Judge: Malcolm Mackey, Case: BC475181, Date: 2022-08-02 Tentative Ruling
Case Number: BC475181 Hearing Date: August 2, 2022 Dept: 55
BROWN
v. ZIVE BC475181
Date of Hearing: 8/2/22, Dept. 55
#6: MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE,
SUMMARY ADJUDICATION OF THE ISSUES.
Notice: Okay
Opposition
MP:
Defendant ADI PEREZ.
RP:
Plaintiff.
Summary
On 12/13/11, Plaintiff CHERIE BROWN filed the
Complaint.
On 10/18/12, Plaintiff filed a Second Amended
Complaint for (1) FRAUD, (2) QUIET TITLE AND (3) FRAUDULENT TRANSFER, alleging
the foreclosure sale of the family residence at 3751 Lankershim Boulevard,
initially due to VOUVAL ZIV’s, in a conspiracy with
other defendants, inducing her to make payments on a loan to him, based upon
misrepresentations of being an experienced real estate attorney. Also, that pleading alleges post-judgment
aiding and abetting of sale of the subject property to Lanker Partnership, to hinder Plaintiff as judgment creditor,
after prevailing at trial on those underlying facts.
Before reversal and remand in appellate proceedings
(opinion, filed 11/16/21), the Court had granted moving defendants motion to
dismiss this action under the five-year statute.
MP
Positions
Defendant moves for summary judgment or adjudication, against
Plaintiff, on bases including the following:
·
Defendant does
not have or claim to have any right, title, or interest in the Subject
Property. Plaintiff must allege that defendant asserts an adverse claim Twain
Harte Homeowners Ass’n v. Patterson, 193 Cal.App.3d 184, 188 (1987).
·
Plaintiff fails
to assert any facts which purport to establish a connection between the alleged
transfers of property and Defendant Perez.
·
Plaintiff
alleges fraud against Perez, but without personally connecting him to the
Subject Property in any way. Plaintiff’s own declaration to the opposition only
mention Perez once, stating that the Plaintiff was present at Perez’s
deposition. [Decl. of Cheri Brown, Pg. 20, ¶ 27, Lines 10-11].
·
Plaintiff’s
lawsuit is barred by res judicata. Plaintiff’s
arguments contain identical facts ass the Prior Case, involve primarily the
same defendants, and include allegations of fraud.
·
The entirety of
Plaintiff’s allegations against Perez are speculative, conclusive, and void of
a factual basis.
RP
Positions
Opposing party advocates denying the motion, or allowing
discovery, for reasons including the following:
·
Plaintiff has a motion pending to compel
Defendant’s second deposition, which is material to oppose the motion. CCP §
437c(h). ADI PEREZ’s deposition was
partially taken after he was ordered to appear on September 21, 2018. He
produced no documents. One of the categories of documents requested was any
partnership agreement of Lanker Partnership or Lanker Partners. At the
deposition, PEREZ testified he did not remember if there was an agreement.
·
Absent some admissible vidence
contradicting the allegations of the Second Amended Complaint, the motion
should be denied, as the demurrer was overruled.
·
As a general partner of Lanker
Partnership, moving party is potentially liable individually for the actions of
his partnership, even if Defendant had no interaction with Plaintiff. See Rappaport v. Gelfand (2011) 197
Cal.App.4th 1213, 1232; Corporations
Code section 1630.
·
Res judicata does not apply in Defendant’s
favor, as it involved different allegations at earlier times. Any collateral estoppel effect favors
Plaintiff who prevailed, not Defendant.
·
The issue of whether the note and deeds of
trust were secured by fraud has already been resolved against Defendants ZIVE
and VACA, in case number BC 440484. The first trial in BC440484 resulted in a
jury verdict in BROWN's favor on her claim of concealment. At that trial, the
trial court did not allow the issue of fraud to go to the jury.
·
The judgments providing that ZIVE procured
the BROWN note and deeds of trust by omission and misrepresentation, were filed
well before Lanker Partnership acquired its interest in the property. The lis
pendens for both BC440484 and BC475181 were recorded on January 11, 2012.
Lanker Partnership allegedly acquired its' interest in the property in 2013. As
Lanker Partnership had both constructive and it appears actual notice of case
number BC440484, before acquiring any interest, the judgments against Lanker
Partnerships predecessors in interest are binding.
