On 11/07/2017 UMBERTO FERRI filed a Contract - Other Contract lawsuit against SANFORD GENDEL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and ROBERT L. HESS. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
PATRICIA D. NIETO
ROBERT L. HESS
THE TRUFFLE HUNTER LLC
DOES 1 TO 10
PACE JOINT CORP
SANDRO CORPORATION DBA PACE IN THE CANYON
RICH RANDALL BRUCE
NOVIAN FARHAD ESQ.
RICH RANDALL BRUCE
1/17/2020: Declaration - DECLARATION OF RANDALL RICH IN SUPORT OF APPLICATION FOR WRIT OF ATTACHMENT
1/17/2020: Declaration - DECLARATION OF UMBERTO FERRI IN SUPPORT OF ATTACHMENT
1/17/2020: Exhibit List - EXHIBIT LIST EXHIBITS IN SUPPORT OF APPLICATION FOR WRIT OF ATTACHMENT
5/24/2019: Motion to Deem RFA's Admitted
5/1/2019: Declaration - DECLARATION REGARDING CASE STATUS
5/7/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))
4/8/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO BE RELIEVED AS COUNSEL; HEARING ON MOTIO...)
3/15/2019: Motion to Be Relieved as Counsel
12/17/2018: Case Management Statement
10/4/2018: Notice - Notice Re: Continuance of Hearing
11/9/2018: Minute Order - Minute Order (Case Management Conference)
12/19/2018: Minute Order - Minute Order (Case Management Conference)
1/22/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
4/2/2018: PROOF OF SERVICE OF SUMMONS
5/18/2018: UNVERIFIED ANSWER OF DEFENDANTS SANFORD GENDEL AND PACE JOINT TO PLAINTIFF UMBERTO FERRI?S UNVERIFIED COMPLAINT
7/27/2018: CASE MANAGEMENT STATEMENT -
Hearing11/23/2020 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing11/12/2020 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing08/26/2020 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
Hearing06/10/2020 at 09:30 AM in Department 86 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Writ of Attachment (CCP 484.040)Read MoreRead Less
DocketApplication for Right to Attach Order, Temporary Protective Order, etc.; Filed by Umberto Ferri (Plaintiff)Read MoreRead Less
DocketExhibit List (EXHIBITS IN SUPPORT OF APPLICATION FOR WRIT OF ATTACHMENT); Filed by Umberto Ferri (Plaintiff)Read MoreRead Less
DocketDeclaration (OF UMBERTO FERRI IN SUPPORT OF ATTACHMENT); Filed by Umberto Ferri (Plaintiff)Read MoreRead Less
DocketRequest for Judicial Notice; Filed by Umberto Ferri (Plaintiff)Read MoreRead Less
DocketNotice of Application and Hearing for Writ of Attachment (CCP 484.040); Filed by Umberto Ferri (Plaintiff)Read MoreRead Less
DocketMemorandum of Points & Authorities; Filed by Umberto Ferri (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 24; Case Management Conference (Conference-Case Management; Proceeding continued) -Read MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketMinute order entered: 2018-03-07 00:00:00; Filed by ClerkRead MoreRead Less
DocketCase Management Statement; Filed by Umberto Ferri (Plaintiff)Read MoreRead Less
DocketCASE MANAGEMENT STATEMENTRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketCOMPLAINT-CONTRACTRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by nullRead MoreRead Less
Case Number: BC682377 Hearing Date: December 04, 2020 Dept: 86
FERRI v. GENDEL
Case No. BC682377
Hearing Date: December 4, 2020
[TENTATIVE] ORDER GRANTING APPLICATION FOR WRIT OF ATTACHMENT
Plaintiff, Umberto Ferri, seeks a writ of attachment against Defendant, Sanford Gendel, based on two promissory notes executed by Defendant related to Defendant’s trade, business and/or profession. The amount to be secured by attachment is $164,924.58.
Defendant opposes the application and asserts a claim of exemption as to real property located at 8037 Rothdell Trail in Los Angeles (the Property). (The Property is the only assets Plaintiff seeks to attach.) Defendant also asserts he is entitled to an offset based on his cross-complaint.
Plaintiff’s request for judicial notice (RJN) is granted.
The application is granted.
The Court shall issue a right to attach order if the Court finds all of the following:
The claim upon which the attachment is based is one upon which an attachment may be issued.
