Judge: David A. Rosen, Case: 22GDCV00275, Date: 2022-12-30 Tentative Ruling

Case Number: 22GDCV00275    Hearing Date: December 30, 2022    Dept: E

Hearing Date: 12/30/2022 – 8:30am
Case No. 22GDCV00275
Trial Date: 07/31/2023
Case Name: LA CRESCENTA CHAPTER OF THE ARMENIAN CULTURAL FOUNDATION, an unincorporated association; v. ARMENIAN CULTURAL FOUNDATION, a California public benefit nonprofit corporation; and DOES 1-5

TENTATIVE RULING– MOTION TO INTERVENE

Moving Party:  Intervenor, La Crescenta Chapter of the Armenian Cultural Foundation (“Intervenor”)
Responding Party: No Opposition

 

A Notice of Non-Opposition to Motion for Leave to Intervene was submitted.

 

RELIEF REQUESTED¿ 
Intervenor, La Crescenta Chapter of the Armenian Cultural Foundation, moves the Court for an order granting Intervenor leave to intervene in this action.

 

This motion is made pursuant to CCP sections 387 and 527 on grounds that: (1) Intervenor is a necessary and indispensable party to this action in that Intervenor claims a direct interest relating to the property and transaction which is at the heart of this lawsuit and will therefore suffer irreparable and imminent injury if this matter is decided without Intervenor’s involvement; and (2) Intervenor is the current rightful representative of the La Crescenta Chapter of the Armenian Cultural Foundation, which Plaintiff in this matter improperly purports to represent, and the disposition of this matter without Intervenor’s involvement will severely impede Intervenor’s ability to protect its interest therein.

 

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

BACKGROUND
Plaintiff, La Crescenta Chapter of the Armenian Cultural Foundation, filed a verified first amended complaint on 08/18/2022 for: (1) Quiet Title – Adverse Possession; (2) Establishment and Breach of Constructive and/or Resulting Trust; (3) Quiet Title – Constructive/Resulting Trust; and (4) Declaratory Relief.

 

On September 16, 2022, a demurrer to the FAC was overruled.

 

Intervenor, La Crescenta Chapter of the Armenian Cultural Foundation, alleges that Plaintiff is an imposter acting without authorization of the true, properly elected board, Intervenor, La Crescenta Chapter of the Armenian Cultural Foundation. Intervenor seeks leave in this action as a necessary party and cross-complainant against Plaintiff.

 

ANALYSIS
Procedure
“A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.” (CCP §387(c).)

 

Here, Intervenor attached the proposed cross-complaint as Exhibit A with the declaration of Richard Lee. The proposed cross-complaint is titled, “Intervenor La Crescenta Chapter of the Armenian Cultural Foundation’s Cross-Complaint-In-Intervention For Declaratory Relief.” The motion itself sets forth the grounds upon which intervention rests. Therefore, CCP §387(c) is met.

 

CCP §387(d)

“The court shall upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(A) A provision of law confers an unconditional right to intervene.

(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.”

 

(CCP §387(d)(1)(A)-(B).)

 

“The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (CCP §387(d)(2).)

 

Timeliness
“Although a party may assert that it holds an unconditional right to intervene, that right is conditioned on a court's initial determination that the application to intervene is timely.” (Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148.)

 

Here, there was no Opposition submitted, and this motion appears to be timely.


Compulsory Intervention – 387(d)(1)

“Section 387 recognizes two forms of intervention. The first is compulsory. Under subdivision (d)(1)(B), a trial court ‘shall, upon timely application, permit a nonparty to intervene in the action or proceeding’ if that person ‘claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.’ In other words, to establish a right to mandatory intervention, the nonparty must: (1) show a protectable interest in the subject of the action, (2) demonstrate that the disposition of the action may impair or impede its ability to protect that interest; and (3) demonstrate that its interests are not adequately represented by the existing parties.” (Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148 citing Edwards v. Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 732.))

 

Here, Intervenor submitted the declaration of Sarkis Tchakian who is the chairman of the board of directors for Intervenor, the La Crescenta Chapter of the Armenian Cultural Foundation (ACF-LC). (Decl. Tchakian ¶1.) Tchakian alleges that the Armenian Cultural Foundation (ACF) is an autonomous California Nonprofit public benefit Corporation, incorporated in 1976, and a 501(c)(3) charity, formed to promote cultural and educational programs in the Armenian Community. (Id. ¶2.) ACF-LC is a chapter of ACF that has been permitted by ACF to utilize the Property located at 2633 Honolulu Ave., Glendale, CA as a cultural center, to host ACF events, fundraisers, and conduct other activity which facilitates the charitable mission of the ACF since 1993. (Id. ¶5.) ACF-LC does not have any ownership interest in the Property and does not claim to possess the Property hostile to ACF’s ownership, and ACF, not ACF-LC paid the property taxes on the property. (Id. ¶5.) Neither Mr. Garabetian nor Plaintiff’s Counsel has requested or received authorization from me, ACF-LC’s board of directors, or ACF to represent ACF-LC in any capacity, and Plaintiff’s verified Complaint in this action is wholly unauthorized by any legitimate corporate representative or chapter of ACF. (Id. ¶8.) Further, Tchakian alleges that ACF-LC has a direct and immediate interest in the Property as the authorized occupant of the ACF, in the purported adverse possession of their headquarters, and in protecting its reputational and operational integrity. (Id. ¶11.)

 

Further, Intervenor’s motion argues as follows:

 

ACF cannot adequately represent the specific interests of Intervenor because Intervenor is, within the framework of the ACF Bylaws, a distinct unincorporated entity that has its own elected board of directors. Here, Hrayr Garabetian purports to be the current chairman of the ACF-LC board and is purporting to act on behalf of ACF-LC, while the true chairman of ACF-LC’s board of directors, Sarkis Tchakian, along with the rest of the properly elected board, unequivocally denies such allegations and authorization. [Id. at ¶¶ 1,3, 8, & 9.]

 

Further, while ACF has an interest in stopping an imposter chapter, Intervenor has a direct, superseding interest in protecting its name, reputation, and membership from the direct impersonation of Plaintiff here. Intervenor is therefore best, if not solely, situated to protect its interests here, and would be inadequately represented by existing parties. Irrespective of whether intervention will enlarge the issues of this case – which, as stated below, it will not – Intervenor must be allowed to intervene[.]

 

(Intervenor Mot. p. 5.)

 

Here, Intervenor has not established that it is entitled to compulsory intervention. With respect to the first requirement to “show a protectable interest in the subject of the action,” Intervenor admits in the Tchakian declaration that it does not have ownership in the property. It admits ACF is the owner. Petitioner alleges that it has a direct and immediate interest in the property as an “authorized occupant” of ACF, in the purported adverse possession of their headquarters. But the alleged adverse possession is versus ACF, not Intervenor as it does not own the property.  Intervenor ACF-LC claims it was granted permission to use the premises from ACF and that Plaintiff is fraudulently alleging to be ACF-LC when Intervenor claims to be the actual ACF-LC. However, Intervenor fails to establish a protectable interest under CCP 387 (d)(1) by alleging no ownership and adverse possession by Plaintiff. Further, Intervenor also thus fails to satisfy requirement (2) to “demonstrate that the disposition of the action may impair or impede its ability to protect that interest.” Finally, requirement (3), to “demonstrate that its interests are not adequately represented by the existing parties”, is likewise not satisfied by Intervenor’s evidence.  Intervenor argues that it is not adequately represented by the existing parties because, “ACF cannot adequately represent the specific interests of Intervenor because Intervenor is, within the framework of the ACF Bylaws, a distinct unincorporated entity that has its own elected board of directors. Here, Hrayr Garabetian purports to be the current chairman of the ACF-LC board and is purporting to act on behalf of ACF-LC, while the true chairman of ACF-LC’s board of directors, Sarkis Tchakian, along with the rest of the properly elected board, unequivocally denies such allegations and authorization.” (Intervenor Mot. p. 5.) However, presumably, ACF can show its ownership via deed/title and its resulting domain over the premises.

 

Permissive Intervention CCP §387(d)(2)
“If intervention is not compulsory, leave to intervene may also be granted on permissive grounds. Under section 387, subdivision (d)(2), ‘[t]he court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.’ Permissive intervention is appropriate if: ‘(1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.’” (Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148 citing Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.)

 

“Assuming the proper procedures have been followed, the threshold question under section 387, subdivision (a) is whether the party seeking discretionary intervention has a direct and immediate interest in the action.” (Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1428 citing Reliance Insurance Co. v. Superior Court, supra, 84 Cal.App.4th, p. 386.; [Siena refers to 387(a) as opposed to 387(d)(2) because 387(a) was the prior portion of the statute that was referred to as the permissive/discretionary party; however, 387 was later amended.]

 

Further, Siena states:

 

“The requirement of a direct and immediate interest means that the interest must be of such a direct and immediate nature that the moving party ‘ “will either gain or lose by the direct legal operation and effect of the judgment.” [Citation.]’ [Citations.]” (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1037, 27 Cal.Rptr.3d 722.) “Conversely, ‘An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner.’ [Citation.]” (Ibid.)

 

(Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1428.)

 

Additionally, Continental Vinyl Products Corp. states:

 

Determination that an interest is direct and not consequential does not of itself establish the right to intervene. The interest must be one ”which is proper to be determined in the action in which the intervention is sought. “ (Isaacs v. Jones, supra, 121 Cal. 257, 261.) (22) The court ruling upon the motion to intervene must balance the desirability of intervention to protect a direct interest against the normal right of the original parties to the litigation to ”conduct their lawsuit on their own terms“ and the potential of unduly extending the litigation. (County of San Bernardino v. Harsh California Corp., supra, 52 Cal.2d 341, 346.) The trial court is vested with discretion in drawing that balance and its determination cannot be reversed on appeal unless it is arbitrary in the sense that it is not supported by any substantial basis. (In re Yokohama Specie Bank, 86 Cal.App.2d 545, 554 [195 P.2d 555].) 

