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DAVID J. COOK, ESQ. (SBN 060859)
COOK COLLECTION ATTORNEYS
A PROFESSIONAL LAW CORPORATION
165 Fell Street, San Francisco, CA 94102
P.O. Box 270, San Francisco, CA 94104-0270
Telephone.: (415) 989-4730
Facsimile: (415) 989-0491
Email: Cook@cookcollectionattorneys.com
File No. 58,740
Attorneys for Plaintiff RIGGS DISTRIBUTING, INC.,
a corporation
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
UNLIMITED CIVIL JURISDICTION
10
RIGGS DISTRIBUTING, INC., a CASE NO. 23-CIV-005051
11 corporation,
MEMORANDUM OF POINTS AND
12 Plaintiff, AUTHORITIES IN SUPPORT OF
APPLICATION FOR ISSUANCE OF WRIT OF
13 vs. ATTACHMENT - AFTER HEARING
PURSUANT TO C.C.P. § 484.010 ET SEQ.
14 ASIEN’S APPLIANCE, INC., a
corporation
15 Date: December 21, 2023
AND DOES I THROUGH X, AND Time: 2:00 p.m.
16 EACH OF THEM, INCLUSIVE, Dept.: 3; Court Room: 2B
Case filed: October 24, 2023
17 Defendants. Trial Date:
18
19 1, The primary purpose of the attachment remedy is to allow an unsecured creditor a
20 procedure ancillary to their action by which to ensure that the debtor’s assets will not be dissipated
21 prior to the time of judgment and enforcement. North Hollywood Marble Co. vs. Superior Court,
22 157 Cal.App.3d 683, 204 Cal.Rprt. 55 (Cal.App.2 Dist. 1984); Lorber Industries of California vs.
23 Turbulence, 175 Cal.App.3d 532, 221 Cal.Rptr. 232 (1985).
24 2. Plaintiff must demonstrate that the claim upon which the attachment is based is one
25 upon which an attachment may be issued. C.C.P. § 483.010( c). Even a “implied contract” may
26 be the basis for the issuance of a writ of attachment. Klein vs. Benaron, 247 Cal.App. 3d 607,
27 608-609, 56 Cal.Rptr. 5, 6 (1967).
28
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF
WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ.
3. The Plaintiff must establish the probable validity of the claim upon which the
attachment is based. Film Packages, Inc. vs. Brandywine Film Productions, Ltd., 193 Cal.App.3d
824, 238 Cal.Rptr. 623 (Cal.App.2 Dist. 1987); Loeb and Loeb vs. Beverly Glen Music Inc., 166
Cal.App.3d 1110, 212 Cal.Rptr. 830 (Cal.App.2 Dist. 1985).
4, An attachment may only lie on any claim against a partnership, corporation; or on any
claim against an individual that “arise(s) out of the conduct by the individual of a trade, business
or profession . . .” C.C.P. § 483.010( c); Security Pacific National Bank vs. Matek, 175 Cal.App.3d
1071, 1077, 223 Cal.Rptr. 288, 292 (1985) Advance Transformer Co. vs. Superior Court, 44
Cal.App.3d 127, 118 Cal.Rptr. 350 (1974).
10 5. The attachment is not sought for a purpose other than the recovery upon the claim. The
11 affidavit accompanying the application shows that the property sought to be attached, or the
12 portion thereof, to be specified in the writ, is not exempt from attachment.
13 6. The assets of a partnership are not exempt. Corp.C. § 15025(d)(c). The assets of a
14 corporation are not exempt. Canal-Randolph Anaheim Inc. vs. Wilkoski, 103 Cal.App.3d 282, 163
15 Cal.Rptr. 30 (Cal.App.4 Dist. 1980). The assets of an individual are only subject to limited
16 exemption and only to the amount of the monetary exemption, if any. The equity in real property
17 over the exemption is subject to the attachment lien. Martin vs. Aboyan, 148 Cal.App.3d 826, 196
18 Cal.Rptr. 266 (Cal.App.2 Dist. 1983).
19 7. The property must be adequately described. The use of the word, “all corporate
20 property,” or “all partnership property” is statutorily acceptable. C.C.P. § 484.020 (e), C.C.P. §
21 487.010(a) & (b). The property of an individual must be individually described. C.C.P. § 487.010.
