This case was last updated from Los Angeles County Superior Courts on 12/08/2022 at 08:02:44 (UTC).

SOCAL LIEN SOLUTIONS LLC VS JENS KRISTEN, ET AL.

Case Summary

On 02/04/2021 SOCAL LIEN SOLUTIONS LLC filed a Contract - Debt Collection lawsuit against JENS KRISTEN,. This case was filed in Los Angeles County Superior Courts, Alhambra Courthouse located in Los Angeles, California. The Judges overseeing this case are JOEL L. LOFTON and RALPH C. HOFER. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0179

  • Filing Date:

    02/04/2021

  • Case Status:

    Other

  • Case Type:

    Contract - Debt Collection

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOEL L. LOFTON

RALPH C. HOFER

 

Party Details

Plaintiff

SOCAL LIEN SOLUTIONS LLC

Cross Plaintiffs and Defendants

KRISTEN JENS

BPP EAST UNION LLC

DIEP LEE

SPRING! ROLLS & BOWLS LLC

Cross Defendants

SURETEC INSURANCE COMPANY

ARK ONE CONSTRUCTION INC. A CALIFORNIA CORPORATION

ROES 1-50

DO KEVIN

Attorney/Law Firm Details

Plaintiff Attorney

PARIKH SAGAR P.

Defendant Attorneys

GROSS KENNETH I.

SHAMBAUGH THOMAS DIETRICH

ORLICK MARTIN H.

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR WRIT OF ATTACHMENT (CCP 484.040) A...)

5/28/2021: Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR WRIT OF ATTACHMENT (CCP 484.040) A...)

Request for Dismissal

11/7/2022: Request for Dismissal

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: STATUS OF MEDIATION)

9/21/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: STATUS OF MEDIATION)

Stipulation and Order - STIPULATION AND ORDER STIPULATION TO STRIKE AND AMEND PORTIONS OF THE COMPLAINT; AND ORDER THEREON

8/15/2022: Stipulation and Order - STIPULATION AND ORDER STIPULATION TO STRIKE AND AMEND PORTIONS OF THE COMPLAINT; AND ORDER THEREON

Reply - REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF SOCAL LIEN SOLUTIONS, LLCS MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION

1/7/2022: Reply - REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF SOCAL LIEN SOLUTIONS, LLCS MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION FOR SUMMARY ADJ...)

1/14/2022: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION FOR SUMMARY ADJ...)

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

1/28/2022: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 01/28/2022

1/28/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 01/28/2022

Declaration - DECLARATION DECLARATION OF JENS KRISTEN IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

12/30/2021: Declaration - DECLARATION DECLARATION OF JENS KRISTEN IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMRY JUDGMENT

12/30/2021: Opposition - OPPOSITION OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMRY JUDGMENT

Separate Statement

12/30/2021: Separate Statement

Notice Re: Continuance of Hearing and Order

10/13/2021: Notice Re: Continuance of Hearing and Order

Notice - NOTICE NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE

10/15/2021: Notice - NOTICE NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE

Memorandum of Points & Authorities

10/20/2021: Memorandum of Points & Authorities

Declaration - DECLARATION DECLARATION OF KEVIN DO IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION

10/20/2021: Declaration - DECLARATION DECLARATION OF KEVIN DO IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION

Request for Judicial Notice

10/20/2021: Request for Judicial Notice

Separate Statement

10/20/2021: Separate Statement

Motion for Summary Adjudication

10/20/2021: Motion for Summary Adjudication

49 More Documents Available

 

Docket Entries

  • 11/07/2022
  • DocketOn the Complaint filed by SOCAL LIEN SOLUTIONS LLC on 02/04/2021, entered Request for Dismissal with prejudice filed by SOCAL LIEN SOLUTIONS LLC as to JENS KRISTEN, LEE DIEP, SPRING! ROLLS & BOWLS, LLC, and BPP EAST UNION LLC

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  • 11/07/2022
  • DocketRequest for Dismissal; Filed by: SOCAL LIEN SOLUTIONS LLC (Plaintiff)

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  • 11/07/2022
  • DocketOn the Cross-Complaint filed by JENS KRISTEN, et al. on 03/08/2021, entered Request for Dismissal with prejudice filed by JENS KRISTEN, LEE DIEP, and SPRING! ROLLS & BOWLS, LLC as to the entire action