 

(Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 552.)

 

 

Moving party argues in its motion that it satisfies the four requirements of permissive intervention as cited in Carlsbad because:

 

1. Intervenor Has a Direct and Immediate Interest in the Issue of Plaintiff’s Unauthorized Impersonation of ACF-LC

As stated above, Intervenor has a direct and immediate interest in stopping Plaintiff’s charade. Plaintiff continued improper and illegal impersonation of ACF-LC, without authorization of the true board, is and will continue to cause reputational and operational damage to ACF-LC, the Property, and its membership. Thus, Intervenor has satisfied the first prong allowing permissive intervention.

2. Intervention Will Not Enlarge the Issues of This Case

Whether Plaintiff, and its counsel, are even authorized to represent ACF-LC and maintain this lawsuit is a preliminary matter that must be resolved before this Court can adjudicate Plaintiff’s claims. In effect, it is a dispositive issue to this case, which other courts in similar situations have already found in favor of ACF and its true chapter against the attempted coup of the ARF and the imposter chapters. Intervenor’s proposed intervention for the purpose of protecting its reputational and operational interests in this litigation does not enlarge the issues of this case. Rather, allowing intervention will presumably end the litigation once the issue of standing and appropriate representation of ACF-LC is determined in favor of Intervenor. Thus, the second prong of permissive intervention is also satisfied.

3. Reasons For Intervention Outweigh Any Opposition to Intervention

Intervenor wishes to protect its reputational and operational interests here. ACF does not oppose the intervention. Because of the threat of res judicata and continued reputational harm, disallowing intervention would severely prejudice Intervenor’s ability to operate or avoid future frivolous lawsuits filed by the imposter chapter. Any opposition by the Plaintiff is simply further evidence of, and an attempt to ratify, its unclean hands and improper conduct here. Moreover, as the Simpson Redwood court noted, Code of Civil Procedure section 387 “should be liberally construed in favor of intervention.” Simpson Redwood Co., 196 Cal. App. 3d at 1200 (citations omitted). The proposed intervention sought herein outweighs any opposition by any of the existing parties to this lawsuit and should be permitted.

4. Intervenor Motion is Procedurally Proper

Intervention “is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding.” Civ. Proc. Code § 387(a). Under the procedural requirements in section 387(a), a true and correct copy of Intervenor’s proposed cross-complaint-in-intervention is attached to the Declaration of Richard Lee (“Lee Decl.”) as Exhibit A, which reiterates the grounds upon which intervention rests here and asserts only one cause of action for declaratory relief. [See Lee Decl. ¶ 2.] See, e.g., Sutter Health Uninsured Pricing Cases, 171 Cal. App. 4th 495, 513 (2009) (finding that it was proper for the trial court to have required the proposed intervenor to file a proposed complaint-in-intervention with a motion to intervene). Further, the motion is also timely. This case is still in its early stages as the pleadings have just been set and the case is not yet set for trial. Despite the clear directive of other courts and multiple requests to cease improperly acting on behalf of ACF-LC, Plaintiff has refused to dismiss the case or acknowledge the authority of the true ACF-LC board. Thus, any delay has been caused by Plaintiff’s bad faith refusal to cease its farce and cede control of the Property to the true ACF-LC. Moreover, the intervention will not necessitate duplicative discovery or motion work here. As such the motion is timely and should be granted.

 

(Intervenor Mot. p. 6-7.)

 

TENTATIVE RULING

Intervenor presents sufficient grounds for permissive intervention, and as represented by the notice of non-opposition, this motion was unopposed.  Motion granted. In all subsequent papers submitted before this Court, Intervenor shall refer to itself as Intervenor, and Plaintiff shall refer to itself as Plaintiff.

 

Request for Judicial Notice
Moving Party argues as follows:

 

Under California Rules of Court Rule 3.1306(c)and Evidence Code Sections 452(d) and 453, Intervenor La Crescenta Chapter of the Armenian Cultural Foundation (“Intervenor”) respectfully requests that the Court take judicial notice of an September 28, 2022 Judgment re Petition for Writ of Mandate filed in Glendale Chapter of the Armenian Cultural Foundation v. Armenian Cultural Foundation, Los Angeles Superior Court Case No. 21STCP02028.

 

Evidence Code section 452(d) allows a court to judicially notice the records of any California court, or any federal or sister state court of record. See, e.g., Pruyn v Agricultural Ins. Co., 36 Cal. App. 4th 500, 511 (1995).

 

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, 91 Cal. App. 4th 875, 882 (2001). The court shall take judicial notice of any matter specified in section 452 if a party requests it and 1) gives sufficient notice for the request and 2) furnishes the court with sufficient information to enable it to take judicial notice of the matter. Evid. Code § 453.

 

As the judgment attached as Exhibit 1 was filed in California state court, the Court here may take judicial notice under Evidence Code 452(d).

 

(Intervenor RJN, p. 1.)

 

The Court grants Intervenor’s unopposed request for judicial notice of Exhibit 1.