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1 J. Paul Gignac, State Bar No. 125676
RIMON, P.C.
2 200 E. Carrillo Street, Suite 201
3 Santa Barbara, California 93101
Main Telephone: (805) 695-4080
4 Direct Telephone: (805) 568-7891
Email: jpaul.gignac@rimonlaw.cor
Attorneys for Defendants Ian Alban Stewart, Sr.
and Ian Alban Stewart, Jr.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA - ANACAPA DIVISION
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THE MICHAEL M. STEWART TRUST, a Case No.: 22CV04219
11 California trust,
Assigned to the Honorable Colleen K. Sterne
12 Plaintiff,
OPPOSITION BY DEFENDANT IAN ALBAN
13 STEWART, SR. TO PLAINTIFF’S
14 vs. APPLICATION FOR RIGHT TO ATTACH
ORDER AND FOR WRIT OF
15 IAN ALBAN STEWART, SR., an individual; ATTACHMENT
IAN ALBAN STEWART, JR., an individual;
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and DOES 1 through 10, inclusive,
Hearing Date: November 20, 2023
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Defendants. Hearing Time: 10:00 a.m.
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Department: 5
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Trial Date: None set
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OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S
APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT
Defendant Ian Alban Stewart, Sr. (“Stewart, Sr.”) submits the following opposition to the
“Application for Issuance or [sic] Right to Attach Order and Issuance of Writ of Attachment Against
Tan Alban Stewart, Sr.”:
I INTRODUCTION
The premise of the Application for Issuance of Right to Attach Order and Issuance of Writ
of Attachment (“Application”) filed by the Michael M. Stewart Trust (“MMS Trust”) appears to be
as follows: (a) Stewart, Sr. had an obligation under the Global Settlement Agreement and Final
Distribution Plan for the FAS & WS Trusts (“Global Settlement Agreement”) to remediate and
partition the property located at 3139 Sea Cliff Drive (the “Sea Cliff Property”); (b) Stewart, Sr.
10 breached the Settlement Agreement by failing to do so; (c) the Trusts! were damaged by Stewart,
ll Sr.’s breach of the Settlement Agreement in the amount of $446,031.36; and (d) the MMS Trust, as
12 a beneficiary of the Trusts, is therefore entitled to a writ of attachment in the amount of $446,031.36.
13 The MMS Trust’s ill-conceived Application should be denied for several reasons.
14 First, the MMS Trust’s claim for breach of. contract’ is not a claim for “a fixed or readily
15 ascertainable amount” as required by California Code of Civil Procedure § 483.010(b). Nowhere
16 in the operative First Amended Complaint is there an allegation of breach of the Settlement
17 Agreement asserting damages incurred in the amount of $446,031.36. Likewise, the $446,031.36
18 amount is nowhere to be found in the Settlement Agreement that is alleged to have been breached.
19 Second, the MMS Trust seeks to attach an amount of money that was paid under a contract
20 that is different from the contract which is the basis of its claim for breach of contract. The
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22 ! “The Trusts” are The William Stewart Living Trust, dated November 29, 2004, and The Fred A.
and Lillian Stewart Trust, dated January 12, 1966.
23 ? While the Application includes scurrilous allegations that “Stewart, Sr. has a long-established
ability to dissipate assets, hide assets and he has filed serial bankruptcies to block his creditors”
24 (Application at 3:13-14) and that “Stewart, Sr. has an uncanny ability to dissipate assets quickly and
wastefully, particularly cash” (Application at 3:25-26) and spends almost four pages reciting alleged
25 wrongdoing by Stewart, Sr., none of these claims of wrongdoing is a factor to be considered by the
Court in determining whether to issue a right to attach order or a writ of attachment based on a claim
26 for breach of contract.
27 3 The contract that is the subject of the MMS Trust’s claim for breach of contract is the Global
Settlement Agreement. See, First Amended Complaint (“FAC”), 44.
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OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S
APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT
$446,031.36 amount that the MMS Trust seeks to attach represents the gross amount that was paid
by the Trusts under an entirely different contract to a third party named High Roads Consulting,
LLC (“High Roads”). As discussed in the Application, High Roads was hired by the Trusts in order
to perform remediation-related services in connect with the Sea Cliff Property. The MMS Trust
offers no authority to support the issuance of a writ of attachment in relation to a sum certain that
was paid under a contract which is different from the contract (in this case, the Settlement
Agreement) which is the basis for the claim of breach of contract.
