On 12/11/2019 THE UNDERGROUND DANCE CENTRE LA LLC filed a Contract - Other Contract lawsuit against 607 WESTKNOLL, LLC AKA 607 WEST KNOLL, LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SUSAN BRYANT-DEASON, MALCOLM MACKEY and JAMES C. CHALFANT. The case status is Pending - Other Pending.
Pending - Other Pending
JAMES C. CHALFANT
THE UNDERGROUND DANCE CENTRE LA LLC A CALIFORNIA LIMITED LIABLITY COMPANY
607 WESTKNOLL LLC AKA 607 WEST KNOLL LLC A CALIFORNIA LIMITED LIABILITY COMPANY
CANNER HEATHER F.
ROSENSTEIN MICHAEL H
10/9/2020: Notice of Posting of Jury Fees
10/9/2020: Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF HEATHER CANNER ISO OF JOINT REPLY RE MOTIONS TO COMPEL
10/5/2020: Notice of Posting of Jury Fees
9/1/2020: Notice - NOTICE OF CONTINUANCE OF HEARINGS
8/6/2020: Opposition - OPPOSITION OPPOSITION TO PLAINTIFF'S APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT
8/6/2020: Declaration - DECLARATION DECLARATION OF SINA AKHTARZAD IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT
8/13/2020: Order - ORDER - DECISION ON APPLICATION FOR RIGHT TO ATTACH: DENIED
6/17/2020: Minute Order - MINUTE ORDER (COURT ORDER)
6/24/2020: Notice - NOTICE OF HEARING DATE ON PLAINTIFF'S MOTIONS TO COMPEL AND CMC
5/26/2020: Application - APPLICATION APPLICATION FOR RIGHT TO ATTACH ORDER; ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT
1/22/2020: Request for Entry of Default / Judgment
1/21/2020: Proof of Personal Service
12/31/2019: Challenge To Judicial Officer - Peremptory (170.6) - CHALLENGE TO JUDICIAL OFFICER - PEREMPTORY (170.6) AGAINST JUDGE: SUSAN BRYANT-DEASON
1/7/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: PEREMPTORY CHALLENGE TO JUDICIAL OFFICER) OF 01/07/2020
12/11/2019: Notice of Case Assignment - Unlimited Civil Case
12/11/2019: Summons - SUMMONS ON COMPLAINT
Hearing01/31/2022 at 09:00 AM in Department 55 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing01/21/2022 at 08:30 AM in Department 55 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketNotice (of Status Conference Order); Filed by The Underground Dance Centre LA LLC, a California limited liablity company (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Compel Further Discovery Responses (to Requests for Admission and to Order Sanctions filed by plaintiff) - Held - Motion GrantedRead MoreRead Less
Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Case Management Conference - HeldRead MoreRead Less
Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Case Management ConferenceRead MoreRead Less
Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Compel (Responses to Special Interrogatories, Form Interrogatories and Request for Production filed by plaintiff) - Held - Motion GrantedRead MoreRead Less
Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Compel (Responses to Special Interrogatories, Form Interrogatories and Request for Production filed by plaintiff)Read MoreRead Less
DocketCertificate of Mailing for ((Hearing on Motion to Compel Further Discovery Responses to Re...) of 10/19/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Compel Further Discovery Responses to Re...)); Filed by ClerkRead MoreRead Less
DocketNotice of Case Reassignment/Vacate Hearings; Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Court Order re: Peremptory Challenge to Judicial Officer) of 01/07/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order re: Peremptory Challenge to Judicial Officer)); Filed by ClerkRead MoreRead Less
DocketChallenge To Judicial Officer - Peremptory (170.6) (Against Judge: Susan Bryant-Deason); Filed by The Underground Dance Centre LA LLC, a California limited liablity company (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by The Underground Dance Centre LA LLC, a California limited liablity company (Plaintiff)Read MoreRead Less
DocketSummons (on Complaint); Filed by The Underground Dance Centre LA LLC, a California limited liablity company (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by The Underground Dance Centre LA LLC, a California limited liablity company (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by The Underground Dance Centre LA LLC, a California limited liablity company (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: 19STCV44773 Hearing Date: August 13, 2020 Dept: 85
The Underground Dance Centre LA, LLC v. 607 Westknoll, LLC, et al., 19STCV44773
Tentative decision on application for right to attach order: denied
Plaintiff the Underground Dance Centre LA, LLC (“Underground”) applies for a right to attach order against Defendant 607 Westknoll, LLC (“Westknoll”) in the amount of $126,400.
The court has read and considered the moving papers and opposition, (no reply was filed), and renders the following tentative decision.
