Judge: Gail Killefer, Case: 19STCV40987, Date: 2023-08-28 Tentative Ruling
Case Number: 19STCV40987 Hearing Date: August 28, 2023 Dept: 37
HEARING DATE: Monday, August 28, 2023
CASE NUMBER: 19STCV40987
CASE NAME: Steven Powers v. Marcos Vivian,
et al.
MOVING PARTY: Plaintiff Steven Powers as
Trustee under Amended and Restated Trust Agreement for R.E.I. 401(k) Trust
entered into December 29, 2009 and effective as of January 1, 2009.
OPPOSING PARTY: Defendants Marcos Vivian; Marquez
Pacific View LLC; and US Realty Holdings, LLC
TRIAL DATE: 6 February 2024
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Adjudication as to the 12th Cause of Action in Plaintiff’s Fourth Amended
Complaint
OPPOSITION: 14 August 2023
REPLY: 24
August 2023
TENTATIVE: Plaintiff’s Motion for Summary Adjudication is denied.
Background
This action arises out of real
estate development projects in Los Angeles, California concerning properties
with assessor parcel numbers 4419-015-196, 4419-015-907, 4419-015-026,
4419-015- 022 and 4378-002-032 (the “Parcels”).
Steven Powers, as trustee under Amended and Restated Trust Agreement for
R.E.I. 401(k) Trust entered into December 29, 2009, and effective as of January
1, 2009 (“Plaintiff”) alleges that he is an elderly man and was fraudulently
induced into entering a contract for the sale of land by Defendant Marcos
Vivian (“Vivian”).
Specifically, Plaintiff alleges
that he signed a contract with Marquez Pacific View, LLC (“Pacific View”) based
on Vivian’s misrepresentations. According to Plaintiff, this contract provided
that he would receive a 15% stake in the development project and land for APN
4419- 015-026, a 15% stake in the development project and land for APN
4419-015-022, and $300,000 for APN 4378-022-032. Plaintiff further alleges that
contrary to Pacific View and Vivian’s representations, property interest was
instead transferred to defendant, Vicino Limited Partnership (“Vicino”).
The operative Fourth Amended
Complaint (“4AC”), filed October 25, 2021, states causes of action for:
1)
Breach of written contract against Pacific View;
2)
Breach of contract against Pacific View:
3)
Breach of contract against Vivian;
4)
Breach of contract against Vivian:
5)
Breach of contract against Asia Top City LTD
(“Asia Top City”);
6)
Breach of written contract against Vivian,
Pacific View;
7)
Breach of written contract against Pacific View;
8)
Breach of written contract against Pacific View;
9)
Breach of written contract against Vivian and Pacific
View;
10) Breach
of written contract against Vivian;
11) Breach
of written contract against Pacific View;
12) Declaratory
Relief against Asia Top City, Vivian, and Pacific View;
13) Intentional
Misrepresentation against Vivian, Pacific View, and Asia Top City;
14) Concealment;
against Vivian, Pacific View, Air I, LLC, and US Realty Holdings, LLC;
15) Fifteenth
Cause of Action against Vivian, Pacific View, and Asia Top City;
16) Seventeenth
Cause of Action against Vivian and Pacific View;
17) Fraudulent
Transfer against Vivian, Bel Air I; US Realty Holdings, LLC;
18) Elder
Abuse against Vivian, Pacific View and Asia Top City; and
19) Restitution
from Transferee Based on Quasi-Contract or Unjust Enrichment against Vivian,
Pacific Vivie, Bel Air 1, LLC, and US Realty, LLC;
On February 23, 2022, the court
sustained the demurrer to the 18th cause of action in the 4AC without leave to
amend.
On April 6, 2022, Defendant
Pacific View filed a Cross-Complaint against Plaintiff/Cross-Defendant alleging
two causes of action for Declaratory Relief.
On April 21, 2023, Plaintiff filed a
Motion for Summary Adjudication of the 12th cause of action for declaratory
relief. Defendants Marcos
Vivian, Marquez Pacific View LLC, and US Realty Holdings, LLC (collectively,
“Defendants”) filed opposing papers on August 14, 2023. Plaintiff filed a reply on August 24, 2023.
Request for JUDICIAL notice
The court may
take judicial notice of “official acts of the legislative, executive, and
judicial departments of the United States and of any state of the United
States,” “[r]ecords of (1) any court of this state or (2) any court of record
of the United States or of any state of the United States,” and “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” (Evid. Code § 452(c), (d), (h).) “Taking
judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning.” (Joslin
v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
Plaintiff
requests judicial notice of the following:
1)
On
November 15, 2013, a document entitled Short Form Deed of Trust and Assignment
of Rents was filed with the Recorder’s Office of Los Angeles County as Instr.
