Preview
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AT-105
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Stale Bar nuinber, and address}:
Loren M. Lopin, Attorney At Law SBN: 1 64945 encouereseen
[235 Pine Street, Suite 1200
San Francisco, CA 94104 ELECTRONICALLY
TeLeProné no: (415) 200-4592 PAX NO. (Optra: D
Euan AnoRESS (omonal: | Oren@estateplansf.com sweh, TL ED
Attorney For meme: Loren M. Lopin County of San Francisco
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco APR 22 2015
siacer anoress: Civic Center Courthouse Clerk of the Court
maunc anoress: 400 McAllister. Room Dept 302. BY: JUDITH NUNEZ
cry anoze cone: San Francisco, CA 94102 , Deputy Clerk
|____Brancrtsaue. Law and Motion
PLAINTIFF: Loren M. Lopin
oerenpant: Jane Chavez, aka Jane Margaret Chavez, Oc /7o 4
APPLICATION FOR CASE NUMBER:
RIGHT TO ATTACH ORDER TEMPORARY PROTECTIVE ORDER
<] ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT 6
[J ORDER FOR ISSUANCE OF ADDITIONAL WRIT OF ATTACHMENT CEC /5-5 45 15 0
(4) After Hearing [4] Ex Parte
(_) Against Property of Nonresident
1. Plaintiff (pamey: Loren M. Lopin
applies ¥'] after hearing [7] ex parte for
a. a fight to attach order and writ of attachment.
b. [an additional writ of attachment,
c. [4] a temporary protective order.
d. [7] an order directing the defendant to transfer to the levying officer possession of
(1) [J property in defendant's possession,
@CI documentary evidence in defendant's possession of title to property.
(3) CI documentary evidence in defendant's possession of debt owed to defendant.
2. Defendant (name: Jane Chavez
a. is a natural person who
(1) CJ resides in California.
(2) [¥] does not reside in California.
b. CoJisa corporation
(1) 2] quatified to do business in California,
@ not qualified to do business in California.
a is a California partnership or other unincorporated association.
d. (] is a foreign partnership that
(1) (J has filed a designation under Corporations Cade section 15800.
{2} has not filed a designation under Corporations Code section 15800.
e. [1] is other (specify):
3. Attachment is sought to secure recovery on a claim upon which attachment may issue under (check one}:
Code of Civil Procedure section 483,010 Welfare and Institutions Code section 15657,01.
4. Attachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based.
5. Plaintiff has no information or belief that the claim is discharged or the prosecution of the action is stayed in a proceeding under
tile 11 of the United States Code (Bankruptcy).
page tot
“eifcatsiaeu” APPLICATION FOR RIGHT TO ATTACH ORDER, cM Roaarc jana ainoas:
Atiwsitesoria%) TEMPORARY PROTECTIVE ORDER, ETC. (Attachment) wn curren govAT-105
SHORT TITLE CASE NUMBER:
6. a. 1} Plaintiffs claim or claims arise out of conduct by the defendant who is a natural person of a jrade, business, or profession. The
claim or claims are not based on the sale or lease of property, a license to use property, the furnishing of services, or the loan
of money where any of the foregoing was used by the defendant primarily for personal, family, or household purposes.
b. Plaintiff's claim or claims arise-out of conduct of a natural person who oran entity that has taken, secreted, appropriated,
obtained or retained, or assisted in taking, secreting, appropriating, obtaining, or retaining real or personal property of an eider
oF dependent adull for a wrorigfut use, with intent to defraud, or by using undue influence.
