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JOSEPH M. SWEENEY, ESQ. (78363) Electronically Filed
M. JONATHAN ROBB, JR., ESQ. (290457) 1/22/2021 2:55 PM
SWEENEY MASON LLP Superior Court of California
983 University Avenue, Suite 104C County of Stanislaus
Los Gatos, CA 95032—7637 Clerk of the Court
Telephone: (408) 356-3000 By: Sonia Krohn, Deputy
Facsimile: (408) 354-8839
jsweeney@smwb.com
jrobb@smwb.com
6
Attorneys for Plaintiff, NINE ISLANDS I,LLC
7
8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
9
10 NINE ISLANDS I, CASE NO.
LLC., a California CV—20-004050
limited liability company,
11
JOINT MEMORANDUM OF POINTS AND
12 Plaintiff, AUTHORITIES IN SUPPORT OF
PLAINTIFF’S APPLICATIONS FOR
13 v. RIGHT TO ATTACH ORDER AND WRIT
OF ATTACHMENT
14
SUPERCUTS, INC., a State of Delaware
15 Corporation, SUPERCUTS CORPORATE
SHOPS, INC., a State of Delaware
16 Corporation, MOXIE MANAGEMENT,
REGIS CORPORATION, a Minnesota Hearing: 2/23/21
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corporation, and DOES 1-50, Time: 8:30 a.m.
Dept. 24
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Defendants.
19
20 I. INTRODUCTION
21 Plaintiff NINE ISLANDS I, LLC (“Nine Islands”), as landlord, is entitled to a Right to Attach
22 Order and Order for Issuance of Writ of Attachment against its named tenant Defendant Supercuts, Inc.,
23 as well as the assignee of the lease Defendant Supercuts Corporate Shops, Inc., and the subtenant in
24 possession Defendant Moxie Management Group, LLC (sued as Moxie Management), (collectively,
25 “Supercuts”) as set forth herein.
26 Nine Islands owns Countryside Plaza, a strip mall. Supercuts is a tenant at Countryside Plaza
27 authorized by the lease to operate a barber shop. Supercuts has unilaterally elected to stop paying any
28 rent, notwithstanding that no law or other authority allows them to do so. Accordingly, Nine Islands has
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF ’S APPLICATIONS l
filed this action against Supercuts to recover unpaid rent for the breach of contract, among other things.
Supercuts currently maintains possession of its space, and refuses to advise Nine Islands whether it can
recover possession to attempt to lease the space to a new tenant and mitigate damages, even though that
Accordingly, Nine Islands seeks to attach the following amounts owed to Nine
4567009
is not legally required.
Islands:
iifiéécfiiififihf : 2;? ir'frrAmonnifé
:i i"
1'
,7
' '
, Ffiéfiffifiafis ,
'7
33:5 ,
Unpaid Rent through $35,450.86 Lease, Vieira Decl.
January 2021
Future Rent until $42,905.04 Lease, Sec. l3.02(a)
January 31, 2022 Extension
10% Late Fee $3,545.09 Lease, Sec. 16.08
Attorneys’ Fees and $11,931.20 Robb Decl.
10 Costs to Date
Attorneys’ Fees and $100,000 Robb Decl.
11
Costs to be Incurred
12 Through Trial (est)
Total $193,832.19
13
14 II. STATEMENT OF FACTS
15 1. Nine Islands is a California limited liability company operating with its principal place of
16 business in Santa Clara County. (Declaration of Joe Vieira (“Vieira Decl.”), 112.)
17 2. Supercuts, 1nc., is a Delaware corporation. (Declaration of M. Jonathan Robb, Jr. (“Robb
18 Decl.”), 112, Exh. F.)
19 3. Supercuts Corporate Shops, Inc., is a Delaware corporation. (Robb Decl., 112, Exh. F.)
20 4. Moxie Management Group, LLC, sued as Moxie Management, is a Delaware limited
21 liability company. (Robb Decl., fl 2, Exh. F.)
22 5. Regis Corporation is a Minnesota corporation. (Robb Decl., 112, Exh. F.) According to
23 Securities and Exchange Commission filings, Regis Corporation owns and operates the Supercuts brand.
24 According to Regis Corporation’s website, Regis Corporation holds itself out as the owner of the
25 Supercuts brand. (https://www.regiscorp.com/salon—brandshtml, last accessed 12/4/20 at 3:31pm.)
26 Regis Corporation conferred directly with Nine Islands regarding the dispute from which this lawsuit
27 arises in or about June 2020. (Vieira Decl., 11 8, Exh. E.) Regis Corporation is not named in this writ
28 because Plaintiff could only reserve three hearing dates on the same day. Plaintiff reserves the right to
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 2
seek a writ of attachment against Regis Corporation in the future.