A. Statement of the Case
Plaintiff Underground commenced this action against Defendant Westknoll on December 11, 2019, alleging causes of action for (1) fraudulent misrepresentation, (2) negligent misrepresentation, (3) violation of Penal Code section 496, (4) conversion, (5) rescission based on fraud, and (6) violation of Bus. & Prof. Code section 17200 et seq. The Complaint alleges in pertinent part as follows.
Plaintiff Underground provides various dance classes and short-term rental studios for persons to hold their own dance classes and rehearsals. In April 2019, Underground was looking to lease a commercial space between 4000-6000 square feet in Los Angeles. Underground eventually identified 8539 Melrose Avenue, West Hollywood, California 90069 (“Property”) as a potential location for its business. The Property is part of a larger shopping center. Underground is informed and believes that Defendant Westknoll owns the Property and the shopping center.
Underground communicated with Westknoll’s agents and representatives, including Sina Akhtarzad (“Sina”), Michael Starson (“Starson”), Tiffany Akhtarzad (“Tiffany”), and Lital Kalai (“Kalai”), both directly and through its real estate broker, in deciding to lease the Property. Underground explained that it would use the Property for dance classes and as a short-term rental space for others to hold dance classes and rehearsals.
Westknoll’s agents provided Underground with the site plans for the Property to convey the dimensions of the Property. Tiffany provided a site plan on April 25, 2019 (the “First Site Plan”), which stated that the square footage of the ground-level entrance was 249 square feet, and the below-grade suite was 4,023 square feet, reflecting a total area of 4,272 square feet. The next day, April 26, 2019, Tiffany emailed Underground, telling them to disregard the First Site Plan and providing another site plan (“Second Site Plan), which states the total area of the ground-level entrance to the Property is 250 square feet and the total area of the lower level of the Property is 4,086 square feet, for a total of 4,336 square feet.
The Second Site Plan showed two studios, but Underground’s operations require three studios. Accordingly, on August 30, 2019, Sina’s assistant, Kalai, sent Underground another site plan (“Final Site Plan”). The Final Site Plan marked up the Second Site Plan to show that three studios could fit in the space but otherwise included the same measurements and dimensions, including the representation that the ground-level entrance to the Property is 250 square feet and the total area of the lower level of the Property is 4,086 square feet, a total of 4,336 square feet.
Relying on the Site Plans and Westknoll’s representation, Underground executed a five-year Lease for the Property on September 26, 2019, which Westknoll countersigned on October 1, 2019 (“Lease”). The Lease includes the same site plan as in the Second Site Plan, except Westknoll removed or redacted all the measurements and square footage from the document. In addition to the base monthly rent of $31,600, the Lease imposes a property management fee and a pro rata portion of various shopping center expenses, with the pro rata share being determined by the square feet of floor area in the leased premises. By representing that the Property is larger than it actually is, Westknoll increased Underground’s pro rata share of common expenses.
The Lease acknowledges that the Property would be used as a dance studio and provides that the lease term would not commence until after Westknoll completed certain work it agreed to perform to make the Property suitable for Underground to occupy the premises. As of the date of the Complaint, Westknoll has not completed the agreed-upon work, and the lease term has therefore not started to run. Nor has Underground yet occupied the Property.
The Lease requires that Underground provide a security deposit to Westknoll in the amount of $126,400 prior to the start of the lease term, representing four months of rent. Underground did so on September 27, 2019.
Underground is informed and believes that Westknoll knew that the Site Plans, and each of them, overstated the size of the Property. Underground is informed and believes that, on April 6, 2019, Westknoll was in possession of architectural plans and drawings (“Architectural Plans”) that show at least a 436 square-foot deficit in the Studio space. The difference in size is material to Underground, as it cannot operate its business out of a property with the actual size and layout of the Property. Nor would Underground Dance have agreed to pay $31,600 per month for five years (plus potential annual increases), or any amount, had it known the actual size and layout of the Property before or at the time it executed the Lease.
On October 24, 2019, Underground canceled the contract and demanded the return of its $126,400 security deposit, but Sina refused. As a result of Westknoll’s misrepresentations, Underground has suffered damages which include the loss of Underground’s security deposit of $126,400, which Westknoll has not returned.
On January 27, 2020, Defendant Westknoll filed a Cross-Complaint against Underground alleging breach of contract.
3. Course of Proceedings
According to proofs of service on file, Westknoll was personally served with the Summons and Complaint on December 18, 2019. Westknoll was served with the moving papers for the instant application on May 26, 2020 via U.S. mail.
