Judge: Kevin C. Brazile, Case: BC668087, Date: 2023-02-21 Tentative Ruling

Hearing Date: February 21, 2023

Case Name: Ninacci, Inc. v. Sedaghati, et al.

Case No.: 22STCV08567 

Matter: (1) Motion for Summary Judgment/Adjudication

(2) Motion to Release Lien

Moving Party: Defendant Leora Sedaghati

Responding Party: Plaintiff Ninacci, Inc.

Notice: OK

Ruling: The Motion for Summary Judgment is granted.

The Motion to Release Lien is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On March 9, 2022, Plaintiff Ninacci, Inc. filed the operative Complaint against Defendant Leora Sedaghati for (1) breach of fiduciary duty, (2) conversion, (3) breach of statutory and/or ethical duties, (4) constructive trust, and (5) interference with prospective economic advantage.  

Plaintiff alleges that it “is a judgment creditor of Rafael Raz [ ]. On September 11, 2008, Ninacci obtained a judgment in the amount of $100,000 against Raz and another defendant, jointly and severally, after prevailing in the case, Ninacci v. Raz, Los Angeles Superior Court Case No. BC343916. That Judgment was renewed on November 14, 2012, in the amount of $143,746.74.”  (Compl. ¶ 9.)  Raz retained Defendant Sedaghati as counsel for a personal injury action.  Plaintiff alleges it gave notice to Defendant of a judgment lien on April 1, 2021 (filed in March 2021).  Plaintiff alleges that, “[o]n March 3, 2022, Plaintiff discovered that Raz entered into a settlement agreement . . . for $250,000. Sedaghati then distributed the settlement to herself and others. Plaintiff is informed and believes that, currently, approximately $14,000 is remaining.”  (Compl. ¶ 15.)

Defendant Sedaghati now moves for summary judgment or, alternatively, summary adjudication of all causes of action, arguing that the March 2021 lien is invalid.  

Defendant also seeks to release another lien filed in October 2022 for being untimely.

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Code Civ. Proc. § 708.410 states, “To obtain a lien under this article, the judgment creditor shall file a notice of lien and an abstract or certified copy of the judgment creditor's money judgment in the pending action or special proceeding.” 

“An action is not ‘pending’ until it is filed (Pangborn Plumbing Corp. v. Carruthers & Skiffington (2002) 97 CA4th 1039, 1051, 119 CR2d 416, 425) and remains ‘pending’ until the time for appeal expires or an appeal is finally determined (CCP § 708.410(d)).”  (Cal. Prac. Guide Enf. J. & Debt Ch. 6G-8.) 

Code Civ. Proc. § 708.420 states, “The notice of lien under Section 708.410 shall contain all of the following: (a) A statement that a lien has been created under this article and the title of the court and the cause and number of the pending action or proceeding in which the notice of lien is filed (b) The name and last known address of the judgment debtor. (c) The name and address of the judgment creditor. (d) The title of the court where the judgment creditor's money judgment is entered and the cause and number of the action, the date of entry of the judgment, and the date of any subsequent renewals, and where entered in the records of the court. (e) The amount required to satisfy the judgment creditor's money judgment at the time the notice of lien is filed in the action or proceeding. (f) A statement that the lien attaches to any cause of action of the judgment debtor that is the subject of the action or proceeding and to the judgment debtor's rights to money or property under any judgment subsequently procured in the action or proceeding. (g) A statement that no compromise, dismissal, settlement, or satisfaction of the pending action or proceeding or any of the judgment debtor's rights to money or property under any judgment procured therein may be entered into by or on behalf of the judgment debtor, and that the judgment debtor may not enforce the judgment debtor's rights to money or property under any judgment procured in the action or proceeding by a writ or otherwise . . . . (h) A statement that the judgment debtor may claim an exemption for all or any portion of the money or property within 30 days after the judgment debtor has notice of the creation of the lien and a statement that, if the exemption is not claimed within the time allowed, the exemption is waived.”

Here, each cause of action asserted in the Complaint is premised on notice to Defendant of Plaintiff’s judgment lien.  The lien filed in March 2021, however, is invalid because (1) it did not attach an abstract of judgment or certified judgment (see, e.g., Compl., Exhibit A) and (2) it did not contain the information required by Code Civ. Proc. § 708.420 (Casa Eva I Homeowners Ass'n v. Ani Const. & Tile, Inc. (2005) 134 Cal.App.4th 771, 780 [notice that failed to contain requisite warnings ineffective to create lien under § 708.420]; see also Cal. Prac. Guide Enf. J. & Debt Ch. 6G-8.)  Therefore, each of Plaintiff’s claims lacks merit.  

Defendant raised these contentions in her MSJ, but Plaintiff’s Opposition does not address them.  Rather, Plaintiff, in non-responsive fashion, argues that Defendant violated ethical duties, and that the aforementioned October 2022 lien suffices.

The October 2022 lien is also invalid because (1) it was filed eight months after the personal injury case was dismissed in February 2022; (2) it cannot relate back to the invalid March 2021 lien; and (3) the notice also does not attach an abstract of judgment or certified judgment (Belcher Decl., Exhibit E), so as to create a valid lien (see In re Marriage of Kerr (1986) 185 Cal.App.3d 130, 133.)

Because the subject liens are invalid, the Motion for Summary Judgment is granted, and the Motion to Release Lien is also granted.  The Request for Judicial Notice is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.