22 Plaintiff is free to describe the property of an individual Defendant in general terms only with
23 sufficient particularity so that the Defendant may file a claim of exemption. In Bank of. ‘America
24 National Trust vs. Salinas Nissan, 207 Cal.App.3d 260, 254 Cal.Rptr. 754 (Cal.App.6 Dist. 1989),
25 the court stated as follows:
26 “We do not understand it to prohibit a plaintiff targeting for attachment everything
an individual defendant owns. So long as the prope: descriptions are adequate,
27 Section 484.020, subdivision (e), allows for the possibility that a Plaintiff may want
to make such a comprehensive attempt, possibly in order to provide and resolve an
28
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF
WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ.
individual defendant’s exemptions all at once.” (207 Cal.App. 3d 269, 254
Cal.Rptr. 748 at page 753.)
8. Plaintiff is therefore entitled to the issuance of the Writ of Attachment herein, after
notice pursuant to C.C.P. § 484.020 et seq. and has effectuated service of the summons, complaint,
notice, declaration, verification and application as required by C.C.P. § 484.040.
9. Even if the Defendant in an action based upon a breach of written lease claims a defense
by way of defect, Plaintiff is entitled to the issuance of the writ herein based upon the warranty
disclaimer. Such contractual disclaimers are valid and enforceable as to a lessor acting as a virtual
financier for the acquisition of equipment. Holmes Packaging Machinery vs. Bingham, 252
Cal.App.2d 862, 60 Cal.Rptr. 769 (Cal.App.1 Dist. 1967), is fairly dispositive of the issue at hand
10
as the court stated as follows:
11
“The statutory implied warranties of quality can, of course, be disclaimed by the
12 seller provided that the buyer has knowledge or is chargeable with notice of the
disclaimer before the bargain is completed . . .”
13
The court continued to state as follows:
14
“Whatever misgivings may have arisen with respect to the validity of the
15 exculpatory clause in a negligence case, and the resultant rule that the clauses are
void as against public policy or the effect of public interest. [Citation omitted].
16 This rule has not been extended to disclaimers of statutory warranties involving
only exculpation from contractual liability. [See also Metowski vs. Tria
17 Corporation, 28 Cal.App.3d 332, 104 Cal.Rptr. 559]”.
18 10. General disclaimers of warranties under a commercial setting are enforceable.
19 Southern California Edison vs. Harnichfeger Corporation, 120 Cal.App.3d 842, 175 Cal Rptr. 67
20 (Cal.App.2 Dist. 1981). Commercial entities are entitled to contract to limit their liability to one
21 another and allocate risks of loss of doing business. Philippine Airlines vs. McDonnell-Douglas
22 Corporation, 189 Cal.App.3d 234, 234 Cal.Rptr. 423 (Cal.App.1 Dist. 1987).
23 11. This is an action upon a book account in which Plaintiff need only demonstrate the
24 evidence of a debt. In Costerisan vs. DeLong, 251 Cal.App.2d 768, 770, 59 Cal.Rptr. 803
25 (Cal.App.5 Dist. 1967), the court was faced with the prospects of defining an open book account.
26 The court stated therein as follows:
27 ... In Egan vs. Bishop, 8 C.A. 2d 119, 47 P.2d 500, the court upheld a lower
court’s finding that an attorney’s docket of court cases and a separate journal for
28
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF
WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ.
th
office char; es constitute a book account although no single ledger account
combined e entries made in a docket and the journal. The guiding principle
expressed at page 122, 47 P.2d page 502 is:
“The law does not prescribe any standard of bookkeeping practice
which all must follow, regardless of the name of the business of
which the record is kept. We think it makes no difference whether
the account is kept in one book or several so long as they are
permanent records, id. ite stem of bookkeepii
distinguish m_mere pri orandum.” (Emphasis added.)
Adverting to the broad language of section 337a of the Code of Civil Procedure,
“kept in any other reasonably permanent formal manner,” it seems manifest that the
legislature intended to adopt the liberal reach of Egan in defining the term “book
account.”
The court continued to state as follows:
10 “In summary, the record of transactions between the parties was kept on a ledger
sheet with supporting data attached reflecting the debits and credits; the ledgers
11 sheets were kept in a single folder maintained as unit for each year; the folders were
kept in a file in the company office. We conclude that the folder, Exhibit 1, and its
12 contents, maintained by plaintiffs constitutes a record with the ambit of the Code of
Civil Procedure Section 337(a), defining a book account.”