Third, the amount sought to be attached by means of the Application is excessive in that,
although High Roads was paid $446,031.36 for the remediation-related work that it performed, High
10 Roads later refunded $100,000.00 to the Trusts so that the net amount actually paid to High Roads
11 was $346,031.36.‘ Therefore, even if a right to attach order and a writ of attachment were to be
12 issued based on the amount that was paid to High Roads, the amount would have to be reduced
13 to $346,031.36.
14 Fourth, the net amount that was paid to High Roads was paid by the Trusts. Because there
15 are three beneficiaries of the Trusts (Arabella Stewart, Stewart, Sr., and the MMS Trust), that means
16 that each beneficiary effectively paid 1/3 of the $346,031.36 amount that was paid to High Roads.
17 Therefore, even if a right to attach order and a writ of attachment were to be issued based on the
18 net amount that was paid to High Roads, the amount of the right to attach order and the writ of
19 attachment for the MMS Trust would have to be reduced to 1/3 of $346,031.36 or $115,343.79.
20 Fifth, and most importantly, the MMS Trust has failed to demonstrate that it is, in fact,
21 “more likely than not that plaintiff [the MMS Trust] will obtain a judgment against the defendant
22 [Stewart, Sr.].” The issue of whether the Trusts, at the behest of Stewart, Sr. as the Trustee, overpaid
23 for the services performed by High Roads is a disputed issue of fact. There has been no evidence
24 submitted (other than Mr. Colavincenzo’s flawed and unsubstantiated “because I say so”
25 declaration) demonstrating that it is more likely than not that the MMS Trust will prevail on its
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4 Declaration of J. Paul Gignac (“Gignac Decl.”), Exhibit A, Transcript of Remote Video Deposition
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of Crystal A. Knepler, CPA, at 48:7 — 49:15 and 63:13 — 64:1.
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OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S
APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT
claim against Stewart, Sr. because zero value was obtained by the Trusts from the work done by
High Roads. There has been no admission of such a fact by High Roads or by Stewart, Sr. To the
contrary, High Roads did provide services that have benefitted the Trusts — even if Mr. Colavincenzo
thinks otherwise. 5
For these reasons, as more fully explained herein, the application by the MMS Trust for a
tight to attach order and a writ of attachment in the amount of $446,031.36 should and must be
denied by the Court.
Il. ARGUMENT
A. The MMS Trust’s Claim For Breach Of Contract Is Not A Claim For A
10 Fixed Or Readily Ascertainable Amount
11 California Code of Civil Procedure § 483.010(b) permits a writ of attachment to issue only
12 (a) in an action on a claim or claims for money (b) each of which is based upon a contract, express
13 or implied (c) where the total amount of the claim or claims is a fixed or readily ascertainable amount
14 not less than $500. The MMS Trust’s claim for breach of contract is set forth as the third cause of
15 action in the First Amended Complaint against Stewart, Sr. The MMS Trust alleges that Stewart,
16 Sr. breached the Settlement Agreement “by, inter alia: (a) failing to remediate the property; (b) by
17 failing to subdivide the property; (c) by using trust assets to form various business entities; (d) by
18 using trust assets to pay his own tax liability; (e) by using trust assets to pay another tax liability of
19 Arabella Stewart; and (f) by paying himself trustee fess after agreeing to waive all trust fees.” (FAC,
20 4 44.) Neither the third cause of action nor the prayer for relief in the First Amended Complaint
21 alleges an amount of damages attributable to the alleged breach of contract. Rather, the third cause
22 of action simply alleges “monetary damage to Plaintiff the amount of which Plaintiff will prove at
23 trial by a preponderance of the evidence.” (FAC, § 45.) In short and on its face, the MMS Trust’s
24 claim for breach of contract is not a claim for a fixed or readily ascertainable amount of money.
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5 Declaration of Ian Alban Stewart, Sr. (Stewart, Sr. Decl.”), J 5-6.
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OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S
APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT
B. The MMS Trust Seeks To Attach An Amount Of Money That Was Paid
Under A Contract That Is Different From The Contract Which Is The Basis
Of Its Claim For Breach Of Contract.
