2013-00151871-CU-BC

Greenback Associates vs. Etty Blackman

Nature of Proceeding:      Writ of Attachment (Etty Blackman)

Filed By:   Silk, Melvyn A.

This motion was continued from Nov. 12, 2013, to permit the Court to consider the late
filed opposition of Etty Blackman (filed after the tentative ruling was posted on Nov. 8,
2013) and to permit the moving party time to file a reply. The Court has now received
and considered those additional papers.

Plaintiff Greenback Associates Application for a Right to Attach Order and an Order for
Issuance of Writ of Attachment against Etty Blackman is DENIED.

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Plaintiff seeks to attach the real property commonly known as 2170 26   Avenue, San
Francisco, California, owned by Etty and her husband.  Plaintiff’s verified complaint for breach of contract and common counts alleges that
Plaintiff (Landlord) and Defendants Bruce and Etty Blackman, husband and wife
(Tenant) signed a Lease for the premises located at for the commercial real property
located at 8121 Greenback Lane, Fair Oaks, to be run as a restaurant in 1996.
Effective Nov. 24, 2009, they signed an amendment to their written Lease Agreement,
individually d.b.a. Sam’s Kosher Style Deli, for a further two (2) year term through
October 31, 2011, with scheduled rent, as more particularly set forth in Amendment To
Lease Renewal, Amendment #4 (Exhibit A to Complaint). Thereafter Defendants
remained in possession of the subject property as hold over tenants.

On June 12, 2013, Etty Blackman notified Greenback Associates that effective June
30, 2013, pending her dissolution proceeding with Bruce Blackman, she was
terminating her month to month tenancy. Plaintiffs advised defendants that they both
remained obligated for the past due rent for the period through June 30, 2013.

Plaintiff alleges that delinquent rent as of June 30, 2013 in the amount of $62.276.81 is
due and owing.

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 established a prima facie case as to each of these elements.
Defendants leased the subject commercial property pursuant to a written lease
agreement, which was operated as Sam’s Kosher Style Restaurant. After the term or
the Lease expired, defendants remained in possession of the leased property as
holdover tenants. Plaintiff alleges that delinquent rent as of June 30, 2013 in the
amount of $62.276.81 is due and owing.

In opposition, Etty Blackman asserts she was not properly served with the summons,
complaint and notice of right to attach order.  The Court files reflect personal service
on Etty Blackman of all papers on Oct. 1, 2013 by counsel for the plaintiff.

Etty Blackman declares that counsel for Greenback Associates, Melvin A. Silk, is also
one of the two general partners of Greenback, and therefore may not serve process in
this action, because he has an interest in the outcome.

C.C.P., sec. 414.10 provides that “A summons may be served by any person who is at
least 18 years of age and not a party to the action.”  Although Melvin A. Silk declares
that he is a Trustee of a Trust which is a partner in Silk Enterprises, LP, which holds a
25% interest in the real property as a partner of Greenback, he is not named as an
individual plaintiff, and is therefore not a “party” to the suit.  The Court finds that
service of process is sufficient. The Court declines the defendant’s request to deny
based on lack of notice to Etty Blackman.

Next, Etty Blackman asserts that the claim does not arise out of conduct by her of a
trade, business or profession, as required by C.C.P., sec. 483.010(c).  She asserts
that moving party has not shown that she is engaged in business and is no longer
party to any lease agreement with plaintiff.             Etty acknowledges that she and her husband owned a restaurant. Although she
asserts that she has had no involvement in running the restaurant for the last seven
years, the Addendum to the lease on Nov. 24, 2009, reflects her signature as well as
her husband’s, individually and d.b.a. Sam’s Kosher Style Deli, for a further two (2)
year term through October 31, 2011.

Etty acknowledges that she did not notify the plaintiffs until June 2013 that she was no
longer involved in the restaurant and did not wish to be further bound by the holdover
month to month tenancy. The Court finds the evidence sufficient to support the
conclusion that the liability for past due rent arises out of conduct by Etty of a trade,
business or profession.

Etty Blackman further objects to the amount sought to be secured by the attachment,
declaring that she and her husband negotiated a reduction in rent with Arlen Opper on
behalf of Greenback Associates in or about 2010.  From that point forward, she
declares that her husband paid rent in the amount of $2,700 per month, which amount
was accepted without protest by plaintiff.

Etty declares that on June 12, 2013, she met with Arlen Opper and Chis Fontes and
informed them she was divorcing and wished to terminate her tenancy. Opper
confirmed that while Etty would owe no future rent, she would remain liable for back
rent owed. She declares that was the first time she realized that plaintiff’s position was
that the rent had not been renegotiated to $2,700 per month, and the difference in rent
was still owed.

Etty declares that she immediately attempted to pay $30,000 towards the claimed back
rent, but Opper refused to accept it.

As moving party plaintiff submits no evidence in opposition to reflect that there was no
agreement to a reduction in rent in 2010, the Court cannot find that the plaintiff has
currently met its burden of proving (1) that the claim is one upon which an attachment
may be issued and (2)  the probable validity of such claim. C.C.P., sec.  483.010; see
also §§ 484.090(a)(2), 485.220(a)(2); Kemp Bros. Construction, Inc. v. Titan Electric
Corp. (2007) 146 Cal. App. 4th 1474, 1481. Thus, the Court cannot conclude that
Plaintiff has met its burden to show the probable validity of its claims. (CCP §484.090
(a)(2).) “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.” (C.C.P. 481.190.)

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.