Also helpful is Biltmore Press vs. Usadel, 6 Cal.App.3d 896, 86 Cal.Rptr. 233 (Cal.App.2 Dist.
1970), in which the court stated as follows:
“Plaintiff cannot recover under the first account.... A book account is defined as a
16 ‘detailed statement,’ kept in a book and the nature of a debit and credit arising out
of the contract of some fiduciary relation ....(1 C.J. 597). A necessary element is
17 that the book shall show against to whom and in whose favor the charges are made.
.. . Plaintiff presented no ledger or account book.... No account book was read
18 from ... the evidence, therefore, differs from that in three cases cited by Plaintiff in
each of which a book of account was introduced into evidence.”
19
12. Generally, the statute of limitation commences to run from the date of the last entry on
20
the book account. See Bloom vs. Bender, 48 Cal.2d 793, 315 P.2d 568 (1957). Helpful is Shields
21
Co. vs. Collins Electrical, 142 Cal.App.2d 382 (Cal.App.1 Dist. 1956). In that case, controversy
22
arose during the course of construction between the superintendents of two subcontractors as to
23
which company was to provide certain items of electrical equipment. Despite the dispute, the
24
creditor, in fact, supplied the equipment, making notations as a “book account”.
25
13. The court therein defined the “book account” as:
26
“A book account is defined as a ‘detailed statement’ kept in a book and the nature
27 of debit and credit arising out of contract or some fiduciary relation....(1 Cal Jur. 2d
320, Section 7). It is true that in the absence of objection, a book account can be
28
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF
WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ.
Proved by secondary evidence presented by the plaintiff reading from his accounts
The Appellate Court upheld the judgment on the basis of a “book account”. The court, in that case,
was unable to find a book account, but, nonetheless, upheld a judgment thereunder. In this case,
Plaintiff has an unequivocal “book account”, consisting of the entries comprised in the books for
the goods and/or services rendered at the Defendants’ behest.
14. The Declaration of the Credit Manager and/or President or authorized agent in support
of the Application for the Right to Attach complies with the exceptions to the Hearsay Rule found
under Evid.C. §§ 1270 and 1271 et seq.
15, Credit Card Processors convert the consumer’s credit card charges of the merchant
10
into the funds that are diverted in the bank account of the merchant, i.e. the Defendant (“debtor”):
11
“Credit card transactions usually involve three parties: The merchant; the credit card processor;
12 and the card issuing institution. The merchant writes the sale and sends the amount electronically
to the credit card processor. The credit card processor, in turn, electronically sends the net
13 proceeds to the merchant's bank account and also sends a message to the card issuing bank
notifying it of the sale. The card issuing bank, in turn, sends a bill. For a thorough discussion of
14 credit card transactions and the parties involved see generally, Stephen L. Sepinuck, Classifying
Credit Card Receivables Under the U.C.C.: Playing with Instruments?, 32 Ariz.L.Rev. 789,
15 797-99 (1990)." In re Calstar, Inc., 159 B.R. 247, 249-50 (Bankr. D. Minn. 1993)
16
"Credit card processors like Elavon act as intermediaries between banks that issue credit cards and
17 merchants that sell goods by providing access to credit card networks such as VISA and
MasterCard. (Id. 4 42, 44.) Processors are bound by rules established by the credit card networks.
18 (Id. J 69.) Typically, when a consumer buys something using a credit card, the merchant
relays the transaction to the processor, which transmits the transaction to the issuing bank;
19 the consumer's account is debited, and the funds are transferred back down the chain,
through the processor, to the merchant's account. (| 90-91.) Elavon, Inc. v. Ne. Advane
20 Techs., Inc., No. 15-CV-7985 (KBE), 2017 WL 4876300, at *2-3 (S.D.N.Y. Oct. 27, 2017)
21
“Credit card processors are essential to many merchants, and especially to those that conduct
22 business over the internet, telephone, or through the mail.’ When a customer places an order with
the merchant and elects to pay by credit card, the merchant submits the details of the transaction its
23 credit card processor. The credit card processor incorporates these details along with the
merchant's additional credit card sales into a sales transaction batch. The processor then submits
24 the sales transaction batch to the card-issuing bank, usually on a daily basis. After processing the
sales transaction batch, the card-issuing bank advances the funds to the processor. The processor
25 forwards these funds to the merchant's bank account after subtracting the fees it earns for
its services. The merchant thus can receive cash for its credit card sales within a few days of
26 each sale." Gary W. Marsh, David E. Gordon, Processing Credit Card Charges in Chapter 11,
82 Am. Bankr. L.J. 253, 253-54 (2008)
27
28
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF
WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ.