Whereas the MMS Trust’s claim for breach of contract is based on multiple alleged breaches
of the Settlement Agreement, the monetary amount that the MMS Trust seeks to attach is an amount
that was paid by the Trusts under an entirely different contract. The $446,031.36 amount which the
MMS Trust seeks to attach represents the gross amount that was paid by the Trusts under an entirely
different contract with High Roads, which was hired by the Stewart, sr., on behalf of the Trusts, to
perform remediation-related services in connect with the Sea Cliff Property. (Stewart, Sr. Decl., §
10 4.) While the gross amount paid to High Roads may qualify as a fixed or readily ascertainable sum,
11 the MMS Trust offers no authority to support the issuance of a writ of attachment in relation to a
12 sum that was paid under a contract which is different from the contract (in this case, the Settlement
13 Agreement) which is the basis for the claim of breach of contract.
14 C. The Amount That The MMS Trust Seeks To Attach Is Excessive.
15 The amount that the MMS Trust seeks to attach is excessive in two respects. First, the
16 amount sought is excessive in that, although High Roads was paid $446,031.36 for the remediation-
17 related work that it performed, High Roads later refunded $100,000.00 to the Trusts so that the net
18 amount actually paid to High Roads was $346,031.36.° Second, the nef amount that was paid to
19 High Roads was paid by the Trusts. There are three beneficiaries of the Trusts, which means that
20 each beneficiary effectively paid 1/3 of the $346,031.36 amount that was paid to High Roads.
21 Therefore, even if a right to attach order and a writ of attachment were to be issued based on the
22 amount that was paid to High Roads, the amount of the right to attach order and the writ of
23 attachment requested by the MMS Trust is excessive and would have to be reduced to 1/3 of
24 $346,031.36 or $115,343.79.
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27 6 Declaration of J. Paul Gignac (“Gignac Decl.”), Exhibit A, Transcript of Remote Video Deposition
of Crystal A. Knepler, CPA, at 48:7 — 49:15 and 63:13 — 64:1.
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OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S
APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT
D. No Evidence Has Been Submitted Demonstrating That It Is More Likely
Than Not That The MMS Trust Will Prevail On Its Claim For Breach Of
Contract Against Stewart, Sr.
“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.” California Code of Civil Procedure § 481.190. The
requirement that the plaintiff establish “probable validity” necessitates that the plaintiff “must at
least establish a prima facie case.” Law Revision Commission Comments, CCP §481.190. Moreover,
where, as here, the defendant submits opposition to the Application, “the court must then consider
the relative merits of the positions of the respective parties and make a determination of the probable
10 outcome of the litigation.” Jd. See, Loeb & Loeb v. Beverly Glen Music (1985) 166 Cal.App.3d
11 1110, 1120; Lorber Industries v. Turbulence (1985) 175 Cal.App.3d 532, 535 (prejudgment remedy
12 of attachment requires court to make preliminary determination of merits of dispute).
13 In order for the Court to make a preliminary determination of the merits of the dispute, the
14 Court has to be presented with competent, admissible evidence that enables it to weigh the merits.
15 All facts in declarations attached to an application for a writ of attachment order must be stated
16 “with particularity.” Code Civ. Proc. §482.040. Under California law, an affiant or declarant making
17 an affidavit or declaration in support of an application for a right to attach order must show actual,
18 personal knowledge of the relevant facts, rather than the ultimate facts commonly found in
19 pleadings, and such evidence must be admissible and not objectionable. Hamilton Beach Brands,
20 Inc. v. Metric and Inch Tools, Inc. (2009) 614 F.Supp.2d 1056, 1063; Lydig Construction, Inc. v.
21 Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944.
22 No such evidence has been presented by the MMS Trust. The contract with High Roads has
23 not been provided to the Court. There is neither a declaration nor deposition testimony from any
24 representative of High Roads. All that is offered is a highly objectionable declaration from Mr.
25 Colavincenzo, the only relevant paragraphs of which are paragraphs 10 through 15 relating to the
26 High Roads contract. However, even those paragraphs omit the fact that High Roads refunded
27 $100,000 to the Trusts.
