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L. PETER RYAN (SBN 134291)
pryan@foxrothschild.com
JACK PRAETZELLIS (SBN 267765)
jpraetzellis@foxrothschild.com
FOX ROTHSCHILD LLP ELECTRONICALLY
345 California Street, Suite 2200 FILED
San Francisco, California 94104 Superior Court of Califomia,
Telephone: 415-364-5540 County of San Francisco
Facsimile: 415-391-4436 02/26/2016
ences
Attorneys for Plaintiff and Cross- 7 D
Defendant Elite Audio Systems, Inc. Ti
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
ELITE AUDIO SYSTEMS, INC., Case No. CGC-15-544270
Plaintiff, ELITE AUDIO SYSTEMS' MEMORAN-
DUM OF POINTS AND AUTHORITIES
v. IN SUPPORT OF APPLICATION FOR
WRIT OF ATTACHMENT AND RIGHT
DSEGNARE, LLC, et al., TO ATTACH ORDER
Defendants. Date: March 23, 2016
Time: 9:30 a.m.
Dept: 501
AND RELATED CROSS-ACTION. Trial: April 16, 2016
Complaint Filed: February 20, 2015
I. INTRODUCTION
This action is brought by plaintiff sub-landlord Elite Audio Systems, Inc. ("Land-
lord") against its sub-tenant Dsegnare, LLC ("Tenant") for non-payment of rent under
Civil Code Section 1951.4. Tenant signed a two-year sublease (the "Lease") effective Au-
gust 27, 2013 for the display and sale of furniture, furniture systems, and up to three
salespersons at the real property commonly known as 893 Folsom Street, Unit A, San
Francisco, California (the "Premises"). By its terms, the Lease expired on July 31, 2015.
Tenant's initial rent under the Lease was $5,000 per month. Effective September 2014,
Tenant's rent increased to $6,000 per month.
Tenant abandoned the Premises on or about June 2014 and ceased paying rent at
that time. Landlord served Tenant a Notice of Belief of Abandonment on June 16, 2014.
‘MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/ RIGHT TO ATTACH ORDERoOo m7mnn Aa eR Ww
Tenant responded on July 3, 2014, stating he did not intend to abandon the tenancy at
the Premises.
Landlord did not terminate Tenant's right to possession under the Lease (except
as that right expired with the expiration of the Lease), and instead filed the instant ac-
tion to collect the rent as it came due under Civil Code Section 1951.4.
As more fully set forth below, there is no dispute that Tenant defaulted under the
Lease by failing to pay rent as it came due. Landlord's claim for unpaid rent and utilities
in the amount of $71,000 is readily ascertainable. Landlord is thus entitled to a writ of
attachment and right to attach order to secure its claim for damages pending the final
resolution of this case.
Il. STATEMENT OF FACTS
On or about August 31, 2010, Landlord entered into a written lease for the Prem-
ises with E.F.K. Investments, LLC ("Master Landlord"). (Declaration of Michael Woods
in Support of Application for Writ of Attachment ["Woods Decl."], Ex. 1 at Ex. A.) Mas-
ter Landlord is the master landlord for the Premises. Thereafter, Landlord and Tenant
entered into the Lease on or about August 27, 2013. By its terms, the Lease expired on
July 31, 2015. (Id., Ex. 1.) Under the Lease, Tenant agreed to pay monthly rent in the
amount of $5,000 through August 2014 and $6,000 until Lease expiration on July 31,
2015. Tenant took possession of the Premises in or about September 2013. Tenant paid
rent, as it came due, through May 2014. (Id. {| 2.)
On June 16, 2014, Landlord believed Tenant had abandoned the Premises, and,
accordingly, Landlord served a Notice of Belief of Abandonment ("Notice of Belief of
Abandonment"). (Declaration of L. Peter Ryan in Support of Application for Writ of At-
tachment ["Ryan Decl."], Ex. 2.) Tenant responded to the Notice of Belief of Abandon-
ment stating that it did not intend to abandon the Premises. (Jd., Ex. 3; Woods Decl. 4
3.)
Thereafter, on July 11, 2014, Landlord served Tenant with a Three-Day Notice to
Pay or Quit ("Three-Day Notice"). (Ryan Decl., Ex. 4.) Tenant responded to the Three-
39049168v1 132824/00001 -2-
‘MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDERDay Notice by paying the unpaid rent. Tenant has not paid rent since. (Woods Decl. 1
4)
After being served with the complaint, Tenant filed a cross-complaint against
Landlord asserting claims for breach of contract (seeking to enforce the Lease), breach of
implied contract, and conversion. (Ryan Decl., Ex. 5.)