“There are two types of entities offering merchant account services: direct processors and
resellers (the latter are also called independent sales organizations, or ISOs). Processors
offer a direct conduit for cash-less commerce; they are members of the Visa/MasterCard
associations. Processors establish and house the merchant account, authorize your
transactions, and settle the funds into your business checking account. Processors offer full
24/7 service, from swipe to settlement Resellers/ISOs contract with a processor to provide all the
fe rocessor
account functions and thus pay the accordingly. Price structures can actually be similar
between direct processors and resel lers/ISOs; ongoing service is often the distinction. There are
approximately 88 direct Visa/MasterCard processors in the United States and countless ISOs."
Accepting Credit Card Payments: A Primer, GPSolo, April/May 2005, at 10, 12.”
16. The last invoice is dated September 20, 2023 (Invoice #797491) and the date of the
initial sue is October 24, 2023. The terms of the invoices is net 30 days. Under Commercial Code
Section 2709 as follows:
“(1) When the buyer fails to pay the price as it becomes due the seller may recover,
10 together with any incidental damages under the next section, the price
(a) Of goods accepted or of conforming goods lost or damaged within a commercially
11 reasonable time after risk of their loss has passed to the buyer; and .. .”
12 Asien’s Application purchase and received goods (goods for kitchens etc.) and obligated to make
13 pursuant to Commercial Code Section 2607:
14 (1) The buyer must pay at the contract rate for any goods accepted.
(2) Acceptance of goods by the buyer precludes rejection of the goods accepted and, if
15 made with knowledge of a nonconformity, cannot be revoked because of it unless the acceptance
was on the reasonable assumption that the nonconformity would be seasonably cured. Acceptance
16 does not of itself impair any other remedy provided by this divi: sion for nonconformity.
remedy over for liability established by the litigation.
17
Here Asien’s Appliances did not rejected any of the goods.
18
DATED: October 25, 2023 COOK COLLECTION A’ yO WEYS
19
20
By:
DAVID J.
421
OOK, ES Q
‘ Attorneys. 0 tiff
21 RIGGS D iSTRIBU TING, INC., a corporation
22
FAUSERS\DJCNEW\ASIENS_MPA_ATTACHMENT_1x.wpd
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF
WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ.
Preview
DAVID J. COOK, ESQ. (SBN 060859) COOK COLLECTION ATTORNEYS A PROFESSIONAL LAW CORPORATION 165 Fell Street, San Francisco, CA 94102 P.O. Box 270, San Francisco, CA 94104-0270 Telephone.: (415) 989-4730 Facsimile: (415) 989-0491 Email: Cook@cookcollectionattorneys.com File No. 58,740 Attorneys for Plaintiff RIGGS DISTRIBUTING, INC., a corporation SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN MATEO UNLIMITED CIVIL JURISDICTION 10 RIGGS DISTRIBUTING, INC., a CASE NO. 23-CIV-005051 11 corporation, MEMORANDUM OF POINTS AND 12 Plaintiff, AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF WRIT OF 13 vs. ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ. 14 ASIEN’S APPLIANCE, INC., a corporation 15 Date: December 21, 2023 AND DOES I THROUGH X, AND Time: 2:00 p.m. 16 EACH OF THEM, INCLUSIVE, Dept.: 3; Court Room: 2B Case filed: October 24, 2023 17 Defendants. Trial Date: 18 19 1, The primary purpose of the attachment remedy is to allow an unsecured creditor a 20 procedure ancillary to their action by which to ensure that the debtor’s assets will not be dissipated 21 prior to the time of judgment and enforcement. North Hollywood Marble Co. vs. Superior Court, 22 157 Cal.App.3d 683, 204 Cal.Rprt. 55 (Cal.App.2 Dist. 1984); Lorber Industries of California vs. 23 Turbulence, 175 Cal.App.3d 532, 221 Cal.Rptr. 232 (1985). 24 2. Plaintiff must demonstrate that the claim upon which the attachment is based is one 25 upon which an attachment may be issued. C.C.P. § 483.010( c). Even a “implied contract” may 26 be the basis for the issuance of a writ of attachment. Klein vs. Benaron, 247 Cal.App. 3d 607, 27 608-609, 56 Cal.Rptr. 5, 6 (1967). 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ. 3. The Plaintiff must establish the probable validity of the claim upon which the attachment is based. Film Packages, Inc. vs. Brandywine Film Productions, Ltd., 193 Cal.App.3d 824, 238 Cal.Rptr. 623 (Cal.App.2 Dist. 1987); Loeb and Loeb vs. Beverly Glen Music Inc., 166 Cal.App.3d 1110, 212 Cal.Rptr. 830 (Cal.App.2 Dist. 1985). 