No. 20131626156, identifying Powers as “BENEFICIARY,” and stating it is:
For the Purpose of Securing: Trustor’s obligation to
make earnout payments to Beneficiary pursuant to that certain Earnout Agreement
dated as of the date hereof (the “Earnout Agreement”), between Trustor
and Beneficiary, which Earnout Agreement is incorporated by reference herein.
A true and correct copy of the
Short Form Deed of Trust and Assignment of Rents filed with the Recorder’s
Office of Los Angeles County as Instr. No. 20131626156 on November 15, 2013 is
attached hereto as Exhibit 1.
2)
On November 8, 2016, a document entitled
“Substitution of Trustee and Full Reconveyance” was filed with the Recorder’s
Office of Los Angeles County as Instr. No. 20161389804 which document states,
“The Earnout Agreement and the Loan Sale Agreement are hereby terminated and of
no further force and effect.” A true and correct copy of the Substitution of
Trustee and Full Reconveyance” filed with the Recorder’s Office of Los Angeles
County as Instr. No. 20161389804 is attached hereto as Exhibit 2.
Plaintiff’s request for judicial
notice is granted.
On reply, Plaintiff requests
judicial notice of the following:
3)
Plaintiff Steven Powers filed the original
complaint in this action in Los Angeles Superior Court on November 13, 2019.
Paragraph 7 of the original complaint in this action against Vivian states “The
real properties involved in this complaint include APNs 4419-015-196,
4419-015-907, 4419-015-022, and 4378-002-032.” Attached hereto as Exhibit 3
is a true and correct copy of the filed-stamped original complaint filed with
this Court in the above-captioned action on November 13, 2019.
4)
In Defendants’ Opposition to Plaintiff’s Motion
for Leave to Amend filed with this Court on April 13, 2021, defendants Vivian,
Marquez Pacific View LLC, and US Realty Holdings, LLC, stated:
a)
On page 2, lines 6-7: “Plaintiff’s Claims
Against Asia Top City Are Based On A Void And Unenforceable Promissory Note.”
Attached hereto as Exhibit 4
is a true and correct copy of In Defendants’ Opposition to Plaintiff’s Motion
for Leave to Amend filed with this Court on April 13, 2021.
5)
In the court’s Order granting plaintiff leave to
amend the complaint, filed April 26, 2021, the court stated as follows:
a)
On page 3 of 7, the Court noted, “On March 26,
2021, the court held the OSC hearing. At the hearing, counsel for Defendants
challenged the court’s inclination to discharge the OSC based on the Aalaei
Declaration. Thus, the OSC was continued to April 27, 2021.”
b)
On page 4 of 7, “Plaintiff’s proposed TAC seeks
to add a fifth cause of action for breach of written contract against
Defendant, Asia Top City, Ltd (“Asia Top”) based on a promissory note of July
29, 2016. (Motion, 3-4.) Additionally, it seeks to add a declaratory relief
cause of action against Asia Top, as well as factual allegations in support of
both causes of action. (Id., 4-5.)”
c)
On page 7 of 7, The court has reviewed the
proposed TAC and finds that the new allegations against Asia Top relate to the
same general set of facts alleged in the Complaint. As Plaintiff points out in
his reply, the original Complaint alleges that Plaintiff was fraudulently
induced to “enter into a contract for the sale of land.” (see Complaint, ¶ 5.)
The promissory note between Plaintiff and Asia Top references a deed of trust
in the “Property” defined in the promissory note.”
Attached hereto as Exhibit 5
is a true and correct copy of the court’s Order granting plaintiff leave to
amend the complaint, filed April 26, 2021[.]
6)
In Asia Top City’s Motion to Quash and
Declaration of Marcos Vivian In Support of Motion filed with the Court on July
8, 2021, Asia Top City and Vivian, represented by the same counsel as on this
motion, make the following statements in its motion to quash:
a)
On Page 1, line 19-21: “Plaintiff’s allegations
against ATC are based on the allegation that ATC entered into a purported
“Promissory Note”…” (emphasis added);
b)
On page 1, line 25-27 of the Motion and
paragraph 3 of the Vivian Declaration: “It has no office or business address in
California…it has no employees, officers, or directors in California…”
c)
On page 3, 14-15 of the Motion: “ATC does not
have affiliations with California…”
d)
In Paragraph 4 of the Vivian Declaration: “ATC
does not advertise or market to California markets or direct business
activities toward California. ATC does not have continuous or systematic
contacts with California.”
e)
On page 4, 25-26: “ATC did not purposefully
avail itself of the benefits of conducting activities in California…”
f)
On page 6, 21-26: “None of the conduct alleged
in Plaintiff’s TAC evidences that (1) ATC purposefully availed itself of any
benefits of conducting activities in California, or that (2) the controversy
arises out of contacts by ATC with California….”
g)
On page 7, lines 1—6: “Nothing in the purported
Promissory Note or even Plaintiff’s allegations indicates that the document was
to be governed by California law or was entered into in California.”