·
PEREZ asserts BC440484 is still on appeal.
Not true. The Judgment is final, in favor of Plaintiff, not Defendant. ZIVE and VACA appealed and BROWN
cross-appealed. The Court of Appeal affirmed the judgment in favor of BROWN,
after reducing the award and reversed the trial court dismissal of the fraud
claim. The Court of Appeal remanded for the sole purpose of trying the fraud
claim. The Court of Appeal decision has
become final. The trial of the fraud claim was held, and the jury found
that ZIVE and VACA committed fraud by
misrepresentation, and awarded additional
damages. ZIVE and VACA again appealed, but the appeal was dismissed for
failure of ZIVE and VACA to file an
Opening Brief. Thus, judgment after the second trial is also final.
·
PEREZ has also asserted that an Unlawful
Detainer judgment obtained by Pacific
Realty Investments, LLC, ("PRI") collaterally estops BROWN
from raising the claim that the Notes and Deed of Trust executed in connection
with her purchase of the House and property at 3751 Lankershim Boulevard in the
Summer of 2006, are unenforceable since they were obtained through the fraud of
ZIVE. However, the trial judge in the Unlawful Detainer case ruled that BROWN
could not present that defense in the summary proceeding, and so there is no
res judicata bar or collateral estoppel effect.
·
The background allegations of the Second
Amended Complaint allege that Defendant Youval Zive and his partnership,
Defendant Vaca Partners, failed to provide required information about the
seller financing in connection with the sale of the Lankershim property to
BROWN and, in particular, in connection with execution of notes and deeds of
trust running in favor of Defendant ZIVE.
·
The SAC also alleges that the foreclosure
was improper because it was based upon a Note and Deeds of Trust which had been
secured by ZIVE through omission of material information required by statute to
be disclosed and fraud by misrepresentation and were therefore unenforceable.
Per the SAC, ZIVE caused the BROWN note to be transferred and the Deeds of
Trust to be assigned to a New Mexico corporation, Pacific Realty Investment LLC
(PRI), which, in turn, used the fraudulently obtained BROWN Note and the
purported amount due under the BROWN Note to make a bid for the property at the
foreclosure auction.
·
As for more recently alleged claims sued
upon, Lanker Partnership purported to purchase the Lankershim property from PRI
for $400,000. PEREZ has been anything but consistent about what happened, but
it appears that Lanker Partnership was formed on May 25, 2013, and the property
purchased on May 31, 2013, when Lanker Partnership's Owner's Title Insurance
policy came into effect. This was after the trial started on April 24, 2013,
after May 2, 2013, when the jury decided the Special Verdict in BC440484,
announcing that ZIVE and Vaca would be liable for almost $400,000 and shortly
before the entry of judgment on June 13, 2013. The Lanker Partnership purchase
price is alleged to be $400,000. There has been no documentary evidence
presented that the amount allegedly paid for the property, $400,000, or any
other amount, was ever paid by Lanker Partnership to Zive or PRJ.
·
As to the statute of limitations argument,
the wrongful conduct, which is attributable to ADI PEREZ and his general
partnership, Lanker Partners, occurred in connection with and when the property
was purportedly transferred to Lanker Partners. This was after the Complaint
was filed. The Defendant’s alleged conduct that assisted Zive and Vaca in their
fraud consisted of the purported purchase of the property in 2013.
Tentative
Ruling
The motion for summary judgment, and alternative
motion for summary adjudication, are denied entirely.
Judicial
Notice
The Court denies all of moving party’s requests for
judicial notice, as being either unauthorized, or irrelevant to the
allegations.
Judges cannot take judicial notice of hearsay
statements asserted in court filings, but can take judicial notice of the
existence of such documents. Johnson
& Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768; Arce ex rel. Arce v. Kaiser Found. Health
Plan, Inc. (2010) 181 Cal.App.4th 471, 483;
Saltarelli & Steponovich v. Douglas (1995) 40 Cal. App. 4th
1, 5; Magnolia Square Homeowners
Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1056-57.