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  • 11/07/2022
  • DocketFinal Status Conference scheduled for 01/26/2023 at 10:00 AM in Alhambra Courthouse at Department X Not Held - Vacated by Court on 11/07/2022

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  • 11/07/2022
  • DocketJury Trial (5-7 days) scheduled for 02/07/2023 at 09:00 AM in Alhambra Courthouse at Department X Not Held - Vacated by Court on 11/07/2022

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  • 09/21/2022
  • DocketMinute Order (Order to Show Cause Re: Status of Mediation)

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  • 09/21/2022
  • DocketOrder to Show Cause Re: Status of Mediation scheduled for 09/21/2022 at 08:30 AM in Alhambra Courthouse at Department X updated: Result Date to 09/21/2022; Result Type to Held

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  • 08/15/2022
  • DocketStipulation and Order Stipulation to Strike and Amend Portions of the Complaint; and Order Thereon; Signed and Filed by: JENS KRISTEN (Defendant); LEE DIEP (Defendant); SPRING! ROLLS & BOWLS, LLC (Defendant); As to: SOCAL LIEN SOLUTIONS LLC (Plaintiff)

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  • 08/15/2022
  • DocketUpdated -- Stipulation and Order Stipulation to Strike and Amend Portions of the Complaint; and Order Thereon: Filed By: LEE DIEP (Defendant),SPRING! ROLLS & BOWLS, LLC (Defendant),JENS KRISTEN (Defendant); Result: Granted; Result Date: 08/15/2022

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  • 01/28/2022
  • DocketMinute Order (Ruling on Submitted Matter)

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90 More Docket Entries
  • 02/04/2021
  • DocketCase Management Conference scheduled for 11/03/2021 at 08:30 AM in Alhambra Courthouse at Department X

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  • 02/04/2021
  • DocketCase assigned to Hon. Ralph C. Hofer in Department D Glendale Courthouse

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  • 02/04/2021
  • DocketCase Management Conference scheduled for 07/14/2021 at 08:30 AM in Glendale Courthouse at Department D

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  • 02/04/2021
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by: Clerk

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  • 02/04/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/21/2021 at 08:30 AM in Glendale Courthouse at Department D

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  • 02/04/2021
  • DocketCase Management Conference scheduled for 07/09/2021 at 09:00 AM in Glendale Courthouse at Department D

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  • 02/04/2021
  • DocketComplaint; Filed by: SOCAL LIEN SOLUTIONS LLC (Plaintiff); As to: JENS KRISTEN (Defendant); LEE DIEP (Defendant); SPRING! ROLLS & BOWLS, LLC (Defendant) et al.

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  • 02/04/2021
  • DocketSummons on Complaint; Issued and Filed by: SOCAL LIEN SOLUTIONS LLC (Plaintiff); As to: JENS KRISTEN (Defendant); LEE DIEP (Defendant); SPRING! ROLLS & BOWLS, LLC (Defendant) et al.

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  • 02/04/2021
  • DocketCivil Case Cover Sheet; Filed by: SOCAL LIEN SOLUTIONS LLC (Plaintiff); As to: JENS KRISTEN (Defendant); LEE DIEP (Defendant); SPRING! ROLLS & BOWLS, LLC (Defendant) et al.

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  • 02/04/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: *******0179 Hearing Date: January 14, 2022 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: January 14, 2022 TRIAL DATE: No date set

CASE: SOCAL LIEN SOLUTIONS LLC, v. JENS KRISTEN; LEE DIEP; SPRING! ROLLS & BOWLS, LLC; BPP EAST UNION LLC, and DOES 1-10, INCLUSIVE.

CROSS: JENS KRISTEN; LEE DIEP; and SPRING! ROLLS AND BOWLS, LLC v. ARK ONE CONSTRUCTION, INC., a California corporation; and KEVIN DO; SURETEC INSURANCE COMPANY; and ROES 1-50.

CASE NO.: *******0179

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

MOVING PARTY: Plaintiff SoCal Lien Solutions LLC (“Plaintiff”)

RESPONDING PARTY: Defendants Jens Kristen, Lee Diep, and Spring! Rolls and Bowls, LLC (“Responding Defendants”)

SERVICE: Filed October 20, 2021

OPPOSITION: Filed December 30, 2021

REPLY: Filed January 7, 2022

RELIEF REQUESTED

Plaintiff moves for summary judgment, or in the alternative summary adjudication, as to its complaint and Responding Defendant’s affirmative defenses.