The plaintiff has established the probable validity of the claim upon which the attachment is based.
The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.
The amount to be secured by the attachment is greater than zero.
(See Code Civ. Proc. § 484.090.)
“The application [for a writ of attachment] shall 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.” (Code Civ. Proc. § 484.030.) Statutory attachment procedures are purely creations of the legislature and as such “are subject to ‘strict construction.’” (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79 [citing Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882]; see also Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) A judge does not have authority to order any attachment that is not provided for by the attachment statutes. (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1466.) “The declarations in the moving papers must contain evidentiary facts, stated ‘with particularity,’ and based on actual personal knowledge with all documentary evidence properly identified and authenticated.” (Hobbs v. Weiss, supra, 73 Cal.App.4th at 79-80 [citing Code Civ. Proc.
§ 482.040].) “In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” (Id. at 80 [ellipses and quotation marks omitted].)
Probable Validity of Plaintiff’s Claims:
“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.” (Code Civ. Proc. § 481.190.)
Plaintiff’s claim is straightforward and is based on two promissory notes executed by Defendant. The first note is dated June 18, 2015 and is in the principal amount of $50,000. The note is silent concerning interest. The note requires repayment eight months from receipt of the principal. (Ex. 2.)
On July 15, 2015, Defendant executed the second note in the principal amount of $60,000. The note has an annual interest rate of 12 percent. The loan fully matured on January 15, 2017. The note contains an attorney’s fees provision applicable where the lender, Plaintiff, is required to engage counsel upon Defendant’s default. (Ex. 2.)
On November 1, 2016, Defendant paid $10,000 to Plaintiff “in payment of loan.” (Ex. 1.)
Defendant borrowed the money from Plaintiff to “provide capital to [Defendant’s] restaurants to ensure their ability as ongoing business.” (Ferri Decl., ¶ 3.) Thus, the loans “were business loans” “related to [Defendant’s] restaurant operations . . . .” (Ferri Decl., ¶ 2.)
Plaintiff claims he is entitled to damages from Defendant as follows: $90,000 for principal due under the notes, $16,500 as interest due after demand (33 months at $500 per month), $40,125.69 for attorney’s fees and costs and $1,000 for anticipated costs.
Defendant contends Plaintiff made the $50,000 loan to Defendant’s corporation, A Pace Joint Corporation (a cross-complainant herein). (Gendel Decl., ¶¶ 2, 7.) Defendant does not address the $60,000 promissory note other than to generally acknowledge it. (Gendel Decl., ¶ 19.) Defendant also contends he paid Plaintiff “no less than $37,000 to reduce any potential liability on the two loan agreements.” (Gendel Decl., ¶ 19.)
Plaintiff has demonstrated the probable validity of his claims. First, both loans have become due and payable under their terms. Given the $50,000 promissory note denotes Defendant is the borrower and as Defendant signed the note in his individual capacity, the court is not persuaded Plaintiff made the loan to A Pace Joint Corporation. The only documentary evidence of repayment before the court is a copy of a receipt provided by Plaintiff for $10,000. Defendant has provided no documentary evidence (e.g., a receipt, a copy of a check, a bank statement) to support his claim he repaid $37,000 of the principal due. (See Evid. Code sec. 412.) Accordingly, the court cannot find on this evidence Defendant repaid $37,000 of the debt obligation.
Defendant’s Offset Claim
"[T]he amount to be secured by an attachment shall be reduced or offset by the ‘amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant's claim is one upon which an attachment could be issued.’ ” (Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944 [quoting Civ. Proc. Code § 483.015, subd. (b)(2)].) While Code of Civil Procedure section 483.015 “does not explicitly require more than a filed cross-complaint or contract defense in an answer that would itself support an attachment,” often “courts require that defendant provide enough evidence about its counterclaims and/or defenses to prove a prima facie case.” (Id. at 944–45.)
Defendant’s cross-complaint asserts three causes of action for breach of contract, three causes of action for specific performance and one cause of action for breach of fiduciary duty. Defendant’s breach of contract claims—seeking damages—could potentially support a claim of attachment for Defendant.