On January 27, 2020, Westknoll filed an Answer to the Complaint. On March 2, 2020, Underground filed an Answer to the Cross-Complaint.
On July 29, 2020, Westknoll filed a Substitution of Attorney, substituting Attorney Michael H. Rosenstein for Attorney Michael S. Drucker.
B. Applicable Law
Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP §481.010 et seq.) that meets the due process requirements set forth in Randone v. Appellate Department, (1971) 5 Cal.3d 536. See Western Steel & Ship Repair v. RMI, (12986) 176 Cal.App.3d 1108, 1115. As the attachment statutes are purely the creation of the Legislature, they are strictly construed. Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.
A writ of 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 or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500). CCP §483.010(a). A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).
All property within California of a corporation, association, or partnership is subject to attachment if there is a method of levy for the property. CCP §487.010(a), (b). While a trustee is a natural person, a trust is not. Therefore, a trust’s property is subject to attachment on the same basis as a corporation or partnership. Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, supra, 197 Cal.App.3d at 4.
The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint. CCP §484.010. Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing. See ibid.
The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115). The application must be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based. CCP §484.030.
Where the defendant is a corporation, a general reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). A specific description of property is not required for corporations and partnerships as they generally have no exempt property. Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (1989) 207 Cal.App.3d 260, 268.
A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing. CCP §484.050(e). The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).
The plaintiff may file and serve a reply two court days prior to the date set for the hearing. CCP §484.060(c).
At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment. The defendant may appear the hearing. CCP §484.050(h). The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence. Bank of America, supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. CCP §482.040. The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed. See Bank of America, supra, at 271, 273.
The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP §484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP §484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP §484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP §484.090(a)(4)).
A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. CCP §481.190. In determining this issue, the court must consider the relative merits of the positions of the respective parties. Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484. The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order. CCP §484.050(b).
Except in unlawful detainer actions, the amount to be secured by the attachment is the sum of (1) the amount of the defendant’s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys’ fees under CCP section 482.110. CCP §483.015(a); Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852. This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant’s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest’s value. CCP §483.015(b). A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a prima facie showing that the claim would result in an attachment against the plaintiff.
Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. CCP §489.210. The undertaking ordinarily is $10,000. CCP §489.220. If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment. CCP §489.220. The court also has inherent authority to increase the amount of the undertaking sua sponte. North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.
C. Statement of Facts
1. Plaintiff’s Evidence
Around April 2019, Underground was looking for a commercial space between 4,000 to 6,000 square feet in Los Angles to lease for its business. Libfeld Decl., ¶4. As the owner of Underground, Aaron Libfeld (“Libfeld”) conducted the search for properties and was responsible for making the leasing decisions on behalf of Underground. Id. Underground hired Ryan Gurman (“Gurman”) of CBRE to act as its broker in the leasing process, and Libfeld authorized Gurman to represent Underground in communications with potential lessors. Id.
In Underground’s search for a space, square footage was a critical factor. The space would need to be sufficiently large to hold dance classes of the size necessary to run a profitable business, and to provide an appealing space for others to hold dance classes and rehearsals. Libfeld Decl., ¶5. In addition, Underground required a space with three studios for its operations. For those reasons, Underground would not lease any property smaller than 4,000 square feet. Id.
In April 2019, Libfeld became aware of the Property owned by Defendant Westknoll as part of its shopping center. Libfeld Decl., ¶¶ 6-7. Libfeld is informed and believes that the NASA Group (“NASA”) acts as the broker and manager of the Property for Westknoll. Libfeld Decl., ¶8; Canner Decl., Ex. A. Libfeld believes that all his communications regarding leasing the Property were through employees of NASA. Id.
On April 24, 2019, Tiffany, an employee of NASA acting on behalf of Westknoll, emailed Gurman the First Site Plan. Libfeld Decl., ¶9, Ex. 1. The First Site Plan reflected the Property has a ground-level entrance area, labeled as “1st Floor,” and a below-grade studio area, labeled as “-1 Level Floor.” Libfeld Decl., ¶10, Ex. 1. The First Site Plan stated that the square footage of the ground-level entrance was 249 square feet, and the below-grade suite was 4,023 square feet, a total of 4,272 square feet. Id.
On April 26, 2019, Tiffany sent Gurman an email stating that he should ignore the First Site Plan and attaching the Second Site Plan. Libfeld Decl., ¶11, Ex. 2. The Second Site Plan stated that the total area of the ground-level entrance to the Property is 250 square feet and the total area of the lower level of the Property is 4,086 square feet, a total of 4,336 square feet. Libfeld Decl., ¶12, Ex. 2.
