Judge Lynne M. Hobbs, Case Number: 24STCV22523, Date: 2024-12-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV22523, Date: 2024-12-17 Tentative Ruling

Case Number: 24STCV22523 Hearing Date: December 17, 2024 Dept: 61

BLIP TECHNOLOGIES, INC., et al. vs ERIC BROOKS, et al.

TENTATIVE

Plaintiff Blip Technologies, Inc.’s Motion for a Writ of Attachment as to the Real and Personal Property of Defendant Eric Brooks and the JHAE Brooks Family Trust is DENIED.

Defendant to give notice.

DISCUSSION

I. OBJECTIONS

Defendant Eric Brooks (Brooks) offers objections to the declaration of Plaintiff Brian Johnson (Johnson) submitted in support of Plaintiffs’ motion for attachment order. Objection No. 1 and 20 to the introduction of the verified FAC as evidence is SUSTAINED, because being verified by a corporate officer of the corporate plaintiff, “the pleadings shall not otherwise be considered as an affidavit or declaration establishing the facts therein alleged.” (Code Civ. Proc. § 446, subd. (a).) Thus Objection No. 1 and 20 are SUSTAINED.

Defendant’s objections to those portions of the Johnson declaration made on information and belief are SUSTAINED, as testimony made on information and belief must show “ the facts on which the affiant's belief is based, showing the nature of his information and the reliability of his informant.” (Code Civ. Proc. § 482.040.) Thus Objections No. 2–4 are SUSTAINED.

Objections No. 6–8 and 10–17 to the transaction details report and other documents attached as Exhibit 4 to the Johnson declaration is also SUSTAINED, for lack of foundation and hearsay. Objection No. 9 to the emails contained therein is SUSTAINED for hearsay.

Objection No. 18 and 19 to Johnson’s testimony regarding the promissory note is SUSTAINED for lack of foundation, as Johnson neither executed the promissory note nor testifies to how he knows of its execution.

II. MOTION FOR ATTACHMENT ORDER

“A writ of attachment allows a plaintiff, in certain prescribed instances, to obtain a pre-trial seizure of the property of a defendant-debtor.” (Whitehouse v. Six Corp. (1995) 40 Cal.App.4th 527, 532.) “[A]ttachment 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) exclusive of costs, interest, and attorney's fees.” (Code Civ. Proc., § 483.010, subd. (a).) Attachments may not issue for claims on debts secured by any interest in real property. (See Code Civ. Proc. § 483.010, subd. (b).)

A writ of attachment may only be ordered if the moving party shows all of the following:

(1) The claim upon which the attachment is based is one upon which an attachment may be issued.

(2) The plaintiff has established the 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.

(Code Civ. Proc., § 484.090, subd. (a)(1)–(4).) “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.) “In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)

Plaintiff Blip Technologies, Inc. (BTI) seeks a writ of attachment against Defendant Eric Brooks, based on a promissory note executed by Brooks on December 21, 2022, in which he promised to repay the sum of $306,749.29 by December 31, 2026, and make annual 1.26% interest payments. (Johnson Decl. Exh. 5.) The note provides that if an interest payment is missed, then “the whole sum of principal and interest shall become immediately due and payable at the option of the holder of this note.” (Ibid.)

Brian Johnson, the CEO of BTI, states that Brooks executed the promissory note to memorialize a prior loan and other advances made to Brooks from September 2018 and December 2023. (Johnson Decl. ¶ 15.) Johnson also states that Brooks failed to pay pursuant to the terms of the note, and that BTI demanded its full payment in February 2024, a demand which Brooks has refused. (Johnson Dec. ¶¶ 4–6.)

Brooks meanwhile denies that he ever executed the promissory note presented by BTI, and states that it is a forgery. (Brooks Decl. ¶ 3.) He presents the declaration of Linton A. Mohammed, Ph.D., a forensic documents analyst, formerly employed, among other places, at the San Deigo Sheriff’s Department Regional Crime Laboratory for nearly fourteen years. (Mohammed Decl. ¶ 4.) Mohamed opines, based on his comparison of the promissory note signature and date, and comparison to other specimen signatures provided by Brooks, that the signature and date on the promissory note “was probably not written by the specimen writer (Eric Brooks).” (Mohamed Decl. ¶ 23.)

Plaintiff has not demonstrated entitlement to the attachment order. From the above-discussed evidence, it is not probable that BTI will prevail on its promissory note claim. First, Johnson’s declaration as to the authenticity of the promissory note is made without foundation. Johnson neither executed the promissory note — the only signature space is for Brooks — nor describes the circumstances of its execution, or how he knows of them. Conversely, Brooks directly denies executing the note, and his testimony is corroborated by the expert declaration of Linton Mohammed. Thus Plaintiff’s showing is not probable on its own, and is persuasively rebutted by Defendant’s opposition.

Furthermore, Plaintiff has not demonstrated that “[t]he claim upon which the attachment is based is one upon which an attachment may be issued.” (Code Civ. Proc. § 484.090, subd. (a)(1).) Plaintiff relies exclusively on that first subdivision, neglecting the provision specifically applicable to writs of attachment against natural persons like Brooks:

If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession. An attachment may not be issued on a claim against a defendant who is a natural person if the claim is based on the sale or lease of property, a license to use property, the furnishing of services, or the loan of money where the property sold or leased, or licensed for use, the services furnished, or the money loaned was used by the defendant primarily for personal, family, or household purposes (Code Civ. Proc., § 483.010, subd. (c).) Plaintiff’s motion does not address these requirements. The purpose of the “trade, business, or profession” requirement is to permit prejudgment attachment “only for the enforcement of claims ‘involving the loan of money or the furnishing of goods by one business to another.” (Shaw, Hooker & Co. v. Haisman (1976) 59 Cal.App.3d 262, 266.) And Brooks himself declares that all funds he received from BTI through the relevant period were “for personal, family, and/or household and to pay for my families living expenses.” (Brooks Decl. ¶ 4.)

Brooks is also correct that that the motion seeks attachment relief not only against himself, but against the JHAE Brooks Family Trust, who was not evidently a party to the promissory note. (Opposition at pp. 12–13; Motion at p. 2.) Thus the relief sought is overbroad, in addition to the defects discussed above.

Accordingly, the motion is DENIED.