Attached hereto as Exhibit 6
is a true and correct copy of Asia Top City’s Motion to Quash followed by the
Declaration of Marcos Vivian In Support of Motion to Quash filed with the Court
on July 8, 2021.
7)
In the Court’s September 30, 2021 order re:
demurrer to Third Amended Complaint as to the twelfth cause of action for
declaratory relief, the Court stated as follows:
a)
On page 6 of 25, Moving Defendants contend that
all of Plaintiff’s contract claims fail because each cause of action is
time-barred or contradicted by previous pleadings.”
b)
On Page 1 of 25, “The demurrer is sustained as
to the thirteenth, fourteenth, fifteenth, and sixteenth, nineteenth, twentieth
and twenty first causes of action….The demurrer is also sustained as to the
seventeenth cause of action against US Realty only. The demurrer is otherwise
overruled.”
c)
On Page 10 of 25, “Moving Defendants contend
that the twelfth cause of action fails because it fails to identify an actual
controversy between the parties and is thus a ‘blatant attempt to obtain trial
setting preference.’ (Demurrer, 9.) The court disagrees. The court overruled
Defendants’ demurrer to the first through eleventh causes of action. These
causes of action constitute an actual controversy between the parties
sufficient to maintain a claim for declaratory relief. Thus, Moving Defendants’
demurrer to the twelfth cause of action is also overruled.”
Attached hereto as Exhibit 7
is a true and correct copy of this Court’s order overruling demurrer to the
twelfth cause of action for declaratory relief dated September 30, 2021 on file
with the Court
8)
In Asia Top City’s Reply on Motion to Quash
filed with this Court on December 21, 2021, defendant Asia Top City made the
following statements in its reply on the motion to quash:
a)
On page 1, lines 11-12: “ATC did not promise to
do anything in California.”
b)
On Page 1, line 12: “ATC did not send an agent
to California.”
c)
On page 3, lines 18-19: “The location of the
property that is the subject of some of Plaintiff’s claims against other
Defendants has nothing to do with whether the Court has specific jurisdiction
over ATC.”
d)
On page 3, lines 20-23: “The purported contracts
Plaintiff references are also irrelevant because ATC was not a party to the
purported contracts. Plaintiff cites to contracts purportedly signed by other
Defendants and claims that somebody that Plaintiff also claims is an agent of
ATC signed the contracts on behalf of the other Defendants.”
e)
On page 4, lines 5: “the contracts cited on
their face do not require ATC to do anything in California.”
f)
On page 4, lines 6-7: “ATC is not even a party
to the ARDRD and neither the ARDRD or the Promissory Note states that ATC must
do anything in California or deliver any documents in California.”
g)
On page 4, line 8: “Indeed, Plaintiff alleges
that the Promissory Note was never delivered to him at all.”
Attached hereto as Exhibit 8
is a true and correct copy of Asia Top City’s Reply on Motion to Quash filed
with this Court on December 21, 2021.
9)
In the Court’s Order on Asia Top City’s Motion
to Quash entered and filed with this Court on December 29, 2021, therein, the
Court stated as follows:
a)
On page 1 of 8, “Asia Top’s motion is granted.
Service of summons on Asia Top is ordered quashed.”
b)
On page 5 of 8, “Vivian attests that Asia top
has no office or business in California…”
c)
On page 5 of 8, “It is undisputed that Asia Top
is a Hong Kong company, is not registered to do business in California or the
United States, and does not do business in California or the United States.”
d)
On page 6 of 8, “According to Asia Top, nothing
in the Promissory Note indicates that the documents were governed by California
law, entered into in California, or that Asia Top availed itself of the
benefits of conducting business in California. (Id.) Asia Top also asserts that
asserting jurisdiction would not be fair or reasonable given that the
allegations are not related to contacts by Asia Top with California. (Id.)”
Attached hereto as Exhibit 9
is a true and correct copy of the Court’s Order on Asia Top City’s Motion to
Quash entered and filed with this Court on December 29, 2021.