6. Nine Islands owns Countryside Plaza Shopping Center, located at the intersection of
Countryside Drive and Fulkerth Road in Turlock, California, 95380 (“Countryside Plaza”). (Vieira
One of the parcels at Countryside Plaza owned by Nine Islands includes that commercial
4567009
Decl., 11 3.)
space commonly referred to as 1854 Countryside Drive, Turlock, California, 95380 (“Premises”).
(Vieira Decl., 11 3.)
7. On or about August 8, 1995, Nine Islands’ predecessor in interest Countryside Meadows,
Inc., as landlord, entered into that certain lease with Supercuts, Inc. for the use and benefit of Supercuts,
as tenants, for use of the Premises as a hair salon. (“Lease”) (Vieira Decl., 11 4, Exh. A.) Attached
10 hereto as Exhibit A is a copy of the Lease, incorporated herein by reference. (Vieira Decl., 114, Exh. A.)
11 8. The Lease obligates Supercuts to pay rent to the landlord, including but not limited to by
12 the Lease Summary, as well as Sections 3.01, 3.02 and 3.03. (Vieira Decl., {I 4, Exh. A.) As of the date
13 of this writ, and for all unpaid months except where noted below, rent due pursuant to the Lease as
14 modified is $3,575.42 monthly. (Vieira Decl., 11 7, Exh D; 1H]15, l6.)
15 9. Section 10.01 of the Lease provides in part, “Notwithstanding anything in this Lease to
16 the contrary, it is expressly agreed that without Landlord consent Tenant shall have the right to assign or
17 sublet this Lease in whole or in part t0 any corporation which is a wholly-owned subsidiary, parent or
18 affiliate of Tenant, but no such assignment or subletting shall release or impair the liability of Tenant
19 hereunder.” (Vieira Decl., {I 4, Exh. A.)
20 10. Section 13.02 (a) of the Lease provides, “Landlord shall have the option to continue this
21 Lease in full force and not terminate Tenant’s right to possession of the Premises, in which event
22 Landlord shall have the right to collect rental and additional charges when due, and Landlord shall have
23 such other rights as are provided for in this Lease and such rights as are permitted by law.” (Vieira
24 Decl., 11 4, Exh. A.)
25 ll. Section 13.06 of the Lease provides, “If either party incurs any expense, including
26 reasonable attorneys’ fees, in connection with any action or proceeding, including declaratory relief,
27 instituted by either party by reason of any default or alleged default of the other party hereunder, the
28 party prevailing on such action or proceeding shall be entitled to recover from the other party its
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 3
reasonable expenses including, without limitation, all attorneys’ fees and court costs.” (Vieira Decl., 1]
4, Exh.
234
A.)
12. Section 16.08 of the Lease provides in part, “Tenant hereby acknowledges that late
payment by Tenant to Landlord of rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. . .if
any installment of rent or any sum due from Tenant shall not be received by Landlord or Landlord’s
67009
designee within ten (10) days afier said amount is due, then Tenant shall pay to Landlord a late charge
equal to 10% of such overdue amount, plus any attorneys’ fees or other costs incurred by Landlord...
The parties hereby agree that such late charges represent a fair and reasonable estimate of the cost that
10 Landlord will incur by reason of the late payment by Tenant.” (Vieira Decl., ‘fl4, Exh. A.)
11 13. Countryside Plaza was transferred to Nine Islands in or about September 2016 after a
12 prior sale and transfer to a trust. (Vieira Decl., 1H]9-11.)
13 l4. The Lease was assigned to Nine Islands as landlord when Countryside Plaza was
14 transferred to it. (Vieira Decl., fl 12.)
15 15. The Lease is currently set to expire on January 31, 2022 pursuant to an extension
16 executed on or about July 26, 2016. (Vieira Decl., 1] 5, Exh. B.) Attached hereto as Exhibit B is a copy
17 of the Extension, incorporated herein by reference. (Vieira Decl., 11 5, Exh. B.)
18 l6. In or about October 2019, Moxie Management Group, LLC became a subtenant by way
19 of the assignment attached as Exhibit “C” (“Assignment”). (Vieira Decl., 11 6, Exh. C.)
20 17. By way of the Assignment, Supercuts further represented that Supercuts Corporate Shops
21 was a one—time tenant of the Premises or assignee of the Lease. (Vieira Decl., 11 6, Exh. C.)
22 18. Nine Islands has duly performed all terms, conditions, promises and covenants required
23 of Nine Islands under the Lease, except for those terms, conditions, promises and covenants the
24 performance of which were waived, excused or prevented by Cross—Defendants, and each of them.
25 (Vieira Decl., 11 13.)
26 19. Supercuts has not paid rent defined under the Lease since April 1, 2020. (Vieira Decl.,
27 11 15.) The following amounts are due and owing for past rent:
28 ///
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF ’S APPLICATIONS 4
a. April 2020 rent in the amount of $3,272.08. This amount reflects a credit provided to
Supercuts.
b. May 2020 rent in the amount of $3,575.42.
c. June 2020 rent in the amount of $3,575.42.
d. July 2020 rent in the amount of $3,575.42.
e. August 2020 rent in the amount of $3,575.42.
f. September 2020 rent in the amount of $3,575.42.
g. October 2020 rent in the amount of $3,575.42.
h. November 2020 rent in the amount of $3,575.42.
10 i. December 2020 rent in the amount of $3,575.42.
11 j. January 2021 rent in the amount of $3,575.42. (Vieira Decl., 11 16.)
12 20. Plaintiff has not terminated Defendants’ rights to possession of the Premises, nor has
13 Plaintiff terminated the Lease, as modified. (Vieira Decl., 1i l7.)
14 21. Defendants remain in possession of the Premises. (Vieira Decl., 1118.) They have
15 indicated their intent to remain in possession of the Premises until an unspecified later date. (Robb
16 Decl., fl 5, Exh. I.)
17 22. Plaintiff has incurred attorney’s fees and costs 0f$11,931.20 in filing this action and
18 preparing this motion and supporting papers. (Robb Decl., 116.) It anticipates that it will spend an
19 additional $100,000 in litigating this matter through trial. (Robb Decl., 116.)
20 23. As of the filing of this writ, and based upon the above citations, Nine Islands has and will
21 suffer the following damages:
22 a. Unpaid rent through January 2021: $35,450.86.
23 b. Future rent incurred between February l, 2021 and January 31, 2022: $42,905.04.
24 c. 10% late fee for unpaid rend through January 2021: $3,545.09.
25 d. Total attorneys’ fees and costs incurred to date of $11,931.20 and additional fees of
26 $100,000 estimated through trial: $1 11,931.20.
27 e. Total: $193,832.19.
28 ///
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 5
III. LEGAL AUTHORITY
Code of Civil Procedure sections 484.010 et seq., provides that the court shall issue a Right to
Attach Order and Writ of Attachment if there the court finds all of the following, among other things:
1. The claim upon which the Attachment is based is one upon which an Attachment may be
issued. (Code CiV. Proc., § 484.020(a).)
6 2. The Attachment is not sought for a purpose other than the recovery on the claim upon
7 which the Attachment is based. (Code CiV. Proc., § 484.020(c).)
8 3. The affidavit accompanying the application shows that the property sought to be
attached, or the portion thereof to be specified in the writ, is not exempt from attachment. (Code Civ.
10 Proc., § 484.020(e).)
11 4. Plaintiff would be entitled to judgment on the claim upon which attachment is based, on
12 the facts presented. (Code Civ. Proc., § 484.030.)
13 As presented below, each of these requirements are satisfied. In addition to these requested
14 findings, Plaintiff presents the other procedural requirements of Code of Civil Procedure section
15 484.010 et seq. in this memorandum and its application, including but not limited to the amount to be
16 secured and a description of the property to be secured.
17 A. The Claims Upon Which the Right to Attach Order and Writ of Attachment Are
18 Based Are Proper Actions Upon Which an Attachment Mav Be Issued.
19 A right to attach order and writ of attachment may be issued in an action for a claim of money
20 which is based upon a contract where the total amount of the claim is fixed or readily ascertainable in
21 amount in excess of $500.00. (Code Civ. Proc., § 483.010(a).) It must be based on claims arising from
22 conduct of a trade, business or profession. (Code Civ. Proc., § 483.010(c).) It may not be based on a
23 lease of property where the property was used “primarily for personal, family, or household purposes.”
24 (Id.)