BACKGROUND

This case arises out of Plaintiff SoCal Lien Solutions LLC’s (“Plaintiff”) claim that Defendants Jen Kristen (“Kristen”), Lee Diep (“Diep”), Spring! Rolls and Bowls LLC (“Spring”), and BPP East Union LLC (“BPP”) (collectively “Defendants”) failed to pay for improvements to the subject property. Plaintiff alleges that it is the assignee of Ark One Construction Inc (“ARK”). Plaintiff alleges that on or about September 4, 2019, Ark and Defendants entered into a written contract where Ark would provide labor, services, equipment, and materials for improvement to the subject property for an agreed price of $215,200.00. Plaintiff alleges that Ark made improvements to the subject property until Defendants breached, at which point Ark was owed $48,126.27. Plaintiff also alleges that Defendants have failed to pay the remaining balance of $25,026.27 for services rendered. Plaintiff also alleges that Defendants have failed to pay the remaining balance under the contract, totaling $23,100.00.

Plaintiff filed this complaint on February 4, 2021, alleging three causes of action for (1) open book account, (2) services rendered, and (3) breach of contract.

TENTATIVE RULING

Plaintiff’s motion for summary judgment, or in the alternative for summary adjudication, is DENIED.

JUDICIAL NOTICE

Plaintiff requests this court to take judicial notice of the Declaration of Alvin Cheah. Plaintiff’s request is granted pursuant to Evidence Code section 452, subdivision (e).

LEGAL STANDARD

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedures section 473c subd. (c).)

“[W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. (Code Civ. Proc., 437c, subd. (a).) That burden can be met if the plaintiff “has proved each element of the cause of action entitling the party to judgment on that cause of action.” (Code Civ. Proc., 437c, subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.)

DISCUSSION

Plaintiff moves for summary judgment on thirteen issues, including all three causes of action and Responding Defendants’ third through twelfth affirmative defenses. In this Court’s review of the moving papers and documents, the instant motion is mainly focused on the singular issue of whether this Court should grant Plaintiff’s motion for summary judgment, or in the alternative summary adjudication, as to Plaintiff’s cause of action for breach of contract.

1. Plaintiff’s Causes of Action for Common Counts

Plaintiff’s first two causes of action allege common counts for (1) open book account and (2) services rendered. Both of Plaintiff’s claims rely on its claim for breach of contract. “A common count is not a specific cause of action ...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness ....” (Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 690.

“A ‘book account’ is ‘a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith.’ The creditor must keep these records in the regular course of its business and ‘in a reasonably permanent form,’ such as a book or card file. (Code Civ. Proc., 337a.) “A book account is ‘open’ where a balance remains due on the account.” (Professional Collection Consultants v. Lujan, supra, 23 Cal.App.5th at p. 690-91.)

As Responding Defendants note, “[a]n express contract, which defines the duties and liabilities of the parties, whether it be oral or written, is not, as a rule, an open account. This general rule has been applied in cases where money is owed pursuant to the terms of an express contract.” (Eloquence Corporation v. Home Consignment Center (2020) 49 Cal.App.5th 655, 665.) Plaintiff has not alleged an applicable exception to the general rule. In support of its motion, Plaintiff simply argues its assignor maintained an account of all records and mailed billing statements to Defendants every month. (Motion at p. 4:16-21.) Plaintiff submits no evidence to establish these assertions.

Plaintiff has failed to establish a cause of action for open book account separate from its breach of contract claim. In addition, Plaintiff’s second cause of action alleges the same underlying facts as its breach of contract claim. (Complaint 16-20.) Therefore, the Court will analyze the remainder of Plaintiff’s arguments as they apply to Plaintiff’s breach of contract claim.

2. Plaintiff’s Cause of Action for Breach of Contract

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 968.)

Plaintiff argues that its motion for summary judgment should be granted by reciting the allegations in its complaint that follow the elements for a breach of contract claim. However, Plaintiff does not submit evidence to support its claims. The only evidence Plaintiff provides is the declaration of Kevin Do (“Do”). Do is the sole owner and principal of Ark. (Do Decl. 1.) Do states that the parties entered into a contract on or about August 30, 2019. (Id. 3.) He states that he completed work on or about June 5, 2020. (Id. 10.) He states that Responding Defendants failed to fully pay. (Id. 11.)