The First Site Plan and Second Site Plan both reflected the Property as containing two studios, but Libfeld conveyed to Sina that Underground needed three studios in the space. Libfeld Decl., ¶13. In response, on August 30, 2019, Sina’s executive assistant Kalai emailed the Final Site Plan to Gurman. Libfeld Decl., ¶13, Ex. 3. The Final Site Plan appeared to be the same as the Second Site Plan, except that it appeared to have been marked up to reflect that three studios could fit in the Property. Libfeld Decl., ¶14, Ex. 3. It otherwise included the same measurements and dimensions as the Second Site Plan. Id.
Because the Property was under construction, neither Underground nor Gurman were able to measure the square footage of the Property prior to entering into a lease agreement. Libfeld Decl., ¶15. In reliance on Westknoll’s representations about the square footage, Underground decided to lease the Property. Libfeld Decl., ¶16. The square footage of the Property was a primary and substantial factor in Libfeld’s decision to lease the Property. Id.
On September 26, 2019, Libfeld executed the Lease on behalf of Underground. Libfeld Decl., ¶17, Ex. 4. Westknoll countersigned the Lease on October 1, 2019. Id. The Lease defined the Property as “described on a site plan attached as Exhibit A.” Libfeld Decl., ¶18, Ex. 4, §1. Exhibit A was supplied by Westknoll and appears to contain the same site plan as in the Second Site Plan, except it appears that Westknoll removed all measurements and square footage from the document. Id. Underground agreed to a monthly rent of $31,600, with the potential for up to a 3% increase each year. Libfeld Decl., ¶19, Ex. 4, §§ 4.A, 5.
The Lease provides that Underground would pay its pro rata share of expenses based on the square footage of the Property, relative to the square footage of the rest of the shopping center, meaning that the larger the square footage of the Property, the greater Underground’s expenses. Libfeld Decl., ¶20, Ex. 4, §§ 4.4E, 9, 11, 12.2, 13.
The Lease states that the five-year lease term would not commence until after Westknoll completed certain construction it agreed to perform to make the Property suitable for Underground to occupy the Property. Libfeld Decl., ¶21, Ex. 4, §2. At the time Underground filed the Complaint, Westknoll had not completed the agreed-upon work and the Lease term had not yet started to run. Nor had Underground taken occupancy of the Property. Libfeld Decl., ¶21.
The Lease requires that Underground provide a security deposit to Westknoll in the amount of $126,400. Libfeld Decl., Ex. 4, §24. Libfeld obtained and provided the security deposit on behalf of Underground to Westknoll by certified cashier’s check in the amount of $126,400. The check is dated September 27, 2019 and Westknoll countersigned on October 1, 2019. Libfeld Decl., ¶¶ 23-24, Ex. 5.
On October 10, 2019, Starson, the NASA contact for the Property, emailed Libfeld regarding the Property. Libfeld Decl., ¶25, Ex. 6. He attached architectural plans (the “Architectural Plans”) showing that the Property is far smaller than the Westknoll’s prior representations in emails and site plans. Id. Specifically, the Second Site Plan and the Final Site Plan show that the Property is 60”4’ deep, and 78’6” wide. Libfeld Decl., ¶26, Exs. 2, 3. The Architectural Plans show the Property is only 55’10” deep (4’6” short) and 76’6” wide (2 feet short). Libfeld Decl., Ex. 6. This amounts to at least a 436 square-foot deficit in the Studio space, rendering the Studio area no greater than 3650 square feet (not the 4086 as represented) and the Property no greater than 3900 square feet (not the 4336 square feet as represented). Id. Underground was not aware that the Property was smaller than 3,900 square feet until Libfeld received the Architectural Plans. Libfeld Decl., ¶27. Underground cannot operate in a space with the actual size and layout of the Property. Libfeld Decl., ¶28. Had Libfeld known of the Property’s true dimensions prior to September 26, 2019, he (and Underground) would not have agreed to lease the Property or entered the Lease. Id.
The Architectural Plans reflect that they were submitted to the City of West Hollywood on April 5, 2018. Libfeld Decl., ¶29, Ex. 5. On that basis, Libfeld is informed and believes that Westknoll was aware of the true size of the Property no later than April 5, 2018, over a year before sending the First Site Plan to Underground. Id.
On October 24, 2019, Libfeld called Sina to discuss the discrepancy in the square footage of the Property and cancel the contract. Libfeld Decl., ¶30. Libfeld demanded the return of Underground’s $126,400 security deposit, but Sina refused, stating: “There is no way in hell you are getting your deposit back” and that Underground “better get a good lawyer” if it wanted its money back. Id. The next day, Libfeld again spoke with Sina, demanding the return of the security deposit. Libfeld Decl., ¶31. He again refused and insisted that Westknoll would “never” refund the security deposit and would “be able to outspend” Underground on lawyers. Id. To date, Westknoll has not returned Underground’s security deposit. Libfeld Decl., ¶32.
Westknoll has listed the Property on common commercial real estate listing websites, including LoopNet and CityFeet. Libfeld Decl., ¶37, Exs. 7, 8. On both current listings, Westknoll includes the Second Site Plan, which states that the ground-level entrance to the Property is 250 square feet and the total area of the lower level of the Property is 4,086 square feet, a total area of 4,336 square feet. Id.
2. Defendant’s Evidence
On April 23, 2019, Underground, via its broker, CBRE employee Gurman, contacted NASA inquiring about potentially leasing the Property. Starson Decl., ¶2. The next day, NASA employee Tiffany contacted Gurman, briefly discussed the Property with him, and then emailed him the First Site Plan so that Gurman could get an understanding of the interior layout. Tiffany Decl., ¶2, Ex. A.
On April 26, 2019, Tiffany informed Gurman that the space had not been built and he inquired about the interior poles and beams to ensure they would not get in the way. Tiffany Decl., ¶4. Tiffany emailed Gurman a “Presentation Package” containing the Second Site Plan and stated “[the] space is approx. 4,336 SF total. . . .” Tiffany Decl., ¶4, Ex. C. A “Presentation Package” is similar to a brochure for a commercial lease and contains general information regarding the Property that would be useful to a potential lessee. Starson Decl., ¶3.
The purpose of including the Site Plan in the “Presentation Package” was only to show the general layout of the exterior and interior portions of the Property. Id. It was not intended as an accurate representation of the then-current square footage of the Property, which was not available because it was still in the early stages of construction. Id. Presentation Packages are created by NASA’s in-house graphics designer and are to be used for reference purposes only. These drawings are meant for design intent only and all verifications should be made on site by potential Lessees. Starson Decl., ¶¶ 3-4.
Between April 2019 and July 2019, Underground, through Gurman, continued to show interest in the Property, with both parties submitting offers and counter-offers regarding a monthly lease price and term. Tiffany Decl., ¶¶ 5-8, Exs. D-F; Starson Decl., ¶¶ 6-7, Exs. B-C. At no point prior to the signing of the Lease did Underground or its representative state that 4,000 square feet was a minimum and material element in the deal. Sina Decl., ¶9; Starson Decl., ¶16; Tiffany Decl., ¶14.
During the negotiations, Underground requested that certain design and construction changes to the interior of the Property be covered by Westknoll. Starson Decl., ¶6. On July 28, 2019, Gurman and Starson, general manager of NASA, agreed in principle to a lease price and term: $31,600 per month for 60 months. Starson Decl., ¶7, Ex. C. The amount of the monthly rent was not determined on a price per square foot basis but rather on an all-in bid for the space. Id.
On July 30, 2019, Gurman requested a walkthrough with his client (Libfeld) on August 12, 2019 so that they could inspect the Property in-person. He also asked for the draft Lease when it was ready. Tiffany Decl., ¶9, Ex. G. NASA confirmed the inspection for August 12, 2019. Sina Decl., ¶4; Starson Decl., ¶8. Gurman also requested that Underground be able to “use [Westknoll’s] architect as it will probably make for a smoother process.” Tiffany Decl., ¶10, Ex. H. The next day, Tiffany emailed Gurman the draft Lease and told him he could discuss his requests with Sina, a manager at NASA, at the August 12 inspection. Tiffany Decl., ¶11, Ex. I.
On August 8, 2019, Gurman again requested to a walkthrough of the Property at the August 12 meeting, to which NASA agreed. Sina Decl., ¶2, Ex. A.
On August 12, 2019, the requested in-person meeting took place at the Property. Starson Decl., ¶8; Sina Decl., ¶4. In attendance were Gurman, Libfeld, Starson and his assistant, and Sina’s assistant, Kalai. Starson Decl., ¶8. The purpose of the meeting was for Libfeld to inspection the basement. Id. However, Libfeld refused to inspect the basement because he was wearing flip-flops and would not descend the construction ladder. Id.
On August 14, 2019, with Libfeld apparently content with the Property after the inspection meeting, Gurman informed NASA that he would have Underground’s Lease revisions/comments within a few days. Tiffany Decl., ¶12, Ex. J.