25 Here, the first cause of action for breach of contract against Supercuts is clearly a claim upon
26 which attachment may be granted. It seeks monetary relief for the debt of the corporation or limited
27 liability corporation based upon a written contract. The debt of the corporation (or limited liability
28 corporation) lies in Supercuts’ failure to pay rent. The amount in dispute is readily ascertainable
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 6
pursuant to the above schedules.
As a result, the requested writ of attachment is proper because it is premised on causes of action
234
upon which attachment may be granted.
B. The Right to Attach Order and Writ of Attachment is Not Sought For a Purpose
Other Than the Recoverv on the Claims Upon Which the Attachment is Based.
The right to attach order and writ of attachment seek only the principal amounts due and unpaid
67009
in connection with Defendants’ breach of the parties’ Lease, costs and attorneys’ fees. Accordingly, the
right to attach order and writ of attachment are not sought for a purpose other than recovery on the claim
upon which the order is based.
10 C. The Property Is Not Exempt.
11 Exemption is determined by Code of Civil Procedure section 484.070, and is Supercuts’ burden
12 to claim. Notwithstanding, Nine Islands seeks the attachment of corporate assets including bank
13 accounts and accounts receivable, not personal or real property of an individual subject to exemption.
14 (See also, Weil and Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter Group 2021), 11 9:887.)
15 D. Plaintiff has Established the Probable Validity of Its Claims Upon Which the
16 Attachment is Based.
17 The cause of action upon which this writ is premised is breach of contract. The evidence in
18 support of this writ is beyond meaningful dispute. Axiomatically, the elements for a breach of contract
19 are: “(1) the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach,
20 and (4) the resulting damages to plaintiff.” (Tribeca Companies, LLC v. FirstAmerican Title Ins. C0.
21 (2015) 239 Ca1.App.4th 1088, 1109 [internal citations omitted].) Assignments of contracts are generally
22 allowed, so long as the assignor manifested an intention to transfer the right. (Sunburst Bank v.
23 Executive Life Insurance C0. (1994) 24 Ca1.App.4th 1156, 1164.)
24 For the first cause of action, Nine Islands and Supercuts have a binding contract as articulated by
25 the Lease. The Lease was assigned multiple times, but the attached documents reflect that all of the
26 other parties knew about the assignments. Pursuant to Lease section 10.01 , these assignments only
27 expanded liability to the new tenants and assignees. By way of Supercuts’ own assignments, Supercuts
28 Corporate Shops and Moxie Management Group are also liable.
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF ’S APPLICATIONS 7
Nine Islands performed under the Lease by, in principal part, providing Supercuts with the space.
However, the Lease was breached when Supercuts failed to pay rent. Nine Islands’ claims against
Supercuts have a “probable validity” that is clearly evidence by the supporting declarations and
documents.
E. Supercgts’ Defenses Are Unavailing.
Supercuts’ affirmative defenses are its burden to establish and will be addressed in detail by Nine
Islands in its reply or at the hearing. Notwithstanding, Supercuts’ affirmative defenses are unlikely to
succeed. In its communications with Nine Islands prior to this writ, Supercuts’ sole explanation for not
paying rent is the Coronavirus and a mistaken belief that it need not pay rent under government orders.
10 However, applicable laws place moratoriums on evictions, principally for residences and small
11 businesses under fifty employees. Indeed, Stanislaus County Board of Supervisors Resolution 2020-
12 0147 expressly provides, “Nothing in this Resolution shall relieve a tenant of the obligation to pay rent,
13 nor restrict a landlord’s ability to recover rent due.” This lawsuit is not an eviction. Moreover,
14 axiomatically, Supercuts
— a nationally—recognized corporation of immense size subject to judicial notice
15 — is not a residential or small business tenant of less than fifty employees.
16 F. Plaintiff is Entitled to Costs.
17 Pursuant to California Code of Civil Procedure §482.110, Nine Islands is entitled to its
18 reasonable attorneys’ fees incurred in obtaining this writ of attachment. Nine Islands has incurred
19 attorneys’ fees and costs to date in the amount of $1 1,93 l .20 in this action, all of which should be
20 included in the secured amount.
21 III. CONCLUSION
22 Supercuts is hiding behind the pandemic to avoid paying contractually owed rent. They should
23 be required to honor the lease agreements they signed, and pay the amounts owed.
24 Dated: January 12 , 2021 SWEENEY MASON LLP
25
26 Byz/MQM/
JOSEPISI M. MEENEYAESQ.