Defendant’s claims are based on an agreement between the parties to enter into a joint venture. (Gendel Decl., ¶ 4.) The parties finalized their agreement “part-oral and part-written” in July 2015. (Gendel Decl., ¶ 7.) The agreement (for which no writing has been provided) provided for a restaurant division (managed by Defendant) and a food supply division (managed by Plaintiff). The agreement required Plaintiff to contribute capital to A Pace Joint Corporation at a 30 percent pro rata basis. (Gendel Decl., ¶ 7.)
Defendant contends Plaintiff failed to adhere to capital calls for the corporation “for the funding of monthly rent under the Lease and operational losses of [the corporation] on a pro rata basis.” (Gendel Decl., ¶ 12.) Defendant also explains Plaintiff did not provide supplies to him at cost as the parties had agreed. (Gendel Decl., ¶ 12.) Finally, Defendant contends Plaintiff did not comply with his obligation to “spend time and effort into sourcing imported products” and used his time instead to open a Mexican restaurant in Rimini, Italy. (Gendel Decl., ¶¶ 12, 14.)
According to Defendant, A Pace Joint Corporation is in breach of the lease (signed by Defendant as CEO and Plaintiff as Secretary) for the restaurant. (Gendel Decl., Ex. C.) There are arrearages due for the nonpayment of rent as of February 2020 of nearly $170,000. (Gendel Decl. ¶ 17.) (It appears any rent arrearages are still outstanding and have not been paid to the landlord.) Both Plaintiff and Defendant personally guaranteed the lease obligations. (Gendel Decl., Ex. C.)
Defendant alleges he has been personally “damaged in an amount exceeding $300,000.” (Gendel Decl., ¶ 18.) Defendant does not otherwise account for his damages.
While it is clear Defendant had some sort of an agreement with Plaintiff (otherwise there would be no lease or guaranty), the terms of the agreement are not entirely clear. The court cannot find on the evidence presented that it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.
Importantly, Defendant’s claim (for purposes of an offset) must be “fixed or readily ascertainable.” (Code Civ. Proc. § 483.010, subd. (a).) Here, the court cannot determine the basis for Defendant’s damages. That Defendant described his damages as exceeding $300,000 suggests he has not calculated the damages with any specificity because the damages are not readily ascertainable. The collection of receipts attached to Defendant’s declaration do not provide any clarity.
Basis of Attachment:
The Court shall issue a right to attach order if the claim upon which the attachment is based is one upon which an attachment may be issued. (Code Civ. Proc. § 484.090.) “[A]n attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.” (Code Civ. Proc. § 483.010, subd. (a).) “If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession.” (Code Civ. Proc. § 483.010, subd. (c).)
Plaintiff’s claim is based on two promissory notes and is in excess of five hundred dollars. The amount due is fixed and readily ascertainable based on the terms of the contract. The funds were used for Defendant’s business. Accordingly, Plaintiff’s claim is properly the basis for attachment.
Purpose and Amount of Attachment:
Code of Civil Procedure section 484.090 states the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.”
Here, Plaintiff attests on Form AT-105 its application for attachment is not sought for a purpose other than the recovery on a claim upon which the attachments are based. (AT-105 ¶ 4.) There is no indication the application is sought for any other purpose. Accordingly, the court finds that Plaintiff has complied with Code of Civil Procedure sections 484.020 and 484.090.
Code Civil Procedure section 487.010, subdivision (c)(1) provides “[w]here the defendant is a natural person” his “[i]nterests in real property except leasehold estates with unexpired terms of less than one year” are subject to attachment.
Plaintiff seeks attachment of the Property. The Property is subject to attachment by statute.
Without explanation, Defendant claims the Property is not subject to attachment under Code of Civil Procedure section 487.010. As noted, however, the Property is attachable under subdivision (c)(1) of the section.
Defendant also claims the Property is exempt under Code of Civil Procedure section 487.020, subdivision (b) because it is “necessary for the support of the defendant . . . and the family of the defendant supported in whole or in part by the defendant.” Defendant, however, failed to submit the required financial statement pursuant to Code of Civil Procedure section 703.530. Thus, his showing is insufficient to support his exemption claim.
Based on the foregoing, Plaintiff’s application is granted. Defendant’s request for an offset as well as his claim of exemption are denied. Plaintiff shall post a $10,000 undertaking.
IT IS SO ORDERED.
December 4, 2020 ________________________________
Hon. Mitchell Beckloff
Judge of the Superior Court
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