“[A] plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 850.) Plaintiff has not met its burden here. Bare recitations of facts are insufficient to prove an element of a cause of action. Additionally, Do’s statements in his declaration amount to conclusory statements that are contradicted by the attachments. Although Do states he completed the work on or about June 5, 2020 (Do Decl. 9), the contract provides that the project will take approximately 12 working weeks and that Ark would pay $300 per day if delayed. (Id. 3, Exhibit B at p. 3.) Although Do contests why the delay occurred (Id. 7-8), if he started the project in September 2019, (Id. 6) completion in June 2020 is not according to the schedule stated in the contract. Plaintiff submits no evidence to show that Ark’s delay was excusable. Plaintiff also submits no other evidence to establish that it finished the project as stated in the contract in the manner and timing provided. Thus, Plaintiff has failed to establish that it performed under the contract or was excused from performing.

Additionally, Plaintiff has failed to establish that Responding Defendants breached their duty. Do’s mere assertions that he was paid less than the contract is not enough to meet the burden of persuasion. Additionally, the invoice in paragraph 11 is inadmissible hearsay. “An invoice itself is hearsay, and is not admissible to prove the work or services reflected in the invoice were performed, unless a foundational showing is made of an exception to the hearsay rule.” (Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 13.) Plaintiff has not made the foundational showing for an exception to the hearsay rule.

Plaintiff has thus failed to establish that it has proven its cause of action for breach of contract. Additionally, because Plaintiff’s remaining issues presented rely on Plaintiff’s claim for breach of contract and similarly suffer from a lack of evidence to meet Plaintiff’s burden, Plaintiff’s motion for summary judgment, or in the alternative for summary adjudication, is denied in its entirety.

CONCLUSION

Plaintiff’s motion for summary judgment, or in the alternative for summary adjudication, is denied.

Dated: January 14, 2022

Joel L. Lofton

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. Parties intending to appear are strongly encouraged to appear


b"

