Judge: Curtis A. Kin, Case: 24STCV10714, Date: 2024-09-17 Tentative Ruling

Case Number: 24STCV10714    Hearing Date: September 17, 2024    Dept: 86

APPLICATION FOR RIGHT TO ATTACH ORDER

Date:               9/17/24 (1:30 PM)

Case:                           AgWest Farm Credit, PCA v. Robert Michael Bauer (24STCV10171)

TENTATIVE RULING:

Plaintiff AgWest Farm Credit, PCA’s UNOPPOSED application for right to attach order with respect to defendant Robert Michael Bauer is GRANTED.

Pursuant to CCP §484.090, the Court finds:

1. the claim is one upon which attachment may be issued;
2. plaintiff has established the probable validity of the claim;
3. attachment is not sought for any purpose other than recovery on the claim; and
4. the amount to be attached is greater than zero.

Plaintiff’s claim is for amounts owed under a Master Loan Agreement (“Loan Agreement”) and a Promissory Note and Supplement to Master Loan Agreement (“Note”) between plaintiff’s predecessor and defendant Robert Michael Bauer. (Frank Decl. ¶ 4 & Exs. 1, 2.) Pursuant to the Note, defendant was required to make 21 monthly payments starting on December 1, 2021, with the entire unpaid balance and principal due on September 1, 2023 when the Note matured. (Frank Decl. ¶ 5.) Defendant has not made any payments since August 2023. (Frank Decl. ¶ 21 & Exs. 13, 14.)

From the original principal of $2.5 million and after crediting proceeds of collateral and a loan owed to defendant (Frank Decl. ¶¶ 11, 12, 24), plaintiff seeks to attach the balance of $1,124,564.53 remaining under the Loan Agreement and Note. (Frank Decl. ¶ 22 & Ex. 14.)

Plaintiff seeks to attach an additional $13,135.65 for fees and $500.00 for costs. Paragraph 6.5 of the Loan Agreement requires defendant to indemnify plaintiff’s predecessor for any expenses arising from the amount owed under the Loan Agreement. The fees are calculated in accordance with the default fee schedule under Local Rule 3.214(a). The costs are reasonable on its face.

Accordingly, the amount to be attached is $1,140,700.18 ($1,124,564.53 principal and interest + $13,135.65 attorney fees + $3,000.00 costs).

“Where the defendant is a natural person, the description of the property shall be reasonably adequate to permit the defendant to identify the specific property sought to be attached.” (CCP § 484.020(e).) Most of the categories of property listed in Schedule A to the application are reasonably adequate and limited to property in which defendant has an interest. However, for the fifth category, “Property in a safe deposit box not exclusively in the name of ROBERT MICHAEL BAUER AKA ROBERT BAUER AKA ROBERT M. BAUER,” the description is not reasonably adequate and covers all safe deposit boxes not in defendant’s name, even if the box holder has no affiliation with defendant. The Court therefore strikes the fifth category from Schedule A attached to the Right to Attach order.

Writ will issue upon the posting of bond in the amount of $10,000. (CCP §489.220.) The Court will sign the proposed right to attach order with the change specified above.