The facts showing piaintiff is entitled to a Judgment on the claim up on which the attachment is based are set forth with particularity
in the
a verified complaint.
b. attached affidavit or declaration.
c. [1] following facts (specify):
N
8. Theamount to be secured by the attachment is: $ 2.2 , 63732
a. L¥-) which includes estimated costs of $ 500.00
b. L#_] which includes estimated allowable attorney fees of: $ 2,000.00
9. Plaintiff is informed and believes that the following property sought to be attached for which a method of levy is provided.is subject
to attachment:
a {J Any property of a defendant who is not a natural person.
b. L¥_] Any property of a nonresident defendant.
ef] Property of a defendant who is @ natural person that is subject to attachment under Code of Civil Procedure section
487.010 (specify):
a. C7] Property covered by a bulk sales nolice with respect to a bulk transfer by defendant on the proceeds of the sale of such
property (describe):
Plaintiffs pro.rata share of proceeds from an escrow in which defendant's liquor license is sold (specify ficense number):
ato
10. Plaintiff is informed.and believes that the property sought to be-attached Is not exempt from attachment.
41. ([_] The court issued a Right to Attach Order on (date):
(Attach a copy.)
AR (2) Nonresident defendant has nol filed a general appearance.
Frise 76 “APPLICATION FOR RIGHT TO ATTACH ORDER, Pago 2019
me TEMPORARY PROTECTIVE ORDER, ETC. (Attachment)AT-105
SHORT THLE: CASE NUMBER:
13. a. Plaintiff Ly} alleges on ex parte. application for order for writ-of attachment
(2) is informed ana believes on application for temporary protective order
that plaintiff will suffer great or irreparable injury if the order is not issued before the matter can be heard on notice because
(1) [47] it may be inferred that there isa danger that the properly sought to be attached will be
(@ [4] concealed.
(0)[7) substantially impaired in vaiue.
(©) [47] made unavailable to levy by other than concealment or impairment in value,
(2) ["] defendant has failed to Pay the debt underlying the requested attachment and is insolvent as defined in Code of Civil
Procedure section 485.010(b)(2).
(8) a bulk sales notice was recorded and published pursuant to division 6 of the. Commercial Code with respect to a bulk
transfer by the defendant.
(4) an escrow has been opened under the provisions of Business and Professions Code section 24074 with respect to
the sale by the defendant.
(5) Cv] other circumstances (specify):
The defendant's sole remaining property in California is real property located at
4165-4167 20th Street, San Francisco, California 94114, The real property is for sale,
fell out of escrow and is currently back on the market,
b. The statements in item 13a are established by the altached affidavit or declaration
[J the folowing facts (specify):
14, Plaintiff requests the following relief by temporary protective order (specify):
See Exhibit A
15. Plaintiff .
a. L¥] has filed an undertaking in the amount of $ / Q, Do0O
b. has not filed an undertaking.
Date: 4} (a2. his
. ‘
Loren M. Lopin b Sorer Gx ae
iF F'S ATTORNEY)
(TYPE OR PRINT NANE OF PLAINTIFF OR PLAINTIFF's ATTORNEY) (SIGNATURE OF PLAINTIFF OR PLAIN]
DECLARATION
I declare under penalty of perjury under the laws of the State.of California that the foregoing is. true and correct.
Date: 4 / Qa, 15
Loren M. ed: b Sere. my, a ‘
{TYPE OR PRINT NAME) {SIGNATURE OF DECLARANT
6. Number of pages attached: Ss
TI APPLICATION FOR RIGHT TO ATTACH ORDER,
TEMPORARY PROTECTIVE ORDER, ETC. (Attachment)
Pago osExhibit A
14. Preclude sale of real property located at 4165-4167 20" Street, San
Francisco, California 94114, legally described as:
“Beginning at a point on the Southerly line of 20" Street, distant thereon 180
feet Easterly from the Southeasterly corner of 20" and Castro Streets;
running thence Easterly along said Southerly line of 20" Street 25 feet;
thence at a right angle Southerly 114 feet; thence at a right angle Westerly
25 feet; and thence at a right angle Southerly 114 feet to the point of
beginning.
