This case was last updated from Los Angeles County Superior Courts on 12/02/2021 at 10:44:51 (UTC).

CHESTNUT HOLDINGS, INC., A NEW YORK CORPORATION VS KEN-LAR, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY

Case Summary

On 07/14/2021 CHESTNUT HOLDINGS, INC , A NEW YORK CORPORATION filed a Contract - Other Contract lawsuit against KEN-LAR, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    *******5936

  • Filing Date:

    07/14/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiff

CHESTNUT HOLDINGS INC. A NEW YORK CORPORATION

Defendant

KEN-LAR LLC A CALIFORNIA LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

MARTIN GREGG A.

Defendant Attorney

ROSENBAUM MARK J

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 03/21/2022
  • Hearing03/21/2022 at 10:00 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Post-Arbitration Status Conference

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  • 10/25/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Case Management Conference - Not Held - Vacated by Court

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  • 10/08/2021
  • DocketNotice (of Entry of Judgment or Order); Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 10/05/2021
  • DocketCase Management Statement; Filed by KEN-LAR, LLC, a California Limited Liability Company (Defendant)

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  • 09/30/2021
  • DocketNotice (of Entry of Judgment or Order); Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 09/27/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Court Order

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  • 09/27/2021
  • DocketStipulation and Order (STIPULATION TO STAY THE ACTION PENDING ARBITRATION; AND ORDER); Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 09/27/2021
  • DocketCertificate of Mailing for ((Court Order re: Stipulation to Stay the Action Pending Arbitr...) of 09/27/2021); Filed by Clerk

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  • 09/27/2021
  • DocketMinute Order ( (Court Order re: Stipulation to Stay the Action Pending Arbitr...)); Filed by Clerk

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  • 09/21/2021
  • Docketat 2:44 PM in Department 86; Court Order

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23 More Docket Entries
  • 07/22/2021
  • DocketDeclaration in Support of Ex Parte Application; Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/22/2021
  • DocketMemorandum of Points & Authorities; Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/22/2021
  • DocketDeclaration in Support of Ex Parte Application; Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/22/2021
  • DocketEx Parte Application (APPLICATION FOR RIGHT TO ATTACH ORDER, TEMPORARY PROTECTIVE ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT); Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/22/2021
  • DocketProof of Service (not Summons and Complaint); Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/21/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/14/2021
  • DocketCivil Case Cover Sheet; Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/14/2021
  • DocketSummons (on Complaint); Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/14/2021
  • DocketComplaint; Filed by CHESTNUT HOLDINGS, INC., a New York Corporation (Plaintiff)

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  • 07/14/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

b"

Case Number: 21STCV25936 Hearing Date: September 1, 2021 Dept: 86

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CHESTNUT\r\nHOLDINGS, INC. v. KEN-LAR, LLC

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Case\r\nNumber: 21STCV25936

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Hearing\r\nDate: September 1, 2021

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[Tentative] ORDER DENYING\r\nAPPLICATION FOR WRIT OF ATTACHMENT

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Plaintiff, Chestnut Holdings, Inc., seeks a writ of attachment against\r\nDefendant, Ken-Lar, LLC, in the amount of $1,350,074.11. The amount of the\r\nattachment sought includes estimated prejudgment interest, costs and attorney's\r\nfees.

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Defendant\r\nowns (or now more accurately owned) the real property located at 301 S. Kenmore\r\nAve in Los Angeles (the Property). Plaintiff entered into an agreement with\r\nDefendant to buy the Property. The parties’ dispute arises from the sales transaction.

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Defendant\r\nopposes the application.

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The\r\napplication for writ of attachment is denied based on Code of Civil Procedure\r\nsection 1281.8.

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Evidentiary\r\nObjections

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Defendant’s\r\nobjections to Plaintiff’s evidence: The following objections are overruled – 1,\r\n2, 5, 8, 9, 12 and 13. The following objections are sustained – 7 and 10. The\r\nfollowing objections are sustained in part – 3 (as to “the Deposit . . . from a\r\nbreach”), 4 (as to “I believe . . . as well” and “In any case . . . the\r\nProperty”), 6 (as to the first sentence) and 11 (as to all except the first\r\nsentence).

