Capital Trust, Inc. v. Lembi et al

Filing 51

ORDER RE Right to Attach Order. Signed by Judge Jeffrey S. White on September 16, 2009. (jswlc3, COURT STAFF) (Filed on 9/16/2009)

Case3:09-cv-02492-JSW Document28-2

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H. JOSEPH ESCHER III (No. 85551) [e-mail] LILY A. NORTH (No. 260709) lily. [e-mail] DECHERT LLP One Maritime Plaza, Suite 2300 San Francisco, California 94111-3513 Telephone: [phone] Facsimile: 415.262.4555 Attorneys for Plaintiff CAPITAL TRUST, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

CAPITAL TRUST, INC., Plaintiff, v.

Case No. 09-cv-2492-JSW Action Filed: June 4, 2009

[AMENDED PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION WALTER R. LEMBI, individually and as FOR RIGHT TO ATTACH ORDER trustee of the WALTER AND LINDA AND ORDER FOR ISSUANCE OF LEMBI FAMILY TRUST DATED JUNE WRIT OF ATTACHMENT AGAINST 30, 2004; FRANK E. LEMBI, individually DEFENDANTS and as trustee of the OLGA LEMBI RESIDUAL TRUST CREATED UNDER Date: August 21, 2009 Time: 9:00 a.m. THE PROVISIONS OF PART THREE OF THE LEMBI FAMILY REVOCABLE Dep't: Courtroom 11, 19th Floor Judge: Hon. Jeffrey S. White TRUST DATED FEBRUARY 17, 1984, and as the trustee of the FRANK E. LEMBI SURVIVOR'S TRUST DATED FEBRUARY 17, 1984; BILLIE SALEVOURIS, individually, BILLIE Z. SALEVOURIS, as trustee for THE BILLIE SALEVOURIS TRUST DATED AUGUST 23, 1983 AS RESTATED ON MAY 24, 2002; DAVID M. RAYNAL, individually and as trustee for the DAVID M. RAYNAL REVOCABLE TRUST DATED MAY 9, 2002; RALPH DAYAN, individually and as co-trustee for the AMENDED AND RESTATED DAYAN FAMILY REVOCABLE TRUST DATED DECEMBER 31, 1991, Defendants.
AMENDED [PROPOSED] ORDER GRANTING MOTION 09-cv-2492 JSW

Case3:09-cv-02492-JSW Document28-2

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This Court, having considered Plaintiff's Motion for Right to Attach Order And Order for Issuance of Writ of Attachment ("Motion") and supporting documents, [and after a hearing on the Motion on August 21, 2009 where all parties were represented by counsel] hereby GRANTS Plaintiff's Motion. this date granting Plaintiff's motion, This Court finds that Defendants are natural persons, the claim upon which the application is based is one upon which an attachment may be issued, 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; and the amount to be secured by the attachment is greater than zero. Code Civ. Proc. § 484.090. This Court also finds that Defendants have failed to prove that all the property sought to be attached and described in Plaintiff's application is exempt from attachment.
10,000 An undertaking in the amount of $____________ is required before a writ shall issue, and For the reasons set forth in the separate order issued

Plaintiff has not filed an undertaking in that amount. This ruling is without prejudice to the This Court orders that Plaintiff has a right to attach property as follows: (i) of Defendant Walter R. Lembi in the amount of $16,914,098.90; (ii) of Defendant Frank E. Lembi in the amount of $16,993,136.74; (iii) of Defendant Billie Salevouris in the amount of $7,068,091.06; (iv) of Defendant David M. Raynal in the amount of $4,816,039.38; and (v) of Defendant Ralph Dayan in the amount of $1,909,554.35. Defendants' primary residences as listed in Schedule A of the Guarantees of Payment attached to the Amended Complaint are exempt and shall not be attached. The clerk shall issue a writ of attachment upon the filing of an undertaking in the amount of
10,000* $____________ for the following property of Defendants that is subject to attachment

Defendants seeking to increase that amount.

under California Code of Civil Procedure section 487.010: real property, accounts receivable, chattel paper, general intangibles, equipment, farm products, inventory, final money judgments, money, deposit accounts, negotiable documents of title, instruments,
*The Court's ruling is without prejudice to the Defendants seeking to increase the amount of the undertaking. 1
AMENDED [PROPOSED] ORDER GRANTING MOTION 09-cv-2492 JSW

Case3:09-cv-02492-JSW Document28-2

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and securities. IT IS SO ORDERED Dated: September___, 2009 _______ 16 ______________________ Honorable Jeffrey S. White

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AMENDED [PROPOSED] ORDER GRANTING MOTION 09-cv-2492 JSW