Judge: Curtis A. Kin, Case: 23STLC02420, Date: 2023-08-08 Tentative Ruling

Case Number: 23STLC02420    Hearing Date: August 8, 2023    Dept: 82

Plaintiff Executive Presentations, Inc. moves for a writ of attachment against defendant Maro Burunsuzyan in the amount of $27,599.57.

I.       Factual Background

            On October 8, 2021, plaintiff Executive Presentations, Inc. (“EPI”) and defendant Maro Burunsuzyan, an attorney, entered into an oral contract whereby EPI would provide trial preparation services in connection with an action entitled Matthew G. Lopez Bautista v. Foothill Presbyterian Hospital et al., LASC Case No. BC693486 (“Bautista Action”). In the Bautista Action, Burunsuzyan represented Matthew G. Lopez Bautista, by and through appointed guardian ad litem Karina Bautista. Karina Bautista is named as a defendant in the instant action. EPI and Burunsuzyan agreed that EPI would bill for services at its standard rates.

            EPI billed Burunsuzyan in the amount of $19,964.50 for services rendered from mid-October to mid-November 2021. In the Bautista Action, through a petition for approval of compromise, Karina Bautista was awarded the amount of the costs of EPI’s services. EPI seeks to recover the sum of $19,964.50, plus interest and costs, from Burunsuzyan and Karina Bautista.

Burunsuzyan filed a Cross-Complaint against EPI. Burunsuzyan alleges that EPI failed to inform her of rate increases and misrepresented the number of hours worked.

II.      Applicable Law

            “Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” (CCP § 484.010.)

The application shall be executed under oath and must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and (5) a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment. (CCP § 484.020.)

            The application for a writ of attachment must be supported “by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.” (CCP § 484.030.)

The Court shall consider the showing made by the parties, as well as the pleadings and other papers in the record. (CCP § 484.090(a), (d).) The Court shall issue a right to attach order if it finds 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.

(CCP § 484.090(a)(1-4).)

            At the times prescribed by CCP § 1005(b), the defendant must be served with a copy of the summons and complaint, notice of application and hearing, and a copy of the application and supporting affidavits. (CCP § 484.040.)

“The Attachment Law statutes are subject to strict construction….” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

III.     Analysis

A.   Evidentiary Objections

The evidentiary objections are OVERRULED.

B.   Notice

The proofs of service attached to the moving papers indicates that service was timely. Defendant Burunsuzyan filed an opposition.

C.   Basis of Attachment

“[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).)  “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….”  (CCP § 483.010(b).) 

EPI maintains that its claims in the instant action arise out of an oral agreement whereby it agreed to provide trial preparation services for Burunsuzyan in the Bautista Action. (Kraemer Motion Decl. ¶ 5.) According to Richard Kraemer, the president of EPI, Burunsuzyan agreed that EPI would charge her for the trial preparation services at EPI’s “standard rates.” (Id. ¶¶ 1, 5.)

            Burunsuzyan does not deny that she engaged EPI. (Burunsuzyan Decl. ¶ 4.) Rather, she contends that the contract was not in writing and that she was never provided a fee schedule or estimate of hours or charges for the estimated work. (Ibid.) Burunsuzyan declares that her understanding was that, based on past engagements with EPI, the hourly rate would be $195.00. (Id. ¶ 5.)

CCP § 483.010(b) does not restrict the relief of attachment to written contracts. Under the statute, an attachment may be issued on an express or implied oral contract if the total amount of the claim or claims is fixed or readily ascertainable and $500 or more.

The invoice for which EPI seeks payment, Invoice No. 27162, contains an hourly rate of $295. (Ex. 2.) In the Baustista Action, Burunsuzyan twice represented in petitions for approval of compromise of action that $19,964.50, the amount which is sought in Invoice No. 27162, was incurred, reasonable, and should be paid out of the share of the proceeds of the settlement in the Bautista Action. (Kramer Motion Decl. ¶¶ 10-16 & Exs. 3, 4 at p. 5 and Attachment 13b.) Judicial estoppel “prohibits a party from taking inconsistent positions in the same or different judicial proceedings.” (M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 463.) Because Burunsuzyan maintained in the Bautista Action that the amount sought in Invoice No. 27162 was incurred and reasonable, under the doctrine of judicial estoppel, Burunsuzyan may not be able to maintain that the hourly rates upon which the amount sought in Invoice No. 27162 were not incurred or unreasonable.

Burunsuzyan maintains that she made clear during the hearing on the settlement petition that Invoice No. 27162 remained in dispute. (Burunsuzyan Decl. ¶ 11; see also id. ¶¶ 8, 9 [on 11/29/21, before Burunsuzyan signed first and second petitions for approval of compromise, she disputed $295 hourly rate].) EPI notes that Burunsuzyan does not have a transcript from the hearing that supports her assertion. (Revitz Reply Decl. ¶ 5.) Even if Burunsuzyan never notified the Court in the Bautista Action of the dispute concerning Invoice No. 27162, because judicial estoppel is an equitable doctrine, this Court has discretion to determine whether to apply the doctrine. (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46–47.) Burunsuzyan asserts that she had an obligation to seek the approval of the full amount sought in Invoice No. 27162 in case the amount is owed. (Burunsuzyan Decl.¶ 11.) This assertion is well taken. If Burunsuzyan had sought and obtained Court approval for only the $3,412.50 she now contends is a reasonable amount, she would not be permitted to use Baustista Action settlement funds to pay the full amount of Invoice No. 27162 in the event it were later determined in this action that the full invoice amount is owed to plaintiff. Under these circumstances, the Court exercises its discretion not to deem Burunsuzyan judicially estopped from asserting that she did not agree to an hourly rate of $295.