Judges can take judicial notice of a deed and its
recording, where its existence and authenticity cannot reasonably be the
subject of dispute. Lockhart v. MVM,
Inc. (2009) 175 Cal.App.4th 1452, 1460;
Evans v. California Trailer Court, Inc. (1994) 28
Cal.App.4th 540, 549, disapproved on
other grounds by Black Sky Cap.,
LLC v. Cobb (2019) 7 Cal. 5th 156, 165;
Cal-American Income Property Fund II v. County of L. A. (1989)
208 Cal.App.3d 109, 112 n. 2 (court took judicial notice of deed recordation,
where there was no question of authenticity, and the parties had referenced the
deeds in the context of foreclosure proceedings); Ragland v. U.S. Bank National Assn.
(2012) 209 Cal.App.4th 182, 193. But see Poseidon v. Woodland
(2007) 152 Cal.App.4th 1106, 1117 (courts may take judicial notice of recorded
deeds, but not the hearsay or disputable facts asserted in them); South Shore Land Co. v. Petersen
(1964) 226 Cal. App. 2d 725, 746 (courts cannot judicially notice deeds and conveyances
of private parties, but may as to those documents as between official
entities). “[A] court may take judicial notice of the
fact of a document's recordation, the date the document was recorded and
executed, the parties to the transaction reflected in a recorded document, and
the document's legally operative language, assuming there is no genuine dispute
regarding the document's authenticity. From this, the court may deduce and rely
upon the legal effect of the recorded document, when that effect is clear from
its face.” Fontenot v. Wells Fargo
Bank, N.A. (2011) 198 Cal.App.4th
256, 265, disapproved on other grounds by
Yvanova v. New Century Mortg. Corp.
(2016) 62 Cal. 4th 919, 939. A
trial court errs in taking judicial notice of facts contained in recorded
documents, where they are in dispute. Herrera
v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (addressing recorded assignment of deed and
substitution of trustee, and reversing summary judgment where bank defendant
failed to show it was a beneficiary under deed of trust).
Courts cannot take judicial notice of a judge's
findings unless the requirements of res judicata or collateral estoppel must
apply pursuant to a final judgment. Plumley
v. Mockett (2008) 164 Cal.App.4th 1031, 1051; O'Neill v. Novartis Consumer Health, Inc.
(2007) 147 Cal.App.4th 1388, 1405;
Kilroy v. State of Cal. (2004) 119 Cal. App. 4th 140, 148; Columbia
Cas. Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal. App. 3d 457,
473; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1568-69. Judges can take judicial notice of the
existence of judicial opinions and verdicts from other cases, but not of the
truth of hearsay statements from them. Johnson
& Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768. Rulings in other cases are irrelevant absent
some additional showing like the elements of claim or issue preclusion. Drummond v. Desmarais (2009) 176
Cal.App.4th 439, 448.
Judicial notice of contracts is improper. E.g., Freemont Indem. Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 114-15.
Judicial notice requests may be denied based upon lack
of relevance. Kashian v. Harriman (2002)
98 Cal.App.4th 892, 901 n.3; Ragland
v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194; Barratt Amer., Inc. v. City of San Diego
(2004) 117 Cal. App. 4th 809, 812 n. 2 (court denied judicial notice of city
resolutions as being irrelevant to question involved in demurrer).
Moving
Party’s Burden
Moving party did not meet the burden to address aiding
and abetting alleged in the Second Amended Complaint, as to which direct
conduct by Defendant towards Plaintiff, is not required. See, e.g., Heckmann v. Ahmanson (1985) 168
Cal.App.3d 119, 127 (one aiding and abetting is jointly liable even without
participating in the wrongs); Smith
v. Blodget (1921) 187 Cal. 235, 244 (aiding and abetting may be actionable
even where one was not a party to a scheme from its inception.); Am. Master Lease LLC v. Idanta Partners,
Ltd. (2014) 225 Cal. App. 4th 1451, 1477 (aider and abettor may either (1)
owe a fiduciary duty to the victim and be liable for providing substantial
assistance, or (2) commit an independent
tort by making a conscious decision to assist another in performing wrongful
acts.).
As to each claim as framed by the complaint, the
defendant moving for summary judgment must satisfy the initial burden of proof
by presenting facts to negate an essential element, or to establish a
defense. Scalf v. D. B. Log Homes,
Inc. (2005) 128 Cal. App. 4th 1510, 1520.
“A defendant is not entitled to summary judgment unless that moving
party negates all theories of liability pleaded by the plaintiff.” Juarez v. Boy Scouts of America (2000)
81 Cal. App. 4th 377, 397, disapproved
on other grounds by Brown v. USA
Taekwondo (2021) 11 Cal. 5th 204, 213.