A breakdown of the rent sought by Landlord from Tenant in connection with this
application is as follows:
Rent August 2014 $5,000
Rent September 2014—July 2015 $66,000 ($6,000 x 11 months)
Total: $71,000
(Woods Decl. 15.)
Ill. ARGUMENT
Landlord is entitled to the issuance of a right to attach order and writ of attach-
ment because it has satisfied all the necessary requirements for such relief: (1) Land-
lord's breach of contract claim in this action is one on which the request writ may issue;
(2) Landlord has established the probable validity of its claim; and (3) the relief request-
ed by Landlord is not sought for a propose other than to secure its contract claim. Code
Civ. Proc. §§ 484.090, 512.060. Pursuant to the Code, this Court should issue a right to
attach order and an order for issuance of a writ of attachment.
A. AWrit of Attachment May Be Issued on Landlord's Claims
It is appropriate for this Court to issue a writ of attachment on Landlord's claim
for money damages. Section 483.010(a) of the Code of Civil Procedure provides, in part:
[A]n attachment may be issued only in an action on a claim or
claims for money, each of which is based upon a contract, express or im-
plied, where the total value of the claim or claims is a fixed or readily ascer-
tainable amount not less than five hundred dollars ($500) exclusive of
costs, interest and attorney's fees.
Code Civ. Proc. § 483.010(a). A lease for real property is a contract for which attach-
ment may issue. Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 384 352-53 (1919); Leg-
islative Committee Comment to 1974 Addition to Code Civ. Proc. § 483.010 ("the term
39049168v1 132824/00001 -3-
MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDERwo wan nn sk wo
‘contract’... . includes a lease of ... real... property").
Landlord's claim for money is based upon tenant's failure to pay rent owed under
the commercial lease at issue. Landlord seeks to compel Tenant to pay breach of lease
damages in the amount of $71,000 due to Tenant's default. This action, therefore, is a
claim upon a written contract for a specific amount of money in excess of $500. Because
Landlord's claim is one upon which attachment may be issued, and all of the statutory
requirements for attachment are satisfied, it is appropriate for the Court to grant the ap-
plication.
B. Landlord Has Established Probable Validity of Its Claims
in a Readily Ascertainable Amount
Landlord can properly establish the probable validity of its claim against Tenant.
"Probable validity," as defined under Section 481.190 and 512.060 of the Code of Civil
Procedure exists where, "it is more likely than not that plaintiff will obtain a judgment
against defendant on that claim." Code Civ. Proc. §§ 481.190, 512.060. In this case,
Landlord has established that Tenant entered into the Lease and that Tenant breached
the Lease by failing to pay rent. Thus, Landlord's claim has probable validity.
Further, Landlord's claim is in a readily ascertainable amount. As a result of Ten-
ant's breach of Lease, Landlord has been damaged in the amount of $71,000 consisting
of unpaid rent from August 2014 through July 2015.
Accordingly, Landlord has established the requisite probable validity of its claim
in a readily ascertainable amount for a writ of attachment pursuant to Section 481.090
and 512.060 of the Code of Civil Procedure.
Iv. CONCLUSION
Landlord has established a valid contract claim in a readily ascertainable amount
for its application for a writ of attachment and right to attach order. Accordingly,
Mt
1
Mi
39049168v1 132824/00001 -4-
MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDERLandlord respectfully requests the Court grant the application for a writ of attachment
and issue a right to attach order in the amount of $71,000.
Dated: February 25, 2016. n
SCHILD tip
AW So
L. Peter Ry —
Attorneys for Plaintiff and Cross-Defendant
Elite Audio Systems, In
39049168V1 132824/00001 “5:
MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDEReo wan non fw
PROOF OF SERVICE
lam over the age of eighteen years of age, not a party to this action, and
employed in the City and County of San Francisco at the law offices of Fox Rothschild
LLP, 345 California Street, Suite 2200, San Francisco, California 94104. My electronic
service address is evanmatre@foxrothschild.com.
On February 26, 2016, I caused a copy of the attached Elite Audio Systems’
Memorandum of Points and Authorities in Support of Application for Writ of Attach-
ment and Right to Attach Order to be served by electronic means on opposing counsel at
the electronic service address as last given, as follows:
Trevor A. Caudle, Esq.
trevor@trevorcaudlelaw.com
Attorneys for Defendant and Cross-Complainant
Dsegnare, LLC
and by causing a true and correct copy to be personally delivered to opposing counsel at
the office address as last given, as follows:
Trevor A. Caudle, Esq.
Trevor Caudle Law Practice, PC
350 Bay Street, No. 100-363
San Francisco, California 94133
Attorneys for Defendant and Cross-Complainant
Dsegnare, LLC
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on February
26, 2016 at San Francisco, California.