Being a portion of Mission block No. 111,”
APN: Lot 079, Block 3603
pending hearing on Plaintiff's Application for Writ of Attachment.Declaration of Loren M. Lopin
1, Loren M. Lopin, declare the following:
1. lentered into a legal service agreement with Jane Chavez to represent her in
her capacity as successor co-Trustee of the Constantine Joseph Bogdan and
Nancy Bodgan Trust, dated June 27, 1991.
2. Pursuant to this legal service agreement monies are due, owing and unpaid.
3. The defendant, Jane Chavez, is a natural person who is not a California
resident and is domiciled in Sedona, Arizona.
4. This claim is a contract claim for money.
5. This claim is for a specified amount of money.
6. This claim is not secured or the security is valueless or has decreased in value
to less than the amount owning on the claim.
7. This claim arises out of a commercial transaction. C.C.P, 483.010 A trust that
managed valuable real property and retained attorney to protect trust assets was
engaged in a commercial transaction Kadison, Pfaelzer, Woodard, Quinn &
Rossi v. Wilson (1987) 197 C.A.3d 1,4, 242 C.R. 595
8. This Attachment is not sought for a purpose other than the recovery on a claim
upon which the attachment is based.
9. | have no information or belief that the claim is discharged or the prosecution
of the action is stayed in a proceeding under title 11 of the United States
Bankruptcy Code.
10. This claim arises out of conduct by defendant, Jan Chavez who is a natural
person of a trade, business, or profession.
11. | will suffer great or irreparable injury if the order is not issued before the
matter can be heard on notice because there is danger that the property sought
to be attached will be concealed, substantially impaired in value, or made
unavailable to levy by other than concealment or impairment in value.
12. The amount to be secured by the attachment is approximately $20,189.32.13. The defendant, Jane Chavez's sole remaining property in California is the
real property located at 4165-4167 20" Street, San Francisco, California 94114.
14. The real property located at 4165-4167 20" Street, San Francisco, California
94114, is for sale, fell.out of escrow and is currently back on the market in the
MLS.
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
Executed this 22" day of April 2015, at San Francisco, California
Loren M. Lopines my
MEMORANDUM OF POINTS AND AUTHORITIES
I ATTACHMENT IS AN AUTHORIZED PRE JUDGMENT REMEDY IN
THIS CASE
Attachment is authorized only where the following conditions apply:
(a) The claim is a contract claim for money.
(b) a specified amount is claimed.
(c) The claim is not secured or the security is valueless or has decreased in
value to less than the amount owing on the claim.
(d) The claim arises out of a commercial transaction. C.C.P. 483.010
Here, the declaration of Loren M. Lopin confirms that Defendant, Jane
Chavez, agreed in writing to pay Plaintiff for services rendered in connection with
a trust administration. Case law has held that these types of services are a
commercial, and not a consumer transaction C.C.P. 483.010(c) (See Kadison,
Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 C.A.3d 1, 4, 242 C.R.
595 [trust that managed valuable real property and retained attorney to protect
trust assets was engaged in commercial transaction]; C.J.E.R., Judges
Benchbook, Civil Proceedings: Before Trial 2d, §14.58: C.E.B., 1 Debt Collection
Practice 2d, §6.5.) All the conditions for granting an attachment are present.
Defendant has elected state bar arbitration of the matter, and while that does
stay any other proceedings, the trial court has the power to lift the stay for
consideration and if warranted, to make a Temporary Protective Order or right to
attach order. Loeb & Loeb v. Beverly Glen Music, Inc. 166 Cal App.3d 1110, 212
Cal. Rptr, 830 Cal.App. 2 Dist..1985.
Further, on May 16, 2015, in a telephone conversation with Ms. Alma
Robles, the Fee Disputes Program Administrator, for the Bar Association of San
Francisco, Ms. Robles stated that the State Bar arbitrators are not authorized to
grant prejudgment equitable relief and she confirmed this in a follow-up call to
Loren M. Lopin, after speaking with the State Bar of California.CONCLUSION
The declaration of Loren Lopin has established irreparable harm if the sale
of trust assets proceeds without provisional relief, and has further established the
probability of success on the merits as to his claim. Plaintiff therefore requests
issuance of a Temporary Protective Order and setting of a hearing on the
application of right to attach order.
