Judge: Daniel S. Murphy, Case: 18STCV01201, Date: 2025-01-24 Tentative Ruling

Case Number: 18STCV01201    Hearing Date: January 24, 2025    Dept: 32

BACKGROUND

In October 2018, AMAG, Inc. (“Plaintiff”) commenced this action against Marc Anthony Cubas, et al. (“Defendants”), asserting causes of action for creditor’s suit, fraudulent conversion, and declaratory relief. The lawsuit stems from an underlying judgment wherein Vlaze was found liable to AMAG for unpaid loans. Marc Cubas was Vlaze’s CEO, and he allegedly made several fraudulent transfers of real and personal property to other Defendants to avoid debt collection. By this action, AMAG seeks to unwind these transfers and to apply these assets to the unpaid balance of the money judgment. The operative complaint is the First Amended Complaint (“FAC”) filed August 4, 2020, alleging fraudulent conversion and declaratory relief.

On October 28, 2021, the Court granted Defendants’ motion for summary judgment as to all Defendants except Omar Zambrano and the Zambrano Law Corporation. On February 2, 2022, default was entered against Vlaze pursuant to a November 11, 2021 court order striking its answer. Plaintiff appealed the grant of summary judgment.

In a decision dated November 6, 2023, the Court of Appeal affirmed in part and reversed in part. The Court of Appeal affirmed the Court’s decision as to most of the defendants, finding that Plaintiff had failed to present evidence demonstrating any transfer from the judgment debtor (Vlaze) to those defendants. However, the Court of Appeal reversed as to Marc Cubas and Injected Arts, finding a triable issue based on the possibility that Cubas and Injected Arts “did not provide rental income due to Vlaze under a 99-year lease of real property to Vlaze.” The Court of Appeal found that “AMAG demonstrated a triable question as to whether Vlaze’s long-term lease qualifies as an asset and whether Injected Arts and Cubas diverted the value of that asset.” The case was remanded to this Court for further proceedings.

The issue then became whether the 2009 Lease was valid. Marc Cubas’ signature on the 2009 Lease is exactly the same as a signature found on a 2012 Grant Deed. That raised the question of which document contained the authentic signature and which one was forged. Defendants contend that Marc Cubas’ signature on the 2009 Lease was forged, or cut and paste from the 2012 Grant Deed. Plaintiff maintains that the 2009 Lease was authentic and that the 2012 Grant Deed was forged.

To prove that Marc Cubas signed the 2012 Grant Deed, Defendants presented evidence of his travel itinerary to show that he was in Los Angeles on July 2, 2012 to sign the Grant Deed. However, Plaintiff subsequently presented evidence that Marc Cubas forged his itinerary and lied about his whereabouts on July 2, 2012. Nonetheless, based on the original wet-ink 2012 Grant Deed presented at trial by Nadia Nino, the Court found that the 2012 Grant Deed was valid and the 2009 Lease was forged. The Court therefore concluded that the 2009 Lease was invalid and did not represent any fraudulent transfer. Accordingly, judgment was entered for Defendants.  

On December 26, 2024, Plaintiff filed the instant motion for new trial based on additional evidence purportedly showing that Marc Cubas’ signature on the 2012 Grant Deed was forged. Defendants filed their opposition on January 6, 2025. Plaintiff filed its reply on January 16, 2025. Defendants filed an unauthorized supplemental opposition on January 17, 2025, which will not be considered.

LEGAL STANDARD

A verdict may be vacated, and a new trial granted, on the following grounds to the extent they materially affect the substantial rights of a party: (1) irregularity in the proceedings; (2) misconduct of the jury; (3) accident or surprise; (4) newly discovered evidence; (5) excessive or inadequate damages; (6) insufficiency of the evidence; or (7) error in law. (Code Civ. Proc., § 657.)

DISCUSSION

            Plaintiff moves for a new trial based on newly discovered evidence, surprise, and irregularity in the proceedings. (Mtn. 2:6-12, 3:1-8.)

“A party moving for a new trial on the ground of newly discovered evidence must show that he could not, with reasonable diligence, have discovered or produced the evidence at the trial.” (Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 730-31.) “Whether or not a reasonable effort was made to discover the evidence is an issue best left to the trial court.” (Id. at p. 731.) Surprise justifies a new trial only if “ordinary prudence could not have guarded against” it. (Code Civ. Proc., § 657(3).) Irregularity in the proceedings warrants a new trial if “either party was prevented from having a fair trial.” (Id., § 657(1).)

