Judge James C. Chalfant, Case Number: 24STCV14612, Date: 2024-09-19 Tentative Ruling

Plaintiff ADD Enterprises, Inc. d/b/a Anthony’s Meats (“ADD”) applies for right to attach order against Defendant Simple Speed, Inc. (“Simple Speed”).

The court has read and considered the moving papers, part of the opposition,[1] and reply, and renders the following tentative decision.

A. Statement of the Case

1. Complaint

On June 11, 2024, Plaintiff ADD filed the Complaint against Defendant Simple Speed. On June 13, 2024, ADD filed the First Amended Complaint (“FAC”), which is the operative pleading in the case, alleging causes of action for (1) breach of contract, (2) negligence, and (3) damages under the Carmack Amendment (49 U.S.C. §14706). The FAC alleges in pertinent part as follows.

ADD is a corporation engaged in the business of selling meat and meat products. FAC, ¶1. Simple Speed is a trucking company operating as a common carrier in intrastate commerce. FAC, ¶2. Around October 24, 2023, ADD sold a 38,000-pound shipment of a fresh load of angus beef trimmings to Jensen Meat Company for $105,700.50. FAC, ¶3. Around October 23, 2023, First Star Logistics, a freight broker based in Ohio, arranged for Simple Speed to transport the shipment of meat from ADD’s facilities in Pico Rivera, CA, to Jensen Meat Company, in San Diego, CA. FAC, ¶4. A rate confirmation, containing details of the shipment and instructions for refrigeration to be maintained at 27°F, was issued. FAC, ¶4, Ex. 1. The rate confirmation was supplemented by a Broker-Carrier Agreement (“BCA”). FAC, ¶4, Ex. 2. On or about October 24, 2023, around 6:30 p.m., Simple Speed picked up the shipment. FAC, ¶5. The shipment was in good condition and the temperature of the meat was approximately 27-28°F. FAC, ¶5. ADD prepared a bill of lading and gave it to Simple Speed’s driver. FAC, ¶5. On the same day, around 11:15 p.m., Simple Speed tendered the shipment for delivery to Jensen Meat; however, Jensen Meat rejected the delivery because the temperature of the meat was above 60°F. FAC, ¶ 6. Simple Speed was instructed to return the shipment to ADD; ADD later sold the meat for salvage for $34,850. FAC, ¶7. ADD suffered damages in the sum of $70,850.50. FAC, ¶8.

First Star submitted a written claim to Simple Speed for the payment of $70,850.50; however, around January 9, 2024, the claim was denied by MDX Insurance Services. FAC, ¶9. The denial letter stated that an investigation revealed that “there were no issues with the reefer unit, load was on the road for about 5 hours, the fact that temperature arrive high only implies temperature was high when it was being loaded.” FAC, ¶9. The letter indicated that there was no coverage under the insurance policy. FAC, ¶9.

ADD states that the material terms of the written agreement between the parties, whereby Simple Speed was to carry the shipment from Pico Rivera to San Diego, maintain the trailer temperature at 27°F, and deliver the shipment to Jensen Meat Company, are set forth in the Rate Confirmation (Exhibit 1). FAC, ¶11. The shipment was tendered to Simple Speed at 27-28°F and was expected to arrive at the same temperature. FAC, ¶12. Simple Speed breached the material terms of the agreement because it did not deliver the shipment in the same condition as it was tendered in Pico Rivera at temperatures of 27-28°F. FAC, ¶¶ 13-14. ADD alleges that Simple Speed is liable to ADD for delivering cargo in damaged condition for the amount of $70,850, as well as prejudgment interest and costs. FAC, ¶¶ 15-16.

ADD also alleges that Simple Speed is liable for negligence because it failed to exercise ordinary care in the transportation of the shipment by failing to maintain the temperature inside the trailer at 27°F or maintain the condition of the meat at the temperature at which it was tendered in Pico Rivera. FAC, ¶¶ 18-19. As a proximate result, ADD’s cargo was damaged in the sum of $70,850 because it arrived at a temperature above 60°F and was rejected by the consignee, Jensen Meat Company. FAC, ¶20. ADD seeks judgment against Simple Speed in the amount of $70,850, together with prejudgment and post judgment interest, costs, and other relief the court deems just. FAC, ¶20.

