Judge: Eddie C. Sturgeon, Case: 37-2023-00040640-CU-PT-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited  Petitions - Other Motion Hearing (Civil) 37-2023-00040640-CU-PT-CTL BROTMAN VLO APC VS SCALABLE PRESS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Application for Right to Attach Order, Temporary Protective Order,

Etc., 09/18/2023 Plaintiff Brotman VLO, APC dba Brotman Law's Application for Writ of Attachment is GRANTED.

To issue an attachment, the court must make all the following factual findings per Code of Civil Procedure section 484.090(a): '(1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established a 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. (4) The amount to be secured by the attachment is greater than zero.' The amount sought must also be fixed or a readily ascertainable amount. (Code Civ. Proc., § 483.010(a).) To satisfy the second element, Plaintiff must establish the probable validity of the claim upon which the attachment is based. A claim has 'probable validity' where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc., § 481.190.) A plaintiff is not required to completely prove the merits of their claim at this stage of the proceeding. (Santa Clara Waste Water Co. v. Allied World National Assurance Co. (2017) 18 Cal.App.5th 881, 889.) In making this determination, the Court must consider the relative merits of the parties' positions. (Kemp Bros.

Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1484.) A determination on the probable validity does not affect the determination on whether a plaintiff's claims are actually valid.

(Code Civ. Proc., § 484.100.) In seeking to attach $621,326.35, which is ascertainable. However, Plaintiff must also establish that its claims have a probable validity of its breach of contract claims. In support of its claim, Plaintiff has provided copies of the written contract between the parties (ROA 10, Ex. 1) as well as Plaintiff's invoices (id., Ex. 2). Defendant argues that the contract is 'illegal' because Plaintiff is allegedly prohibited from charging a contingency fee for the services it provided under IRS Circular 230 (31 U.S.C. § 330).

Defendant further argues that in the 2848 Power of Attorney and Declaration of Representative forms signed by Brotman, he declared that he was subject to 'regulations in Circular 230, 31 CFR, Subtitle A, Part 10), as amended, governing practice before the Internal Revenue Service.' (ROA 35, Lei Decl., Ex. A.) The court finds that under the cited case law, Plaintiff is likely to succeed in rebutting Defendant's arguments that the contract was voidable under either federal law or Business and Professions Code section 6147. But even if voidable, California law holds that 'the attorney shall thereupon be entitled to collect a reasonable fee.' (Bus. & Prof. Code, section 6147(b).) That reasonable fee is ascertainable through the parties' intentions in the contract.

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3034176  14 CASE NUMBER: CASE TITLE:  BROTMAN VLO APC VS SCALABLE PRESS INC [IMAGED]  37-2023-00040640-CU-PT-CTL A right to attach order shall issue in the total amount of $621,236.35.

Before a writ of attachment may be issued, an undertaking must be filed. (Code Civ. Proc., §§ 489.210.) The court orders an undertaking of $10,000. Determinations made by the court in this attachment proceeding have no effect on the issues in any other proceeding and are inadmissible in any other proceeding. (Code Civ. Proc., § 484.100.) Calendar No.: Event ID:  TENTATIVE RULINGS

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