Case Number: *******0179 Hearing Date: July 23, 2021 Dept: D

TENTATIVE RULING
Calendar: 13
Date: 7/23/2021
Case No. *******0179 Trial Date: None Set
Case Name: SoCal Lien Solutions, LLC v. Kristen
MOTION FOR RECONSIDERATION
[CCP ;1008(a)]
Moving Party: Plaintiff SoCal Lien Solutions, LLC
Responding Party: Defendants Jen Kristen, Lee Diep and Spring! Rolls and Bowls, LLC
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff SoCal Lien Solutions LLC alleges that plaintiff’s assignor, contractor Ark One Construction, entered into a written Remodel Project Contract with defendants Jens Kristen and Lee Diep, members of Spring! Rolls & Bowls, LLC, pursuant to which contractor was to complete certain construction services for tenant improvements, for which defendants agreed to pay. Plaintiff also alleges that during the course of the project, it was requested that the contractor provide extra work which was provided. Plaintiff alleges that all work was fully completed, and there remains an unpaid balance on the contract scope of work of $23,100, and a balance due for the extra work in the sum of $29,026.27, for a total sum due of $52,126.27.
On May 28, 2021, the court heard an Application for Writ of Attachment sought by plaintiff SoCal Lien as to defendant Spring Rolls & Bowls, LLC. The court denied the application, finding:
“Plaintiff has failed to establish that the claim upon which the attachment is based is one upon which an attachment may be issued, as it has not been established as a claim based upon a contract, express or implied, with defendant Spring! Bowls & Rolls. Plaintiff has also failed to establish a probable validity of the claim.”
DECLARATION OF MOVING PARTY includes:
Prior application made Application for Writ of Attachment When the application was made No
What judge Yes
Order or decision made No
New or different facts, circumstances or law Yes, but not new
ANALYSIS: (Reconsideration cannot be granted based on a CCP ;473 claim, on matter presented at an earlier hearing, or on a later-enacted statute that is not retroactive; Gilberd v. AC Transit, 32 CA4th 1494, 1500; see also Weil & Brown, Civil Procedure Before Trial, ;9:328 et seq.).
Procedural
Declaration Incomplete
As noted above, the declaration submitted with the moving papers fails to comply with several requirements applicable to a motion for reconsideration.
CCP ; 1008(a) specifically requires:
“The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”
Subdivision (d) provides that a violation of this section may be punishable as contempt and warrant sanctions. Subdivision (e) provides “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
Here, the declaration fails to identify when the previous application was made, and what order or decision was made.
With respect to new or different facts, circumstances or law, the declaration states:
“Plaintiff claims that standing of assignees as applicants for attachment and Plaintiff’s 1st COA for Open Book and 2nd COA for services rendered based upon both the Complaint and Declaration of Kevin Do at Para. 7-11 as proof of the claims present new or different facts, circumstances, or law for reconsideration.”
[Parikh Decl., para. 7].
The complaint in this action was filed on February 4, 2021, well before the previous hearing. The reference to the Declaration of Kevin Do evidently refers to the declaration submitted with the application for writ of attachment, which was filed on May 10, 2021. This declaration was accordingly before the court, and fully considered at the previous hearing on May 25, 2021, so cannot constitute new or different facts, circumstance or law. No new evidence is relied upon or submitted with the motion, and the references to legal authority do not present law which was not in effect at the time of the previous hearing.
When bringing a motion for reconsideration based on new facts, the moving party must present “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” Garcia v. Hejmadi, (1997) 58 Cal.App.4th 674, 690. The fact that counsel did not effectively argue then existing facts known to counsel is not a ground for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.
The declaration fails to explain what is new or different about the facts offered. The motion for reconsideration pursuant to CCP section 1008 can be denied for failure of defendant to submit the information required in the moving declaration.
Substantive
CCP ; 1008(a) provides, in pertinent part:
“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”
This subdivision further provides:
“For a failure to comply with this subdivision any order made on a subsequent application may be revoked or set aside on ex parte motion.”
Under CCP section 1008, subdivision (e):
“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
The trial court’s determination of a motion for reconsideration is reviewed for abuse of discretion. See Wiz Technology, Inc. v. Coopers & Lybrand (2003, 2nd Dist.) 106 Cal.App.4th 1, 16.
Plaintiff argues that the court previously denied the application for right to attach order on the ground that neither plaintiff nor defendant Spring! Rolls was a party to the express contract upon which the third cause of action in the complaint is based and argues that plaintiff’s complaint contains implied contract claims for open book and services rendered, and that attachment can be issued based on “claim or claims for money, each of which is based upon a contract, express or implied.” CCP section 483.010 (a). The argument seems to be that the court did not consider the motion appropriately in connection with the implied contract theories. There was nothing in the previous ruling suggesting plaintiff did not have standing.
In any case, the argument with respect to implied contract theories is not a basis for reconsideration, as plaintiff does not rely on any new or different facts or law, as discussed above. This instead appears to be a case where plaintiff, in plain derogation of the statute, is bringing this motion based on identical facts and arguments previously available to counsel, and which were in fact previously brought before the court, because plaintiff simply does not agree with the court’s previous decision.