Finally, ADD alleges that Simple Speed is liable pursuant to the Carmack Amendment (49 U.S.C. §14706. The BCA refers to the Carmack Amendment in Paragraphs 8 and 9, which is a preemptive and exclusive federal remedy for cargo loss claims against motor carriers engaged in interstate motor carrier transport. FAC, ¶22. ADD states that this cause of action is alleged as an alternative if it is determined that the terms of the BCA apply to the shipment. FAC, ¶22. ADD states that it has satisfied the pleading requirements for a Carmack Amendment claim because it asserts that the shipment was delivered to Simple Speed in good condition, delivered to the consignee in damaged condition, and ADD suffered damages. FAC, ¶23. Under Paragraph 10 of the BCA, ADD is also entitled to attorney’s fees in addition to the sum of $70,850, prejudgment interest and post judgment interest, costs, and other relief the court deems just.

2. Course of Proceedings

On June 20, 2024, ADD filed the instant Application for Right to Attach Order (“Application”). The documents were served on Simple Speed on July 3, 2024.

On July 9, 2024, ADD filed proof of service showing that the Summons and Complaint were served via personal service on Simple Speed on July 3, 2024. Simple Speed filed its Answer on July 26, 2024.

The initial hearing on ADD’s application was set for July 30, 2024 but the parties stipulated to continue the hearing to the instant date.

B. Standard of Review

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP §481.010 et seq.) that meets the due process requirements set forth in Randone v. Appellate Department, (1971) 5 Cal.3d 536. See Western Steel & Ship Repair v. RMI, (12986) 176 Cal.App.3d 1108, 1115. As the attachment statutes are purely the creation of the Legislature, they are strictly construed. Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.

A writ of 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). CCP §483.010(a). A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).

All property within California of a corporation, association, or partnership is subject to attachment if there is a method of levy for the property. CCP §487.010(a), (b). While a trustee is a natural person, a trust is not. Therefore, a trust’s property is subject to attachment on the same basis as a corporation or partnership. Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, supra, 197 Cal.App.3d at 4.

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint. CCP §484.010. Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing. See ibid.

The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115). The application must 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. CCP §484.030.

Where the defendant is a corporation, a general reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). A specific description of property is not required for corporations and partnerships as they generally have no exempt property. Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (1989) 207 Cal.App.3d 260, 268.

Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing. CCP §484.050(e). The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).

The plaintiff may file and serve a reply two court days prior to the date set for the hearing. CCP §484.060(c).

At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment. The defendant may appear the hearing. CCP §484.050(h). The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence. Bank of America, supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. CCP §482.040. The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed. See Bank of America, supra, at 271, 273.

The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP §484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP §484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP §484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP §484.090(a)(4)).

A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. CCP §481.190. In determining this issue, the court must consider the relative merits of the positions of the respective parties. Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484. The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order. CCP §484.050(b).

Except in unlawful detainer actions, the amount to be secured by the attachment is the sum of (1) the amount of the defendant’s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys’ fees under CCP section 482.110. CCP §483.015(a); Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852. This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant’s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest’s value. CCP §483.015(b). A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a prima facie showing that the claim would result in an attachment against the plaintiff.

Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. CCP §489.210. The undertaking ordinarily is $10,000. CCP §489.220. If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment. CCP §489.220. The court also has inherent authority to increase the amount of the undertaking sua sponte. North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.

ADD is a meat processor with facilities in Pico Rivera, CA. Di Maria Decl., ¶1. Around October 24, 2023, ADD sold a 38,000-pound shipment of a fresh load of angus beef trimmings to Jensen Meat Company for $105,700.50. Di Maria Decl., ¶2, Ex. 1. Around October 23, 2023, First Star Logistics, ADD’s freight broker based in Ohio, arranged for Simple Speed to transport this shipment from ADD’s facilities in Pico Rivera, CA, to Jensen Meat Company (“Jensen”) in San Diego, CA. Di Maria Decl., ¶3. A rate confirmation, containing details of the shipment and instructions for refrigeration to be maintained at 27°F, was issued, and is attached as Exhibit 2. Di Maria Decl., ¶3, Ex. 2. The rate confirmation was supplemented by a Broker-Carrier Agreement. Di Maria Decl., ¶3, Ex. 3.

