Case Number: EC061423 Hearing Date: May 16, 2014 Dept: A

Burbank Mall Assoc. v V&C Holdings

APPLICATION FOR WRIT OF ATTACHMENT

Calendar: 7
Case No: EC061423
Date: 5/16/14

MP: Plaintiff, Burbank Mall Associates
RP: Defendant, Victor Costello

RELIEF REQUESTED:
Writ of Attachment $83,150 on property of Defendant, Victor Costello

DISCUSSION:
This case arose from the Plaintiff’s claim that the Defendant was unlawfully detaining the Plaintiff’s premises because the Defendant has failed to pay the rent due under the written lease and the Defendant failed to vacate after receiving a three-day notice to pay or quit. The matter proceeded to trial and on December 2, 2013, the Court found in favor of the Plaintiff and against the Defendant. A judgment awarding $73,630.92 in favor of the Plaintiff was entered on December 2, 2013.
The Court then vacated the judgment. The matter was set for a trial on December 8, 2014.

This hearing concerns the Defendant’s application for a writ of attachment on the property of Defendant, Victor Costello. The writ of attachment is a prejudgment remedy that will allow the Plaintiff to have a lien on the Defendant’s assets until a final adjudication of Plaintiff’s claims.

CCP section 484.090 permits the Court to issue a writ of attachment after finding the following:

1) the Plaintiff’s claim 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; and
4) The amount to be secured by the attachment is greater than zero.

CCP section 483.010 permits an attachment to be issued only in the following cases:

1) the case arises from a claim or claims for money;
2) each claim for money is based upon a contract, express or implied; and
3) the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars.

In support of its application, the Plaintiff has provided the declaration of Michael Keurjian, who provides facts in paragraph 1 to demonstrate that he is the General Manager for the Plaintiff. Mr. Keurjian states in paragraphs 3 and 4 that the Defendant, Victor Costello, entered into a guaranty agreement for the performance of a written lease agreement between the Plaintiff and the tenant, V & C Holdings, Inc. A copy of the written lease agreement is attached as exhibit A and a copy of the written guaranty agreement is attached as exhibit B.
Mr. Keurjian states in paragraph 5 that the tenant, V & C Holdings, Inc., went into default in 2013 as a result of the failure to pay the rent. Mr. Keurjian states in paragraph 5 that $92,516.66 is due for past rent. Mr. Keurjian states that an accounting statement for the rent owed is attached as exhibit D. The Plaintiff states on page 5, at lines 1 to 3, that it seeks a writ of attachment for $83,150 because this is the amount of rent that was unpaid during the occupancy of the premises by the tenant. Since the tenant was occupying the premises, the Plaintiff was unable to mitigate these damages.

This evidence shows that Plaintiff has a claim for money based upon an express contract and that the amount owed is greater than $500. In addition, the Plaintiff’s evidence demonstrates the probable validity of its claim that the Defendant, Victor Costello, breached the guaranty agreement with the evidence showing that the Defendant has failed to ensure that V & C Holdings, Inc., paid all rent due on the lease agreement.
The Plaintiff’s application for the writ of attachment states in paragraph 4 that the attachment is not sought for any purpose other than to recover the claim. In addition, the amount sought is greater than $0, as shown by the Mr. Keurjian’s statement that $92,516.66 is due for past rent. As noted above, the Plaintiff seeks a writ of attachment for $83,150 because this is the amount of unpaid rent that accrued while V & C Holdings, Inc., was in possession of the premises.

Therefore, the Plaintiff’s application satisfy the requirements of CCP section 484.090 because the Plaintiff has demonstrated that its claim is one upon which an attachment may be issued, that the Plaintiff’s claim has probable validity, that the attachments are sought only to recover the claim, and that the amount to be secured by the attachments is greater than zero.
CCP section 489.210 requires the Plaintiff to provide an undertaking before the Court may issue a writ of attachment. CCP section 489.220 sets the amount for an undertaking at $10,000. Therefore, the Court will issue the writ of attachment on the property of the Defendant when Plaintiff files an undertaking for $10,000.

RULING:
GRANT application and issue a writ of attachment for $83,150 upon the filing of a $10,000 undertaking by the Plaintiff.