4, An attachment may only lie on any claim against a partnership, corporation; or on any claim against an individual that “arise(s) out of the conduct by the individual of a trade, business or profession . . .” C.C.P. § 483.010( c); Security Pacific National Bank vs. Matek, 175 Cal.App.3d 1071, 1077, 223 Cal.Rptr. 288, 292 (1985) Advance Transformer Co. vs. Superior Court, 44 Cal.App.3d 127, 118 Cal.Rptr. 350 (1974). 10 5. The attachment is not sought for a purpose other than the recovery upon the claim. The 11 affidavit accompanying the application shows that the property sought to be attached, or the 12 portion thereof, to be specified in the writ, is not exempt from attachment. 13 6. The assets of a partnership are not exempt. Corp.C. § 15025(d)(c). The assets of a 14 corporation are not exempt. Canal-Randolph Anaheim Inc. vs. Wilkoski, 103 Cal.App.3d 282, 163 15 Cal.Rptr. 30 (Cal.App.4 Dist. 1980). The assets of an individual are only subject to limited 16 exemption and only to the amount of the monetary exemption, if any. The equity in real property 17 over the exemption is subject to the attachment lien. Martin vs. Aboyan, 148 Cal.App.3d 826, 196 18 Cal.Rptr. 266 (Cal.App.2 Dist. 1983). 19 7. The property must be adequately described. The use of the word, “all corporate 20 property,” or “all partnership property” is statutorily acceptable. C.C.P. § 484.020 (e), C.C.P. § 21 487.010(a) & (b). The property of an individual must be individually described. C.C.P. § 487.010. 22 Plaintiff is free to describe the property of an individual Defendant in general terms only with 23 sufficient particularity so that the Defendant may file a claim of exemption. In Bank of. ‘America 24 National Trust vs. Salinas Nissan, 207 Cal.App.3d 260, 254 Cal.Rptr. 754 (Cal.App.6 Dist. 1989), 25 the court stated as follows: 26 “We do not understand it to prohibit a plaintiff targeting for attachment everything an individual defendant owns. So long as the prope: descriptions are adequate, 27 Section 484.020, subdivision (e), allows for the possibility that a Plaintiff may want to make such a comprehensive attempt, possibly in order to provide and resolve an 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ. individual defendant’s exemptions all at once.” (207 Cal.App. 3d 269, 254 Cal.Rptr. 748 at page 753.) 8. Plaintiff is therefore entitled to the issuance of the Writ of Attachment herein, after notice pursuant to C.C.P. § 484.020 et seq. and has effectuated service of the summons, complaint, notice, declaration, verification and application as required by C.C.P. § 484.040. 9. Even if the Defendant in an action based upon a breach of written lease claims a defense by way of defect, Plaintiff is entitled to the issuance of the writ herein based upon the warranty disclaimer. Such contractual disclaimers are valid and enforceable as to a lessor acting as a virtual financier for the acquisition of equipment. Holmes Packaging Machinery vs. Bingham, 252 Cal.App.2d 862, 60 Cal.Rptr. 769 (Cal.App.1 Dist. 1967), is fairly dispositive of the issue at hand 10 as the court stated as follows: 11 “The statutory implied warranties of quality can, of course, be disclaimed by the 12 seller provided that the buyer has knowledge or is chargeable with notice of the disclaimer before the bargain is completed . . .” 13 The court continued to state as follows: 14 “Whatever misgivings may have arisen with respect to the validity of the 15 exculpatory clause in a negligence case, and the resultant rule that the clauses are void as against public policy or the effect of public interest. [Citation omitted]. 16 This rule has not been extended to disclaimers of statutory warranties involving only exculpation from contractual liability. [See also Metowski vs. Tria 17 Corporation, 28 Cal.App.3d 332, 104 Cal.Rptr. 559]”. 18 10. General disclaimers of warranties under a commercial setting are enforceable. 19 Southern California Edison vs. Harnichfeger Corporation, 120 Cal.App.3d 842, 175 Cal Rptr. 67 20 (Cal.App.2 Dist. 1981). Commercial entities are entitled to contract to limit their liability to one 21 another and allocate risks of loss of doing business. Philippine Airlines vs. McDonnell-Douglas 22 Corporation, 189 Cal.App.3d 234, 234 Cal.Rptr. 423 (Cal.App.1 Dist. 1987). 23 11. This is an action upon a book account in which Plaintiff need only demonstrate the 24 evidence of a debt. In Costerisan vs. DeLong, 251 Cal.App.2d 768, 770, 59 Cal.Rptr. 803 25 (Cal.App.5 Dist. 1967), the court was faced with the prospects of defining an open book account. 