On October 24, 2023, around 6:30 p.m., Simple Speed picked up the shipment. Di Maria Decl., ¶4. The shipment was in good condition and the temperature of the meat was approximately 27-28°F. Di Maria Decl., ¶4. ADD prepared a bill of lading and gave it to Simple Speed’s driver. Di Maria Decl., ¶4, Ex. 4. ADD was informed via email with photographs by Jensen Meat Company that on October 24, 2023, the shipment was rejected because the temperature of the meat was above 60°F. Di Maria Dec., ¶5. Simple Speed was instructed to return the shipment to ADD; ADD later sold the meat for salvage for $34,850. Di Maria Decl., ¶6, Ex. 6. ADD suffered damages in the sum of $70,850.50. Di Maria Decl., ¶7.

Around January 9, 2024, MDX Insurance Services sent First Star a letter indicating that an investigation revealed that “there were no issues with the reefer unit, load was on the road for about 5 hours, the fact that temperature arrive high only implies temperature was high when it was being loaded.” Di Maria Decl., ¶8, Ex. 7. The letter stated that there was no coverage under the insurance policy. Di Maria Decl., ¶8, Ex. 7.

On or about October 23, 2023, ADD, based in Pico Rivera, County of Los Angeles, California, sold 37,350 lbs. of Angus beef (sixteen totes) to Jensen, based in San Diego, California. Espinoza Decl., ¶3.

On October 24, 2023, at about 3:27 p.m., ADD’s freight broker, First Star, contacted Simple Speed to arrange for Simple Speed to transport a load from ADD to Jensen. First Star informed Simple Speed that the assignment was to deliver chicken, not beef. First Star’s rate confirmation sheet for this load calls for a 53-foot “reefer” (refrigerated truck), programmed at a temperature of 27° Fahrenheit, to deliver chicken from ADD to Jensen. Espinoza Decl., ¶¶ 4-5, Ex. C.

At or prior to 4:00 p.m. on October 24, 2023, Simple Speed’s driver, Daniel Soto (“Soto”), arrived at ADD’s premises with a reefer trailer. At about 4:10 p.m., Soto programmed the reefer trailer temperature to 27° Fahrenheit. This programming began the process of lowering the interior reefer trailer temperature from 72 degrees to 57.7 to 58.5 degrees Fahrenheit. Soto checked in at ADD’s premises and waited approximately two hours for his vehicle to be loaded. Soto Decl., ¶5; Espinoza Decl., ¶6.

At the time Soto picked up the load from ADD, he did not take a temperature reading of the load. He was not informed that the load was beef, rather than chicken, and he could not discern the nature of the meat product being loaded onto the reefer based on the cursory observation he was permitted at the time. Soto Decl., ¶6; Espinoza Decl., ¶7.

On October 24, 2023, at or about 5:45 to 6:00 p.m., Soto departed ADD’s premises with the First Star-brokered load. Simple Speed’s bill of lading for this load, dated October 24, 2023, has a date stamp of 5:46:59 p.m., reflecting the approximate time that Soto departed ADD’s premises. Soto Decl., ¶7. At the time the reefer trailer doors were closed just prior to departure, the temperature of the reefer trailer was 57.7 to 58.5 degrees Fahrenheit. Soto Decl., ¶9; Espinoza Decl., ¶¶ 8-10, Ex D.

Although ADD never informed Soto of the nature of the meat product, the bill of lading states that 16 totes of beef would be transported, at a total weight of 37,350 lbs. The bill of lading required that the reefer temperature be set to -20° Fahrenheit. Soto had adjusted it to only 27° Fahrenheit at the time of his arrival at ADD due to First Star’s conflicting and inaccurate instructions. Soto Decl., ¶10; Espinoza Decl., ¶12.

Immediately on receiving First Star’s communication that the reefer temperature had to be set to -10° Fahrenheit, Simple Speed’s Chief Financial Officer notified Soto, who adjusted the reefer temperature to -10° Fahrenheit. Soto then began the trip from Pico Rivera to San Diego to deliver the load to Jensen. He arrived at Jensen’s San Diego premises at about 8:30 p.m. to 9:00 p.m. Soto Decl., ¶12; Espinoza Decl., ¶15.

