Response Reply

Cal. Super. - 6th Dist.March 18, 2019

.5 \OOOQONU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI 8: KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA 190V344761 Santa Clara - Civil BRIAN M. KANDEL, ESQ. (#180952) SADRI & KANDEL LLP 4633 Old Ironsides Drive, Suite 115 Santa Clara, California 95054 Telephone: (408) 837-7765 Facsimile: (408) 837-7696 Email: brian@sadriandkandel.com Attorneys for Plaintiff and Cross-Defendant EVEREST SYSTEMS COMPANY Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/24/2019 11:46 PM Reviewed By: R. Burciaga Case #1 9CV344761 Envelope: 3434888 IN AND FOR THE SUPERIOR COURT COUNTY OF SANTA CLARA, STATE OF CALIFORNIA UNLMITED JURISDICTION EVEREST SYSTEMS COMPANY, Plaintiff, VS. PLATINUM ROOFING, INC., a California Corporation; and DOES 1 THROUGH 100. Defendants. AND RELATED CROSS-COMPLAINTS Case No. 19CV344761 Reply Brief In Support 0f Everest Systems Company’s Application For Issuance 0f Right to Attach Order And Order For Issuance 0f Writ 0f Attachment Date: September 26, 201 9 Time: 9:00 A.M. Dept: 8 Judge: Hon. Sunil R. Kulkarni Plaintiff Everest Systems Company (“Everest” or “Plaintiff’) submits the following Reply Brief In Support of its Application For Application For Issuance 0f Right t0 Attach Order And Order For Issuance 0f Writ of Attachment (“Application”). I. INTRODUCTION The declarations and attached exhibits submitted by Nancy Baker (“Baker”), Everest’s Credit Manager, and John M. Linnell (“Linnell”), its sole Manager, provide detailed particular admissible and non-obj actionable facts supporting the reasonable and certain basis it used t0 Case No. 19CV344761 1 REPLY ISO EVEREST’S APPL FOR RTAO R. Bunciaga 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA computing its damages due under Platinum’s purchase orders and Everest’s invoices. The Opposition correctly points out that the amount t0 be in included in the Writ 0f Attachment must be reduced t0 reflect Platinum’s $5,0000 payment made 0n February 13, 2019. With that sole exception, Platinum finds n0 flaw with Everest’s accounting 0f the sum due for breach 0f contract or liability 0n common counts. Platinum relies upon three additional bases t0 sustain a reduction in the writ amount. First, it claims an offset for a promised rebate based upon annual purchases 0froofing materials from Everest. Second, it claims an offset for purported damages incurred as a result 0f warranty claims that Everest failed t0 address. Third, it alleges a tort claim for the theft 0f trade secrets arising out 0f the purported “hiring away” 0f one 0f its salespersons, Sean Ronan (“Ronan”). The declaration 0f Sean Marzola (“Marzola”) is woefully inadequate t0 prove a prima facie case 0n any 0f these three claims.1 II. THE APPLICABLE STANDARDS FOR ATTACHMENT Before an attachment order is issued, the court must find all 0f the following: (1) the claim upon which the attachment is based is one upon which an may be issued; (2) the applicant has established “the probable validity” 0f the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery 0n the claim upon which the request for attachment is based; and (4) the amount t0 be secured by the attachment is greater than zero. [Civ. Proc. Code (“CCP”) § 484.090]. In order t0 establish the probable validity 0f its claim, the applicant must show that it is more likely than not it will obtain a judgment against the defendant (0r counter-defendant) 0n its claim. [CCP § 481.190]. An application for a right t0 attach order must be supported by an affidavit 0r declaration showing that the applicant, 0n the facts presented, would be entitled t0 a judgment 0n the claim upon which the attachment is based. [CCP § 484.030]. The affidavit 0r declaration must state the facts “with particularity.” [CCP § 482.040]. Except where matters are specifically permitted t0 be shown upon information and belief, each affidavit 0r declaration must show that the affiant 0r 1 Concurrently filed is an extensive set 0f evidentiary objections t0 Mr. Marzola’s declaration. Case No. 19CV344761 2 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA declarant, if sworn as a witness, can testify competently t0 the facts stated therein. [Id.]