APPLICATION FOR RIGHT TO ATTACH ORDER/WRIT OF ATTACHMENT
“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.
This subdivision shall be liberally construed to avoid forfeiture of causes of action.” (Code Civ. Proc., § 426.50.) There is no indication of bad faith in filing the proposed Cross- Complaint at this time and the Motion is unopposed. Further, Nguyen’s counsel states they mistakenly failed to file the proposed cross-complaint when filing Nguyen’s answer. (Garcia Decl., ¶ 5.) Therefore, the Court grants leave to file the proposed crosscomplaint.
8. U.S. BANK NATIONAL ASSOCIATION DBA U.S. BANK EQUIPMENT FINANCE VS. SEED LANDCARE, INC. 2025-01524369
APPLICATION FOR RIGHT TO ATTACH ORDER/WRIT OF ATTACHMENT
Plaintiff U.S. Bank National Association dba U.S. Bank Equipment Finance’s Application for a Right to Attach Order and Writ of Attachment is GRANTED.
Plaintiff seeks to attach property to secure the recovery of $36,293.60.
Legal Standard
Upon the filing of a complaint or anytime thereafter, a plaintiff may apply for a right to attach order and writ of attachment. (Code Civ. Proc., § 484.010.)
Following a hearing on the application, the court shall issue a right to attach order 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; and (4) The amount to be secured by the attachment is greater than zero. (
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Claim Subject to Attachment
Pursuant to Code of Civil Procedure section 483.010, an attachment may be issued where the claim is based upon a contract, the claimed amount is a fixed or readily ascertainable amount not less than five hundred dollars ($500), and the claim is not secured by an interest in real property.
Plaintiff contends Defendant entered into a Software Payment Agreement (Agreement) with Plaintiff’s assignor TD Synnex Capital, LLC (TD Synnex). (Rohlik Decl., ¶ 3, Ex. 1.) The Agreement provided for one “Managed Service Contract Managed IT Gold 5 years” with financing from TD Synnex, for which Defendant was to make 60 monthly payments of $615.77. (Rohlik Decl., ¶ 3, Ex. 1.) TD Synnex assigned all of its right, title, and interest in the Agreement to Plaintiff. (Rohlik Decl., ¶ 3.)
Plaintiff contends Plaintiff and its assignor have performed or were excused performing the conditions of the Agreement. (Rohlik Decl., ¶ 4.) Plaintiff further contends Defendant breached the Agreement by failing to make the monthly payment due 8/1/23 or any payment thereafter. (Rohlik Decl., ¶ 4.) Plaintiff contends the total amount outstanding is $33,793.60 together with interest at the rate of 16% per annum. (Rohlik Decl., ¶ 6.)
Plaintiff’s claim is based upon a business-related contract, is a readily ascertainable amount not less than $500, is unsecured by an interest in real property and is therefore the type of claim subject to a writ of attachment under Code of Civil Procedure section 483.010.
Probable Validity
A claim has probable validity where it is more likely than not the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc., § 481.190.) The probable validity determination requires the court to consider the relative merits of the positions of the respective parties and make a determination as to the probable outcome of the litigation. (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.) The plaintiff bears the burden of proving the probable validity of its claims. (Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1481.)
As discussed above, Plaintiff has submitted evidence Defendant breached the Agreement by failing to make payments due. (Rohlik Decl. ¶¶ 3-6.)
In opposition, Defendant contends Plaintiff cannot demonstrate probable validity as the Agreement “was signed by the purported officer manager Lindsey Merkin. Ms. Merkin was not an officer of the corporation, was not the office manager, and had no authority to enter into the contract for Defendant Seed Landcare Inc.” While Defendant refers to the Declaration of Kyle Johnson, Defendant’s President, in support of its contention, the declaration is not attached to the motion.
“Statements by an attorney, whether made in court or in a brief, are not evidence.” (Muskan Food & Fuel, Inc. v. City of Fresno (2021) 69 Cal.App.5th 372, 390-391 [citations omitted].) As such,
Defendant’s statements in its brief regarding Ms. Merkin’s authority are insufficient to challenge Plaintiff’s evidence Defendant breached the Agreement.
Accordingly, the Court finds Plaintiff has demonstrated the probable viability of its claims for breach of written agreement.
Attorneys’ Fees and Costs
Code of Civil Procedure section 482.110, subdivision (b) provides the Court may, in its discretion, include an estimated amount for costs and allowable attorney’s fees in the amount to be secured by the attachment. Attorneys’ fees are “allowable” where provided for in the contract or authorized by statute or law. (Civ. Code, §§ 1717, Code Civ. Proc. §§ 1021 et seq., 1033.5.)
The Agreement provides, “Customer [defined as Seed Landcare, Inc.] shall be responsible for all attorneys’ fees and costs, including, without limitation, costs of repossession, as a result of Originator [defined as TD Synnex Capital, LLC] or its Assignee enforcing its rights following an Event of Default.” (Rohlik Decl., ¶ 7, Ex. 1 at § 11.)
Plaintiff’s Application indicates the amount to be secured includes an amount for estimated allowable attorneys’ fees of $1,500 and costs of $1,000. (ROA 24; Rohlik Decl., ¶ 10.) The Court includes the estimated amount for allowable attorneys’ fees and costs in the amount to be attached.
The Court finds Plaintiff has met the requirements under Code of Civil Procedure section 484.090.
The Court GRANTS Plaintiff’s Application in the amount of $36,293.60.
The Court ORDERS Plaintiff to post an undertaking in the amount of $10,000.00 within 10 days.
9. DOE VS. IHERB, LLC 2025-01505285 DEMURRER TO AMENDED COMPLAINT
The Demurrer of Defendants iHerb, LLC and Trent Kruse to Plaintiff Jane Doe’s First Amended Complaint (FAC) is SUSTAINED with leave to amend as to Plaintiff’s second cause of action against Defendant Kruse and ninth cause of action against Defendant iHerb, and OVERRULED as to the remaining causes of action.
Legal Standard:
“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer