Judge: Curtis A. Kin, Case: 22STCV29225, Date: 2025-02-11 Tentative Ruling

Case Number: 22STCV29225    Hearing Date: February 11, 2025    Dept: 86

APPLICATIONS (3) FOR RIGHT TO ATTACH ORDERS

Date:               2/11/25 (1:30 PM)

Case:                           Associated Petroleum Products, Inc., et al. v. Gloria Leonor Cubides, et al. (22STCV29225)

TENTATIVE RULING:

Plaintiff Associated Petroleum Products, Inc.’s applications for right to attach orders are GRANTED IN PART with respect to defendants (1) Gloria Leonor Cubides; (2) Akop Hakopian; and (3) Veronica Escamilla.

I.                   FACTUAL BACKGROUND

Plaintiff Associated Petroleum Products, Inc. (“APP”) sells fuel and related goods and services to gas stations. (Bengs Decl. ¶ 4.) APP is a wholly owned subsidiary of World Fuel Services, Inc. (Bengs Decl. ¶ 1.)

CT Propane has operated a gas station located at 1871 Colorado Boulevard in Los Angeles. (RJN Ex. 1 at ¶¶ 2, 30(b), 33; Trembley Decl. ¶ 2 & Ex. 1 at pp. 4-5 [Nos. 4, 6, 7].) The gas station is owned by Krystal Enterprises, LLC (“Krystal”). (RJN Ex. 1 at ¶¶ 2, 30(b), 32; Trembley Decl. ¶ 2 & Ex. 1 at pp. 4-5 [Nos. 4-7].) Defendant Veronica Escamilla is the agent and Chief Executive Officer of Krystal. (Trembley Decl. ¶¶ 2, 3 & Exs. 1 at pp. 4, 6 [Nos. 3, 10], Ex. 2.) Defendant Akop Akopyan is an officer of CT Propane. (RJN Ex. 3 at ¶ 1.)

On November 17, 2019, as 100% owner of CT Propane, defendant Gloria Leonor Cubides executed a credit application and Personal Guaranty (collectively “Credit Agreement”) and submitted it to WFS. (Bengs Decl. ¶ 6 & Ex. B.) The credit application states: “By signing below, the undersigned certify that the undersigned have read and understand and agree to be bound by this application for credit and all documents and other agreements submitted herewith.” Cubides signed the application. APP provided fuel to CT Propane on credit. (Bengs Decl. ¶ 7.)

CT Propane purchased fuel in the following manner. (Bengs Decl. ¶¶ 8, 9.) APP sent daily emails to CT Propane at the business email address identified on the Credit Agreement, apy@att.net. (Bengs Decl. ¶ 8(a).) The email address belongs to defendant Hakopian. (Trembley Decl. ¶ 5 & Ex. 4 at p. 4 [No. 5].) The daily emails contained current fuel pricing. When CT Propane wanted to purchase fuel, it submitted a request to one of APP’s third-party fuel carriers. (Bengs Decl. ¶ 8(b).) The third-party fuel carrier then notified APP of the request, and APP authorized delivery of fuel to CT Propane. (Bengs Decl. ¶ 8(c).) When the fuel was delivered, a CT Propane representative at the gas station signed a delivery ticket confirming the amount of fuel delivered. (Bengs Decl. ¶ 8(d).) An invoice was then sent to apy@att.net for the fuel delivery. (Bengs Decl. ¶ 8(e).)

APP seeks payment for 72 invoices totaling $3,037,692.62, all of which were due on or before July 10, 2022. (Bengs Decl. ¶¶ 13, 15, 18 & Ex. C.)

II.                ANALYSIS

All evidentiary objections are OVERRULED. The UNOPPOSED requests for judicial notice are GRANTED, pursuant to Evidence Code § 452(d).

Pursuant to CCP § 484.090, with respect to all three applications, the Court finds:

1)      the claim is one upon which attachment may be issued;

2)      plaintiff has established the probable validity of at least part of the claim;

3)      attachment is not sought for any purpose other than recovery on the claim; and

4)      the amount to be attached is greater than zero.

On November 17, 2019, defendant Cubides signed the Credit Agreement on behalf of CT Propane to purchase fuel from APP. (Bengs Decl. ¶ 6 & Ex. B.) By signing the Credit Agreement, Cubides agreed to be bound by the terms and conditions found at http://www.wfscorp.com/wfscorp/docs/gtc-land.pdf. (Bengs Decl. ¶ 6 & Ex. B at ¶ 19.) Within the last four years, CT Propane engaged in a course of dealing in which it would purchase fuel from APP pursuant to prices contained in daily emails and would thereaefter be invoiced for fuel delivered. (Bengs Decl. ¶ 8; see also Civ. Code § 1303(d) [course of dealing supplements terms of agreement].) The terms and conditions provide that payments on invoices are due no more than 15 days from the date of the invoice. (Bengs Decl. ¶ 19 & Ex. D.) The 72 invoices for which plaintiff seek payment remain unpaid, even though they were due on or before July 10, 2022. (Bengs Decl. ¶¶ 13, 15 & Ex. C.)

Defendants Gloria Leonor Cubides, Akop Hakopian, and Veronica Escamilla are the partners of CT Propane. (Cubides Decl. ¶¶ 3, 4; Hakopian Decl. ¶¶ 2, 3; Trembley Decl. ¶ 6 & Ex. 5.) “A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership.” (Corp. Code §§ 16305(a).) “[A]ll partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law.” (Corp. Code § 16306(a).) Accordingly, each of the three defendants is jointly and severally liable for the cost of the fuel delivered by APP.

CCP § 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. CCP § 489.220 provides, with exceptions, for an undertaking in the amount of $10,000. The Court will order an undertaking in the amount of $10,000 for each defendant.

The Court addresses the arguments in defendants’ three separately filed oppositions below.

A.    Defendant Cubides

As a preliminary matter, the Court notes that certain portions of defendant Cubides’ opposition were redacted. The Court has not received any conditional filing under seal.

Defendant Cubides does not dispute that she is a partner in CT Propane, which operated the gas station at issue. (Cubides Decl. ¶¶ 3, 4.) Accordingly, she is liable for the partnership’s debts. (Corp. Code § 16306(a).)

Cubides contends that the signatures on the Credit Agreement and Personal Guaranty are not hers. (Bengs Decl. ¶ 6 & Ex. B; Cubides Decl. ¶ 21.) Even assuming the truth of Cubides’ contention, about which the Court makes no finding, it is still true that APP delivered fuel to the gas station, that the fuel was accepted, and that APP invoiced the partnership for the fuel. (Bengs Decl. ¶¶ 13, 15 & Ex. C; Garcia Decl. ¶ 8 at Ex. E; Rodriguez Decl. ¶ 8 & Ex. F.) As a partner of CT Propane, Cubides is liable for the cost of the fuel delivered by APP.

Cubides also argues that the other defendants have refused to give her information necessary to oppose APP’s claim and that attaching her assets would be a deprivation of due process. Whether or not Cubides’ contentions are true, the evidence discussed above establishes that money is owed to APP for the fuel delivered and that APP’s claim against Cubides has probable validity due to her status as a partner of CT Propane. Cubides’ purported inability to obtain financial information from the co-defendants does not disentitle APP from attaching Cubides’ assets.

Cubides also contends that the application fails to specifically describe the property to be attached. “Where the defendant is a natural person, the description of the property shall be reasonably adequate to permit the defendant to identify the specific property sought to be attached.” (CCP § 484.020(e).) “The requirement of specificity [under CCP § 484.020(e) does not] … prohibit a plaintiff from targeting for attachment everything an individual defendant owns [s]o long as the property descriptions are adequate.” (Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 268.) Attachment 9(c) to the application against Cubides lists types of property and the statutes authorizing attachment. For example, APP seeks to attach Cubides’ account receivables under CCP § 488.470. (Att. 9(c)(2).) The descriptions in Attachment 9(c) are reasonably adequate.

Cubides also argues that the application extends to exempt property. Property exempt from attachment includes “[p]roperty which is necessary for the support of a defendant who is a natural person or the family of such defendant supported in whole or in part by the defendant.” (CCP § 487.020(b).) Cubides contends that she does not have the requested $4 million attachment, that her only source of income is from her operation of a gas station other than the one at issue in this action, and that she needs the income to pay her employees and her daily living expenses. (Cubides Decl. ¶¶ 4, 69, 70, 71.) Cubides, however, does not state what property she claims should be exempt, such as real property, instruments, securities, etc., or how much should be exempt. (See Att. 9(c) of Application.) Accordingly, Cubides fails in her burden to “[d]escribe the property claimed to be exempt.” (CCP § 484.070(c).) Accordingly, the Court declines to reduce the amount of attachment based on a purported exemption.

