiff has filed a request for
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dismissal without prejudice of its 5 cause of action for foreclosure deed and declares
that the Association has recorded a Release of Lien on Nov. 26, 2013; therefore the
Association asserts it no longer has a secured interest in the real property.

Code Civ. Proc. § 483.010(b) does permit an attachment to be issued where the claim
was originally secured by any interest in real property but, without any act of the
plaintiff or the person to whom the security was given, the security has become
valueless or has decreased in value to less than the amount then owing on the claim,
in which event the amount to be secured by the attachment shall not exceed the lesser of the amount of the decrease or the difference between the value of the security and
the amount then owing on the claim.

Here, the plaintiff has dismissed the fifth cause of action without prejudice, and thus
could refile that claim after the attachment was granted. Further, the complaint
continues to allege the existence of the lien at para. 14. There does not appear to be
a clear election of remedies to abandon the security interest. Plaintiff is prohibited from
also obtaining an attachment order. C.C.P., sec. 483.010(b)

Moving party asserts that the CC&Rs contain a waiver of the requirement that the
creditor proceed first against the security.

Case law is clear that waiver is the intentional relinquishment of a known right after
knowledge of the facts. The burden is on the party claiming a waiver of a right to prove
it by clear and convincing evidence that does not leave the matter to speculation, and
doubtful cases will be decided against a waiver. Waller v. Truck Ins. Exchange, Inc.
(1995) 11 Cal. 4th 1, 31.

Plaintiffs have not cited to any express waiver by defendants of the statutory
prohibition against a writ of attachment where the claim is already secured by an
interest in real property has been shown.

Additionally, although moving party plaintiff seeks to segregate one unit from another,
asserting that the lien only applies to one of the units, the writ of attachment seeks to
attach “any property of a defendant who is not a natural person.” The Court is not
prepared to grant the application on the record before it.

The application for writ of attachment is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.