10) California
Civil Code § 1054 states “A grant takes effect, so as to vest the interest
intended to be transferred, only upon its delivery by the grantor.” A true and
correct copy of the statutory law and legislative enactment is attached hereto
as Exhibit 10. The attached text of the statute was downloaded from
www.lexisnexis.com on August 23, 2023 in the same pdf format
11) California
Civil Code § 1056 states “A grant cannot be delivered to the grantee
conditionally.” A true and correct copy of the statutory law and legislative
enactment is attached hereto as Exhibit 11. The attached text of the
statute was downloaded from www.lexisnexis.com on August 23, 2023 in the same
pdf format.
Plaintiff’s request for judicial
notice of 3 to 11 is granted but the court will not accept as true the contents
of the exhibits as truth or accept a particular interpretation of their
meaning. (Joslin, supra, 184 Cal.App.3d at 374.)
Defendants request judicial
notice of the following:
1)
The Complaint filed in this case by Plaintiff
Steven Powers on or about November 13, 2019. Excerpts of true and correct
copies of the Complaint are attached hereto as Exhibit 1.
2)
The First Amended Complaint filed in this case
by Plaintiff Steven Powers on or about February 26, 2020. A true and correct
copy of the First Amended Complaint is attached hereto as Exhibit 2.
3)
The Second Amended Complaint filed in this case
by Plaintiff Steven Powers on or about August 10, 2020. To conserve judicial
resources, true and correct copies of excerpts of the Second Amended Complaint
are attached hereto as Exhibit 3, which do not include Exhibits A
through G to the Second Amended Complaint.
4)
The Court’s January 27, 2021 Order in this case
regarding Defendants’ Demurrer and Motion to Strike relating to Plaintiff’s
Second Amended Complaint, a true and correct copy of which is attached hereto
as Exhibit 4.
5)
The Third Amended Complaint filed in this case
by Plaintiff Steven Powers on or about May 6, 2021. To conserve judicial
resources, true and correct copies of excerpts of the Third Amended Complaint
are attached hereto as Exhibit 5, which do not include the Exhibits to
the third Amended Complaint, except for exhibits D and E.
6)
The Court’s September 30, 2021 Order in this
case regarding Defendants’ Demurrer and Motion to Strike relating to
Plaintiff’s Third Amended Complaint. To conserve judicial resources, true and
correct copies of excerpts of the Fourth Amended Complaint are attached hereto as
Exhibit 6, which do not include the Exhibits to the Fourth Amended
Complaint, except for exhibits D and E.
7)
The Fourth Amended Complaint filed in this case
by Plaintiff Steven Powers on or about October 25, 2021. True and correct
copies of excerpts of the Fourth Amended Complaint are attached hereto as Exhibit
7.
8)
The Court’s December 29, 2021 Order in this case
regarding specially appearing Defendant Asia Top City LTD’s Motion to Quash, a
true and correct copy of which is attached hereto as Exhibit 8.
9)
The Court’s February 23, 2022 Order in this case
regarding Defendants’ Demurrer and Motion to Strike relating to Plaintiff’s
Fourth Amended Complaint, a true and correct copy of which is attached hereto
as Exhibit 9.
10) The
Answer to Plaintiff’s Fourth Amended Complaint in this case filed by Defendants
on or about April 6, 2022, a true and correct copy of which is attached hereto
as Exhibit 10.
11) The
Cross-Complaint filed by Defendants in this case on or about April 6, 2022. To
conserve judicial resources, a true and correct copy of Cross-Complaint that
does not include its exhibits is attached hereto as Exhibit 11.
12) The
Second Amended Verified Complaint (“FAVC”) filed in the related action of Emsaffa
Corp. v. Steven Powers, et al., Case No. 20STCV38914 on September 21, 2021.
To conserve judicial resources, a true and correct copy of the FACVC that does
not include its exhibits, with the exception of Exhibit D, is attached hereto
as Exhibit 12.
Defendants’ request for judicial
notice is granted. Plaintiff’s objections to the Defendants’ request for
judicial notice are overruled as the court finds that Defendants’ request for
judicial notice is not vague or ambiguous.
Exhibits 3, 5, 6, 11, and 13 are court documents whose authenticity is
not in dispute.
Defendants’ evidentiary
objections to the Declaration of Steven Powers
Objection No. 1 is sustained.
Objections Nos. 2 and 3 are
overruled.
Defendants’ evidentiary
objections to the Declaration of Ali Aalaie
Objection No. 1 is overruled.
Plaintiff’s Evidentiary
Objections to Defendants’ Evidence
Objections No. 1 is overruled as
it states no basis for the objection.
Objection No. 8 is also overruled
as Defendants are not relying on their own pleadings to raise a material issue
of fact.