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OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S
APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT
Moreover, while High Roads never got to the point of physically removing soil from the Sea
Cliff Property, High Roads performed a number of valuable services that will benefit the future
property owner (if the sale of the Sea Cliff Property takes place) and that contributed to an increase
in the value of the Sea Cliff Property for sale purposes. (Stewart, Sr. Decl., 5.) By way of example
only, High Roads subcontracted with Campbell Geological to perform a soil evaluation and report
at a cost of $119,541, Mac Designs to perform an engineering report at a cost of $29,543, and RDH
Land Surveying to perform a survey of the Sea Cliff Property at a cost of $13, 287. All of these
reports were submitted to the County and are necessary to obtain approval of the remediation plan
and the lot split be it by the current owner (the Trusts) or any future owner. (Stewart, Sr. Decl., 6.)
10 E. If A Right To Attach Order And A Writ Of Attachment Issue, Then The
11 Undertaking Should Be In An Amount Significantly Higher Than $10,000.
12 The MMS Trust proposes that the Court order an undertaking in the amount of $10,000.
13 Given the amount of the right to attach order and the writ of attachment, a $10,000 undertaking is
14 grossly inadequate to protect Stewart, Sr. in the event that, after a trial in this matter, the MMS Trust
15 does not prevail on its breach of contract claim and Stewart, Sr. then has to seek to recover from the
16 MMS Trust any amounts that were successfully attached prior to the trial. Stewart, Sr. requests that
17 an undertaking be ordered in the amount of $50,000.
18 Til. CONCLUSION
19 For all of the foregoing reasons, and on the basis of the authorities cited herein, the
20 Application should be denied. If the Application is granted, however, the amount of the right to
21 attach order and writ of attachment should be $115,343.79, and the MMS Trust should be required
22 to post an undertaking in the amount of $50,000.
23 Dated: November 13, 2023 RIMON, P.C.
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By
26 J ul Gignac
Atto s for Défe ndants Ian Alban Stewart,
27 Sr. and Ian Alban Stewart, Jr.
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OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S
APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT
PROOF OF SERVICE
The Michael M. Stewart Trust, a California trust vs.
Jan Alban Stewart, Sr., an individual; Ian Alban Stewart, Jr., an individual
Santa Barbara Superior Court Case No. 22CV04219
I am employed in the County of Santa Barbara, State of California. I am over the age of
18 and not a party to the within action; my business address is 200 E. Carrillo Street, Suite 201,
Santa Barbara, California 93101. My electronic service address is sarah.chacon( @rimonlaw.com,
On November 13, 2023, I served the document described: OPPOSITION BY
DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR
RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT on the interested
parties in this action as follows:
SEE ATTACHED SERVICE LIST
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O BY MAIL (U.S. POSTAL SERVICE):
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OI deposited the sealed envelopes with the U.S. Postal Service with postage fully
12 prepaid.
O1 I placed the envelope for collection and mailing on the date and at the place as
13 indicated herein following our ordinary business practices. | am readily familiar with this
business’s practice for collecting and processing correspondence/documents for mailing. On the
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same day that it is placed for collection and mailing, it is deposited in the ordinary course of
15 business with the U.S. Postal Service in sealed envelopes with postage fully prepaid.
16 @ BY EMAIL-PDF TRANSMISSION: | electronically served the above document to the
electronic service addresses of the persons as shown on the Service List, below. My email
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address is sarah.chacon@rimonlaw.com.
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O BY PERSONAL SERVICE: Such envelopes were hand-delivered to the addressees on the
19 Service List, below.
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O BY OVERNIGHT DELIVERY SERVICE: I deposited such envelopes for collection by
21 FedEx, in Santa Barbara, CA, sealed in an envelope or package designated by FedEx, addressed
as indicated on the Service List below, and with fees paid for overnight delivery.
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(STATE) | declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Executed on November 13, 2023, at Santa Barbara, California.