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Plaintiff’s\r\nobjections to the Rosenberg declaration are all overruled except for objection\r\nnumbers 12 through 16 which are sustained.

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Plaintiff’s\r\nobjection to the Rosenbaum declaration is sustained.

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APPLICABLE\r\nLAW

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The\r\nCourt shall issue a right to attach order if the Court finds all of the\r\nfollowing:

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  1. The claim upon which the attachment is based is one upon which an\r\nattachment may be issued.

  2. The plaintiff has established the probable validity of the claim\r\nupon which the attachment is based.

  3. The attachment is not sought for a purpose other than the recovery\r\non the claim upon which the attachment is based.

  4. The amount to be secured by the attachment is greater than zero.

    (Code\r\nCiv. Proc. § 484.090.)

    “The\r\napplication [for a writ of attachment] shall be supported by an affidavit\r\nshowing that the plaintiff on the facts presented would be entitled to a\r\njudgment on the claim upon which the attachment is based.” (Code Civ.\r\nProc. § 484.030.) Statutory attachment procedures are purely creations of\r\nthe legislature and as such “are subject to ‘strict construction.’” (Hobbs\r\nv. Weiss (1999) 73 Cal.App.4th 76, 79 [citing Vershbow v. Reiner\r\n(1991) 231 Cal.App.3d 879, 882]; see also Nakasone v. Randall (1982) 129\r\nCal.App.3d 757, 761.) A judge does not have authority to order any attachment\r\nthat is not provided for by the attachment statutes. (Jordan-Lyon\r\nProductions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459,\r\n1466.) “The declarations in the moving papers must contain evidentiary facts,\r\nstated ‘with particularity,’ and based on actual personal knowledge with all\r\ndocumentary evidence properly identified and authenticated.” (Hobbs v. Weiss,\r\nsupra, 73 Cal.App.4th at 79-80.) “In contested applications, the\r\ncourt must consider the relative merits of the positions of the respective\r\nparties and make a determination of the probable outcome of the\r\nlitigation.” (Id. at 80 [cleaned up].)

    ANALYSIS

    Code of Civil Procedure Section 1281.8:

    As\r\na result of the pending arbitration, to obtain a provisional remedy, Plaintiff\r\nmust demonstrate compliance with Code of Civil Procedure section 1281.8.

    Code\r\nof Civil Procedure section 1281.8, subdivision (b) states:

    “A party to an arbitration\r\nagreement may file in the court in the county in which an arbitration\r\nproceeding is pending, or if an arbitration proceeding has not commenced, in\r\nany proper court, an application for a provisional remedy in connection with an\r\narbitrable controversy, but only upon the ground that the award to which the\r\napplicant may be entitled may be rendered ineffectual without provisional\r\nrelief. The application shall be accompanied by a complaint or by copies of the\r\ndemand for arbitration and any response thereto. If accompanied by a complaint,\r\nthe application shall also be accompanied by a statement stating whether the\r\nparty is or is not reserving the party’s right to arbitration.”

    In\r\ncompliance with Code of Civil Procedure section 1281.8, Plaintiff argues the attachment\r\nis necessary to prevent irreparable harm. Specifically, Plaintiff claims (1)\r\nDefendant confirmed the Property is its only asset (Wiener Decl., ¶ 27); (2)\r\nDefendant confirmed it intended to complete an Internal Revenue Code section\r\n1031 tax deferred exchange (1031 Exchange) and acquire a different property\r\nwith the sale proceeds from the Property by sometime in July 2021 (Wiener\r\nDecl., ¶ 30); (3) Defendant admitted (through counsel) it is under contract to\r\nsell the Property to a third party (Martin Decl., ¶ 6); (4) Defendant admitted (through\r\ncounsel) the Property’s sale to a third party is imminent or has already\r\noccurred[1]\r\n(Martin Decl., ¶ 9); and