Plaintiff also submitted
objections to each Defendants’ Supplemental Undisputed Material Facts (“SUMF”)
but Plaintiff failed to number the objections after Objection number 8 and
failed to state if Plaintiff was objecting to the SUMF or the evidence cited in
support of the SUMF. Instead, Plaintiff appears to have copied and pasted the
same objections to each SUMF without specifying what evidence the objection was
aimed at. For example, Plaintiff states that all SUMF contradict prior
deposition testimony, but not all SUMF cited deposition testimony and Plaintiff
fails to state where evidence of a contradiction may be found. As all other
objections are not in proper form, the court declines to rule on them.
I. Legal
Standard
“A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative defenses, one
or more claims for damages, or one or more issues of duty, if that party
contends that the cause of action has no merit or that there is no affirmative
defense thereto, or that there is no merit to an affirmative defense as to any
cause of action, or both, or that there is no merit to a claim for damages . .
. or that one or more defendants either owed or did not owe a duty to the
plaintiff or plaintiffs. A motion for summary adjudication shall be granted
only if it completely disposes of a cause of action, an affirmative defense, a
claim for damages, or an issue of duty.” (CCP, § 437c(f)(1).) “Motions
for summary
adjudication
are procedurally identical to motions for summary judgment[.]” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281,
1290; see also CCP, § 437c(f)(2).)
“[T]he initial burden is always on the moving party to
make a prima facie showing that there are no triable issues of material fact.”
(Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) “A
plaintiff or cross-complainant has met his or her burden of showing that there
is no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on the cause of action. Once the plaintiff or
cross-complainant has met that burden, the burden shifts to the defendant or
cross-defendant to show that a triable issue of one or more material facts
exists as to the
cause of action or a defense thereto. The defendant or cross-defendant shall
not rely upon the allegations or denials of its pleadings to show that a
triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to the cause
of action or a defense thereto.” (CCP, § 437(c)(p)(1).)
“The motion shall be granted
‘if all the papers submitted show that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. In determining
whether the papers show that there is no triable issue
as to any material fact the court shall
consider all of the evidence set forth in the papers, except that to which
objections have been made and sustained by the court, and all inferences reasonably
deducible from the evidence....’ [Citation.]) The papers filed in support of
the motion ‘shall
include a separate statement setting forth plainly and concisely all material
facts which the moving party contends are undisputed.’ [Citation.]” (Dunn,
supra, 135 Cal.App.4th at 1290 citing CCP, § 437 subds. (c), (b)(1).)
II. Motion for
Summary Adjudication
Plaintiff Steven Powers, as trustee under Amended and
Restated Trust Agreement for R.E.I. 401(k) Trust entered into December 29, 2009
and effective as of January 1, 2009 (hereinafter “Plaintiff”), moves for
summary adjudication as to Plaintiff’s 12th cause of action for Declaratory Relief
in the Fourth Amended Complaint (“4AC”). Defendants Marcos Vivian, Marquez
Pacific View LLC, and US Realty Holdings, LLC (collectively, “Defendants”)
oppose Plaintiff’s Motion for Summary Adjudication.
Defendant Asia Top City Ltd (“Asia Top City”) moved to quash
Plaintiff’s service of summons and the motion was granted on December 29, 2021.
(D’s RJN Ex. 8 [12/29/21 Order].) Plaintiff has failed to file a reply or
otherwise show that Defendant Asia Top City was properly served with service of
summons and a copy of Plaintiff’s 4AC.
A. 12th Cause of Action – Declaratory
Relief
To
state a declaratory relief claim, the plaintiff must allege a proper subject of
declaratory relief and an actual controversy involving justiciable questions
relating to the party’s rights or obligations. (See CCP, § 1060; Jolley
v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) “The
fundamental basis of declaratory relief is the existence of an actual, present
controversy over a proper subject.” (Otay Land Co. v. Royal
Indemnity Co. (2008) 169 Cal.App.4th 556, 562 [internal
quotation marks omitted].) “The purpose of a declaratory judgment is to serve some
practical end in quieting or stabilizing an uncertain or disputed jural
relation” and “to liquidate doubts with respect to uncertainties or
controversies which might otherwise result in subsequent litigation. [Citation
omitted.]” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners
LLC (2010) 191 Cal.App.4th 357, 364.)
Plaintiff’s twelfth cause of action “prays for declaratory
relief holding that the Reconveyance is ineffective to terminate the Terminated
Agreements, and that the Asia Top City Promissory Note and the obligations of
the MAKER thereunder are void and of no further force and effect.” (4AC ¶ 221.)
