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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-12-2014 12:30 pm
Case Number: CGC-13-531852
Filing Date: Aug-12-2014 12:26
Filed by:
Juke Box: 001 Image: 04583262
MEMORANDUM OF POINTS AND AUTHORITIES
IBARRA PROFESSIONAL LAW CORPORATION VS. ELENA DENING
001004583262
Instructions:
Please place this sheet on top of the document to be scanned.Crisostomo G. Ibarra (SBN 103480)
Gener D. Benitez (SBN 206765)
Ibarra Professional Law Corporation
459 Fulton Street, Suite 109
San Francisco, CA 9410
Telephone: (415) 398-5329
Facsimile: (415) 398-6831
Attorneys for Plaintiff
IBARRA PROFESSIONAL LAW CORPORATION
SUPERIOR COURT OF CALIFORNIA.
COUNTY OF SAN FRANCISCO
LIMITED JURISDICTION
IBARRA PROFESSIONAL LAW Case No.: CGC-13-531852
CORPORATION,
. PLAINTIFF’S SUMMARY OF THE CASH
Plaintiff, AND MEMORANDUM OF POINTS AND
vs AUTHORITIES
ELENA DENING,
Defendant.
I. INTRODUCTION.
This action involves the nonpayment of attorneys’ fees.
Plaintiff, Ibarra Professional Law Corporation (“Plaintiff”), is a California professional
law corporation. Crisostomo G. Ibarra, an attorney licensed to practice before all the courts of
California, is its sole shareholder.
Defendant Elena Dening (“Defendant”) is an individual.
Il. STATEMENT OF FACTS.
Defendant first consulted with Crisostomo G. Ibarra on June 16, 2011 regarding the
custody and support of her two daughters. On or about that date, Defendant signed an Hourly
Retainer Agreement in order to have Plaintiff help with Defendant’s claim.
Plaintiff's Trial Brief - 1Payment for the retainer was as follows: it was going to be an hourly retainer,
Defendant was to deposit $1,000.00, and Defendant was to make monthly payments on every
15th of each month in the amount of $200.00. This fee agreement was consistent with the
financial situation of Defendant at the time.
The hourly retainer agreement also called for ten percent per annum interest for all
unpaid bills 30 days and over.
Defendant paid the $1,000 deposit, and also made a $400.00 payment on August 16,
2011.
Pursuant to the agreement, and at the request of Defendant, Plaintiff defended
Defendant and because Defendant was unmarried to the father of children, Plaintiff had to file
what is called a “Marvin” claim, pursuant to Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106.
Pursuant to the agreement, Plaintiff kept track of all the legal services, costs and court
appearances, which amounted to $26,228.00 (Invoices # 9733 and #9737).
Defendant failed to pay the invoices.
Plaintiff sent letters to Defendant on September 20, 2011 about her unpaid invoices.
Defendant acknowledged these amounts during an office consultation on September 21, 2011.
On October 13, 2011, despite a running unpaid balance, Plaintiff continued to render
legal services to Defendant, which amounted $8,614.00, increasing the total balance as of that
date to $34,842.00.
On January 23, 2012, pursuant to the agreement, Plaintiff applied a finance charge in
the amount of $850.61, increasing the total balance as of that date to $35,692.61.
As of August 1, 2012, pursuant to the agreement, Plaintiff applied finance charge in the
amount of 1,555.02, increasing the total balance as of that date to $37,247.63. On the same
day, Plaintiff sent defendant a Notice of Client’s Right to Arbitration for the same amount.
Defendant did not request arbitration.
On June 3, 2013, Plaintiff filed a complaint in this Court for breach of contract and
common counts, claiming $37,247.63 in damages, and interest on the damages.
Plaintiff's Trial Brief - 2Defendant was served the summons and complaint by substituted service on April 15,
2014.
Plaintiff requested for entry of default against Defendant on June 17, 2014. Default was
entered against Defendant on June 18, 2014.
III. ARGUMENT.
A. Breach of Contract
In order to prevail on a breach of contract claim, a plaintiff must prove the following: (1)
the existence of a contract; (2) plaintiff's performance or excuse for non-performance; (3)
defendant’s breach; and (4) damages to plaintiff therefrom. See Acoustics, Inc. v. Trepte
Construction Co. (1971) 14 Cal. App. 3d 887, 913.