Respectfully Submitted,
4216 ven nhge
Loren M. Lopin
Preview
ee om AT-105 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Stale Bar nuinber, and address}: Loren M. Lopin, Attorney At Law SBN: 1 64945 encouereseen [235 Pine Street, Suite 1200 San Francisco, CA 94104 ELECTRONICALLY TeLeProné no: (415) 200-4592 PAX NO. (Optra: D Euan AnoRESS (omonal: | Oren@estateplansf.com sweh, TL ED Attorney For meme: Loren M. Lopin County of San Francisco SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco APR 22 2015 siacer anoress: Civic Center Courthouse Clerk of the Court maunc anoress: 400 McAllister. Room Dept 302. BY: JUDITH NUNEZ cry anoze cone: San Francisco, CA 94102 , Deputy Clerk |____Brancrtsaue. Law and Motion PLAINTIFF: Loren M. Lopin oerenpant: Jane Chavez, aka Jane Margaret Chavez, Oc /7o 4 APPLICATION FOR CASE NUMBER: RIGHT TO ATTACH ORDER TEMPORARY PROTECTIVE ORDER <] ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT 6 [J ORDER FOR ISSUANCE OF ADDITIONAL WRIT OF ATTACHMENT CEC /5-5 45 15 0 (4) After Hearing [4] Ex Parte (_) Against Property of Nonresident 1. Plaintiff (pamey: Loren M. Lopin applies ¥'] after hearing [7] ex parte for a. a fight to attach order and writ of attachment. b. [an additional writ of attachment, c. [4] a temporary protective order. d. [7] an order directing the defendant to transfer to the levying officer possession of (1) [J property in defendant's possession, @CI documentary evidence in defendant's possession of title to property. (3) CI documentary evidence in defendant's possession of debt owed to defendant. 2. Defendant (name: Jane Chavez a. is a natural person who (1) CJ resides in California. (2) [¥] does not reside in California. b. CoJisa corporation (1) 2] quatified to do business in California, @ not qualified to do business in California. a is a California partnership or other unincorporated association. d. (] is a foreign partnership that (1) (J has filed a designation under Corporations Cade section 15800. {2} has not filed a designation under Corporations Code section 15800. e. [1] is other (specify): 3. Attachment is sought to secure recovery on a claim upon which attachment may issue under (check one}: Code of Civil Procedure section 483,010 Welfare and Institutions Code section 15657,01. 4. Attachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based. 5. Plaintiff has no information or belief that the claim is discharged or the prosecution of the action is stayed in a proceeding under tile 11 of the United States Code (Bankruptcy). page tot “eifcatsiaeu” APPLICATION FOR RIGHT TO ATTACH ORDER, cM Roaarc jana ainoas: Atiwsitesoria%) TEMPORARY PROTECTIVE ORDER, ETC. (Attachment) wn curren govAT-105 SHORT TITLE CASE NUMBER: 6. a. 1} Plaintiffs claim or claims arise out of conduct by the defendant who is a natural person of a jrade, business, or profession. The claim or claims are not based on the sale or lease of property, a license to use property, the furnishing of services, or the loan of money where any of the foregoing was used by the defendant primarily for personal, family, or household purposes. b. Plaintiff's claim or claims arise-out of conduct of a natural person who oran entity that has taken, secreted, appropriated, obtained or retained, or assisted in taking, secreting, appropriating, obtaining, or retaining real or personal property of an eider oF dependent adull for a wrorigfut use, with intent to defraud, or by using undue influence. The facts showing piaintiff is entitled to a Judgment on the claim up on which the attachment is based are set forth with particularity in the a verified complaint. b. attached affidavit or declaration. c. [1] following facts (specify): N 8. Theamount to be secured by the attachment is: $ 2.2 , 63732 a. L¥-) which includes estimated costs of $ 500.00 b. L#_] which includes estimated allowable attorney fees of: $ 2,000.00 9. Plaintiff is informed and believes that the following property sought to be attached for which a method of levy is provided.is subject to attachment: a {J Any property of a defendant who is not a natural person. b. L¥_] Any property of a nonresident defendant. ef] Property of a defendant who is @ natural person that is subject to attachment under Code of Civil Procedure section 487.010 (specify): a. C7] Property covered by a bulk sales nolice with respect to a bulk transfer by defendant on the proceeds of the sale of such property (describe): Plaintiffs pro.rata share of proceeds from an escrow in which defendant's liquor license is sold (specify ficense number): ato 10. Plaintiff is informed.and believes that the property sought to be-attached Is not exempt from attachment. 41. ([_] The court issued a Right to Attach Order on (date): (Attach a copy.) AR (2) Nonresident defendant has nol filed a general appearance. Frise 76 “APPLICATION FOR RIGHT TO ATTACH ORDER, Pago 2019 me TEMPORARY PROTECTIVE ORDER, ETC. (Attachment)AT-105 SHORT THLE: CASE NUMBER: 13. a. Plaintiff Ly} alleges on ex parte. application for order for writ-of attachment (2) is informed ana believes on application for temporary protective order that plaintiff will suffer great or irreparable injury if the order is not issued before the matter can be heard on notice because (1) [47] it may be inferred that there isa danger that the properly sought to be attached will be (@ [4] concealed. (0)[7) substantially impaired in vaiue. (©) [47] made unavailable to levy by other than concealment or impairment in value, (2) ["] defendant has failed to Pay the debt underlying the requested attachment and is insolvent as defined in Code of Civil Procedure section 485.010(b)(2). (8) a bulk sales notice was recorded and published pursuant to division 6 of the. Commercial Code with respect to a bulk transfer by the defendant. (4) an escrow has been opened under the provisions of Business and Professions Code section 24074 with respect to the sale by the defendant. (5) Cv] other circumstances (specify): The defendant's sole remaining property in California is real property located at 4165-4167 20th Street, San Francisco, California 94114, The real property is for sale, fell out of escrow and is currently back on the market, b. The statements in item 13a are established by the altached affidavit or declaration [J the folowing facts (specify): 14, Plaintiff requests the following relief by temporary protective order (specify): See Exhibit A 15. Plaintiff . a. L¥] has filed an undertaking in the amount of $ / Q, Do0O b. has not filed an undertaking. Date: 4} (a2. his . ‘ Loren M. Lopin b Sorer Gx ae iF F'S ATTORNEY) (TYPE OR PRINT NANE OF PLAINTIFF OR PLAINTIFF's ATTORNEY) (SIGNATURE OF PLAINTIFF OR PLAIN] DECLARATION I declare under penalty of perjury under the laws of the State.of California that the foregoing is. true and correct. Date: 4 / Qa, 15 Loren M. ed: b Sere. my, a ‘ {TYPE OR PRINT NAME) {SIGNATURE OF DECLARANT 6. Number of pages attached: Ss TI APPLICATION FOR RIGHT TO ATTACH ORDER, TEMPORARY PROTECTIVE ORDER, ETC. (Attachment) Pago osExhibit A 14. Preclude sale of real property located at 4165-4167 20" Street, San Francisco, California 94114, legally described as: “Beginning at a point on the Southerly line of 20" Street, distant thereon 180 feet Easterly from the Southeasterly corner of 20" and Castro Streets; running thence Easterly along said Southerly line of 20" Street 25 feet; thence at a right angle Southerly 114 feet; thence at a right angle Westerly 25 feet; and thence at a right angle Southerly 114 feet to the point of beginning. Being a portion of Mission block No. 111,” APN: Lot 079, Block 3603 pending hearing on Plaintiff's Application for Writ of Attachment.Declaration of Loren M. Lopin 1, Loren M. Lopin, declare the following: 1. lentered into a legal service agreement with Jane Chavez to represent her in her capacity as successor co-Trustee of the Constantine Joseph Bogdan and Nancy Bodgan Trust, dated June 27, 1991. 2. Pursuant to this legal service agreement monies are due, owing and unpaid. 