Plaintiff’s motion is brought on the basis that there is no genuine dispute of
material fact or defense to the twelfth cause of action or declaratory relief
because the “SUBSTITUTION OF TRUSTEE AND FULL RECONVEYANCE” (“Reconveyance”) is
ineffective to terminate Powers’ interest under the 2013 Deed of Trust because
the Reconveyance was never delivered.
The parties do not dispute that on July 18, 2016, Plaintiff
signed the AGREEMENT REGARDING DELIVERY OF RECONVEYANCE DOCUMENTS (“ADRD”).
(UMF 3.)
Section 2 of the ADRD states:
[Plaintiff]
agrees to deliver the Reconveyance, in recordable form, the Trust Certificate,
and the Termination Agreement to Vivian at the office of Vivian’s counsel Liner
LLP, 1100 Glendon Avenue, 14th Floor, Los Angeles, CA 90024 provided that
such deliver shall not be deemed to have been made until Vivian’s deliver to
[Plaintiff] of the Closing Payment and Asia Top City Note.
(UMF 4 [italics added].) Plaintiff asserts he did not
deliver the Reconveyance because he did not receive the Closing Payment from
Defendant Vivian and the Asia Top City Note, which were a condition precedent
to his delivery of the Reconveyance. (Powers Decl. ¶ 5; Aalaei Decl. ¶ 2, Ex.
A.) Plaintiff cites the deposition testimony of Marcos Vivian who states he did
not deliver the Asia Top City Note to Plaintiff. (Plaintiff’s Compendium of
Evidence “PCOE” Ex. A [Vivian Depo. at 297:15-18].)
Defendants assert that Plaintiff’s Exhibit A is inadmissible
hearsay and relies on improper oral testimony to prove the contents of writing
in violation of the best evidence rule. Defendants
also argue that the deposition testimony is incomplete. First, Mr. Vivian’s
testimony is admissible as a party admission.
The admission relates to whether Mr. Vivian delivered Asia Top’s Note
and does not relate to the contents of the Note or the terms of the ADRD. Moreover, California Rules of Court, rule
3.1116, requires that only the relevant pages of a deposition transcript be
included and not the entire deposition transcript. If Defendants find that not
all relevant deposition testimony was included or that the deponent's testimony
is contradicted elsewhere in the deposition, then Defendants are obligated to
bring it to the attention of the court. The court finds that Exhibit A is
admissible and the burden shifts to Defendants to show that Plaintiff delivered
the Reconveyance.
As to the Asia Top City Note, Defendants assert that the
Note was delivered to Plaintiff on July 28, 2016. First, Defendants’ Exhibit 11
to the Declaration of Bejamin S. Tragaish contains excerpts from the Deposition
of Marcos Vivian taken in the matter Emsaffa Corp. v. Steven Poeres (LASC
No. 20STCV38913). (Tragish Decl. ¶ 3, Ex. 11.) The relevant excerpts of Mr. Vivian’s
deposition testimony assert it was Mr. Vivian’s understanding that the Top City
Note was delivered to Plaintiff. (Tragish Decl. ¶ 3, Ex. 11 [Vivian Depo. at
138:8-16].) Mr. Vivian’s testimony states that his basis for this understanding
is “the full confidence that I have that Michael Kiely is a real lawyer” with a
good reputation and 20 years of experience and “he’s never made a single
mistake or failed to execute a document properly and sent it to the right
person at the right time. He has my full confidence and authority . . . and I
have full confidence that it was done. That’s why I’m confident.” (Tragish
Decl. ¶ 3, Ex. 11 [Vivian Depo. at 138:8-139:7].) Mr. Vivian’s deposition
testimony does not establish that the Asia Top City Note was in fact delivered
to Plaintiff.
However, Michael J. Kiely submitted a Declaration in
opposition to Plaintiff’s Motion and states that “[o]n or around July 28,
20216, I met with Mr. Powers to consummate the transaction based on an
agreement titled, ‘Agreement Regarding Delivery of Reconveyance Documents’ (the
‘Reconveyance Agreement’).” (Kiely Decl. ¶ 10.)
A copy of the “Reconveyance Agreement” or “ADRD” is attached
as Exhibit 1 to the Kiely Declaration and states in part:
“1. Delivery of Closing Payment and Asia
Top City Note. Vivian agrees to deliver the Closing Payment and Asia
Top City Note to Powers, conditions on Power’s delivery of the Reconveyance in
recordable from, the Trust Certificate, and the Termination Agreements to
Vivian at the office of Vivian’s counsel, Linder LLP, 1100 Glendon Avenue, 14th
Floor, Los Angeles, CA 90024.