For summary judgment purposes,
issues framed by complaints and answers, which are to be addressed, may include
even those pled defectively, yet intelligibly, although not theories completely
missing from pleadings. Physicians
Comm. For Responsible Medicine v. McDonald's Corp. (2010) 187 Cal.App.4th
554, 568; FPI Development, Inc. v.
Nakashima (1991) 231 Cal. App. 3d 367, 382-383; Jordan-Lyon Prods., ITD., v. Cineplex
Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472; Bostrom v. County of San Bernardino
(1995) 35 Cal. App. 4th 1654, 1663; 580
Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal. App. 3d 1, 14, 18 (burden to address
theories “reasonably contemplated by the opponent's pleading”).
A moving defendant must show that plaintiff cannot
reasonably obtain evidence to prove a cause of action, which is more than
simply arguing that there is an absence of evidence. E.g., Gaggero v. Yura (2003) 108
Cal.App.4th 884, 891 (refusal to answer
and objection at deposition insufficient to shift burden). A motion for summary judgment must be denied
where the moving party's evidence does not prove all material facts, even in
the absence of any opposition (Leyva v.
Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the
opposition is weak (Salesguevara v.
Wyeth Labs., Inc. (1990) 222
Cal.App.3d 379, 384, 387).
Opposing
Party’s Burden
Opposing party does not have a burden of proof, in
light of the motion’s failure to shift the burden.
“Until parties moving for summary judgment satisfy the
initial burden of proof, opposing parties are not required to respond with
counteraffidavits.” Classen v. Weller
(1983) 145 Cal. App. 3d 27, 43. If a
moving party has satisfied the initial burden of proof, the burden “shifts to
the opposing party to show, by responsive separate statement and admissible
evidence, that triable issues of fact exist.”
Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal. App. 4th 1411,
1418, disapproved on other grounds by Black Sky Cap., LLC v. Cobb (2019) 7
Cal. 5th 156, 165.
Opposing party did not raise triable issues of
material fact, because a motion to compel a second deposition of Defendant is
pending to address alleged aiding and abetting and partner-liability issues,
after Defendant could not recall in the prior deposition as to most questions
about the partnership.
“ ‘If it appears from the affidavits submitted in
opposition to a motion for summary judgment or summary adjudication ... that
facts essential to justify opposition may exist but cannot, for reasons stated,
then be presented, the court shall deny the motion, or order a
continuance to permit affidavits to be obtained or discovery to be had....’
” Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 175 n.7 (quoting
CCP §437c(h)). [Emphases added.]
Parties are restricted to one deposition, absent a
court order based upon a showing of good cause. CCP §2025.610(a).
Quiet
Title
Defendant’s not asserting an interest in title to the
subject real property, as having a prior one-percent interest in a partnership
owner, actually indicates that Plaintiff is entitled to quieting title against
Defendant, instead of Defendant being entitled to summary adjudication. See
Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 270 (“In a quiet title action, a defendant who
disclaims an interest in the plaintiff's land is not entitled to judgment in
his favor…. Instead, the judgment should quiet title against the disclaiming
defendant.”).
Further, the motion does not address alleged effects
on subsequently held titles, such as the partnership’s, based on the Second
Amended Complaint’s prayer for determining that the subsequent purchasers did
not validly take title, in light of the prior Judgment related to inducement of
Plaintiff’s residential purchase by fraud and concealment. See, e.g., Dreher v. Rohrmoser
(1955) 134 Cal.App.2d 196, 198 (complainants can specifically plead the
invalidity of defendants’ legal title and courts may enter such judgment as the
equities require); Leeper v. Beltrami
(1959) 53 Cal.2d 195, 216 (in order for plaintiff to show the required element
of having title where there is a contract between the parties, there must be
something legally wrong with the contract justifying relief or rescission).
Fraudulent
Transfer
The motion fails to try to disprove the theory of the
DOE defendant aiding and abetting the partnership’s involvement in the transfer
of the subject property with intent to hinder, delay or defraud Plaintiff as a
judgment creditor.
“Under the UFTA, a transfer is fraudulent, both as to
present and future creditors, if it is made ‘[w]ith actual intent to hinder,
delay, or defraud any creditor of the debtor.’ ” Mejia v. Reed (2003) 31 Cal.4th 657,
664. See also CC §§3439.07(a)(1), 3439.08(a) (fraudulent transfers
may be avoided as against transferees who did not take property in good faith
for adequate consideration); Renda v.