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26 Sarah Chacon
27 Sarah Chacon
Litigation Practice Assistant
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PROOF OF SERVICE
SERVICE LIST
Name & Address Relationship
Matthew Clarke, Esq. Attorneys for Plaintiff, Norman Colavincenzo,
Kelley Clarke, PC Trustee of the Michael M. Stewart Trust
603 East Broadway Street
Prosper, Texas 75078
matt@kelleyclarke.com
(Via email only)
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PROOF OF SERVICE
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1 J. Paul Gignac, State Bar No. 125676 RIMON, P.C. 2 200 E. Carrillo Street, Suite 201 3 Santa Barbara, California 93101 Main Telephone: (805) 695-4080 4 Direct Telephone: (805) 568-7891 Email: jpaul.gignac@rimonlaw.cor Attorneys for Defendants Ian Alban Stewart, Sr. and Ian Alban Stewart, Jr. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA BARBARA - ANACAPA DIVISION 10 THE MICHAEL M. STEWART TRUST, a Case No.: 22CV04219 11 California trust, Assigned to the Honorable Colleen K. Sterne 12 Plaintiff, OPPOSITION BY DEFENDANT IAN ALBAN 13 STEWART, SR. TO PLAINTIFF’S 14 vs. APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF 15 IAN ALBAN STEWART, SR., an individual; ATTACHMENT IAN ALBAN STEWART, JR., an individual; 16 and DOES 1 through 10, inclusive, Hearing Date: November 20, 2023 17 Defendants. Hearing Time: 10:00 a.m. 18 Department: 5 19 Trial Date: None set 20 21 22 23 24 25 26 27 28 -i- OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT Defendant Ian Alban Stewart, Sr. (“Stewart, Sr.”) submits the following opposition to the “Application for Issuance or [sic] Right to Attach Order and Issuance of Writ of Attachment Against Tan Alban Stewart, Sr.”: I INTRODUCTION The premise of the Application for Issuance of Right to Attach Order and Issuance of Writ of Attachment (“Application”) filed by the Michael M. Stewart Trust (“MMS Trust”) appears to be as follows: (a) Stewart, Sr. had an obligation under the Global Settlement Agreement and Final Distribution Plan for the FAS & WS Trusts (“Global Settlement Agreement”) to remediate and partition the property located at 3139 Sea Cliff Drive (the “Sea Cliff Property”); (b) Stewart, Sr. 10 breached the Settlement Agreement by failing to do so; (c) the Trusts! were damaged by Stewart, ll Sr.’s breach of the Settlement Agreement in the amount of $446,031.36; and (d) the MMS Trust, as 12 a beneficiary of the Trusts, is therefore entitled to a writ of attachment in the amount of $446,031.36. 13 The MMS Trust’s ill-conceived Application should be denied for several reasons. 14 First, the MMS Trust’s claim for breach of. contract’ is not a claim for “a fixed or readily 15 ascertainable amount” as required by California Code of Civil Procedure § 483.010(b). Nowhere 16 in the operative First Amended Complaint is there an allegation of breach of the Settlement 17 Agreement asserting damages incurred in the amount of $446,031.36. Likewise, the $446,031.36 18 amount is nowhere to be found in the Settlement Agreement that is alleged to have been breached. 19 Second, the MMS Trust seeks to attach an amount of money that was paid under a contract 20 that is different from the contract which is the basis of its claim for breach of contract. The 21 22 ! “The Trusts” are The William Stewart Living Trust, dated November 29, 2004, and The Fred A. and Lillian Stewart Trust, dated January 12, 1966. 23 ? While the Application includes scurrilous allegations that “Stewart, Sr. has a long-established ability to dissipate assets, hide assets and he has filed serial bankruptcies to block his creditors” 24 (Application at 3:13-14) and that “Stewart, Sr. has an uncanny ability to dissipate assets quickly and wastefully, particularly cash” (Application at 3:25-26) and spends almost four pages reciting alleged 25 wrongdoing by Stewart, Sr., none of these claims of wrongdoing is a factor to be considered by the Court in determining whether to issue a right to attach order or a writ of attachment based on a claim 26 for breach of contract. 27 3 The contract that is the subject of the MMS Trust’s claim for breach of contract is the Global Settlement Agreement. See, First Amended Complaint (“FAC”), 44. 