27 M. JONATHAN ROBB, JR, ESQ.
Attorneys for Plaintiff NINE ISLANDS I,LLC
28
JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 8
Preview
JOSEPH M. SWEENEY, ESQ. (78363) Electronically Filed M. JONATHAN ROBB, JR., ESQ. (290457) 1/22/2021 2:55 PM SWEENEY MASON LLP Superior Court of California 983 University Avenue, Suite 104C County of Stanislaus Los Gatos, CA 95032—7637 Clerk of the Court Telephone: (408) 356-3000 By: Sonia Krohn, Deputy Facsimile: (408) 354-8839 jsweeney@smwb.com jrobb@smwb.com 6 Attorneys for Plaintiff, NINE ISLANDS I,LLC 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS 9 10 NINE ISLANDS I, CASE NO. LLC., a California CV—20-004050 limited liability company, 11 JOINT MEMORANDUM OF POINTS AND 12 Plaintiff, AUTHORITIES IN SUPPORT OF PLAINTIFF’S APPLICATIONS FOR 13 v. RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT 14 SUPERCUTS, INC., a State of Delaware 15 Corporation, SUPERCUTS CORPORATE SHOPS, INC., a State of Delaware 16 Corporation, MOXIE MANAGEMENT, REGIS CORPORATION, a Minnesota Hearing: 2/23/21 17 corporation, and DOES 1-50, Time: 8:30 a.m. Dept. 24 18 Defendants. 19 20 I. INTRODUCTION 21 Plaintiff NINE ISLANDS I, LLC (“Nine Islands”), as landlord, is entitled to a Right to Attach 22 Order and Order for Issuance of Writ of Attachment against its named tenant Defendant Supercuts, Inc., 23 as well as the assignee of the lease Defendant Supercuts Corporate Shops, Inc., and the subtenant in 24 possession Defendant Moxie Management Group, LLC (sued as Moxie Management), (collectively, 25 “Supercuts”) as set forth herein. 26 Nine Islands owns Countryside Plaza, a strip mall. Supercuts is a tenant at Countryside Plaza 27 authorized by the lease to operate a barber shop. Supercuts has unilaterally elected to stop paying any 28 rent, notwithstanding that no law or other authority allows them to do so. Accordingly, Nine Islands has JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF ’S APPLICATIONS l filed this action against Supercuts to recover unpaid rent for the breach of contract, among other things. Supercuts currently maintains possession of its space, and refuses to advise Nine Islands whether it can recover possession to attempt to lease the space to a new tenant and mitigate damages, even though that Accordingly, Nine Islands seeks to attach the following amounts owed to Nine 4567009 is not legally required. Islands: iifiéécfiiififihf : 2;? ir'frrAmonnifé :i i" 1' ,7 ' ' , Ffiéfiffifiafis , '7 33:5 , Unpaid Rent through $35,450.86 Lease, Vieira Decl. January 2021 Future Rent until $42,905.04 Lease, Sec. l3.02(a) January 31, 2022 Extension 10% Late Fee $3,545.09 Lease, Sec. 16.08 Attorneys’ Fees and $11,931.20 Robb Decl. 10 Costs to Date Attorneys’ Fees and $100,000 Robb Decl. 11 Costs to be Incurred 12 Through Trial (est) Total $193,832.19 13 14 II. STATEMENT OF FACTS 15 1. Nine Islands is a California limited liability company operating with its principal place of 16 business in Santa Clara County. (Declaration of Joe Vieira (“Vieira Decl.”), 112.) 17 2. Supercuts, 1nc., is a Delaware corporation. (Declaration of M. Jonathan Robb, Jr. (“Robb 18 Decl.”), 112, Exh. F.) 19 3. Supercuts Corporate Shops, Inc., is a Delaware corporation. (Robb Decl., 112, Exh. F.) 20 4. Moxie Management Group, LLC, sued as Moxie Management, is a Delaware limited 21 liability company. (Robb Decl., fl 2, Exh. F.) 22 5. Regis Corporation is a Minnesota corporation. (Robb Decl., 112, Exh. F.) According to 23 Securities and Exchange Commission filings, Regis Corporation owns and operates the Supercuts brand. 24 According to Regis Corporation’s website, Regis Corporation holds itself out as the owner of the 25 Supercuts brand. (https://www.regiscorp.com/salon—brandshtml, last accessed 12/4/20 at 3:31pm.) 26 Regis Corporation conferred directly with Nine Islands regarding the dispute from which this lawsuit 27 arises in or about June 2020. (Vieira Decl., 11 8, Exh. E.) Regis Corporation is not named in this writ 28 because Plaintiff could only reserve three hearing dates on the same day. Plaintiff reserves the right to JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 2 seek a writ of attachment against Regis Corporation in the future. 6. Nine Islands owns Countryside Plaza Shopping Center, located at the intersection of Countryside Drive and Fulkerth Road in Turlock, California, 95380 (“Countryside Plaza”). (Vieira One of the parcels at Countryside Plaza owned by Nine Islands includes that commercial 4567009 Decl., 11 3.) space commonly referred to as 1854 Countryside Drive, Turlock, California, 95380 (“Premises”). (Vieira Decl., 11 3.) 