26 The court stated therein as follows: 27 ... In Egan vs. Bishop, 8 C.A. 2d 119, 47 P.2d 500, the court upheld a lower court’s finding that an attorney’s docket of court cases and a separate journal for 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ. th office char; es constitute a book account although no single ledger account combined e entries made in a docket and the journal. The guiding principle expressed at page 122, 47 P.2d page 502 is: “The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the name of the business of which the record is kept. We think it makes no difference whether the account is kept in one book or several so long as they are permanent records, id. ite stem of bookkeepii distinguish m_mere pri orandum.” (Emphasis added.) Adverting to the broad language of section 337a of the Code of Civil Procedure, “kept in any other reasonably permanent formal manner,” it seems manifest that the legislature intended to adopt the liberal reach of Egan in defining the term “book account.” The court continued to state as follows: 10 “In summary, the record of transactions between the parties was kept on a ledger sheet with supporting data attached reflecting the debits and credits; the ledgers 11 sheets were kept in a single folder maintained as unit for each year; the folders were kept in a file in the company office. We conclude that the folder, Exhibit 1, and its 12 contents, maintained by plaintiffs constitutes a record with the ambit of the Code of Civil Procedure Section 337(a), defining a book account.” Also helpful is Biltmore Press vs. Usadel, 6 Cal.App.3d 896, 86 Cal.Rptr. 233 (Cal.App.2 Dist. 1970), in which the court stated as follows: “Plaintiff cannot recover under the first account.... A book account is defined as a 16 ‘detailed statement,’ kept in a book and the nature of a debit and credit arising out of the contract of some fiduciary relation ....(1 C.J. 597). A necessary element is 17 that the book shall show against to whom and in whose favor the charges are made. .. . Plaintiff presented no ledger or account book.... No account book was read 18 from ... the evidence, therefore, differs from that in three cases cited by Plaintiff in each of which a book of account was introduced into evidence.” 19 12. Generally, the statute of limitation commences to run from the date of the last entry on 20 the book account. See Bloom vs. Bender, 48 Cal.2d 793, 315 P.2d 568 (1957). Helpful is Shields 21 Co. vs. Collins Electrical, 142 Cal.App.2d 382 (Cal.App.1 Dist. 1956). In that case, controversy 22 arose during the course of construction between the superintendents of two subcontractors as to 23 which company was to provide certain items of electrical equipment. Despite the dispute, the 24 creditor, in fact, supplied the equipment, making notations as a “book account”. 25 13. The court therein defined the “book account” as: 26 “A book account is defined as a ‘detailed statement’ kept in a book and the nature 27 of debit and credit arising out of contract or some fiduciary relation....(1 Cal Jur. 2d 320, Section 7). It is true that in the absence of objection, a book account can be 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ. Proved by secondary evidence presented by the plaintiff reading from his accounts The Appellate Court upheld the judgment on the basis of a “book account”. The court, in that case, was unable to find a book account, but, nonetheless, upheld a judgment thereunder. In this case, Plaintiff has an unequivocal “book account”, consisting of the entries comprised in the books for the goods and/or services rendered at the Defendants’ behest. 14. The Declaration of the Credit Manager and/or President or authorized agent in support of the Application for the Right to Attach complies with the exceptions to the Hearsay Rule found under Evid.C. §§ 1270 and 1271 et seq. 15, Credit Card Processors convert the consumer’s credit card charges of the merchant 10 into the funds that are diverted in the bank account of the merchant, i.e. the Defendant (“debtor”): 11 “Credit card transactions usually involve three parties: The merchant; the credit card processor; 12 and the card issuing institution. The merchant writes the sale and sends the amount electronically to the credit card processor. The credit card processor, in turn, electronically sends the net 13 proceeds to the merchant's bank account and also sends a message to the card issuing bank notifying it of the sale. The card issuing bank, in turn, sends a bill. For a thorough discussion of 14 credit card transactions and the parties involved see generally, Stephen L. Sepinuck, Classifying Credit Card Receivables Under the U.C.C.: Playing with Instruments?, 32 Ariz.L.Rev. 789, 15 797-99 (1990)." In re Calstar, Inc., 159 B.R. 247, 249-50 (Bankr. D. Minn. 1993) 16 "Credit card processors like Elavon act as intermediaries between banks that issue credit cards and 17 merchants that sell goods by providing access to credit card networks such as VISA and MasterCard. (Id. 4 42, 44.) Processors are bound by rules established by the credit card networks. 