Nevarez (2014) 223 Cal.App.4th 1231,
1238 (“The UFTA does not impose on the
debtor any liability additional to or distinct from the existing claim of the
creditor; it simply allows the creditor to obtain ‘[a]voidance of the transfer
... to the extent necessary to satisfy the creditor's claim.’ ”); ibid
at 1237 (“to the extent a transfer is
voidable, ‘the creditor may recover judgment’ for the lesser of the value of
the asset or the amount needed to satisfy the creditor's claim, and the
‘judgment may be entered’ against the person for whose benefit the transfer was
made.”); Monastra v. Konica Business
Machines, U.S.A., Inc. (1996) 43
Cal.App.4th 1628, 1645 (“A constructive
trust plainly is a proper remedy” for a fraudulent transfer claim.); Fidelity Nat. Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 850 (resulting
trust is a cognizable remedy as an alternative to fraudulent transfer).
Res Judicata and
Collateral Estoppel
Res judicata and collateral estoppel are not shown,
because the prior case addressed the underlying property purchase transaction,
whereas the Second Amended Complaint alleges against the DOE defendant and
others post-judgment fraud in hindering Plaintiff’s enforcement of a favorable
judgment that was partially based on finding concealment as to such underlying
transaction.
“The burden of establishing preclusion by prior
adjudication (res judicata) rests squarely on the party asserting it.” Ferraro v. Camarlinghi (2008) 161 Cal.
App. 4th 509, 529. Parties asserting collateral
estoppel have the heavy burden to establish the threshold requirements. People v. Garcia (2006) 39 Cal. 4th
1070, 1092.
“‘Under well settled law, the doctrine of res judicata
does not apply where there are changed conditions and new facts which were not
in existence at the time of the prior judgment, and upon which such judgment
was based.’" Neil Norman v.
William Kasper & Co. (1983) 149 Cal. App. 3d 942, 947. “‘Res judicata is not a bar to claims that
arise after the initial complaint is filed....’’” Greenspan v. LADT, LLC
(2010) 191 Cal.App.4th 486, 514. Res judicata does not apply to later
discovered claims that existed at the time of the prior lawsuit, unless, with
diligence, it could have been discovered prior to filing the suit. Allied Fire Protection v. Diede
Construction, Inc. (2005) 127 Cal.App.4th 150, 157.
“Collateral estoppel does not apply where there are
changed conditions or new facts which did not exist at the time of the prior
judgment….” United States Golf Ass'n
v. Arroyo Software Corp. (1999) 69 Cal. App. 4th 607, 616. “[W]hen the proceeding in which issue
preclusion is currently sought involves different substantive law than
the previous proceeding, collateral estoppel does not apply.” United States Golf Ass'n v. Arroyo Software
Corp. (1999) 69 Cal. App. 4th 607, 617-618 (“the decision took place in a
different legal context… and the substantive law at issue … changed … it cannot
be said that the issues … are ‘identical.’").
For collateral estoppel to apply, the “‘identical
factual allegations'” must be at stake in the two proceedings, as distinguished
from “‘the ultimate issues.’” Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511-12.
Res judicata is available in favor of third persons
sued on a theory of aiding and abetting, where plaintiffs arbitrated or
litigated against the direct tortfeasor, and if they completely lost on the
theory. Richard B. LeVine, Inc. v.
Higashi (2005) 131 Cal.App.4th 566, 579.
Further, “[a]n unlawful detainer action is a summary
proceeding ordinarily limited to resolution of the question of
possession.… Accordingly, it is true
that any judgment arising therefrom generally is given limited res judicata
effect.” Malkoskie v. Option One
Mortg. Corp. (2010) 188 Cal.App.4th 968, 973-74 (“The conduct of the sale
and the validity of the resulting transfer of title … were therefore directly
in issue in the unlawful detainer case. Because the complaint was brought under
section 1161a, it was proper for limited issues pertaining to the validity of title
… to be raised and conclusively resolved.”).
"Because an unlawful detainer action is a summary procedure
involving only claims bearing directly upon the right of immediate possession,
a judgment in unlawful detainer has very limited res judicata effect. Legal and
equitable claims -- such as questions of title and affirmative defenses -- are
not conclusively established unless they were fully and fairly litigated in an
adversary hearing." Pelletier v.