7. On or about August 8, 1995, Nine Islands’ predecessor in interest Countryside Meadows, Inc., as landlord, entered into that certain lease with Supercuts, Inc. for the use and benefit of Supercuts, as tenants, for use of the Premises as a hair salon. (“Lease”) (Vieira Decl., 11 4, Exh. A.) Attached 10 hereto as Exhibit A is a copy of the Lease, incorporated herein by reference. (Vieira Decl., 114, Exh. A.) 11 8. The Lease obligates Supercuts to pay rent to the landlord, including but not limited to by 12 the Lease Summary, as well as Sections 3.01, 3.02 and 3.03. (Vieira Decl., {I 4, Exh. A.) As of the date 13 of this writ, and for all unpaid months except where noted below, rent due pursuant to the Lease as 14 modified is $3,575.42 monthly. (Vieira Decl., 11 7, Exh D; 1H]15, l6.) 15 9. Section 10.01 of the Lease provides in part, “Notwithstanding anything in this Lease to 16 the contrary, it is expressly agreed that without Landlord consent Tenant shall have the right to assign or 17 sublet this Lease in whole or in part t0 any corporation which is a wholly-owned subsidiary, parent or 18 affiliate of Tenant, but no such assignment or subletting shall release or impair the liability of Tenant 19 hereunder.” (Vieira Decl., {I 4, Exh. A.) 20 10. Section 13.02 (a) of the Lease provides, “Landlord shall have the option to continue this 21 Lease in full force and not terminate Tenant’s right to possession of the Premises, in which event 22 Landlord shall have the right to collect rental and additional charges when due, and Landlord shall have 23 such other rights as are provided for in this Lease and such rights as are permitted by law.” (Vieira 24 Decl., 11 4, Exh. A.) 25 ll. Section 13.06 of the Lease provides, “If either party incurs any expense, including 26 reasonable attorneys’ fees, in connection with any action or proceeding, including declaratory relief, 27 instituted by either party by reason of any default or alleged default of the other party hereunder, the 28 party prevailing on such action or proceeding shall be entitled to recover from the other party its JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 3 reasonable expenses including, without limitation, all attorneys’ fees and court costs.” (Vieira Decl., 1] 4, Exh. 234 A.) 12. Section 16.08 of the Lease provides in part, “Tenant hereby acknowledges that late payment by Tenant to Landlord of rent or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. . .if any installment of rent or any sum due from Tenant shall not be received by Landlord or Landlord’s 67009 designee within ten (10) days afier said amount is due, then Tenant shall pay to Landlord a late charge equal to 10% of such overdue amount, plus any attorneys’ fees or other costs incurred by Landlord... The parties hereby agree that such late charges represent a fair and reasonable estimate of the cost that 10 Landlord will incur by reason of the late payment by Tenant.” (Vieira Decl., ‘fl4, Exh. A.) 11 13. Countryside Plaza was transferred to Nine Islands in or about September 2016 after a 12 prior sale and transfer to a trust. (Vieira Decl., 1H]9-11.) 13 l4. The Lease was assigned to Nine Islands as landlord when Countryside Plaza was 14 transferred to it. (Vieira Decl., fl 12.) 15 15. The Lease is currently set to expire on January 31, 2022 pursuant to an extension 16 executed on or about July 26, 2016. (Vieira Decl., 1] 5, Exh. B.) Attached hereto as Exhibit B is a copy 17 of the Extension, incorporated herein by reference. (Vieira Decl., 11 5, Exh. B.) 18 l6. In or about October 2019, Moxie Management Group, LLC became a subtenant by way 19 of the assignment attached as Exhibit “C” (“Assignment”). (Vieira Decl., 11 6, Exh. C.) 20 17. By way of the Assignment, Supercuts further represented that Supercuts Corporate Shops 21 was a one—time tenant of the Premises or assignee of the Lease. (Vieira Decl., 11 6, Exh. C.) 22 18. Nine Islands has duly performed all terms, conditions, promises and covenants required 23 of Nine Islands under the Lease, except for those terms, conditions, promises and covenants the 24 performance of which were waived, excused or prevented by Cross—Defendants, and each of them. 25 (Vieira Decl., 11 13.) 