Here, Plaintiff satisfies all the elements of a breach of contract claim. A contract exists
between Plaintiff and Defendant executed on or about June 16, 2011 to perform various legal
services for Defendant, including, defending Defendant in family law’s custody and child support
suit, as well as a civil complaint against the father of her daughters. Plaintiff has performed the
legal services, which resulted in settlement for Defendant. Defendant breached the agreement
by failing to pay Plaintiff as required by the agreement. Plaintiff has been damaged in that it
has not been paid for its legal services.
Accordingly, the Court should find that defendant breached the agreement and hold the
following: that Defendant is liable for the principal amount of $37,247.63, plus prejudgment
interest from August 1, 2012, the time of the mailing of the notice of Client’s right to
arbitration, until August 8, 2014, in the amount of $7,520.96, and daily interest of $10.20 to
the time of the judgment.
B. Alternative Relief—Quantum Meruit
In order to recover under a quantum meruit theory, a plaintiff must establish both that:
(1) the plaintiff was acting pursuant to either an express or implied request for such services
from the defendant, and, (2) that the services rendered were intended to and did benefit the
defendant. See Day v. Alta Bates Med. Ctr. (2002) 98 Cal. App. 4" 243, 248-49.
Plaintiff's Trial Brief - 3Here, Defendant expressly requested the services of Plaintiff, Plaintiff rendered the
services, and, the services benefitted the defendant. Plaintiff should be able to recover its
reasonable value of services.
If for any reason the Court should find the retainer agreement does not apply (including
its interest provision), which it should, prejudgment interest in quantum meruit claims can only
go back to the date of the filing of the Complaint. See California Civil Code §3287 (b); George|
v. Double-D Foods, Inc. (1984) 155 Cal. App. 3d 36, 45-47.
Therefore, the Ibarra Professional Law Corporation damages, under a quantum meruit
claim, should be $34,842.00, plus prejudgment interest of $4,114.22 from the time of the filing
of the Complaint on June 3, 2013 until August 8, 2014, and daily interest of $9.55 to the time
of the judgment
Dated: August 8, 2014 Respectfully submitted by,
Crisostomo G. Ibarra for
Plaintiff Ibarra PLC
Plaintiff's Trial Brief - 4
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OOOO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-12-2014 12:30 pm Case Number: CGC-13-531852 Filing Date: Aug-12-2014 12:26 Filed by: Juke Box: 001 Image: 04583262 MEMORANDUM OF POINTS AND AUTHORITIES IBARRA PROFESSIONAL LAW CORPORATION VS. ELENA DENING 001004583262 Instructions: Please place this sheet on top of the document to be scanned.Crisostomo G. Ibarra (SBN 103480) Gener D. Benitez (SBN 206765) Ibarra Professional Law Corporation 459 Fulton Street, Suite 109 San Francisco, CA 9410 Telephone: (415) 398-5329 Facsimile: (415) 398-6831 Attorneys for Plaintiff IBARRA PROFESSIONAL LAW CORPORATION SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN FRANCISCO LIMITED JURISDICTION IBARRA PROFESSIONAL LAW Case No.: CGC-13-531852 CORPORATION, . PLAINTIFF’S SUMMARY OF THE CASH Plaintiff, AND MEMORANDUM OF POINTS AND vs AUTHORITIES ELENA DENING, Defendant. I. INTRODUCTION. This action involves the nonpayment of attorneys’ fees. Plaintiff, Ibarra Professional Law Corporation (“Plaintiff”), is a California professional law corporation. Crisostomo G. Ibarra, an attorney licensed to practice before all the courts of California, is its sole shareholder. Defendant Elena Dening (“Defendant”) is an individual. Il. STATEMENT OF FACTS. Defendant first consulted with Crisostomo G. Ibarra on June 16, 2011 regarding the custody and support of her two daughters. On or about that date, Defendant signed an Hourly Retainer Agreement in order to have Plaintiff help with Defendant’s claim. Plaintiff's Trial Brief - 1Payment for the retainer was as follows: it was going to be an hourly retainer, Defendant was to deposit $1,000.00, and Defendant was to make monthly payments on every 15th of each month in the amount of $200.00. This fee agreement was consistent with the financial situation of Defendant at the time. The hourly retainer agreement also called for ten percent per annum interest for all unpaid bills 30 days and over. Defendant paid the $1,000 deposit, and also made a $400.00 payment on August 16, 2011. Pursuant