Cees Ae UI ca
Eileen Van Matre
39133375¥1 132824/00001
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L. PETER RYAN (SBN 134291) pryan@foxrothschild.com JACK PRAETZELLIS (SBN 267765) jpraetzellis@foxrothschild.com FOX ROTHSCHILD LLP ELECTRONICALLY 345 California Street, Suite 2200 FILED San Francisco, California 94104 Superior Court of Califomia, Telephone: 415-364-5540 County of San Francisco Facsimile: 415-391-4436 02/26/2016 ences Attorneys for Plaintiff and Cross- 7 D Defendant Elite Audio Systems, Inc. Ti SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO ELITE AUDIO SYSTEMS, INC., Case No. CGC-15-544270 Plaintiff, ELITE AUDIO SYSTEMS' MEMORAN- DUM OF POINTS AND AUTHORITIES v. IN SUPPORT OF APPLICATION FOR WRIT OF ATTACHMENT AND RIGHT DSEGNARE, LLC, et al., TO ATTACH ORDER Defendants. Date: March 23, 2016 Time: 9:30 a.m. Dept: 501 AND RELATED CROSS-ACTION. Trial: April 16, 2016 Complaint Filed: February 20, 2015 I. INTRODUCTION This action is brought by plaintiff sub-landlord Elite Audio Systems, Inc. ("Land- lord") against its sub-tenant Dsegnare, LLC ("Tenant") for non-payment of rent under Civil Code Section 1951.4. Tenant signed a two-year sublease (the "Lease") effective Au- gust 27, 2013 for the display and sale of furniture, furniture systems, and up to three salespersons at the real property commonly known as 893 Folsom Street, Unit A, San Francisco, California (the "Premises"). By its terms, the Lease expired on July 31, 2015. Tenant's initial rent under the Lease was $5,000 per month. Effective September 2014, Tenant's rent increased to $6,000 per month. Tenant abandoned the Premises on or about June 2014 and ceased paying rent at that time. Landlord served Tenant a Notice of Belief of Abandonment on June 16, 2014. ‘MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/ RIGHT TO ATTACH ORDERoOo m7mnn Aa eR Ww Tenant responded on July 3, 2014, stating he did not intend to abandon the tenancy at the Premises. Landlord did not terminate Tenant's right to possession under the Lease (except as that right expired with the expiration of the Lease), and instead filed the instant ac- tion to collect the rent as it came due under Civil Code Section 1951.4. As more fully set forth below, there is no dispute that Tenant defaulted under the Lease by failing to pay rent as it came due. Landlord's claim for unpaid rent and utilities in the amount of $71,000 is readily ascertainable. Landlord is thus entitled to a writ of attachment and right to attach order to secure its claim for damages pending the final resolution of this case. Il. STATEMENT OF FACTS On or about August 31, 2010, Landlord entered into a written lease for the Prem- ises with E.F.K. Investments, LLC ("Master Landlord"). (Declaration of Michael Woods in Support of Application for Writ of Attachment ["Woods Decl."], Ex. 1 at Ex. A.) Mas- ter Landlord is the master landlord for the Premises. Thereafter, Landlord and Tenant entered into the Lease on or about August 27, 2013. By its terms, the Lease expired on July 31, 2015. (Id., Ex. 1.) Under the Lease, Tenant agreed to pay monthly rent in the amount of $5,000 through August 2014 and $6,000 until Lease expiration on July 31, 2015. Tenant took possession of the Premises in or about September 2013. Tenant paid rent, as it came due, through May 2014. (Id. {| 2.) On June 16, 2014, Landlord believed Tenant had abandoned the Premises, and, accordingly, Landlord served a Notice of Belief of Abandonment ("Notice of Belief of Abandonment"). (Declaration of L. Peter Ryan in Support of Application for Writ of At- tachment ["Ryan Decl."], Ex. 2.) Tenant responded to the Notice of Belief of Abandon- ment stating that it did not intend to abandon the Premises. (Jd., Ex. 3; Woods Decl. 4 3.) Thereafter, on July 11, 2014, Landlord served Tenant with a Three-Day Notice to Pay or Quit ("Three-Day Notice"). (Ryan Decl., Ex. 4.) Tenant responded to the Three- 39049168v1 132824/00001 -2- ‘MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDERDay Notice by paying the unpaid rent. Tenant has not paid rent since. (Woods Decl. 1 4) After being served with the complaint, Tenant filed a cross-complaint against Landlord asserting claims for breach of contract (seeking to enforce the Lease), breach of implied contract, and conversion. (Ryan Decl., Ex. 5.) A breakdown of the rent sought by Landlord from Tenant in connection with this application is as follows: Rent August 2014 $5,000 Rent September 2014—July 2015 $66,000 ($6,000 x 11 months) Total: $71,000 (Woods Decl. 15.) Ill. ARGUMENT Landlord is entitled to the issuance of a right to attach order and writ of attach- ment because it has satisfied all the necessary requirements for such relief: (1) Land- lord's