Alameda Yacht Harbor (1986) 188 Cal. App. 3d 1551, 1557. Unlawful
detainer judgments are not accorded the effect of collateral estoppel, or res
judicata, absent a fair adversary hearing.
Gonzalez v. Toews (2003) 111 Cal. App. 4th 977, 982 (“the
unlawful detainer judge … specifically pointed out that the issue … was not
tried. Given that the issue was not tried, defendants never had any adversary
hearing, let alone a fair one.”). “[W]hen
litigants to an unlawful detainer proceeding fully try other issues besides the
right of possession, the unlawful detainer judgment is conclusive as to those
other litigated issues.” Gombiner v.
Swartz (2008) 167 Cal.App.4th 1365, 1371.
Parties are barred by collateral estoppel from contesting title where it
was in issue in a prior unlawful detainer action, and the judgment necessarily
decided the issue of validity of title. Malkoskie
v. Option One Mortg. Corp. (2010) 188 Cal.App.4th 968, 975-76. A court did not accord a collateral estoppel
effect where a stipulated judgment in an unlawful detainer action involved
complainant’s allegations of default on a lease, but the answer’s defense of
breach of the warranty of habitability could not have been asserted as a claim
for damages. Landeros v. Pankey (1995) 39 Cal. App. 4th 1167, 1174.
Statute of Limitations
In relation to the instant action filed 12/13/11, the
motion fails to show expiration of the Statutes of Limitations as to alleged
aiding and abetting another in a post-judgment fraudulent transfer of the
subject real property, in 2013, which is actually after the Complaint was filed,
and not untimely before.
The filing of a valid DOE amendment means that the
amendment relates back to the time of the original Complaint’s filing, for
purposes of analyzing the Statute of Limitations. Woo v. Sup. Ct. (1999)
75 Cal. App. 4th 169, 176. Charging
allegations against DOE defendants to the effect that each is responsible is
some manner for alleged occurrences supporting causes of action, are
sufficient, and no more specificity is required. Winding Creek v. McGlashan (1996) 44
Cal.App.4th 933, 941-42. Accord Fireman's Fund Ins. Co. v. Sparks
Construction, Inc. (2004) 114 Cal.App.4th 1135, 1143.
Finally, the Court requests that the parties be more
accurate in writing as to any future motions, and not leave as much soundness
of analyses, and applying applicable laws, up to the Court. With the unusually long litigation history of
this case, involving several related actions, it is very time consuming to
soundly address the merits.
BROWN
v. ZIVE BC475181
Date of Hearing: 8/2/22, Dept. 55
#6:
1. MOTION
TO COMPEL DEPOSITION OF DEFENDANT YOUVAL ZIVE AND FOR MONETARY SANCTIONS OF
$4,265.
2. MOTION
TO COMPEL DEPOSITION OF DEFENDANT ADI PEREZ AND FOR MONETARY SANCTIONS.
Notice: Okay.
Opposition
MP:
1. Defendant
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR WAMU PASS-THROUGH
CERTIFICATES SERIES 2006-AR5 TRUST;
Joinder of Plaintiff.
2. Plaintiff
CHERIE BROWN.
RP:
1. Defendants
YOUVAL ZIVE, PACIFIC HOLDINGS, VACA PARTNERSHIP, and PHOENIX REALTY
INVESTMENTS, LLC.
2. Defendant
ADI PEREZ.
Summary
On 12/13/11, Plaintiff CHERIE
BROWN filed the Complaint.
On 10/18/12, Plaintiff filed a Second Amended
Complaint for (1) FRAUD, (2) QUIET TITLE AND (3) FRAUDULENT TRANSFER, alleging
the foreclosure sale of the family residence at 3751 Lankershim Boulevard,
initially due to VOUVAL ZIV’s, in a conspiracy with
other defendants, inducing her to make payments on a loan to him, based upon
misrepresentations of being an experienced real estate attorney. Also, that pleading alleges post-judgment
aiding and abetting of sale of the subject property to Lanker Partnership, to hinder Plaintiff as judgment creditor,
after prevailing at trial on those underlying facts.
Before reversal and remand in appellate proceedings
(opinion, filed 11/16/21), the Court had granted moving defendants motion to
dismiss this action under the five-year statute.