to the agreement, and at the request of Defendant, Plaintiff defended Defendant and because Defendant was unmarried to the father of children, Plaintiff had to file what is called a “Marvin” claim, pursuant to Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106. Pursuant to the agreement, Plaintiff kept track of all the legal services, costs and court appearances, which amounted to $26,228.00 (Invoices # 9733 and #9737). Defendant failed to pay the invoices. Plaintiff sent letters to Defendant on September 20, 2011 about her unpaid invoices. Defendant acknowledged these amounts during an office consultation on September 21, 2011. On October 13, 2011, despite a running unpaid balance, Plaintiff continued to render legal services to Defendant, which amounted $8,614.00, increasing the total balance as of that date to $34,842.00. On January 23, 2012, pursuant to the agreement, Plaintiff applied a finance charge in the amount of $850.61, increasing the total balance as of that date to $35,692.61. As of August 1, 2012, pursuant to the agreement, Plaintiff applied finance charge in the amount of 1,555.02, increasing the total balance as of that date to $37,247.63. On the same day, Plaintiff sent defendant a Notice of Client’s Right to Arbitration for the same amount. Defendant did not request arbitration. On June 3, 2013, Plaintiff filed a complaint in this Court for breach of contract and common counts, claiming $37,247.63 in damages, and interest on the damages. Plaintiff's Trial Brief - 2Defendant was served the summons and complaint by substituted service on April 15, 2014. Plaintiff requested for entry of default against Defendant on June 17, 2014. Default was entered against Defendant on June 18, 2014. III. ARGUMENT. A. Breach of Contract In order to prevail on a breach of contract claim, a plaintiff must prove the following: (1) the existence of a contract; (2) plaintiff's performance or excuse for non-performance; (3) defendant’s breach; and (4) damages to plaintiff therefrom. See Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal. App. 3d 887, 913. Here, Plaintiff satisfies all the elements of a breach of contract claim. A contract exists between Plaintiff and Defendant executed on or about June 16, 2011 to perform various legal services for Defendant, including, defending Defendant in family law’s custody and child support suit, as well as a civil complaint against the father of her daughters. Plaintiff has performed the legal services, which resulted in settlement for Defendant. Defendant breached the agreement by failing to pay Plaintiff as required by the agreement. Plaintiff has been damaged in that it has not been paid for its legal services. Accordingly, the Court should find that defendant breached the agreement and hold the following: that Defendant is liable for the principal amount of $37,247.63, plus prejudgment interest from August 1, 2012, the time of the mailing of the notice of Client’s right to arbitration, until August 8, 2014, in the amount of $7,520.96, and daily interest of $10.20 to the time of the judgment. B. Alternative Relief—Quantum Meruit In order to recover under a quantum meruit theory, a plaintiff must establish both that: (1) the plaintiff was acting pursuant to either an express or implied request for such services from the defendant, and, (2) that the services rendered were intended to and did benefit the defendant. See Day v. Alta Bates Med. Ctr. (2002) 98 Cal. App. 4" 243, 248-49. Plaintiff's Trial Brief - 3Here, Defendant expressly requested the services of Plaintiff, Plaintiff rendered the services, and, the services benefitted the defendant. Plaintiff should be able to recover its reasonable value of services. If for any reason the Court should find the retainer agreement does not apply (including its interest provision), which it should, prejudgment interest in quantum meruit claims can only go back to the date of the filing of the Complaint. See California Civil Code §3287 (b); George| v. Double-D Foods, Inc. (1984) 155 Cal. App. 3d 36, 45-47. Therefore, the Ibarra Professional Law Corporation damages, under a quantum meruit claim, should be $34,842.00, plus prejudgment interest of $4,114.22 from the time of the filing of the Complaint on June 3, 2013 until August 8, 2014, and daily interest of $9.55 to the time of the judgment Dated: August 8, 2014 Respectfully submitted by, Crisostomo G. Ibarra for Plaintiff Ibarra PLC Plaintiff's Trial Brief - 4