18 (Id. J 69.) Typically, when a consumer buys something using a credit card, the merchant relays the transaction to the processor, which transmits the transaction to the issuing bank; 19 the consumer's account is debited, and the funds are transferred back down the chain, through the processor, to the merchant's account. (| 90-91.) Elavon, Inc. v. Ne. Advane 20 Techs., Inc., No. 15-CV-7985 (KBE), 2017 WL 4876300, at *2-3 (S.D.N.Y. Oct. 27, 2017) 21 “Credit card processors are essential to many merchants, and especially to those that conduct 22 business over the internet, telephone, or through the mail.’ When a customer places an order with the merchant and elects to pay by credit card, the merchant submits the details of the transaction its 23 credit card processor. The credit card processor incorporates these details along with the merchant's additional credit card sales into a sales transaction batch. The processor then submits 24 the sales transaction batch to the card-issuing bank, usually on a daily basis. After processing the sales transaction batch, the card-issuing bank advances the funds to the processor. The processor 25 forwards these funds to the merchant's bank account after subtracting the fees it earns for its services. The merchant thus can receive cash for its credit card sales within a few days of 26 each sale." Gary W. Marsh, David E. Gordon, Processing Credit Card Charges in Chapter 11, 82 Am. Bankr. L.J. 253, 253-54 (2008) 27 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ. “There are two types of entities offering merchant account services: direct processors and resellers (the latter are also called independent sales organizations, or ISOs). Processors offer a direct conduit for cash-less commerce; they are members of the Visa/MasterCard associations. Processors establish and house the merchant account, authorize your transactions, and settle the funds into your business checking account. Processors offer full 24/7 service, from swipe to settlement Resellers/ISOs contract with a processor to provide all the fe rocessor account functions and thus pay the accordingly. Price structures can actually be similar between direct processors and resel lers/ISOs; ongoing service is often the distinction. There are approximately 88 direct Visa/MasterCard processors in the United States and countless ISOs." Accepting Credit Card Payments: A Primer, GPSolo, April/May 2005, at 10, 12.” 16. The last invoice is dated September 20, 2023 (Invoice #797491) and the date of the initial sue is October 24, 2023. The terms of the invoices is net 30 days. Under Commercial Code Section 2709 as follows: “(1) When the buyer fails to pay the price as it becomes due the seller may recover, 10 together with any incidental damages under the next section, the price (a) Of goods accepted or of conforming goods lost or damaged within a commercially 11 reasonable time after risk of their loss has passed to the buyer; and .. .” 12 Asien’s Application purchase and received goods (goods for kitchens etc.) and obligated to make 13 pursuant to Commercial Code Section 2607: 14 (1) The buyer must pay at the contract rate for any goods accepted. (2) Acceptance of goods by the buyer precludes rejection of the goods accepted and, if 15 made with knowledge of a nonconformity, cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured. Acceptance 16 does not of itself impair any other remedy provided by this divi: sion for nonconformity. remedy over for liability established by the litigation. 17 Here Asien’s Appliances did not rejected any of the goods. 18 DATED: October 25, 2023 COOK COLLECTION A’ yO WEYS 19 20 By: DAVID J. 421 OOK, ES Q ‘ Attorneys. 0 tiff 21 RIGGS D iSTRIBU TING, INC., a corporation 22 FAUSERS\DJCNEW\ASIENS_MPA_ATTACHMENT_1x.wpd 23 24 25 26 27 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ISSUANCE OF WRIT OF ATTACHMENT - AFTER HEARING PURSUANT TO C.C.P. § 484.010 ET SEQ.