Motion for Right to Attach Order and Writ of Attachment

Upon careful consideration of the parties’ filings, Plaintiff Fred Sacher’s, and Alexander “Ted” Alvarez’, motion/application for the prejudgment remedy of a writ of attachment is denied.

Legal Standards

Attachment is considered to be a harsh remedy and the statutory requirements are subject to strict construction.  (Kemp Bros. Constr., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476; Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106; Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 77.)

Evidence proffered in support of, or in opposition to, an application must be set forth with particularity, admissible, competent and under oath by declarants with personal knowledge of the facts proffered.   (CCP §§ 482.040, 484.020, 484.030; Goldstein v. Barak Const. (2008) 164 Cal.App.4th 845, 853; VFS Financing, Inc. v. CHF Express, LLC, 620 F.Supp.2d 1092, 1097-98 (C.D. Cal. 2009).)

A plaintiff has the burden of proving that the claim is one on which an attachment may issue, and the probable validity of the claim. (CCP § 484.090(a), § 483.010, §481.190; Loeb & Loeb v. Beverly Glen Music, Inc.(1985) 166 Cal.App.3d 1110, 1115-1116; Goldstein v. Barak Construction(2008) 164 Cal.App.4th 845, 852.)

Application

The moving evidence does not support the granting of the motion.  As to the defendant Kenneth Sacher individually, the evidence was not sufficient to show his personal trade, profession or occupation was involved.  (See Plffs. Notice of Hearing, ¶ 1, vs. Application ¶ 2. vs Movg Brf. at 2:5See also CCP § 483.010(c); Nakasone v. Randall (1982) 129 Cal.App.3d 757, 762, 764 (“Thus plaintiff was required to show, among other things, [by substantial evidence] that the claim sued upon arose out of the conduct by th[e] individual defendant of a trade, business or profession”).)

Regarding the 2014 addendum (“Addendum”) to the 2009 promissory note (“Note”), evidence was not provided by Plaintiff to support the position that the Addendum is lacking in consideration or was procured through fraud.  (Cf. Civil Code §1614 (stating that a written contract is presumed to be supported by consideration); Fox Chicago Realty Corp. v. Zukor’s Dresses (1942) 50 Cal.App.2d 129, 136.)

The principal amount of the Note is apparently due in the year 2025 (assuming, no default).  For the annual interest payments, the parties changed the Sacher 2009 Trust’s obligations via the Addendum.  The language of the Addendum that future interest payments are deferred until there is “sufficient” “positive cash flow of the investments of Maker” is unclear as to its meaning.   The specific investments intended, are not described.   The words “positive cash flow” are not defined.  The moving papers do not sufficiently address these uncertainties for the Court.  As a general principle, if there are uncertainties in contract language, it can permit the introduction of extrinsic evidence to show the meaning, or the parties’ intent, or the circumstances in which the agreement was made, or the meaning of technical terms in particular industries. (See Civ. Code §§1647,  1614, 1636, 1643; Wechsler v. Capitol Trailer Sales, Inc. (1963) 220 Cal.App.2d 252, 264; Newcomb & Co. v. Sainte Claire Realty Co. (1942) 55 Cal.App.2d 437, 439.)

Through the Addendum it appears that the Plaintiff F. Sacher, and his (former) co-trustee, R. Sacher, significantly deferred the debtor’s payments in some sense, until the debtor had sufficient funds to pay.  This could be a condition precedent. (See generally 1 Witkin, Summary 11th Contracts § 814 (2018) “Event as Condition”; 3 Witkin, Cal. Proc. 5th Actions § 531 (2008) “Obligation Dependent on Happening of Event” (“If the obligation of the defendant is conditional on the happening of an event . . . , the cause of action does not accrue until that time”).) 

 

The evidence and the argument were not developed sufficiently as to the meaning and interpretation and fulfillment of condition precedents and what the obligations of the Defendant were, if they occurred.

In summary, there appear to be significant factual and legal disputes at this time.  The Court is unable to conclude that the probability of prevailing is established by the Plaintiff at this time.

Regarding arguments in the briefing about admissions, the binding effect of an attorney’s statement upon the client, is less clear if it is an out-of-court statement.  If a statement is admissible, it may not be conclusive as an admission, and may otherwise lack foundation or be based upon hearsay.  (See, e.g., Moving Exhibit 9 p. 2; see Rutter Group, Cal. Prof Resp. ¶ 3:152; Hasman v. Canman (1933) 136 Cal. App. 91, 96-97; Adelstein v. Greenberg (1926) 77 Cal.App. 548, 552; Morrell v. Caldow (1929) 99 Cal.App. 159, 162;  Perkins v. West (1954) 122 Cal.App.2d 585, 591.)

The evidentiary objections of Defendants are overruled.  They tended to concern the weight accorded to the evidence, more than the admissibility.  (See, e.g., Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321 (“As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to thedocument’s weight as evidence, not its admissibility.”); Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1443 (“If a witness has passed this threshold, the question of the degree of the witness’ knowledge goes to the weight of the testimony rather than to its admissibility”).)

Defendants shall give notice.

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