Nevertheless, while Burunsuzyan disputes that she was subject to a $295 hourly rate, it cannot be ignored that she paid the prior invoice containing this same hourly rate. (Kraemer Motion Decl. ¶ 6 & Ex. 1.) Burunsuzyan paid the invoice in full. (Id. ¶ 6.) A contract may be accepted by performance. (Merced County Sheriff's Employee's Assn. v. County of Merced (1987) 188 Cal.App.3d 662, 670 [“The manifestation of assent to a contractual provision may be ‘wholly or partly by written or spoken words or by other acts or by failure to act’”].) Burunsuzyan attempts to explain this conduct by contending that, because EPI demanded immediate payment of that invoice, she forwarded the invoice to her assistant for payment without reviewing it in any detail. (Burunsuzyan Decl. ¶ 6.)

Mutual consent is required in all contracts. (Civ. Code § 1565.) “The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe. Accordingly, the primary focus in determining the existence of mutual consent is upon the acts of the parties involved.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 789, internal quotations and citations omitted.) Here, Burunsuzyan paid the first invoice in full without objection and makes no averment to the contrary. Based on Burunsuzyan’s payment of the previous invoice without express or implied objection, a reasonable person would believe that she assented to pay an hourly rate of $295.

Burunsuzyan also argues that an invoice does not evidence the agreed upon terms of a contract. “[A]n invoice, standing alone, is not a contract.” (India Paint & Lacquer Co. v. United Steel Products Corp. (1954) 123 Cal.App.2d 597, 607.) Here, Burunsuzyan’s assent to a $295 hourly rate is supported by her past payment of such a rate, not just the terms indicated on Invoice No. 27162. Because Burunsuzyan does not dispute that she engaged EPI and because she manifested her assent to a $295 hourly rate by paying an invoice issued prior to Invoice No. 27162, the Court finds that EPI’s claim for payment of Invoice No. 27162 is one upon which attachment may be issued.

D.   Probable Validity of Plaintiff’s Claims

“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.” (CCP § 481.190.) “If the defendant opposes the application, ‘the court must then consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.’ [Citations.]” (Pech v. Morgan (2021) 61 Cal.App.5th 841, 855.)

            With respect to whether Burunsuzyan agreed to pay EPI an hourly rate of $295, for the reasons stated above with respect to past performance, the Court finds a probable validity that she agreed to the $295 hourly rate.

            Burunsuzyan also contends that the hours set forth in Invoice No. 27162 are inflated. (Burunsuzyan Decl. ¶ 8.) She maintains that EPI billed for unnecessary or unrequested work or for time when the technician was not working. (Ibid.) With respect to inflated billing, Burunsuzyan essentially argues in her email to EPI dated November 29, 2021 that the work for which she was billed should have taken less time than EPI billed. (Id. ¶ 9 & Ex. B.) However, Burunsuzyan’s opinions regarding the required amount of time to perform certain tasks, standing alone, are insufficient to excuse her contractual obligation to pay for EPI’s services at its standard rates. Burunsuzyan does not provide any documentary evidence from which the Court can evaluate the validity of her opinions. Further, in response, EPI avers that there was no charge to Burunsuzyan that was overbilled or not performed. (Kraemer Reply Decl. ¶¶ 9, 10.) EPI explains that its technician logged in his hours and revised slides based on the direction of Burunsuzyan. (Id. ¶¶ 9, 10 & Ex. B.) Based on the record before the Court, the Court cannot find, at least for the purpose of evaluating the instant application for writ of attachment, that Burunsuzyan’s assertions of overbilling are true.

Accordingly, EPI demonstrate the probable validity of its claim for breach of contract against Burunsuzyan.

E.   Purpose and Amount of Attachment

The other required findings under CCP § 484.090 are that the “attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based” and that the “amount to be secured by the attachment is greater than zero.” (CCP § 484.090(a)(3), (a)(4).)

EPI declares that attachment is not sought for a purpose other than the recovery on plaintiff’s claim. (See App. ¶ 4.) Burunsuzyan asserts that there is no risk to EPI’s recovery. (Burunsuzyan Decl. ¶ 11.) EPI is not obligated to take Burunsuzyan at her word. As long as EPI makes the required showing under CCP § 484.090, EPI is entitled to a right to attach order.

With respect to the amount of the requested attachment, the amount requested by EPI to be secured is greater than zero. EPI seeks $3,435.07 in accrued interest from the date Invoice No. 27162 was issued to Burunsuzyan. (Kraemer Motion Decl. ¶¶ 33-35.) Burunsuzyan does not directly address EPI’s argument regarding interest or dispute EPI’s calculation. EPI’s stated methodology in calculating interest appears correct.

EPI also seeks anticipated costs in the amount of $3,000 and attorney fees in the amount of $1,200 for its open book account claim pursuant to Civil Code § 1717.5(a). (See Civ. Code § 1717.5(a) [stating recoverable attorney fees for parties prevailing on open book account claim].) Burunsuzyan does not directly address EPI’s claim to include costs and attorney’s fees in the amount of attachment, and the amount of costs and attorney’s fees stated by EPI appear to be reasonable on their face.

F.   Property Subject to Attachment

CCP § 487.010(c) lists categories of property which is subject to attachment where the defendant is a natural person. EPI moves to attach property in which Burunsuzyan has an interest and which is permissible under CCP § 487.010(c). (Att. 9(c) to App.)

G.   Exemptions

Defendant Burunsuzyan has not filed a claim of exemption. 

H.  Undertaking

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. Defendant Burunsuzyan does not argue for a different amount of undertaking.

IV.     Conclusion

            The application for a Right to Attach Order and Order for Issuance of Writ of Attachment is GRANTED in the amount of $27,599.57. Plaintiff Executive Presentations, Inc. is ordered to post an undertaking in the amount of $10,000 before any writ shall issue.