In addition, the previous ruling, which had been posted to plaintiff prior to the hearing as a tentative ruling, clearly addresses this identical argument concerning the existence of an implied contract, which plaintiff had raised in the reply, and explains how plaintiff’s application was deficient even if based on an implied contract:
“The moving papers submit no evidence showing that this contract had as an obligated party defendant Spring! Rolls & Bowls, LLC, the only party against which the writ is sought. The opposition has pointed out this discrepancy and that plaintiff accordingly has failed to establish that the claim is one upon which an attachment may issue, that is, that it is one made “on a claim or claims for money, each of which is based upon a contract, express or implied…” Defendant also argues that plaintiff will be unable to establish the probable validity of claims against defendant when it is not established that it is a party to the contract.
The reply argues that the complaint makes a claim for an open book account, which arises out of an implied contract, as permitted by the attachment statutes, and has its foundation in the doctrine of unjust enrichment. The problem remains that the moving papers rely entirely on the written contract, to which Spring! Rolls is not a party, and plaintiff submits no evidence showing how that contract gives rise to liability on the part of that defendant, such as establishing defendant was a third-party beneficiary. In addition, despite plaintiff’s belated claim in the reply that the claims are based on an implied contract, plaintiff also submits no evidence showing that there was an implied contract with this defendant and fails to attempt to make any showing of the existence of an open book account with this defendant or that this defendant was unjustly enriched. As argued in the opposition, statutory procedures for attachment of property are subject to the strictures of the 14th Amendment Due Process Clause, and the Attachment Law is subject to strict construction; unless specifically provided for by the attachment law, no attachment procedure may be issued by the court. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106 (“’The Attachment Law statutes are subject to strict construction, and where a court is required to exercise its jurisdiction in a particular manner subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void.’” (quoting Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168)).
[Minute Order 5/28/2021, pp. 3 and 4 of 4].
The current argument was clearly fully considered by the court even prior to the previous hearing.
The opposition argues that a motion for reconsideration cannot be granted on the ground a court misapplied the law in the original ruling. Defendants rely on Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, in which the court of appeal found the trial court had exceeded its jurisdiction in reconsidering an initial order granting plaintiff relief from the claims filing requirements of the Torts Claims Act. The court of appeal found that the motion for reconsideration did not meet the procedural requirements for reconsideration under CCP ;1008 as the motion was not based on “new” or “different” facts or circumstances, but on the same facts and authorities relating to the merits of the underlying motion which were considered by the trial court when it issued its initial order.
The court of appeal rejected an argument that the trial court had misinterpreted California law in its initial decision, and therefore respondent had relied upon “different” law in the reconsideration motion, finding this argument “utterly specious,” and observing:
“What respondent essentially argues is that section 1008 does not apply when the litigant disagrees with the trial court's ruling. Since in almost all instances, the losing party will believe that the trial court's ‘different’ interpretation of the law or facts was erroneous, to interpret the statute as the respondent urges would be contrary to the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it.
Gilberd, at 1500.
Plaintiff here has failed to establish that the motion is based on new or different facts or law, and the court under the statute is accordingly without jurisdiction to consider the previous order.
Even if the court were to reconsider its ruling, the ruling would not change. The court previously clearly recognized that the statute plaintiff relies on permits writs to issue based on claims for money based on implied contract, quoting the exact language of the statute. The court found that the moving papers had failed to establish an express or an implied contract had arisen which obligated defendant Spring! Rolls & Bowls, and that the showing also did not establish a probability of prevailing on a claim under those alternatives. Plaintiff by this motion does not seek to have new or different evidence considered which would establish an open book account or some sort of unjust enrichment claim as argued should be considered. There is no evidence submitted or refenced which would cure the defects in the showing as already noted by the court in its previous ruling.
The motion accordingly is denied.
RULING:
Plaintiff’s Motion for Reconsideration is DENIED.
Procedurally, the declaration in support of the motion fails to indicate when the previous application was made, and what order or decisions was made, and the declaration and motion fail to show any new or different facts, circumstances, or law which were not known to the moving party or could not have been or were not argued at the previous hearing on which the motion is based, as required under CCP ; 1008. The arguments asserted were in fact addressed to the Court in the previous moving, opposition, and reply papers, considered by the Court and analyzed in its detailed tentative ruling, and plaintiff was fully heard at the hearing with the benefit of the Court’s tentative ruling.
Even if the court were to reconsider its previous rulings in light of the arguments made by plaintiff, the ruling would not change.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers audio and video appearance at a cost of $15.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.
"