28 -1- OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT $446,031.36 amount that the MMS Trust seeks to attach represents the gross amount that was paid by the Trusts under an entirely different contract to a third party named High Roads Consulting, LLC (“High Roads”). As discussed in the Application, High Roads was hired by the Trusts in order to perform remediation-related services in connect with the Sea Cliff Property. The MMS Trust offers no authority to support the issuance of a writ of attachment in relation to a sum certain that was paid under a contract which is different from the contract (in this case, the Settlement Agreement) which is the basis for the claim of breach of contract. Third, the amount sought to be attached by means of the Application is excessive in that, although High Roads was paid $446,031.36 for the remediation-related work that it performed, High 10 Roads later refunded $100,000.00 to the Trusts so that the net amount actually paid to High Roads 11 was $346,031.36.‘ Therefore, even if a right to attach order and a writ of attachment were to be 12 issued based on the amount that was paid to High Roads, the amount would have to be reduced 13 to $346,031.36. 14 Fourth, the net amount that was paid to High Roads was paid by the Trusts. Because there 15 are three beneficiaries of the Trusts (Arabella Stewart, Stewart, Sr., and the MMS Trust), that means 16 that each beneficiary effectively paid 1/3 of the $346,031.36 amount that was paid to High Roads. 17 Therefore, even if a right to attach order and a writ of attachment were to be issued based on the 18 net amount that was paid to High Roads, the amount of the right to attach order and the writ of 19 attachment for the MMS Trust would have to be reduced to 1/3 of $346,031.36 or $115,343.79. 20 Fifth, and most importantly, the MMS Trust has failed to demonstrate that it is, in fact, 21 “more likely than not that plaintiff [the MMS Trust] will obtain a judgment against the defendant 22 [Stewart, Sr.].” The issue of whether the Trusts, at the behest of Stewart, Sr. as the Trustee, overpaid 23 for the services performed by High Roads is a disputed issue of fact. There has been no evidence 24 submitted (other than Mr. Colavincenzo’s flawed and unsubstantiated “because I say so” 25 declaration) demonstrating that it is more likely than not that the MMS Trust will prevail on its 26 4 Declaration of J. Paul Gignac (“Gignac Decl.”), Exhibit A, Transcript of Remote Video Deposition 27 of Crystal A. Knepler, CPA, at 48:7 — 49:15 and 63:13 — 64:1. 28 -2- OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT claim against Stewart, Sr. because zero value was obtained by the Trusts from the work done by High Roads. There has been no admission of such a fact by High Roads or by Stewart, Sr. To the contrary, High Roads did provide services that have benefitted the Trusts — even if Mr. Colavincenzo thinks otherwise. 5 For these reasons, as more fully explained herein, the application by the MMS Trust for a tight to attach order and a writ of attachment in the amount of $446,031.36 should and must be denied by the Court. Il. ARGUMENT A. The MMS Trust’s Claim For Breach Of Contract Is Not A Claim For A 10 Fixed Or Readily Ascertainable Amount 11 California Code of Civil Procedure § 483.010(b) permits a writ of attachment to issue only 12 (a) in an action on a claim or claims for money (b) each of which is based upon a contract, express 13 or implied (c) where the total amount of the claim or claims is a fixed or readily ascertainable amount 14 not less than $500. The MMS Trust’s claim for breach of contract is set forth as the third cause of 15 action in the First Amended Complaint against Stewart, Sr. The MMS Trust alleges that Stewart, 16 Sr. breached the Settlement Agreement “by, inter alia: (a) failing to remediate the property; (b) by 17 failing to subdivide the property; (c) by using trust assets to form various business entities; (d) by 18 using trust assets to pay his own tax liability; (e) by using trust assets to pay another tax liability of 19 Arabella Stewart; and (f) by paying himself trustee fess after agreeing to waive all trust fees.” (FAC, 20 4 44.) Neither the third cause of action nor the prayer for relief in the First Amended Complaint 21 alleges an amount of damages attributable to the alleged breach of contract. Rather, the third cause 22 of action simply alleges “monetary damage to Plaintiff the amount of which Plaintiff will prove at 23 trial by a preponderance of the evidence.” (FAC, § 45.) In short and on its face, the MMS Trust’s 24 claim for breach of contract is not a claim for a fixed or readily ascertainable amount of money. 25 26 27 5 Declaration of Ian Alban Stewart, Sr. (Stewart, Sr. Decl.”), J 5-6. 