breach of contract claim in this action is one on which the request writ may issue; (2) Landlord has established the probable validity of its claim; and (3) the relief request- ed by Landlord is not sought for a propose other than to secure its contract claim. Code Civ. Proc. §§ 484.090, 512.060. Pursuant to the Code, this Court should issue a right to attach order and an order for issuance of a writ of attachment. A. AWrit of Attachment May Be Issued on Landlord's Claims It is appropriate for this Court to issue a writ of attachment on Landlord's claim for money damages. Section 483.010(a) of the Code of Civil Procedure provides, in part: [A]n attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or im- plied, where the total value of the claim or claims is a fixed or readily ascer- tainable amount not less than five hundred dollars ($500) exclusive of costs, interest and attorney's fees. Code Civ. Proc. § 483.010(a). A lease for real property is a contract for which attach- ment may issue. Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 384 352-53 (1919); Leg- islative Committee Comment to 1974 Addition to Code Civ. Proc. § 483.010 ("the term 39049168v1 132824/00001 -3- MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDERwo wan nn sk wo ‘contract’... . includes a lease of ... real... property"). Landlord's claim for money is based upon tenant's failure to pay rent owed under the commercial lease at issue. Landlord seeks to compel Tenant to pay breach of lease damages in the amount of $71,000 due to Tenant's default. This action, therefore, is a claim upon a written contract for a specific amount of money in excess of $500. Because Landlord's claim is one upon which attachment may be issued, and all of the statutory requirements for attachment are satisfied, it is appropriate for the Court to grant the ap- plication. B. Landlord Has Established Probable Validity of Its Claims in a Readily Ascertainable Amount Landlord can properly establish the probable validity of its claim against Tenant. "Probable validity," as defined under Section 481.190 and 512.060 of the Code of Civil Procedure exists where, "it is more likely than not that plaintiff will obtain a judgment against defendant on that claim." Code Civ. Proc. §§ 481.190, 512.060. In this case, Landlord has established that Tenant entered into the Lease and that Tenant breached the Lease by failing to pay rent. Thus, Landlord's claim has probable validity. Further, Landlord's claim is in a readily ascertainable amount. As a result of Ten- ant's breach of Lease, Landlord has been damaged in the amount of $71,000 consisting of unpaid rent from August 2014 through July 2015. Accordingly, Landlord has established the requisite probable validity of its claim in a readily ascertainable amount for a writ of attachment pursuant to Section 481.090 and 512.060 of the Code of Civil Procedure. Iv. CONCLUSION Landlord has established a valid contract claim in a readily ascertainable amount for its application for a writ of attachment and right to attach order. Accordingly, Mt 1 Mi 39049168v1 132824/00001 -4- MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDERLandlord respectfully requests the Court grant the application for a writ of attachment and issue a right to attach order in the amount of $71,000. Dated: February 25, 2016. n SCHILD tip AW So L. Peter Ry — Attorneys for Plaintiff and Cross-Defendant Elite Audio Systems, In 39049168V1 132824/00001 “5: MEMORANDUM IN SUPPORT OF WRIT OF ATTACHMENT/RIGHT TO ATTACH ORDEReo wan non fw PROOF OF SERVICE lam over the age of eighteen years of age, not a party to this action, and employed in the City and County of San Francisco at the law offices of Fox Rothschild LLP, 345 California Street, Suite 2200, San Francisco, California 94104. My electronic service address is evanmatre@foxrothschild.com. On February 26, 2016, I caused a copy of the attached Elite Audio Systems’ Memorandum of Points and Authorities in Support of Application for Writ of Attach- ment and Right to Attach Order to be served by electronic means on opposing counsel at the electronic service address as last given, as follows: Trevor A. Caudle, Esq. trevor@trevorcaudlelaw.com Attorneys for Defendant and Cross-Complainant Dsegnare, LLC and by causing a true and correct copy to be personally delivered to opposing counsel at the office address as last given, as follows: Trevor A. Caudle, Esq. Trevor Caudle Law Practice, PC 350 Bay Street, No. 100-363 San Francisco, California 94133 Attorneys for Defendant and Cross-Complainant Dsegnare, LLC I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on February 26, 2016 at San Francisco, California. Cees Ae UI ca Eileen Van Matre 39133375¥1 132824/00001