Case Number: *******0179    Hearing Date: May 28, 2021    Dept: D

TENTATIVE RULING
Calendar: 12
Date: 5/28/2021
Case No. *******0179 Trial Date:   None Set 
Case Name: Socal Lien Solutions LLC v. Kristen, et al.
WRIT OF ATTACHMENT
Moving Party: Plaintiff Socal Lien Solutions, LLC      
Responding Party: Defendant Spring! Rolls and Bowls LLC dba PaperRice 
GROUNDS FOR MOTION 
Claim is one on which an attachment may be issued 
[Attachment may only be issued in an action on a claim for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney’s fees]
Claim is for amount due under written Remodel Project Contract between plaintiff’s assignor, Ark One Construction, and defendants Jens Kristen and Lee Diep, members of Spring! Rolls & Bowls, LLC, pursuant to which contractor was to complete certain construction services for tenant improvements, for which defendants agreed to pay.  [Decl., para. 2, Ex. A].  During the course of the project, it was requested that the contractor provide extra work which was provided.  [Decl., paras.  3-5].  All work was fully completed, and there remains an unpaid balance on the contract scope of work of $23,100, and a balance due for the extra work in the sum of $29,026.27, for a total sum due of $52,126.27.  [Decl., paras. 5, 6, 7].      
Establishes a probable validity of claim on which attachment is based (CCP ; 484.090)
Plaintiff’s assignor fully completed work required by the agreement and requests for extra work, for which defendants have failed to fully pay.  [Decl., paras. 5-7].  
Not sought for any purpose other than to secure recovery on the claim
Applications, paragraph 4. 
ANALYSIS:
Plaintiff seeks a writ of attachment pursuant to CCP ;483.010 (a), which provides:  
“an 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 implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than five hundred dollars ($500), exclusive of costs, interest and attorney’s fees.” 
Under CCP ; 484.090, governing the hearing on a writ of attachment:
“(a) At the hearing, the court shall consider the showing made by the parties appearing and shall issue a right to attach order, which shall state the amount to be secured by the attachment determined by the court in accordance with Section 483.015 or 483.020, if it finds all of the following:
(1) The claim upon which the attachment is based is one upon which an attachment may be issued.
  (2) The plaintiff has established the probable validity of the claim upon which the attachment is based.
  (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.
  (4) The amount to be secured by the attachment is greater than zero….
(d) The court's determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of the additional evidence or points and authorities.”
With respect to “probable validity,” under CCP section 481.190:
“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.”
The burden to show probable validity is on the party seeking attachment.  Lorber Industries v. Turbulence, Inc. (1985, 2nd Dist.) 175 Cal.App.3d 532, 535.  The trial court’s determination of probable validity will not be disturbed if there is substantial evidence to support the determination.  Id.     
 Here, the evidence relied upon includes a written New T.I Remodel Project Contract.  [Do Decl., Ex. A].  That contract is expressly “made between Jens Kristen and Lee Diep (“Owner”) on one hand and Devin Do Contractor (Ark One Construction) on the other hand…”   [Ex. A, p. 1].  The contract is signed by Jens Kristen, with “Owners Name,” and “Owners Signature.”  [Ex. A, p. 4].   
The moving papers submit no evidence showing that this contract had as an obligated party defendant Spring! Rolls & Bowls, LLC, the only party against which the writ is sought.  The opposition has pointed out this discrepancy and that plaintiff accordingly has failed to establish that the claim is one upon which an attachment may issue, that is, that it is one made “on a claim or claims for money, each of which is based upon a contract, express or implied…”  Defendant also argues that plaintiff will be unable to establish the probable validity of claims against defendant when it is not established that it is a party to the contract.   
The reply argues that the complaint makes a claim for an open book account, which arises out of an implied contract, as permitted by the attachment statutes, and has its foundation in the doctrine of unjust enrichment.  The problem remains that the moving papers rely entirely on the written contract, to which Spring! Rolls is not a party, and plaintiff submits no evidence showing how that contract gives rise to liability on the part of that defendant, such as establishing defendant was a third-party beneficiary.  In addition, despite plaintiff’s belated claim in the reply that the claims are based on an implied contract, plaintiff also submits no evidence showing that there was an implied contract with this defendant and fails to attempt to make any showing of the existence of an open book account with this defendant or that this defendant was unjustly enriched.  As argued in the opposition, statutory procedures for attachment of property are subject to the strictures of the 14th Amendment Due Process Clause, and the Attachment Law is subject to strict construction; unless specifically provided for by the attachment law, no attachment procedure may be issued by the court.  Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106 (“’The Attachment Law statutes are subject to strict construction, and where a court is required to exercise its jurisdiction in a particular manner subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void.’” (quoting Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168)).  
The court here is unable to find based on the showing submitted that the claim upon which the attachment is based is one upon which an attachment may be issued, as it has not been established as a claim based upon a contract, express or implied, with defendant Spring! Bowls & Rolls.  The court is also unable to find based on the showing submitted that plaintiff has established the probable validity of the claim upon which the attachment is based.  The petition accordingly is denied. 
RULING:
Application for writ of attachment is DENIED.  Plaintiff has failed to establish that the claim upon which the attachment is based is one upon which an attachment may be issued, as it has not been established as a claim based upon a contract, express or implied, with defendant Spring! Bowls & Rolls.  Plaintiff has also failed to   establish the probable validity of the claim.   
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 


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