Application for a Right to Attach Order and order for issuance of a Writ of Attachment
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of a stipulation or for a longer period than allowed by stipulation.” Rules of Court, Rule 3.1702(d); “Rule 3.1702(d) is ‘remedial’ and is to be given a liberal, rather than strict interpretation. [Citation.]” (Lewow v. Surfside III Condominium Owners Assn., Inc. (2012) 203 Cal. App. 4th 128, 135.)
Defendant General Motors, LLC shall pay $18,453.75 in reasonable attorney fees. (See Civ. Code §1794, subd. (d) [Song-Beverly attorney fees]; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096 [lodestar; trial court’s discretion]; Reynolds v. Ford Motor Company (2020) 47 Cal.App.5th 1105, 1112 [same]; Jacobson Decl. ¶¶ 91-93 [hours spent], 68-90 [description of services performed]; 3-6; 44-46, 48, 50, 52, 54, Ex. 38, 39 [justification for hourly rates sought], and Ex. 40 [timekeeping records].)
The attorney fee award consists of the reasonably expended hours of work at the reasonable hourly rates sought by timekeepers listed in the motion at their requested rates.
Plaintiff has adequately established a basis for the reasonableness of the hourly fees requested by providing evidence of each timekeeper’s experience and qualifications and reference to rates charged by other lemon law attorneys in the Orange County market.
The court credits the accuracy of Moving Party’s time records. (See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784-785.) However, the court has reviewed the provided timekeeping records and finds that there were several instances where Plaintiff’s request exceeded the hours reasonably necessary to accomplish the tasks listed. The court’s fee award has excised the hours the court finds to have been unreasonably spent.
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The court declines to award a multiplier. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 [trial court discretion to award multiplier].) This was a standard lemon law case. Counsel’s skill and contingency risk are reflected in the reasonable hourly rates described above.
Defendant’s evidentiary objections are OVERRULED.
Plaintiff shall give notice of this ruling.
59. Mikhael v. Plaintiff Medhat Mikhael, MD’s Application for a Right to Attach Physician Order and order for issuance of a Writ of Attachment Partners of (“Application”) against defendant is DENIED. (Code Civ. Proc. §483.010, subd, (a).)
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America, “Under Code of Civil Procedure section 483.010, a LLC prejudgment attachment may issue only if the claim sued upon is (1) a claim for money based upon a contract, express 2026- or implied; (2) of a fixed or readily ascertainable amount not 01550474 less than $500; (3) either unsecured or secured by personal property, not real property (including fixtures); and (4) commercial in nature.” (Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 852.) Plaintiff must also establish the probable validity of its claim. (Id.)
The application must be supported by an affidavit or declaration showing that the applicant, on the facts presented, would be entitled to a judgment on the claim upon which the attachment is based. (Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 943-944.)
Here, Plaintiff has shown that the application is based upon a claim for money based upon an express contract--namely, the Fifth Cause of Action for Breach of Contract arising out of Plaintiff’s exercise of his “put option.” (Mikhael Decl., Exh. B.)
Plaintiff has shown that the amount of the claim is readily ascertainable by reference to the terms of the contract that involved granting Plaintiff 79,064 Class A Units of TOPCO, which were valued at $25.30 per share (Exh. B, ¶ 2.2) and that such units would vest and be repurchased by TOPCO either over a 5 year period following the execution of the agreement (¶ 3.1) or the occurrence of a defined event that would trigger acceleration of the vesting. (¶ 3.2.1.)
Plaintiff must also make an evidentiary showing of the probable validity of the claim. (Code Civ. Proc. §484.090, subd, (a)(2).) Cal. Code Civ. Proc. §481.190 states, “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 elements of a claim for breach of contract are (1) the existence of a contract; (2) the plaintiff’s performance or excuse from performance of the contract; (3) the defendant’s breach; and (4) resulting damages to the plaintiff. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
Plaintiff has failed to establish the probable validity of the contract claim with admissible evidence. Plaintiff asserts termination without cause to trigger accelerated vesting. Section 4.2 describes that Plaintiff must sign the attached Separation Agreement within 60 days lest the accelerated
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options be cancelled. Plaintiff has submitted no evidence that Plaintiff complied with this requirement.
Since Plaintiff has not established a probability of prevailing on the merits of his claim with admissible evidence, the Application must be DENIED.
Plaintiff shall provide notice of this ruling.
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