Simple Speed only had possession of the beef load for approximately two-and-a-half to three hours. The reefer was working properly during the entirety of this time, with the interior reefer temperature continuing to decrease. At the time of Soto’s arrival at Jensen’s premises, the temperature in the reefer was approximately 51.4 degrees Fahrenheit. Jensen’s personnel unloaded the beef, after which the load sat on Jensen’s dock for approximately one-and-a-half hours. Soto Decl., ¶13; Espinoza Decl., ¶16.

At about 10:30 p.m., Jensen’s personnel measured the load temperature, noting it as between 60°–80° Fahrenheit. As a result of this temperature reading, Jensen rejected the load. Soto then left Jensen’s premises with the load. Soto Decl., ¶14; Espinoza Decl., ¶17.

Soto was instructed to return the load to ADD in Pico Rivera. While enroute, Simple Speed instructed him instead to transfer the load to a different reefer. Soto made this load transfer at a facility in Los Angeles, at about 1:00 a.m. on October 25, 2023. At the time of the load transfer, the first reefer’s temperature was 48° Fahrenheit and the new reefer’s temperature was 40° Fahrenheit. Soto Decl., ¶15; Espinoza Decl., ¶18.

The beef load remained in the new reefer for about 12 hours after Soto made the load transfer. During the approximately 12-hour period, the new reefer worked properly and its interior temperature continued to decrease. Espinoza Decl., ¶19.

Later on October 25, 2023, at about 12:50 p.m., Simple Speed’s Chief Financial Officer delivered the beef load in the new reefer to ADD’s premises. At the time he arrived, the new reefer’s interior temperature was 1° Fahrenheit, and the top portion of the beef was frozen. He took four photographs showing a digital thermometer reading inside the beef as 44.5° Fahrenheit. Espinoza Decl., ¶20, Ex. H.

Plaintiff ADD applies for a right to attach order against Defendant Simple Speed in the amount of $71,350.

ADD’s application (AT-105 form) does not list the amount sought for attachment (item 8). The application also fails to reference the corporate property subject to attachment (item 9). These defects are arguably fatal, but Simple Speed does not object.

ADD’s claim is based on the invoice (Exhibit 1), rate confirmation (Exhibit 2), and Broker-Carrier Agreement (Exhibit 3). Although ADD also alleges non-contractual causes of action, they do not preclude it from obtaining a right to attach order for the breach of express contract claim. Baker v. Superior Court, (1983) 150 Cal.App.3d 140, 145; Waffer International Corporation, (1999) 69 Cal.App.4th 1261, 1265. The amount of the claim sought is above $500.

A claim is “readily ascertainable” where the damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41. The fact that the damages are unliquidated is not determinative. Id. But the contract must furnish a standard by which the amount may be ascertained and there must be a basis by which the damages can be determined by proof. Id. (citations omitted).

ADD sold a shipment of beef for $105,700.50. Di Maria Decl., ¶2, Ex. 1. Jensen rejected the shipment and ADD later sold it for salvage for $34,850. Di Maria Decl., ¶¶ 6-7. ADD claims it was damaged in the amount of $70,850.50. Di Maria Decl., ¶7.

The court is not presented with any information regarding how the $71,350 in damages was calculated. In any event, ADD’s loss of $70,850.50 is not readily ascertainable from its contract with Simple Speed. Nothing in the agreement reflects a standard by which ADD’s damages can be calculated. Rather, ADD’s loss is simply its lost sale price from a third party, Jensen. This amount is not readily ascertainable from its contract with Simple Speed. These damages may be recoverable from Simple Speed for breach of contract at trial, but attachment is not available.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. Richman v. Hartley,(2014) 224 Cal.App.4th 1182, 1186. “A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect. [Citations.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]” McKell v. Washington Mutual, Inc., (2006) 142 Cal.App.4th 1457, 1489.

ADD provides evidence that there was an agreement whereby Simple Speed was to deliver the shipment to Jensen Meat at the temperature of 27°F. Di Maria Decl., ¶3, Ex. 3. On October 24, 2024, ADD tendered the shipment to Simple Speed in good condition and at a temperature of 27-28°F. Di Maria Decl., ¶4. Simple Speed breached the agreement by delivering the shipment of meat at temperatures above 60°F. Di Maria Decl., ¶5. As a result, the shipment was rejected by Jensen and ADD had to sell the meat for salvage for $34,850, thus, incurring damages in the amount of $70,850.50. Di Maria Decl., ¶¶ 6-7, Ex. 6.