On August 20, 2019, Gurman emailed NASA with Underground’s proposed revisions to the Lease, which contained legal comments by Plaintiff’s attorney. Starson Decl., ¶9, Ex. D. While the Lease included a type-written provision defining the Property as “described on a site plan attached  as Exhibit A,” Underground’s comments included a revision, hand-written in blue-ink, that the Property was “estimated to contain 4,336 rentable square feet.” Starson Decl., ¶10. Starson rejected the hand-written term about 4,336 square feet, which was merely an approximation before the build out of the newly excavated space. Starson Decl., ¶11.
On August 22, 2019, NASA emailed its latest revisions to Gurman, who was informed that the square footage revision had not been approved and that he should aks if he had questions. Id., ¶12, Ex. E. Gurman requested a telephone call between Libfeld and his attorney on the one hand, and NASA on the other. Sina Decl., ¶5, Ex. B.
The telephone call took place on August 30, 2019. Sina Decl., ¶6; Starson Decl., ¶13. During the telephone call, the parties discussed various terms on the Lease. Sina Decl., ¶6; Starson Decl., ¶13. Importantly, when discussing Underground’s handwritten square footage revision rejected by Starson, Sina told Libfeld that he could have the space measured, if he wanted to know the exact square footage. Sina Decl., ¶6; Starson Decl., ¶13. Libfeld chose not to avail himself of this opportunity. Starson Decl., ¶14; Sina Decl., ¶7. After the call, NASA emailed Gurman a revised Lease reflecting the comments that had been discussed. Starson Decl., ¶13, Ex. F.
Despite knowing that the 4,336 square foot number in the site plan was only an estimate, Underground did not seek an opportunity to measure the Property’s square footage. Starson Decl., ¶¶ 14, 16; Sina Decl., ¶7. Nor did Libfeld propose alternative Lease language that the Property must be no less than 4,000 square feet. Starson Decl., ¶16. Libfeld also never informed anyone acting for Westknoll that the Lease space needed to be more than 4,000 square feet. Starson Decl., ¶16; Sina Decl., ¶9; Tiffany Decl., ¶14. Consequently, the proposed square footage revision was excluded from all further versions of the Lease. Starson Decl., ¶15; Sina Decl., ¶8.
On September 26, 2019, after some additional drafting, Libfeld signed the Lease on behalf of Underground. Starson Decl., ¶17. The site plan attached as Exhibit A to the Lease is the same site plan that was attached to Underground’s August 20, 2019 revisions. Id. On October 1, 2019, NASA received from Gurman the final, executed Lease and a certified cashier’s check in the amount of $126,400. Tiffany Decl., ¶13.
On September 30, 2019, Westknoll’s architect, Carlos Rocha of Rocha Nuez Associates (“Rocha”), visited the Property to prepare an as-built drawing of the site regarding design and construction changes requested by NASA. Rocha Decl., ¶3. On October 8, 2019, Rocha modified the previously Permitted Architectural Sheet of the Property to reflect these changes. Rocha Decl., ¶4.
The next day, October 9, 2019, NASA was informed by Rocha’s office that he had visited the Property and revised the previously Permitted Architectural Sheet to reflect the layout changes being implemented pursuant to Underground’s requests. Rocha Dec., ¶5, Ex. B; Starson Decl., ¶18, Ex. G. On October 10, 2019, Starson emailed the Architectural Plans to Libfeld for his approval. Starson Decl., ¶19.
When Rocha drafted the Architectural Plans (Libfeld Decl., ¶25, Ex. 6), he made an oversight that was not identified by either himself or Starson until August 4, 2020 at the earliest. Rocha Decl., ¶7; Starson Decl., ¶20. While Rocha updated the actual design layout of the Property on the Architectural Plans filed with the City in April 2018, he did not modify the cover page, including the “Set Issue” (Date Stamp Table) located on the lower right side of the Architectural Sheet. Rocha Decl., ¶7. This resulted in the Architectural Plans appearing to have been filed with the City on April 6, 2018, despite the fact that they were not been drafted until October 8, 2019. Rocha Decl., ¶¶ 8-9; see also ¶10, Ex. C for the Architectural Plan that was actually filed in April 2018.)
When comparing the revised Architectural Plans from October 8, 2019 to the Permitted Architectural Sheet from April 6, 2018, it is clear that the layout in the Permitted Sheet is demonstrably different from the layout on the revised Plans. Rocha Decl., ¶10.
The April 6, 2018 Permitted Architectural Sheet reflected that the Property was 4,070 square feet. Rocha Decl., ¶12. At no point prior to the execution of the Lease did Westknoll have knowledge that the leasable square footage was below 4,000. Starson Decl., ¶21. On October 24, 2019, Libfeld personally called Sina and demanded the return of the $126,400.00 security deposit, to which Sina refused. Sina Decl., ¶ 10.