To the extent that the State of California has an interest in the assets, the normal rules of lien priority apply and does not prevent attachment. (CCP § 697.020.)

With respect to the undertaking, Cubides contends that attachment will cause her to terminate her business operations because she does not have enough money to cover the attachment. Cubides seeks an undertaking in the amount of the loss she would incur. “If, upon objection to the undertaking, the court determines that the probable recovery for wrongful attachment exceeds the amount of the undertaking, it shall order the amount of the undertaking increased to the amount it determines to be the probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful.” (CCP § 489.220(b).) Because Cubides provides no information concerning the cost of her business operations, however, the Court has insufficient information to determine the probable recovery for wrongful attachment, if any. The Court declines to order an increased undertaking as to defendant Cubides.

B.     Defendant Hakopian

Defendant Hakopian contends that the price of fuel that CT Propane purchased was not reasonably ascertainable. “[A]n 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) exclusive of costs, interest, and attorney’s fees.”  (CCP § 483.010(a).) 

The evidence demonstrates otherwise.  The fuel prices were set forth in daily emails sent to Hakopian, after which CT Propane ordered fuel, accepted delivery of the fuel, and was invoiced for the fuel pursuant to the price set forth in the corresponding daily email. (Bengs Decl. ¶ 8.) “A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.” (Civ. Code § 1589.) APP provides the delivery tickets and bills of lading evidencing that CT Propane accepted nearly all of the deliveries for which it was invoiced. (Garcia Decl. ¶ 8 & Ex. E [64 delivery tickets and bills of lading]; Rodriguez Decl. ¶ 8 & Ex. F [8 delivery tickets and bills of lading].)   Only the invoices identified as C-61, C-71, and C-72 lack a signature with respect to the corresponding delivery tickets and the bills of lading. (Bengs Decl. ¶ 13; Garcia Decl. ¶ 8 at Ex. E-61; Rodriguez Decl. ¶ 8 & Ex. F at F-7, F-8.) Accordingly, except for invoices C-61, C-71, and C-72, CT Propane must pay the amounts as invoiced.

Hakopian argues that certain delivery tickets do not show a “valid signature that belongs to any authorized representative or employee or CT Propane” during the relevant time period. (Hakopian Decl. ¶¶ 24, 27.) Except for certain deliveries stated above, the delivery tickets have a signature next to “Rec’d By,” indicating that CT Propane received the amount of fuel indicated on the delivery ticket. Hakopian does not describe what he means by “valid signature” or explain what in his view would make a signature invalid. Hakopian also does not state how he has knowledge to identify the signatures of authorized representatives or employees of CT Propane. Being a partner of CT Propane is an insufficient basis for personal knowledge. (See Hakopian Decl. ¶¶ 2, 3.) The Court therefore calculates the amount of attachment based on the invoices for which the corresponding delivery tickets were signed.

Hakopian also argues that the 612,719 gallons of fuel delivered, as reflected in the delivery tickets and invoices (Hakopian Decl. ¶¶ 21, 27, 28), is inaccurate based on Hakopian’s averment that the gas station never required more than 3-4 deliveries per week, as well as volumes of fuel as reflected in Veeder Root reports and the Credit Agreement. (Hakopian Decl. ¶¶ 20, 33-40.) The terms and conditions to which Cubides agreed on behalf of CT Propane state: “ANY CLAIM CONCERNING THE QUANTITY OR QUALITY OF ANY PRODUCT DELIVERED SHALL BE IRREVOCABLY WAIVED UNLESS MADE BY WRITTEN NOTICE, DELIVERED PROMPTLY UPON DISCOVERY OF SUCH DISPUTE, BUT IN NO EVENT LATER THAN FIVE (5) DAYS AFTER THE DELIVERY OF PRODUCT IN ISSUE.” (Bengs Decl. ¶ 19 & Ex. D at ¶ 14, emphasis in original.) Hakopian did complain to APP about the prices reflected in the invoices, after which APP revised and reissued invoices. (Bengs Decl. ¶ 15.) Defendants, however, “did not object, either orally or in writing, to any item identified in the invoices.” (Bengs Decl. ¶ 15.) Hakopian presents no evidence that he or anyone from CT Propane complained about the quantity of fuel reflected in the invoices. Therefore, defendants, including Hakopian, can no longer claim that the volumes reflected in the invoices are inflated.