28 -3- OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT B. The MMS Trust Seeks To Attach An Amount Of Money That Was Paid Under A Contract That Is Different From The Contract Which Is The Basis Of Its Claim For Breach Of Contract. Whereas the MMS Trust’s claim for breach of contract is based on multiple alleged breaches of the Settlement Agreement, the monetary amount that the MMS Trust seeks to attach is an amount that was paid by the Trusts under an entirely different contract. The $446,031.36 amount which the MMS Trust seeks to attach represents the gross amount that was paid by the Trusts under an entirely different contract with High Roads, which was hired by the Stewart, sr., on behalf of the Trusts, to perform remediation-related services in connect with the Sea Cliff Property. (Stewart, Sr. Decl., § 10 4.) While the gross amount paid to High Roads may qualify as a fixed or readily ascertainable sum, 11 the MMS Trust offers no authority to support the issuance of a writ of attachment in relation to a 12 sum that was paid under a contract which is different from the contract (in this case, the Settlement 13 Agreement) which is the basis for the claim of breach of contract. 14 C. The Amount That The MMS Trust Seeks To Attach Is Excessive. 15 The amount that the MMS Trust seeks to attach is excessive in two respects. First, the 16 amount sought is excessive in that, although High Roads was paid $446,031.36 for the remediation- 17 related work that it performed, High Roads later refunded $100,000.00 to the Trusts so that the net 18 amount actually paid to High Roads was $346,031.36.° Second, the nef amount that was paid to 19 High Roads was paid by the Trusts. There are three beneficiaries of the Trusts, which means that 20 each beneficiary effectively paid 1/3 of the $346,031.36 amount that was paid to High Roads. 21 Therefore, even if a right to attach order and a writ of attachment were to be issued based on the 22 amount that was paid to High Roads, the amount of the right to attach order and the writ of 23 attachment requested by the MMS Trust is excessive and would have to be reduced to 1/3 of 24 $346,031.36 or $115,343.79. 25 26 27 6 Declaration of J. Paul Gignac (“Gignac Decl.”), Exhibit A, Transcript of Remote Video Deposition of Crystal A. Knepler, CPA, at 48:7 — 49:15 and 63:13 — 64:1. 28 -4- OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT D. No Evidence Has Been Submitted Demonstrating That It Is More Likely Than Not That The MMS Trust Will Prevail On Its Claim For Breach Of Contract Against Stewart, Sr. “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.” California Code of Civil Procedure § 481.190. The requirement that the plaintiff establish “probable validity” necessitates that the plaintiff “must at least establish a prima facie case.” Law Revision Commission Comments, CCP §481.190. Moreover, where, as here, the defendant submits opposition to the Application, “the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable 10 outcome of the litigation.” Jd. See, Loeb & Loeb v. Beverly Glen Music (1985) 166 Cal.App.3d 11 1110, 1120; Lorber Industries v. Turbulence (1985) 175 Cal.App.3d 532, 535 (prejudgment remedy 12 of attachment requires court to make preliminary determination of merits of dispute). 13 In order for the Court to make a preliminary determination of the merits of the dispute, the 14 Court has to be presented with competent, admissible evidence that enables it to weigh the merits. 15 All facts in declarations attached to an application for a writ of attachment order must be stated 16 “with particularity.” Code Civ. Proc. §482.040. Under California law, an affiant or declarant making 17 an affidavit or declaration in support of an application for a right to attach order must show actual, 18 personal knowledge of the relevant facts, rather than the ultimate facts commonly found in 19 pleadings, and such evidence must be admissible and not objectionable. Hamilton Beach Brands, 20 Inc. v. Metric and Inch Tools, Inc. (2009) 614 F.Supp.2d 1056, 1063; Lydig Construction, Inc. v. 21 Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944. 22 No such evidence has been presented by the MMS Trust. The contract with High Roads has 23 not been provided to the Court. There is neither a declaration nor deposition testimony from any 24 representative of High Roads. All that is offered is a highly objectionable declaration from Mr. 25 Colavincenzo, the only relevant paragraphs of which are paragraphs 10 through 15 relating to the 26 High Roads contract. However, even those paragraphs omit the fact that High Roads refunded 27 $100,000 to the Trusts. 