Plaintiff Underground seeks a right to attach order against Defendant Westknoll in the amount of $126,400.
1. A Claim Based on a Contract
Underground’s claim is based on claims of fraudulent or negligent misrepresentation in inducing Underground to enter into the Lease signed by Libfeld on September 26, 2019 and countersigned by Westknoll on October 1, 2019. Libfeld Decl., ¶17, Ex. 4.
Where the law implies an obligation to return money paid, an implied contract justifies attachment. 6 Witkin, California Procedure, (5th Ed. 2008) §60, p.71. Fraud furnishes a foundation upon which rests the rescission of a promise or obligation, resulting in an implied-in-law contract to repay the funds. Filipan v. The Television Mart, (1951) 105 Cal.App.2d 404 (attachment proper where plaintiff induced by the defendants’ false representations to buy one-half of their business, forming foundation for a promise or obligation to return the money on a contract theory). Attachment also is available on an implied contract for restitution where a defendant acquired a plaintiff’s property through fraud or conversion. Klein v. Benaron, (1967) 247 Cal.App.2d 607, 610 (attachment where plaintiff lent money based on defendant’s false promise as to its use, and instead he pocketed it). See also Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 854 (claim under B&P section 7031(b) for recovery of monies paid to unlicensed contractor was “fundamentally contractual in nature” since the payments were made pursuant to contract).
Westknoll does not dispute that fraudulent or negligent misrepresentation can create an implied contract for the return of Underground’s deposit.
2. An Amount Due That is Fixed and Readily Ascertainable
A claim is “readily ascertainable” where the damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41. The fact that the damages are unliquidated is not determinative. Id. But the contract must furnish a standard by which the amount may be ascertained and there must be a basis by which the damages can be determined by proof. Id. (citations omitted).
Underground seeks to attach $126,400, the amount of the security deposit it paid Westknoll upon execution of the Lease. The Lease reflects this amount (Libfeld Decl., Ex. 4, §24) and Underground provides the cashier’s check memorializing is payment to Westknoll of this amount. Libfeld Decl., ¶¶ 23-24, Ex. 5. Westknoll does not dispute that this amount is fixed and readily ascertainable.
3. Probability of Success
In an action for intentional misrepresentation, a plaintiff establishes a prima facie case by proving the following: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Service by Medallion, Inc. v. Clorox Co., (1996) 44 Cal.App.4th 1807, 1816.
For negligent misrepresentation, a plaintiff must prove: (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. Ragland v. U.S. Bank National Assn., (2012) 209 Cal.App.4th 182, 196.
A contract is extinguished by rescission. Civ. Code §1688. A single misstatement as to a material fact, knowingly made with intent to induce another into entering the contract, will, if believed and relied upon by that other, afford a complete ground for rescission. Wong v. Stoler, (2015) 237 Cal. App. 4th 1375, 1388. To effect a rescission, a party to the contract must, promptly upon discovering the facts which entitle him to rescind if he is free from duress, menace, undue influence or disability and is aware of his right to rescind: (a) Give notice of rescission to the other party as to whom he rescinds; and (b) Restore to the other party everything of value which he has received under the contract or offer to restore the same upon condition that the other party do likewise, unless the latter is unable or positively refuses to do so. Civil Code §1691.
Underground argues that it has shown a probability of success on its claim for rescission because Westknoll’s agents, on multiple occasions, intentionally or negligently misrepresented the size of the Property to Underground. App. at 13. Underground contends that Westknoll misrepresented the size of the Property in the Site Plans. App. at 13-14. Underground also asserts that Westknoll knew the true size of the Property and intentionally withheld the Architectural Plans showing this size until after Underground’s execution of the Lease and payment of the security deposit. App. at 14.
a. The Site Plans
Underground argues that each of the three Site Plans provided by Westknoll’s agents misrepresent that the Property is 4,336 square feet when it is at most 3,900 square feet. Opp. at 13-14. The First Site Plan shows that the Property has a total square footage of 4,205 and the Second and Final Site Plans show a total square footage of 4,336 square feet. Libfeld Decl., Exs. 1-3. In her email providing the Second Site Plan to Gurman, Tiffany describes the Property as being “approximately 4,336 square feet total.” Libfeld Decl., Ex. 2.