Based on the foregoing, with respect to the amount of attachment, the principal amount of $3,037,692.62 is reduced by $134,556.50 to $2,903,136.12 ($45,484.80 [Invoice C-61] + $43,793.13 [Invoice C-71] + $45,278.57 [Invoice C-72]).

The Court recalculates interest using the formula provided by APP (Bengs Decl. ¶¶ 23, 24):

Step 1: $2,903,136.12 x 24% = $696,752.67

Step 2: $696,752.67÷ 365 = $1,908.91

Step 3: $1,908.91 x 792 (days between from August 1, 2022, to October 1, 2024) = $1,511,856.72

With respect to the undertaking, Hakopian contends that an undertaking of $30,000 ($10,000 for each defendant) is insufficient. “If, upon objection to the undertaking, the court determines that the probable recovery for wrongful attachment exceeds the amount of the undertaking, it shall order the amount of the undertaking increased to the amount it determines to be the probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful.” (CCP § 489.220(b).) Hakopian claim that he would suffer irreparable harm from the requested attachment is based on his claims, discussed above, that there are purported discrepancies in APP’s claim for attachment as compared to the evidence presented. (Hakopian Opp. at 10:17-20.) Because the Court finds APP’s claim to be in large part probably valid, the Court finds an increase in the undertaking to be unnecessary.

C.     Defendant Escamilla

Defendant Escamilla contends that she is not a partner of CT Propane and that her only connection with the gas station at issue in the instant action is as a landlord through Krystal Enterprises LLC, of which she is a managing member. (Escamilla Decl. ¶¶ 6-14.)

However, on March 21, 2018, Escamilla filed a Fictitious Business Name Statement for CT Propane Fuels located at 1871 Colorado Boulevard in Los Angeles, which she signed as an “Owner.” (Trembley Decl. ¶ 6 & Ex. 5.) In her opposition, Escamilla contends that she does not recall signing the form and that it was a mistake for her to have been included on this form. (Escamilla Decl. ¶¶ 16-18.) The accountant who prepared the form declares that his office accidentally included Escamilla’s name on the form, as his office just prepared another Fictitious Business Name Statement for a different business owned by Escamilla. (Bedevian Decl. ¶¶ 5-7.)

In the now-consolidated action titled Krystal Enterprises LLC, et al. v. Gloria L. Cubides, et al., LASC Case No. 24STCV01702, however, Escamilla admitted paragraph 55 of Cubides’ first amended cross-complaint in her Answer. (Supp. Trembley Decl. ¶ 3 & Ex. 9 at ¶ 55.) In paragraph 55 of Cubides’ first amended cross-complaint, it is alleged: “On or about March 21, 2018, Escamilla signed and filed a Fictitious Business Name Statement with the Los Angeles County Recorder claiming to be the registered owner of Ct Propane Fuels with a business address at Colorado.” (RJN Ex. 1 at ¶ 55.) In her Answer, Escamilla did not attempt to clarify that her signature was unintentional.

Based on the showing before the Court, the Court finds that, for the purposes of the instant application, Escamilla was a partner in CT Propane and the claim against her has probable validity. Accordingly, the Court will allow attachment of Escamilla’s assets.

III.             CONCLUSION

The applications against defendants Gloria Leonor Cubides, Akop Hakopian, and Veronica Escamilla are each GRANTED IN PART in the amount of $4,596,230.68 ($2,903,136.12 principal + $173,955.50 attorney fees + $7,282.34 costs + $1,511,856.72 interest).

Plaintiff Associated Petroleum Products, Inc. shall post an undertaking in the amount of $10,000.00 as to each defendant before any writ shall issue.

The Court will sign the proposed orders submitted by plaintiff on November 26, 2024 with modifications to the amount to be attached.