Simple Speed presents evidence from which it concludes that it did not breach its contract. On October 24, 2023, First Star, contacted Simple Speed to arrange for Simple Speed to transport a load from ADD to Jensen. First Star informed Simple Speed that the assignment was to deliver chicken, not beef. First Star’s rate confirmation sheet for this load calls for a 53-foot “reefer” (refrigerated truck), programmed at a temperature of 27° Fahrenheit, to deliver chicken from ADD to Jensen. Espinoza Decl., ¶¶ 4-5, Ex. C.

At about 4:10 p.m., Soto programmed the reefer trailer temperature to 27° Fahrenheit.[2] This programming began the process of lowering the interior reefer trailer temperature from 72 degrees to 57.7 to 58.5 degrees Fahrenheit. When the reefer trailer doors were closed just prior to departure, the temperature of the reefer trailer was 57.7 to 58.5 degrees Fahrenheit. Soto Decl., ¶9; Espinoza Decl., ¶¶ 8-10, Ex D.

Before Soto departed ADD’s premises, Simple Speed’s Chief Financial Officer received a message from First Star advising that the reefer temperature had to be set to -10° Fahrenheit rather than the 27° Fahrenheit called for by First Star’s rate confirmation sheet. Around the same time, Simple Speed’s Chief Financial Officer received a telephone call that the load was beef, not chicken. Soto Decl., ¶11; Espinoza Decl., ¶¶ 13-14, Ex. G. Simple Speed’s Chief Financial Officer notified Soto, who adjusted the reefer temperature to -10° Fahrenheit. Soto arrived at Jensen’s San Diego premises at about 8:30 p.m. to 9:00 p.m. Soto Decl., ¶12; Espinoza Decl., ¶15.

Simple Speed argues that it only had possession of the beef load for approximately two-and-a-half to three hours. The reefer was working properly during the entirety of this time, with the interior reefer temperature continuing to decrease. At the time of Soto’s arrival at Jensen’s premises, the temperature in the reefer was approximately 51.4 degrees Fahrenheit. At about 10:30 p.m., Jensen’s personnel measured the load temperature, noting it as between 60°–80° Fahrenheit. As a result of this temperature reading, Jensen rejected the load.

Simple Speed concludes that the reefer temperature was set at -10° Fahrenheit before Soto departed from ADD’s premises and it was never high enough to raise the beef’s temperature to 60°. To the extent that the beef temperature was too high, it could only have happened before loading it on Simple Speed’s reefer. Opp. at 9.

ADD replies that the key facts are that the reefer was initially correctly set to 27° Fahrenheit as required by the Rate Confirmation, the temperature of the load was 27-28° Fahrenheit upon loading, the temperature of the beef was more than 60° Fahrenheit upon being unloaded at Jensen, and therefore Simple Speed breached its contract. Reply at 5, 9-10.

At this stage, the court has insufficient evidence to decide which party is correct. The issue will have to be addressed at trial and therefore ADD has not shown a probability of success on its breach of contract claim.

Attachment must not be sought for a purpose other than the recovery on the claim upon which attachment is based. CCP §484.090(a)(3). ADD seeks attachment for a proper purpose.

Where the defendant is a corporation, a general reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). A specific description of property is not required for corporations and partnerships as they generally have no exempt property. Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (1989) 207 Cal.App.3d 260, 268.

The application does not contain any reference to the corporate property subject to attachment.

For the foregoing reasons, ADD’s application for a right to attach order is denied.

[1] Simple Speed failed to provide a courtesy copy of its 66-page opposition in violation of the Presiding Judge’s First Amended General Order on Electronic Filing. The court has exercised its discretion to read and consider only Simple Speed’s opposition memorandum and supporting declarations but not its exhibits. For this reason, the court need not consider ADD’s objection to Exhibits E and F. See Reply at 3-4.

[2] Although ADD never informed Soto of the nature of the meat product, the bill of lading required that the reefer temperature be set to -20° Fahrenheit. Soto had adjusted it to only 27° Fahrenheit due to First Star’s inaccurate instructions. Soto Decl., ¶10; Espinoza Decl., ¶12.