On 11/16/21, an appellate opinion directed a new order
denying a motion to dismiss as to the causes of action for quiet title and
fraudulent conveyance, and reconsidering dismissal as to the cause of action
for fraud.
MP
Positions
Co-Defendant DEUTSCHE BANK
NATIONAL TRUST COMPANY moves to compel Co-Defendant ZIVE’s deposition
attendance by 8/12/22, and to obtain $4,265 as sanctions, on grounds including
the following:
·
ZIVE failed to appear for a properly
noticed deposition, without any excuse or written objection.
·
ZIVE failed to provide any alternative
dates for a rescheduled deposition.
Plaintiff moves to compel Defendant PEREZ’s second
deposition, on bases including the following:
·
Defendant failed
to appear at a noticed deposition.
·
The need to take
the deposition includes to oppose the PEREZ motion for summary judgment.
·
In the first
deposition, the total amount of time allowed for examination by PEREZ and his
counsel, excluding breaks, was less than 2 ½ hours.
·
Defendant failed
to produce the documents originally requested that he was ordered to produce in
2018.
·
Efforts to
obtain an alternate deposition date from opposing counsel, proved unavailing.
RP
Positions
Opposing counsel of record for ZIVE advocates denying the
motion, for reasons including the following:
·
The reasons for YOUVAL
ZIVE’s failing to attend depositions, are that he has failed to communicate
with counsel about availability for depositions, and has stated he will hire
new counsel.
Opposing Defendant ADI PEREZ
advocates denying the motion, and obtaining $1,750 in sanctions against
Plaintiff and counsel, for reasons including the following:
·
The parties
informally resolved the issue by cancelling the deposition set for the
unworkable date.
·
Plaintiff failed
to show good cause to depose the witness a second time.
·
The testimony is
not relevant. Plaintiff and Defendant
have not had any substantive previous interactions.
·
Plaintiff’s
notice of Perez’s deposition on April 11, 2022 failed to include Defendant
PEREZ on the email list.
·
Plaintiff failed
to meet and confer.
·
Sanctions should
be denied, because Defendant has substantial justification for making the
opposing arguments.
Tentative
Ruling
Both motions are granted in part and denied in part,
as specified herein.
On or before 8/31/22, Defendant YOUVAL ZIVE shall pay
discovery sanctions in the sum of $4,265.00 to moving party
DEUTSCHE BANK NATIONAL TRUST COMPANY, the Court finding the absence of
substantial justification. E.g.,
CCP § 2023.030. No sanctions are awarded against counsel of
record for ZIVE.
Commencing at 10:00 a.m., on 9/2/22, Defendant ADI
PEREZ shall attend a deposition at JDR LAW INC., 535 North Brand Blvd., Suite
250 & 255, Glendale, California 91203.
The court denies moving and opposing parties’
sanctions requests as to Defendant ADI PEREZ, it finding substantial
justification for some arguments of each side.
A motion lies to compel deposition attendance and
document production, after service of a deposition notice, where a deponent
fails to appear at, or proceed with, a deposition, without having served a
valid objection. CCP §2025.450(a).
No meet and confer is required to compel initial
deposition attendance, but instead there must be a declaration showing that
moving party inquired about the nonappearance.
CCP §2025.450(b)(2).
"Implicit in the requirement that counsel contact the deponent to
inquire about the nonappearance is a requirement that counsel listen to the
reasons offered and make a good faith attempt to resolve the issue
including by rescheduling. Leko v.
Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124. See
also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be
given to accommodating schedules in setting depositions).
Parties are restricted to one deposition, absent a
court order based upon a showing of good cause. CCP §2025.610(a).
Generally, monetary sanctions are mandatory as to
parties losing discovery motions, unless courts find substantial justification
or other injustice. E.g., Foothill Properties v. Lyon/Copley
Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification” has been
understood to mean that a justification is clearly reasonable because it is
well-grounded in both law and fact.” Doe
v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.
Finally, ZIVE’s counsel’s
declaration shows cognizable grounds for withdrawal: The client by conduct renders it unreasonably
difficult for the member to carry out the employment effectively (e.g.,
noncooperation or noncommunication). Rules Prof. Conduct, Rule
1.16(b)(4). Cf. Estate of Falco
(1987) 188 Cal. App. 3d 1004, 1020 (“We find no abuse of discretion in the
trial court's implicit finding rejecting the contention that respondents' lack
of cooperation justified appellants' withdrawal.”).