26 19. Supercuts has not paid rent defined under the Lease since April 1, 2020. (Vieira Decl., 27 11 15.) The following amounts are due and owing for past rent: 28 /// JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF ’S APPLICATIONS 4 a. April 2020 rent in the amount of $3,272.08. This amount reflects a credit provided to Supercuts. b. May 2020 rent in the amount of $3,575.42. c. June 2020 rent in the amount of $3,575.42. d. July 2020 rent in the amount of $3,575.42. e. August 2020 rent in the amount of $3,575.42. f. September 2020 rent in the amount of $3,575.42. g. October 2020 rent in the amount of $3,575.42. h. November 2020 rent in the amount of $3,575.42. 10 i. December 2020 rent in the amount of $3,575.42. 11 j. January 2021 rent in the amount of $3,575.42. (Vieira Decl., 11 16.) 12 20. Plaintiff has not terminated Defendants’ rights to possession of the Premises, nor has 13 Plaintiff terminated the Lease, as modified. (Vieira Decl., 1i l7.) 14 21. Defendants remain in possession of the Premises. (Vieira Decl., 1118.) They have 15 indicated their intent to remain in possession of the Premises until an unspecified later date. (Robb 16 Decl., fl 5, Exh. I.) 17 22. Plaintiff has incurred attorney’s fees and costs 0f$11,931.20 in filing this action and 18 preparing this motion and supporting papers. (Robb Decl., 116.) It anticipates that it will spend an 19 additional $100,000 in litigating this matter through trial. (Robb Decl., 116.) 20 23. As of the filing of this writ, and based upon the above citations, Nine Islands has and will 21 suffer the following damages: 22 a. Unpaid rent through January 2021: $35,450.86. 23 b. Future rent incurred between February l, 2021 and January 31, 2022: $42,905.04. 24 c. 10% late fee for unpaid rend through January 2021: $3,545.09. 25 d. Total attorneys’ fees and costs incurred to date of $11,931.20 and additional fees of 26 $100,000 estimated through trial: $1 11,931.20. 27 e. Total: $193,832.19. 28 /// JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 5 III. LEGAL AUTHORITY Code of Civil Procedure sections 484.010 et seq., provides that the court shall issue a Right to Attach Order and Writ of Attachment if there the court finds all of the following, among other things: 1. The claim upon which the Attachment is based is one upon which an Attachment may be issued. (Code CiV. Proc., § 484.020(a).) 6 2. The Attachment is not sought for a purpose other than the recovery on the claim upon 7 which the Attachment is based. (Code CiV. Proc., § 484.020(c).) 8 3. The affidavit accompanying the application shows that the property sought to be attached, or the portion thereof to be specified in the writ, is not exempt from attachment. (Code Civ. 10 Proc., § 484.020(e).) 11 4. Plaintiff would be entitled to judgment on the claim upon which attachment is based, on 12 the facts presented. (Code Civ. Proc., § 484.030.) 13 As presented below, each of these requirements are satisfied. In addition to these requested 14 findings, Plaintiff presents the other procedural requirements of Code of Civil Procedure section 15 484.010 et seq. in this memorandum and its application, including but not limited to the amount to be 16 secured and a description of the property to be secured. 17 A. The Claims Upon Which the Right to Attach Order and Writ of Attachment Are 18 Based Are Proper Actions Upon Which an Attachment Mav Be Issued. 19 A right to attach order and writ of attachment may be issued in an action for a claim of money 20 which is based upon a contract where the total amount of the claim is fixed or readily ascertainable in 21 amount in excess of $500.00. (Code Civ. Proc., § 483.010(a).) It must be based on claims arising from 22 conduct of a trade, business or profession. (Code Civ. Proc., § 483.010(c).) It may not be based on a 23 lease of property where the property was used “primarily for personal, family, or household purposes.” 24 (Id.) 25 Here, the first cause of action for breach of contract against Supercuts is clearly a claim upon 26 which attachment may be granted. It seeks monetary relief for the debt of the corporation or limited 27 liability corporation based upon a written contract. The debt of the corporation (or limited liability 28 corporation) lies in Supercuts’ failure to pay rent. The amount in dispute is readily ascertainable JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 6 pursuant to the above schedules. As a result, the requested writ of attachment is proper because it is premised on causes of action 234 upon which attachment may be granted. B. The Right to Attach Order and Writ of Attachment is Not Sought For a Purpose Other Than the Recoverv on the Claims Upon Which the Attachment is Based. The right to attach order and writ of attachment seek only the principal amounts due and unpaid 67009 in connection with Defendants’ breach of the parties’ Lease, costs and attorneys’ fees. Accordingly, the right to attach order and writ of attachment are not sought for a purpose other than recovery on the claim upon which the order is based. 