Case Number: TC028317??? Hearing Date: May 23, 2017??? Dept: A
# 3. Financial Pacific Leasing, Inc. v. Saddlesprings Beverage Co.
Case No.: TC028317
Matter on calendar for: Unopposed application for right to attach order and writ of attachment; CMC
Tentative ruling on application for right to attach order and writ of attachment:
In this matter involving a breach of a commercial equipment lease, Ronald H. Berman aka Ronald Howard Berman is the only remaining defendant. Berman was the purported CEO of former co-defendant Saddlesprings Beverage Company, Inc., the lessee and primary obligor. Berman served as guarantor of the lease agreement. Plaintiff Financial alleges that Berman ultimately failed to make payments on the lease and is indebted to Financial in the total principal sum of $68,603.91.
Financial?s application for writ of attachment of Berman?s property seeks to secure $68,603.91 plus $4,330.24 in interest (18% from June 15, 2015 to November 21, 2015) plus $2,262.07 in attorney fees plus $400 in costs, for total of $75,596.22. Exhibit 3 to the application further shows that Berman has an interest in the 211 Quincy Avenue address.
On February 6, 2017, the Court granted Financial?s application for service by publication on Berman, and Financial did serve Berman by publication. (See February 6, 2017 Minute Order & March 27, 2017 Proof of Publication.) On February 6, 2017, the Court also scheduled a hearing for Financial?s application for right to attach order and writ of attachment for May 23, 2017. (See February 6, 2017 Minute Order.)
Presently before the Court is Financial?s unopposed application for right to attach order and writ of attachment.
Under CCP ? 483.010, in order for the Court to issue an attachment, the amount of Financial?s claim must exceed $500 and the claim against Berman must arise out of his conduct of ?a trade, business or profession.? These requirements are satisfied here: Financial?s claim against Berman exceeds $500 and arises out of Berman?s failure to pay for leased equipment, which was a commercial obligation arising out of the running of the Saddlesprings business and for which he was a guarantor.
Financial must also comply with CCP ?? 484.020, 484.030, and 484.040. Financial must file the application under oath and include:
1)????? A statement showing that the attachment is sought to secure the recovery;
2)????? A statement of the amount to be secured by the attachment;
3)????? A statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based;
4)????? A statement that the applicant has no information or belief that the claim is discharged by the U.S. Bankruptcy Code;
5)????? A viable, ?reasonably adequate? description of the property to be attached;
6)????? An affidavit showing that the plaintiff on the facts presented would be entitled to a judgment.
The Court finds that Financial has satisfied these requirements. The application is signed under penalty of perjury, and Exhibit 3 shows that Berman has an interest in the 211 Quincy Avenue address subject to the Court?s jurisdiction. Financial has also complied with CCP ? 484.040?s notice requirements by properly serving Berman by publication. (See March 27, 2017 Proof of Publication.)
The Declaration of John Wright shows that the attachment is proper with respect to Berman, the individual guarantor. The Court of Appeal has held:
If the sum total of the circumstances justifies the conclusion that the guarantor occupied himself ?????????????? to a substantial degree and on a continuing basis in promoting his own profit through provision ????????? of credit or management to the primary obligor, a guaranty executed in the course of such ? activity may properly be considered an obligation arising out of the conduct of the guarantor?s ??????????? business.
(Advance Transformer Company v. Superior Court (1974) 44 Cal.App.3d 127, 144.)
Berman, as stated in the Declaration of John Wright, has ?occupied himself to a substantial degree and on a continuing basis in promoting his own profit through provision of credit? because he was the CEO of Saddlesprings Beverage Company, Inc., a business entity subject to the lease terms. Berman sought to profit from his position as CEO of Saddlesprings, since that position would have presumably generated some type of compensation.
In sum, the Court finds that Financial has established the probable validity of its claims against Berman, therefore ?it is more likely than not that [Financial] will obtain a judgment against the Defendant on that claim.? (CCP ? 481.190.)
Finally, Financial is entitled to recovery of reasonable costs and attorney fees pursuant to the Court?s discretion under CCP ? 482.110. The Court finds that Financial?s request for $4,330.24 in interest (18% from June 15, 2015 to November 21, 2015) plus $2,262.07 in attorney fees plus $400 in costs is reasonable. The Master Lease at Exhibit 1 to the application provides for, upon default, 18% interest (see p. 4, ? 11), reasonable attorney fees (see p. 5, ? 12), and costs (id.).
For the above reasons, the Court grants Plaintiff Financial Pacific Leasing, Inc.?s application for writ of attachment of property of Defendant Ronald H. Berman aka Ronald Howard Berman.
Plaintiff?s CMC statement states: Defendant owes Plaintiff the principal amount of $68,603.91, plus interest, attorney?s fees, and costs due to his breach of personal guarantees. The case will be ready for trial within six months of defendant filing an answer to the complaint. Plaintiff seeks a four hour bench trial and is amenable to mediation. Plaintiff has dismissed all defendants except Ronald Berman. Plaintiff recently completed service by publication. Defendant had agreed to file a responsive pleading on or before June 2, 2017.
No CMC statement from Defendant.
Next dates: The CMC will be continued to a date after June 2, 2017, to be set at the hearing.
Notice: Plaintiff to give notice