2. Delivery of Reconveyance, Trust
Certificate, and Termination Agreements. Powers agrees to deliver the
Reconveyance, in recordable for, the Trust Certificate, and the Termination
Agreements to Vivian a the office of Vivian’s counsel, Linder LLP, 1100 Glendon
Avenue, 14th Floor, Los Angeles, CA 90024.”
(Kiely Decl. ¶ 10, Ex. 1 [ADRD/Reconveyance Agreement at p.
1, 2.)
The ADRD/Reconveyance Agreement states that it was made on
July 28, 2016, between Plaintiff “STEVEN POWERS, as trustee under Amended and
Restated Trust Agreement for R.E.I. 401(k) Trust entered into December 29, 2009
and effective as of January 1, 2009 (“Powers” and Marco Tomas Vivian De
La Pedrosa (“Vivian” together with Powers[.]” (Kiely Decl. ¶ 10, Ex. 1.)
The ADRD/Reconveyance Agreement show that Plaintiff and Michael J. Kiely, on
behalf of Marco Vivian, signed the agreement on July 28, 2018. (Id.)
Mr. Kiely asserts that Plaintiff “signed the Reconveyance
Agreement, in my presence, in my office, which was then with the law firm of
Liner LLP, located at 1100 Glendon Ave., 14th Floor, Los Angeles, California
90024. I signed the Reconveyance Agreement on behalf of Mr. Vivian as his
attorney-in fact.” (Kiely Decl. ¶ 12.) According to Mr. Kiely, Plaintiff “also
signed and delivered a document titled, “Substitution of Trustee and Full
Reconveyance” (the “Full Reconveyance”) on or around July 28, 2016.” (Id.
¶ 13.) Plaintiff signed the Full Reconveyance in Mr. Kiely’s presence at his
office and Mr. Kiely countersigned as Mr. Vivian’s attorney-in-fact on the same
date although the signature was not acknowledged by a notary until a later
date. (Id. ¶ 14.)
Mr. Kiely asserts: “To the best of my knowledge and
recollection, when Mr. Powers left my office following such meeting, he
possessed the Asia Top City Note and I understood that the only remaining
condition to the recordation of the Full Reconveyance was the payment of the
Closing Payment to Powers. Thereafter, promptly following confirmation of such
payment, I caused the Full Reconveyance to be recorded.” (Kiely Decl. ¶ 21.) Defendants
submit a copy of the Full Reconveyance agreement showing that it was signed by
Plaintiff and Mr. Kiely on behalf of Mr. Vivian. (Vivian Decl. ¶ 19, Ex. 2.) Plaintiff’s
deposition testimony as to the Asia Top City Note states that he does not
remember being handed a copy of the Note, but he does remember going into the
office to sign documents. (Tragish Decl. ¶ 4, Ex. 12 [Powers Depo. at 264:14-23].)
“The
trial court may not weigh the evidence in the manner of a factfinder to
determine whose version is more likely true.¿Nor may the trial court grant
summary judgment based on the court's evaluation of credibility.” (Binder v.
Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The court finds
that Defendants have presented sufficient evidence to raise a triable issue of
fact as to whether Plaintiff received the Asia Top City Note on July 28, 2016. The court notes that Plaintiff’s
Declaration admitted that “[t]he $100,000 portion of the Closing Payment was
not made until on or about October 11, 2016.” (Powers Decl. ¶ 5.)
On reply, Plaintiff infers that on October 12, 2016, he
confirmed receipt of a check. (Reply at 2:14-16.) Plaintiff states that in September
2017, Plaintiff sent Vivian an email stating that “payment was past due” but
Plaintiff failed to state that the payment due was related to the Closing
Payment and that Defendants’ failed to make the Closing Payment. Thus, there
was no delivery. Moreover, Plaintiff’s references to Asia Top City’s Motion to
Quash, the lack of jurisdiction, and the legal effect of the Note do not
establish that the Note was not delivered to Plaintiff on July 28, 2016.
Moreover, Plaintiff does not argue that the Asia Top City Note was not
delivered because the Note itself is legally void. Lastly, Plaintiffs RJN Nos.
6, 8, and 9 do not show that Asia Top City denied delivery of its Note or the
existence of the Note. References to Asia Top City’s Motion to Quash show that
the Note itself was insufficient to confer jurisdiction over Asia Top City.
(See P’s RJN Ex. 6, 8, 9.)