. This means that the affiant 0r declarant must show actual, personal knowledge 0f the relevant facts, rather than the ultimate facts commonly found in pleadings, and such evidence must be admissible and not objectionable. [CIT Group/Equipment Financing, Inc. v. SuperDVD, Inc. (2004) 115 Cal.App.4th 537, 541; Lydig C0nst., Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944; Pos-A-Traction, Inc. v. Kelly-Springfield Tire C0. (CD CA 2000) 112 F.Supp.2d 1178, 1182]. A11 documentary evidence, including contracts and canceled checks, must be presented in admissible form, generally requiring proper identification and authentication, and admissibility as non-hearsay evidence 0r under one 0r more 0f the exceptions t0 the hearsay rule, such as the business records exception. (Lydig C0nst., Ina, supra, 234 Cal.App.4th 944; Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group June 2019 edition) (hereinafter “Enforcing Judgments and Debts”) 1W 4: 145-4: 1 56)]. A prejudgment attachment may secure the amount 0f the claimed indebtedness as well as estimated costs and allowable attorney fees. [CCP § 482. I 1 0(b)]. Importantly, however, the amount t0 be secured by an attachment shall be reduced 0r offset by the “amount 0f any indebtedness 0f the plaintiff [0r cross-complainant] that the defendant [0r cross-defendant] has claimed in a cross-complaint [0r the original complaint] filed in the action if the defendant’s [0r crOSS-defendant’s] claim is one upon which an attachment could be issued.” [CCP § 483.015(b)(2) (emphasis added)]. Code 0f Civil Procedure Section 483.015 does not explicitly require more than a filed cross-complaint 0r contract defense in an answer that would itself support an attachment. However, t0 sustain reduction in a writ amount, most courts require that defendant provide enough evidence about its counterclaims and/or defenses t0 prove a prima facie case. [See Lydig, supra, 234 Cal.App.4th at 945 (Citing text); Pos-A-Tmction, Inc. v. Kelly-Springj‘ield Tire C0. (CD CA 2000) 112 F.Supp.2d 1178, 1183 (citing text); Enforcing , 1] 4:64]. “If, by Virtue 0f making claims that are not probably valid, a defendant could obtain an offset against a plaintiff’s Case No. 19CV344761 3 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA claim that is probably valid, a defendant could always and quite easily defeat a plaintiff’s right t0 a prejudgment attachment. We d0 not believe that in adopting our state’s prejudgment attachment procedures the Legislature intended t0 effectively deprive litigants 0f the right t0 such prejudgment relief.” [Lydig supra, 234 Cal.App.4th at 945 (emphasis in original); Enforcing Judgments and Debts, 1] 4:64]. Courts are generally suspicious 0f vague, unsupported counterclaims and defenses. [Id.]. Finally, the subdivision “makes clear that the amount t0 be secured by the attachment is not reduced by a tort claim that has not been reduced t0 judgment.” [Legis.C0m.com., CCP § 483.015; Enforcing Judgments and Debts, 1] 4:64 (emphasis added)]. III.PLATINUM HAS NOT PROVENA PRIMA FACIE CASE FORA REBATE A. The Elements 0fA Breach 0f Contract Cause 0f Action The elements 0f a breach 0f oral contract claim are the same as those for a breach 0f written contract: a contract; its performance 0r excuse for nonperformance; breach; and damages. [Careau & C0. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388; Acoustics, Inc. v. Trepte Construction C0. (1971) 14 Cal.App.3d 887, 913]. Contract formation requires mutual consent, which cannot exist unless the parties “agree upon the same thing in the same sense.” [CiV. Code, §§ 1580, 1550, 1565; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 81 1]. “Mutual consent is determined under an objective standard applied t0 the outward manifestations 0r expressions 0f the parties, i.e., the reasonable meaning 0f their words and acts, and not their unexpressed intentions 0r understandings.” [Alexander v.C0demasters Group Limited (2002) 104 Cal.App.4th 129, 141; see also Meyer v. Benko (1976) 55 Cal.App.3d 937, 942-943, 127 Cal.Rptr. 846 (existence 0f mutual consent “is determined by obj ective rather than subjective criteria, the test being what the outward manifestations 0f consent would lead a reasonable person t0 believe”)]. “Under California law, a contract will be enforced if it is sufficiently definite (and this is a question 0f law) for the court t0 ascertain the parties' obligations and t0 determine whether those obligations have been performed 0r breached.” [Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623]. “Where a contract is so uncertain and indefinite that the intention 0f the parties in material Case No. 19CV344761 4 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA particulars cannot be ascertained, the contract is void and unenforceable.” [Ca]. Lettuce Growers v. Union Sugar C0. (1955) 45 Cal.2d 474, 481; CiV. Code, § 1598; see also Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770]. “The terms 0f a contract are reasonably certain if they provide a basis for determining the existence 0f a breach and for giving an appropriate remedy.” [Rest.2d Contracts, § 33(2); accord, Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at 81 1]. But “[i]f a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed t0, and hence does not make possible a determination 0f whether those agreed obligations have been breached, there is n0 contract.” [Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at 81 1]. B. Platinum Has Failed T0 Demonstrate That The Purported Rebate Agreement Contained Sufficiently Definite Terms Or Mutual Consent By The Parties In support 0f its Claim that Everest breached a contract to tender a 10% rebate payment in the approximate amount 0f $209,171.70 plus 10% statutory interest (Opp0., 4:8-9), Marzola’s declaration alleges an oral agreement with Linnell reached during various dinners and phone conversations. [Marzola Decl., 1H] 4, 7, 8-1 0, 12, I3]. There are n0 emails 0r other written communications between the parties that confirm this arrangement, just a series 0f handwritten notes that Marzola purportedly took at the time 0f these dinners and conversations. [Marzola Decl., 11 13, Ex. “5 ”]. If the agreement was 0f such import t0 Marzola, one would reasonably assume he would have confirmed it in writing. Curiously, Platinum failed t0 produce those notes in response t0 Everest’s Requests for Production 0f Documents served 0n July 3 1 , 2019 despite repeated requests following its production 0f unverified discovery responses 0n September 13, 2019. [Kandel Decl, 1] 4, Ex. “A ”]. Moreover, the declaration omits mention 0f the specific percentage 0f the alleged rebate (10%) until their February 12, 201 8 dinner [Marzola, 11 7, 8, I 0]. Prior pleadings in this case directly contradict Platinum’s contentions regarding a purported rebate. Platinum’s counterclaim alleges that the parties agreed t0 a 5% rebate for its purchases from 2017, or approximately $50,000. [Platinum ’S RJN #2, Counter-Claim, 1H] 8-9, 24 (Pages 12-14 0f FirstAmended Answer)]. Platinum’s unverified special interrogatory responses state that the Case No. 19CV344761 5 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA parties agreed t0 a 5% rebate for its purchases from 2017, or approximately $50,000. [Kandel Decl., 1] 5, Ex. “B ” (Responses t0 Special Interrogatories #8-#12]. When this Application was filed, Ms. Baker and Mr. Linnell denied that any such rebate ever existed for 2017 sales [Baker Decl., fl 1 I; Linnell Decl., 1] 5 ]. Having had the opportunity t0 review the updated terms 0f this supposed agreement, Mr. Linnell steadfastly denies any agreement between the parties regarding a rebate ever existed whether orally 0r in writing. [Linnell Supp. Decl., 11 1 I]. Bill Shevlin (“Shevlin”), Platinum’s former CEO between 2015 and December 2017, describes in detail the reasons why Platinum shifted its orders from Metacrylics t0 Everest. [Shevlin Decl, 1W 3-12]. Shevlin also describes discounts that Everest provided t0 Platinum. [Id at 1] 13]. Shevlin also describes Platinum’s policies and practices regarding rebates, stating that (a) any agreement regarding rebate with its suppliers wasM in writing; (b) any such agreements would be negotiated annually, using prior sales history as a reference point and/or a baseline; and (c) only received if Platinum was current 0n its account. [Shevlin Decl., 1] 14]. Furthermore, Shevlin indicates that any such rebate would be received at end 0f the first quarter 0f the subsequent year for purchases made during the prior year and t0 his recollection, they never exceeded 2% 0f annual gross sales. [Id.]. V. PLATINUM HAS NOT PROVENA PRIMA FACIE CASE FORA BREACH OF WARRANTY A. The Elements For A Breach 0f Warranty Cause 0f Action T0 recover 0n a breach 0f warranty cause 0f action, the plaintiff must show the breach C“ caused the plaintiff t0 suffer injury, damage, loss 0r harm [.]”’ [Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 415-416]. T0 recover 0n a breach 0f warranty claim, “[t]he buyer must, within a reasonable time after he 0r she discovers 0r should have discovered any breach, notify the seller 0f any breach 0r be barred from any remedy.” [Comm Code § 260 7(3) (A)]. This notice requirement is designed t0 allow the seller the opportunity t0 repair the defective item, reduce damages, avoid defective products in the future, and negotiate settlements. [Fieldstone C0. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 369- 370]. The notice also informs the seller 0f the need t0 preserve evidence and t0 be prepared t0 Case No. 19CV344761 6 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA defend against the suit, and protects against stale claims. [Id.; see Pollard v. Saxe & Yolles Dev. C0. (1974) 12 Cal.3d 374, 380]. The buyer has the burden 0f proving reasonable notice. [Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 135]. The question whether notice was properly given must be “determined from the particular circumstances and, where but one inference can be drawn from undisputed facts, the issue may be determined as a matter 0f law.” [Fieldstone, supra, 54 Cal.App.4th at 370]. B. Platinum Has Failed T0 Prove That It Gave Everest Notice Of Any Defects Or Its Alleged Damages Due T0 Allegedly Defective Product It Purchased From Everest . Platinum has not produced any written warranties issued by Everest. In fact, Everest provided Platinum with written warranties for particular orders (although it failed t0 pay for at least three 0f those warranties). [Linnell Supp. Decl., fl 1 0, Ex. “A ”]. T0 the extent its counterclaims are based upon the implied warranties 0f merchantability 0r fitness for a particular purpose, Platinum has failed t0 prove a prima facie case. First, Platinum has failed t0 produce fly written notices given t0 Everest related t0 purportedly defective products it purchased. [Marzola Decl, 1H] [3-14, passim; Shevlin Decl, 1H] 15-1 6]. Second, Platinum has failed t0 adequately describe the nature 0f any 0f the 18 purported instances 0f defective products it purchased from Everest (including the date 0f installation, the job location, the customer name, the product used 0r the nature 0f the problem). [Id.]. Third, Everest investigated the only instance 0f defective product 0f which it was made aware and determined that the problem was due t0 Platinum’s improper application. [Linnell Supp. Decl., 11 I2, Ex. “B”]. Finally, Platinum alleges that it suffered $200,000 in out 0f pocket expenses and lost revenues without any producing any supporting evidence, including, but not limited t0 cancelled checks, financial statements, tax returns, time cards, contracts, invoices 0r statements for services it purportedly rendered, product it purchased elsewhere 0r lost sales. [Marzola Dec], 1] I4; Linnell Supp. Decl., 1] I3]. These bare allegations cannot reduce the amount t0 be included in a Writ. Case No. 19CV344761 7 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA V. PLATINUM’S TORT CLAIMS CANNOT BE USED As AN OFFSET A. The Definitions Of Key Terms Within The California Uniform Trade Secrets Act Civil Code Section 3426.1 defines certain key terms 0f the California Uniform Trade Secrets Act (“UTSA”). “Trade secret” is defined as “information, including a formula, pattern, compilation, program, device, method, technique, 0r process, that: [1]] (1) Derives independent economic value, actual 0r potential, from not being generally known t0 the public 0r t0 other persons who can obtain economic value from its disclosure 0r use; and [1]] (2) Is the subject 0f efforts that are reasonable under the circumstances t0 maintain its secrecy.” [Civ. Code § 3426. I (d)]. “Misappropriation” is defined as “(1) Acquisition 0f a trade secret 0f another by a person who knows 0r has reason t0 know that the trade secret was acquired by improper means; 0r [1]] (2) Disclosure 0r use 0f a trade secret 0f another without express 0r implied consent by a person who: [1]](A) Used improper means t0 acquire knowledge 0f the trade secret; 0r [1]] (B) At the time 0f disclosure 0r use, knew 0r had reason t0 know that his 0r her knowledge 0f the trade secret was: [1]](i) Derived from 0r through a person who had utilized improper means to acquire it; [1]](ii) Acquired under circumstances giving rise t0 a duty t0 maintain its secrecy 0r limit its use; or [1]](iii) Derived from 0r through a person who owed a duty t0 the person seeking relief t0 maintain its secrecy 0r limit its use; 0r [1]] (C) Before a material change 0f his 0r her position, knew 0r had reason t0 know that it was a trade secret and that knowledge 0f it had been acquired by accident 0r mistake.” [Civ. Code § 3426. 1 (d)]. “Improper means” is defined t0 “include[ ] theft, bribery, misrepresentation, breach 0r inducement 0f a breach 0f a duty t0 maintain secrecy, 0r espionage through electronic 0r other means. Reverse engineering 0r independent derivation alone shall not be considered improper means.” [Civ. Code § 3426.1 (a)]. B. The Elements 0fA Cause 0f Action For Unlawful Competition The UCL does not prescribe specific acts, but broadly prohibits “any unlawful, unfair or fraudulent business act 0r practice and unfair, deceptive, untrue 0r misleading advertising...” [Bust & Prof Code, § 1 7200]. A private person has standing t0 bring a UCL action only if he or she “has suffered injury in fact and has lost money 0r property as a result 0f