            Plaintiff’s newly discovered evidence is a December 20, 2024 report by its expert, Michael Wakshull, concluding that Marc Cubas’ signature on the 2012 Grant Deed was forged. (See Wakshull Decl.) Specifically, Mr. Wakshull’s report states that “it is more likely than not the signature on the Grant Deed was traced from the signature on the lease.” (Ibid.)

            Plaintiff contends that it was surprised by Nadia Nino’s introduction of the original 2012 Grant Deed at trial and could not obtain Mr. Wakshull’s analysis on time. However, Plaintiff was put on notice as early as January 2024 that the 2012 Grant Deed would be material because Defendants moved for summary judgment on the grounds that Marc Cubas’ signature on the 2009 Lease was cut and paste from the 2012 Grant Deed. Plaintiff’s contention that it believed a subpoena would have been futile simply because Defendants did not attach the deed to their MSJ is not convincing. (See Mtn. 12:26-13:3.) The failure to investigate a document which Plaintiff should have known was material evidences a lack of diligence. Furthermore, Plaintiff had every opportunity to test the veracity of the 2012 Grant Deed after it was admitted into evidence, especially once the Court reopened trial on the issue of whether Cubas signed the 2012 Grant Deed. There was no reason to wait until December 2024 to obtain an expert report. Thus, the Court finds that Plaintiff did not act with “reasonable diligence” in producing the new evidence. (See Santillan, supra, 202 Cal.App.4th at pp. 730-31.) 

Even assuming Plaintiff was diligent, Plaintiff has not demonstrated that the Wakshull report would “render a different result probable,” given existing evidence of the authenticity of the 2012 Grant Deed and inauthenticity of the 2009 Lease. (See People v. Rafael B.D.R. (2024) 101 Cal.App.5th 385, 395.) For example, the Wakshull report does not address, much less challenge, the wet signature of the notary (Nadia Nino) on the 2012 Grant Deed.[1] Plaintiff also does not articulate any logical reason for Defendants to trace Marc Cubas’ signature from the 2009 Lease onto the 2012 Grant Deed. And while the Wakshull report concludes that Marc Cubas’ signature on the 2012 Grant Deed was “probably” or “more likely than not” forged (Wakshull Decl.), Defendants’ experts conclude with higher certainty that the signature is authentic (see Kulbacki Decl., Ex. A [“The Marc Cubas signature appearing on Item 5 (the ‘Grant Deed’) is an original, written-ink-on-paper”]; Mohammed Decl., Ex. A [“The questioned signature in the name of Marc A. Cubas on Item Q1 is an original handwritten, wet-ink signature”]).  Wakshull acknowledged that Susana Cubas’ notary signature on the lease was identical to the signature on a 2019 durable power of attorney.  Plaintiff has failed to articulate a rational reason for Marc Cubas to trace the signature on the lease to the 2012 deed.  Plaintiff has also failed articulate a rational reason for why Susana Cubas’ identical signature as a notary is on the lease and a 2019 durable power of attorney. 

Finally, it should be noted that Nadia Nino presented the original 2012 Grant Deed in the first place because of Plaintiff’s subpoena. (See Plntf.’s RJN, Ex. C at 7:28-8:18.) Having subpoenaed a witness for proof of the deed’s authenticity, Plaintiff cannot claim to be surprised that the original wet-ink document was placed at issue. And as discussed above, Plaintiff had the opportunity to challenge the authenticity of the Grant Deed after it was introduced and did not have to wait until December 2024. (See Santillan, supra, 202 Cal.App.4th at p. 730 [“the general rule . . . requires a party who is surprised by evidence at trial to apply for relief as soon as possible, instead of speculating on the chances of a favorable verdict and then moving for a new trial if he loses”].)    

            Under these circumstances, the Court does not find that Plaintiff was surprised by the introduction of the 2012 Grant Deed or deprived of a fair opportunity to test its authenticity. Plaintiff could have mitigated the purported surprise through “ordinary prudence.” (See Code Civ. Proc., § 657(3).) Accordingly, the Court’s consideration of the document did not constitute irregularity in the proceedings which deprived Plaintiff of a fair trial. (See id., § 657(1).)

            In sum, the Court finds that: (i) Plaintiff did not exercise reasonable diligence to justify a new trial based on newly discovered evidence; (ii) the evidence would not have produced a different result; (iii) there was no unfair surprise at trial; and (iv) there was no irregularity in the proceedings.

CONCLUSION

            Plaintiff’s motion for new trial is DENIED.