    (5)\r\nDefendant’s principal appears to be living or residing in Israel. (Martin\r\nDecl., ¶ 9.)[2]

    It\r\nis not clear to the court, however, based on these facts that an attachment is\r\nnecessary to protect Plaintiff from the possibility of an arbitration award being\r\nrendered ineffectual. If successful in this action, Plaintiff will recover approximately\r\n$1.1 million in damages, prejudgment interest and attorney’s fees and costs. Whether\r\nDefendant sells the Property to another buyer (as it did) or holds the Property\r\ndoes not directly inform on whether Plaintiff will be able to recover its\r\ndamages—that is, whether any arbitration award may be rendered ineffectual without\r\nthis provisional remedy.

    That\r\nDefendant’s manager resides in Israel also does not persuasively suggest any arbitration\r\naward may be rendered ineffectual without an attachment. An entity’s manager’s foreign\r\nresidency does not inform on the likelihood that a business will remain solvent\r\nor that the manager may or will more easily abscond with assets—foreign residency\r\nalone does not suggest an arbitration award may be rendered ineffectual without\r\nthe assistance of an attachment.

    Moreover,\r\nDefendant has represented Plaintiff’s $1.1 million is being held in escrow. Nothing\r\nsuggests the escrow will be permitted to release the deposit without the joint\r\ninstruction of Plaintiff and Defendant. Defendant has agreed Plaintiff’s deposit\r\nshall remain with the escrow pending the outcome of the arbitration. (Rosenbaum\r\nDecl., ¶ 2, Ex. 1.) Defendant’s representation to the court and ecrow’s acknowledgement\r\nit is holding the funds effectively undermines Plaintiff’s ability to demonstrate\r\nan arbitration award of $1.1 million or less may be rendered ineffectual\r\nwithout an attachment.

    Plaintiff\r\nsuggests Defendant’s real property in Kansas is “unavailable for levy” thereby satisfying\r\nCode of Civil Procedure section 1281.8. (Code Civ. Proc. § 485.010, subd. (b).)\r\nThe court disagrees. That the property may be unavailable to levy in this\r\nstate, does not suggest Defendant’s real property is unavailable to levy in\r\nKansas upon a favorable arbitration award.

    The\r\ncourt finds Plaintiff’s evidence inadequate to satisfy the conditions of Code of\r\nCivil Procedure section 1281.8. Accordingly, the court finds Plaintiff has not\r\nmet its burden of showing the arbitration award may be rendered ineffectual if\r\nthis provisional remedy is not granted. Thus, on this basis alone the court must\r\ndeny Plaintiff’s application.[3]\r\n

    As\r\nPlaintiff has not demonstrated any arbitration award to which Plaintiff may be\r\nentitled may be rendered ineffectual without provisional relief, the court need\r\nnot address the substantive arguments concerning the sale transaction.

    CONCLUSION

    Based on Code of Civil Procedure section 1281.8, the\r\napplication for a writ of attachment is granted.

    IT IS SO\r\nORDERED.

    September\r\n1, 2021 ________________________________

    Hon. Mitchell\r\nBeckloff

    Judge of the\r\nSuperior Court

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[1] Indeed,\r\nDefendant represents it sold the Property on July 13, 2021, the day before Plaintiff\r\ninitiated this action.

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[2]\r\nIt is worth noting that while Adam Rosenberg lives in Israel, he claims to have\r\nstrong ties to the United States and owns property located all over the United\r\nStates. (A. Rosenberg Decl., ¶ 4.)

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[3] Plaintiff\r\nalso sought a corresponding temporary protective order (TPO) to prevent the\r\ntransfer, sale or encumberment of the Property. The court issued the TPO on\r\nJuly 23, 2021. Defendant has represented to the court it sold the Property on\r\nJuly 13, 2021 and used its proceeds for a 1031 Exchange for property in Kansas.\r\nBased on Defendant’s representations, Defendant had already disposed of the\r\nProperty prior to the court’s issuance of the TPO.

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