Plaintiff also asserts that Civ. Code § 1054 governs the delivery
of the Reconveyance and that he did not have the present intent to transfer the
Reconveyance. (See Civ. Code, § 1054 [“A grant takes effect, so as to vest the interest
intended to be transferred, only upon its delivery by the grantor.”].) However,
intent is a question of fact. “The intent with which the instrument is
transferred is a question
of fact to
be determined from all the circumstances surrounding the particular
transaction.” (Hodoian v. Garabedian (1926) 79
Cal.App. 762, 768.) “Whether a deed was delivered is a question of intent which
may be inferred from words spoken or acts done or both.” (Hill v. Donnelly (1942) 56 Cal.App.2d 387, 392.) “There
may be a constructive delivery as well as an actual delivery so long as acts
are shown to indicate the intention of the grantor to vest title by the
instrument.” (Id. at 392.)
Here, Plaintiff fails to rebut
Defendants’ evidence that Plaintiff signed the ADRD/Reconveyance
Agreement and agreed to transfer title and that Defendants fulfilled the terms
of the transfer by delivering the Closing Payment on October 11, 2016 and the
Asia Top City Note on July 28, 2016. Plaintiff presents no evidence that before
the Closing Payment was delivered on October 11, 2016, Plaintiff communicated
to Defendants that he had no longer had the intention to transfer title and
voiced the Termination Agreement because Defendants had failed to perform as
required under the ADRD/Reconveyance Agreement. There is no evidence that
Plaintiff reserved the right to recall or revoke the delivery when he signed the
ADRD/Reconveyance Agreement at any time. (See Bias v. Reed (1914) 169
Cal. 33, 145 P. 516.) “A
grant cannot be delivered to the grantee conditionally. Delivery to him, or to
his agent as such, is necessarily absolute, and the instrument takes effect
thereupon, discharged of any condition on which the delivery was made.” (Civ.
Code, § 1056.)
Plaintiff fails to show that delivery was
ineffective when the conditions of delivery were discharged upon Defendants’
delivery of the Closing Payment on October 11, 2016,
and the Asia Top City Note on July 28, 2016. There is also no evidence that the
conditions for delivery of the Reconveyance required that the Closing Payment
and Asia Top City Note be delivered simultaneously on the same day.
Accordingly, Plaintiff fails to show that effective delivery of the
Reconveyance did not occur.
Based on the above, the
court finds that triable issues of fact exist as to whether Plaintiff effectively
delivered the Reconveyance upon Defendants delivery of the Asia Top City Note
on July 28, 2016, and the Closing Payment on October 22, 2016, thus making the “SUBSTITUTION
OF TRUSTEE AND FULL RECONVEYANCE” signed by Plaintiff effective. Summary adjudication is
denied as triable issues of fact exist regarding the 12th cause of action.
The court declines to address whether Plaintiff’s 12th cause
of action is barred by Defendant’s affirmative defenses based on Statute of
Limitation, Laches, Estoppel, and Waiver grounds. The court notes that Defendants’
alleged defects in the 12th cause of action as pled on the basis it does not
allege an actual controversy between the parties and the fact that “Terminated
Agreements” is not defined. Defendants previously demurred to the 12th cause of
action in the Third Amended Complaint on the basis that there was no
controversy between the parties and the demurrer to the 12th cause of action was
overruled. (D’s RJN Ex. 6.) If Defendants object to 12th cause of action as
currently pled in the 4AC, then Defendants should bring a Motion for Judgment
on the Pleadings and not raise objections to the pleadings for the first time
in its opposing papers.
Lastly, the court notes that summary adjudication of the
12th cause of action is appropriate if it disposes of an entire claim even if the
operative facts of the 12th cause of action “spill over into other cause of
action.” (Southern Cal. Edison Co. v. Superior Court
(1995) 37 Cal.App.4th 839, 846.) Defendants’ reliance on Hood v. Superior Court (1995) 33 Cal.App.4th 319 is
misplaced because in Hood, the appellate court found that the
declaratory relief cause of action was “fully
engaged by other causes of action” and was “superfluous” such that summary
adjudication was not warranted because “adjudication of the
declaratory relief cause of action did not purport, by itself, to adjudicate
the entirety of any cause of action.” (Id. at 324.) “In our view, Hood does not stand for the proposition the trial court
cannot grant summary adjudication of a properly pled cause of action for
declaratory relief merely because the controversy between the parties spills
over into other causes of action. Rather, the plain lesson of Hood is that parties will not be allowed to misuse the
declaratory relief cause of action in an attempt to subvert the requirement a
summary adjudication must completely dispose of a cause of action.” (Southern Cal. Edison Co., supra, 37 Cal.App.4th
at 846 accord Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 82–83.)
As triable issues of fact exist regarding Plaintiff’s 12th
cause of action, summary adjudication is denied.
Conclusion
Plaintiff’s Motion for Summary Adjudication is denied. Plaintiff
is to give notice.