3. The defendant, Jane Chavez, is a natural person who is not a California resident and is domiciled in Sedona, Arizona. 4. This claim is a contract claim for money. 5. This claim is for a specified amount of money. 6. This claim is not secured or the security is valueless or has decreased in value to less than the amount owning on the claim. 7. This claim arises out of a commercial transaction. C.C.P, 483.010 A trust that managed valuable real property and retained attorney to protect trust assets was engaged in a commercial transaction Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 C.A.3d 1,4, 242 C.R. 595 8. This Attachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based. 9. | have no information or belief that the claim is discharged or the prosecution of the action is stayed in a proceeding under title 11 of the United States Bankruptcy Code. 10. This claim arises out of conduct by defendant, Jan Chavez who is a natural person of a trade, business, or profession. 11. | will suffer great or irreparable injury if the order is not issued before the matter can be heard on notice because there is danger that the property sought to be attached will be concealed, substantially impaired in value, or made unavailable to levy by other than concealment or impairment in value. 12. The amount to be secured by the attachment is approximately $20,189.32.13. The defendant, Jane Chavez's sole remaining property in California is the real property located at 4165-4167 20" Street, San Francisco, California 94114. 14. The real property located at 4165-4167 20" Street, San Francisco, California 94114, is for sale, fell.out of escrow and is currently back on the market in the MLS. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 22" day of April 2015, at San Francisco, California Loren M. Lopines my MEMORANDUM OF POINTS AND AUTHORITIES I ATTACHMENT IS AN AUTHORIZED PRE JUDGMENT REMEDY IN THIS CASE Attachment is authorized only where the following conditions apply: (a) The claim is a contract claim for money. (b) a specified amount is claimed. (c) The claim is not secured or the security is valueless or has decreased in value to less than the amount owing on the claim. (d) The claim arises out of a commercial transaction. C.C.P. 483.010 Here, the declaration of Loren M. Lopin confirms that Defendant, Jane Chavez, agreed in writing to pay Plaintiff for services rendered in connection with a trust administration. Case law has held that these types of services are a commercial, and not a consumer transaction C.C.P. 483.010(c) (See Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 C.A.3d 1, 4, 242 C.R. 595 [trust that managed valuable real property and retained attorney to protect trust assets was engaged in commercial transaction]; C.J.E.R., Judges Benchbook, Civil Proceedings: Before Trial 2d, §14.58: C.E.B., 1 Debt Collection Practice 2d, §6.5.) All the conditions for granting an attachment are present. Defendant has elected state bar arbitration of the matter, and while that does stay any other proceedings, the trial court has the power to lift the stay for consideration and if warranted, to make a Temporary Protective Order or right to attach order. Loeb & Loeb v. Beverly Glen Music, Inc. 166 Cal App.3d 1110, 212 Cal. Rptr, 830 Cal.App. 2 Dist..1985. Further, on May 16, 2015, in a telephone conversation with Ms. Alma Robles, the Fee Disputes Program Administrator, for the Bar Association of San Francisco, Ms. Robles stated that the State Bar arbitrators are not authorized to grant prejudgment equitable relief and she confirmed this in a follow-up call to Loren M. Lopin, after speaking with the State Bar of California.CONCLUSION The declaration of Loren Lopin has established irreparable harm if the sale of trust assets proceeds without provisional relief, and has further established the probability of success on the merits as to his claim. Plaintiff therefore requests issuance of a Temporary Protective Order and setting of a hearing on the application of right to attach order. Respectfully Submitted, 4216 ven nhge Loren M. Lopin