Westknoll argues that the Site Plans cannot constitute a misrepresentation because Tiffany informed Gurman that the stated square footage was an approximation and because site plans are intended only to portray the layout and are not intended to serve as an accurate representation of square footage. Opp. at 9. The Presentation Package may have been intended to show only a layout, but Westknoll provides no evidence that Underground was informed that the Site Plans included in the Presentation Package was not intended to be accurate. The fact that Tiffany used the word “approximate” with respect to square footage placed Underground on notice that the number was not precise, but it did not necessarily place Underground on notice that the number was off by 436 square feet. App. at 10.
Nonetheless, Underground cannot demonstrate that Westknoll intentionally or negligently misrepresented the size of the Property in the Site Plans. There is no evidence that Underground or its representatives ever informed Westknoll or NASA that Underground required a minimum of 4,000 square feet to run its business. Starson Decl., ¶16; Sina Decl., ¶9; Tiffany Decl., ¶14. The construction was ongoing, and the Property’s square footage had not been precisely ascertained. Without the knowledge that the Property’s square footage was important to Underground, there would be little reason for Westknoll or its representatives to misrepresent the size of the Property.
Moreover, Starson expressly declined to make a representation about the square footage in the Lease. On August 20, 2019, Underground submitted its revisions to the proposed Lease, which included a handwritten provision that called for the Property to be estimated to contain 4,336 rentable square feet. Starson Decl., ¶9, Ex. D. Starson disapproved this provision because the 4,336 square feet was an approximation before the complete build-out of the Property. Starson Decl., ¶¶ 10-12. In a subsequent phone call on August 30, 2019, Sina referred to the disapproved provision and informed Libfeld that he could have the space measured if he wanted to know the exact square footage. Libfeld never asked Westknoll to do so. Starson Decl., ¶14; Sina Decl., ¶7.
Thus, the Lease not only contains a provision that Westknoll makes no representation about the size of any space to be occupied by Underground (Libfeld Decl., Ex. 4, §27), Westknoll expressly declined to represent that it was approximately 4,336 square feet. Underground cannot rely on the more general approximations in the Site Plans to conclude that such a representation was made.
Similarly, Underground cannot show that its reliance on the purported square footage misrepresentation was reasonable. Libfeld knew the Property was still under construction, and he visited the site on August 12, 2019 for the purpose of inspecting the space. While there, he declined to inspect the basement. Libfeld Decl., ¶15; Starson Decl., ¶8; Sina Decl., ¶4. This fact -- when coupled with Westknoll’s refusal to include a square footage provision in the Lease and Underground’s declination of Westknoll’s offer to let Libfeld measure it -- demonstrates Underground’s lack of reliance. Had the square footage been important, Libfeld could reasonably have been expected to look at the space and measure it.
Underground fails to establish that Westknoll intentionally or negligently misrepresented the size of the Property in order to induce Underground to execute the Lease.
b. The Architectural Plans
Underground argues that Westknoll knew that the Property was at most 3,900 square feet prior to the execution of the Lease and intentionally withheld this information until after the Lease was signed. App. at 14-15. Underground notes that the Architectural Plans (Libfeld Decl. Ex. 6) show the Property is less than 4,000 square feet and reflect that they were created in 2017 and submitted to the City several times leading up to April 2018. App. at 14. Underground contends that this demonstrates that Westknoll intentionally withheld the Architectural Plans until after the execution of the Lease. Underground could not have seen this information about the true size of the Property until it was provided the Architectural Plans. App. at 14.
Westknoll explains that the apparent April 2018 submission date for the Architechtural Plans is due to an inadvertent mistake by the architect, Rocha. Rocha actually drafted the as-built Architectural Plans on October 8, 2019. Rocha Decl., ¶¶ 7, 8-9, Exs. A, C; Starson Decl., ¶20. At no point prior to the execution of the Lease did Westknoll have knowledge that the leasable square footage was below 4,000. Starson Decl., ¶21. As discussed ante, there also is no evidence that Underground ever informed Westknoll that it required a minimum of 4,000 square feet.
Underground fails to demonstrate that Westknoll knew that the Property was smaller than 4,000 square feet and intentionally hid this information from Underground until after execution of the Lease.
Underground fails to demonstrate a probability of success on its claim for rescission because it cannot establish a prima facie case for intentional or negligent misrepresentation.
Underground’s application for a right to attach order against Westknoll is denied.
 Underground fails to provide tabs for its courtesy copy exhibits and its counsel is admonished to do so for all future filings.
 Westknoll failed to lodge a courtesy copy of its opposition brief in violation of the Presiding Judge’s General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies in all future filings. The court has not read or considered the footnotes in Westknoll’s opposition because they do not meet the 12-point type requirement of CRC 2.104.
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