10 C. The Property Is Not Exempt. 11 Exemption is determined by Code of Civil Procedure section 484.070, and is Supercuts’ burden 12 to claim. Notwithstanding, Nine Islands seeks the attachment of corporate assets including bank 13 accounts and accounts receivable, not personal or real property of an individual subject to exemption. 14 (See also, Weil and Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter Group 2021), 11 9:887.) 15 D. Plaintiff has Established the Probable Validity of Its Claims Upon Which the 16 Attachment is Based. 17 The cause of action upon which this writ is premised is breach of contract. The evidence in 18 support of this writ is beyond meaningful dispute. Axiomatically, the elements for a breach of contract 19 are: “(1) the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, 20 and (4) the resulting damages to plaintiff.” (Tribeca Companies, LLC v. FirstAmerican Title Ins. C0. 21 (2015) 239 Ca1.App.4th 1088, 1109 [internal citations omitted].) Assignments of contracts are generally 22 allowed, so long as the assignor manifested an intention to transfer the right. (Sunburst Bank v. 23 Executive Life Insurance C0. (1994) 24 Ca1.App.4th 1156, 1164.) 24 For the first cause of action, Nine Islands and Supercuts have a binding contract as articulated by 25 the Lease. The Lease was assigned multiple times, but the attached documents reflect that all of the 26 other parties knew about the assignments. Pursuant to Lease section 10.01 , these assignments only 27 expanded liability to the new tenants and assignees. By way of Supercuts’ own assignments, Supercuts 28 Corporate Shops and Moxie Management Group are also liable. JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF ’S APPLICATIONS 7 Nine Islands performed under the Lease by, in principal part, providing Supercuts with the space. However, the Lease was breached when Supercuts failed to pay rent. Nine Islands’ claims against Supercuts have a “probable validity” that is clearly evidence by the supporting declarations and documents. E. Supercgts’ Defenses Are Unavailing. Supercuts’ affirmative defenses are its burden to establish and will be addressed in detail by Nine Islands in its reply or at the hearing. Notwithstanding, Supercuts’ affirmative defenses are unlikely to succeed. In its communications with Nine Islands prior to this writ, Supercuts’ sole explanation for not paying rent is the Coronavirus and a mistaken belief that it need not pay rent under government orders. 10 However, applicable laws place moratoriums on evictions, principally for residences and small 11 businesses under fifty employees. Indeed, Stanislaus County Board of Supervisors Resolution 2020- 12 0147 expressly provides, “Nothing in this Resolution shall relieve a tenant of the obligation to pay rent, 13 nor restrict a landlord’s ability to recover rent due.” This lawsuit is not an eviction. Moreover, 14 axiomatically, Supercuts — a nationally—recognized corporation of immense size subject to judicial notice 15 — is not a residential or small business tenant of less than fifty employees. 16 F. Plaintiff is Entitled to Costs. 17 Pursuant to California Code of Civil Procedure §482.110, Nine Islands is entitled to its 18 reasonable attorneys’ fees incurred in obtaining this writ of attachment. Nine Islands has incurred 19 attorneys’ fees and costs to date in the amount of $1 1,93 l .20 in this action, all of which should be 20 included in the secured amount. 21 III. CONCLUSION 22 Supercuts is hiding behind the pandemic to avoid paying contractually owed rent. They should 23 be required to honor the lease agreements they signed, and pay the amounts owed. 24 Dated: January 12 , 2021 SWEENEY MASON LLP 25 26 Byz/MQM/ JOSEPISI M. MEENEYAESQ. 27 M. JONATHAN ROBB, JR, ESQ. Attorneys for Plaintiff NINE ISLANDS I,LLC 28 JOINT MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S APPLICATIONS 8