Case No. 19CV344761 8 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA the unfair competition.” [Bus. & ProfCode, § I 7204; Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1335]. “A private plaintiff must make a twofold showing: he 0r she must demonstrate injury in fact and a loss 0f money 0r property caused by unfair competition.” [Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1590]. C. PLATINUM DOES NOT HAVE A JUDGMENT FOR ITS TORT CLAIMS AND THEREFORE THEY CANNOT BE USED As AN OFFSET As noted above the amount t0 be secured by the attachment is not reduced by a tort claim that has not been reduced t0 judgment.” [Legis. C0m.com., Civ. Proc. Code § 483.015; Enforcing Judgments and Debts, 1] 4:64 (emphasis added)]. D. Platinum Has Not Produced Evidence Supporting A Prima Facie Case For Breach 0fAn Implied Covenant 0f Good Faith And Fair Dealing The Opposition does not demonstrate that Everest solicited Ronan 0r that its employment 0f Ronan caused Platinum damages. First, Ronan chose t0 leave Platinum due t0 its failure t0 service his customers. [Linnell Supp. Decl., 11 I8]. Linnell discussed Ronan’s intentions with Marzola and it was agreed that Ronan could work for Everest while also providing consulting services for Platinum 0n a part-time basis. [Id.]. There was never any discussion 0f Platinum having incurred any recruiting fees related t0 the hiring 0f Ronan nor any agreement to indemnify Platinum for those alleged fees. [Id.]. Second, the declaration fails t0 sufficiently describe the purported stolen trade secrets 0r the manner in which they were purportedly safeguarded. [Marzola Decl., 1] 23]. Third, Ronan’s email concerning a Nation’s Roofing project in n0 way proves that Everest was involved in poaching Platinum’s competitors. [Marzola Decl., fl 24, Ex. “9 ”]. Linnell made it clear t0 Marzola and Ronan that Everest had zero interest in any alleged proprietary information that Ronan with regard t0 Platinum’s operations. [Linnell Supp. Decl., fl I9]. Ronan hadfl sale during the eight months he was employed by Everest and 8,000 and this sale was not t0 an account that was in any way associated with Platinum 0r their customers. [Id. at 1] 19, EX. “D”]. The parties agreed that Ronan was still supporting Platinum’s customers during the timeframe he was employed by Everest. [Linnell Supp. Decl., fl 20]. T0 that end, Ronan Case No. 19CV344761 9 REPLY Iso EVEREST’S APPL FOR RTAO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SADRI & KANDE28LP ATTORNEYS AT LAW SANTA CLARA, CALIFORNIA would receive certain emails from his customers in service 0f their Platinum jobs (including Exhibit 9 attached t0 Marzola’s declaration). [Id.]. There was never an intention 0r agreement t0 refer business away from Platinum and n0 such business was in fact diverted away from Platinum t0 Everest. [Id.]. Third, Everest never had access t0 Platinum’s customers nor any 0f its other confidential proprietary information and it never misappropriated such information. [Linnell Supp. Decl., 11 21]. Contrary t0 Marzola’s suspicions, Ronan never “merged” his Platinum email account with his private email account. [Id.]. The second e-mail attached t0 Marzola’s declaration (Exhibit 10) relates t0 a program called “Evernote” which is a notetaking system not an email program. [1d,]. A closer examination 0f Ronan’s email reveals it concerns canceling Ronan’s Platinum Evernote account, saving his personal data and getting a username account with his personal email. [Id.]. Finally, Ronan’s bare contention that Ronan steered away from Platinum all 0f the customers that he had previously been selling t0 when he still worked for Platinum is ridiculous. [Marzola Decl., 1H] 27-29]. He fails t0 identify these purported lost customers and provides n0 documents to verify the $3+ million in Ronan’s sales t0 these customers and purported lost profit 0f $1+ million other than allegations under information and belief. The counterclaim must fail when Platinum is unable t0 produce any supporting evidence 0f damages such as cancelled checks, financial statements, tax returns, invoices 0r contracts. VI. FINAL THOUGHTS In light 0f its unpersuasive factual presentation, Platinum has failed t0 establish the probable validity 0f its offsetting claims. Everest respectfully requests that the Court issue a Right To Attach and Order for Issuance 0f Writ 0f Attachment for $258,963.22 which reflects a deduction for Platinum’s $5,000 payment. Dated: September 24, 2019 SADRI & KANDEL LLP By: /s/ Brian M. Kandel, Esq. Brian M. Kandel, Esq. Attorneysfor PlaintiflEverest Systems Company Case No. 19CV344761 10 REPLY Iso EVEREST’S APPL FOR RTAO