28 -5- OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT Moreover, while High Roads never got to the point of physically removing soil from the Sea Cliff Property, High Roads performed a number of valuable services that will benefit the future property owner (if the sale of the Sea Cliff Property takes place) and that contributed to an increase in the value of the Sea Cliff Property for sale purposes. (Stewart, Sr. Decl., 5.) By way of example only, High Roads subcontracted with Campbell Geological to perform a soil evaluation and report at a cost of $119,541, Mac Designs to perform an engineering report at a cost of $29,543, and RDH Land Surveying to perform a survey of the Sea Cliff Property at a cost of $13, 287. All of these reports were submitted to the County and are necessary to obtain approval of the remediation plan and the lot split be it by the current owner (the Trusts) or any future owner. (Stewart, Sr. Decl., 6.) 10 E. If A Right To Attach Order And A Writ Of Attachment Issue, Then The 11 Undertaking Should Be In An Amount Significantly Higher Than $10,000. 12 The MMS Trust proposes that the Court order an undertaking in the amount of $10,000. 13 Given the amount of the right to attach order and the writ of attachment, a $10,000 undertaking is 14 grossly inadequate to protect Stewart, Sr. in the event that, after a trial in this matter, the MMS Trust 15 does not prevail on its breach of contract claim and Stewart, Sr. then has to seek to recover from the 16 MMS Trust any amounts that were successfully attached prior to the trial. Stewart, Sr. requests that 17 an undertaking be ordered in the amount of $50,000. 18 Til. CONCLUSION 19 For all of the foregoing reasons, and on the basis of the authorities cited herein, the 20 Application should be denied. If the Application is granted, however, the amount of the right to 21 attach order and writ of attachment should be $115,343.79, and the MMS Trust should be required 22 to post an undertaking in the amount of $50,000. 23 Dated: November 13, 2023 RIMON, P.C. 24 25 By 26 J ul Gignac Atto s for Défe ndants Ian Alban Stewart, 27 Sr. and Ian Alban Stewart, Jr. 28 -6- OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT PROOF OF SERVICE The Michael M. Stewart Trust, a California trust vs. Jan Alban Stewart, Sr., an individual; Ian Alban Stewart, Jr., an individual Santa Barbara Superior Court Case No. 22CV04219 I am employed in the County of Santa Barbara, State of California. I am over the age of 18 and not a party to the within action; my business address is 200 E. Carrillo Street, Suite 201, Santa Barbara, California 93101. My electronic service address is sarah.chacon( @rimonlaw.com, On November 13, 2023, I served the document described: OPPOSITION BY DEFENDANT IAN ALBAN STEWART, SR. TO PLAINTIFF’S APPLICATION FOR RIGHT TO ATTACH ORDER AND FOR WRIT OF ATTACHMENT on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST 10 O BY MAIL (U.S. POSTAL SERVICE): ll OI deposited the sealed envelopes with the U.S. Postal Service with postage fully 12 prepaid. O1 I placed the envelope for collection and mailing on the date and at the place as 13 indicated herein following our ordinary business practices. | am readily familiar with this business’s practice for collecting and processing correspondence/documents for mailing. On the 14 same day that it is placed for collection and mailing, it is deposited in the ordinary course of 15 business with the U.S. Postal Service in sealed envelopes with postage fully prepaid. 16 @ BY EMAIL-PDF TRANSMISSION: | electronically served the above document to the electronic service addresses of the persons as shown on the Service List, below. My email 17 address is sarah.chacon@rimonlaw.com. 18 O BY PERSONAL SERVICE: Such envelopes were hand-delivered to the addressees on the 19 Service List, below. 20 O BY OVERNIGHT DELIVERY SERVICE: I deposited such envelopes for collection by 21 FedEx, in Santa Barbara, CA, sealed in an envelope or package designated by FedEx, addressed as indicated on the Service List below, and with fees paid for overnight delivery. 22 (STATE) | declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 Executed on November 13, 2023, at Santa Barbara, California. 25 26 Sarah Chacon 27 Sarah Chacon Litigation Practice Assistant 28 1 PROOF OF SERVICE SERVICE LIST Name & Address Relationship Matthew Clarke, Esq. Attorneys for Plaintiff, Norman Colavincenzo, Kelley Clarke, PC Trustee of the Michael M. Stewart Trust 603 East Broadway Street Prosper, Texas 75078 matt@kelleyclarke.com (Via email only) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE