Judge: Maurice A. Leiter, Case: 23STCV09801, Date: 2024-06-03 Tentative Ruling

Case Number: 23STCV09801    Hearing Date: June 3, 2024    Dept: 54

Hearing Date: June 3, 2024

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Plaintiff Pacific Western Bank

Responding Party: Defendants Norman J. Kravetz, Glenda J. Kravetz and E&O Asset Holdings, LLC

T/R:     PLAINTIFFS’ MOTION IS DENIED.

PLAINTIFF TO NOTICE. 

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 2, 2023, Plaintiff filed a complaint against Defendants, asserting causes of action for (1) breach of promissory note; (2) conspiracy to fraudulently conceal assets; (3) aiding and abetting fraudulent concealment of assets; (4) voidable transfer; and (5) declaratory relief. Plaintiff alleges Defendant Norman Kravetz defaulted on a business loan and fraudulently transferred real commercial property to avoid repayment of the debt.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Plaintiffs’ objections to the declaration of Mr. Kravetz are OVERRULED.

ANALYSIS

“In moving for summary judgment, a ‘plaintiff . . . has met’ his ‘burden of showing that there is no defense to a cause of action if’ he ‘has proved each element of the cause of action entitling’ him ‘to judgment on that cause of action.’”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (as modified (July 11, 2001).)  The plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.”  (Id., at 851, original italics.)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  (CCP § 437c(p)(1).)  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar, supra, 25 Cal.4th at 850.)  The 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 § 437c(p)(1).)

A. First Cause of Action for Breach of Contract against Mr. Kravetz

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Plaintiffs present evidence showing Plaintiffs and Mr. Kravetz executed a loan contract and Mr. Kravetz defaulted on the loan. In opposition, Defendants present evidence showing Mr. Kravetz and the Plaintiff bank had a nearly 40-year course of dealing in which the bank would work with Mr. Kravetz to restructure payment plans to avoid default and ensure any loans would be repaid before the maturity date. Defendants assert Plaintiffs went against this course of dealing after Mr. Kravetz’ long-time banker retired, requiring repayment of the loan at issue within one year after Mr. Kravetz’ first missed payment. This is sufficient to establish a triable issue of fact as to the parties’ course of dealing and their understanding the contract.

The motion for summary judgment against Mr. Kravetz is DENIED. The motion for summary adjudication of the first cause of action is DENIED.

B. Fourth Cause of Action for Voidable Transfer against Mr. Kravetz, Mrs. Kravetz and E&O

Civ. Code § 3439.04(a) provides, “[a] transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: (1) with actual intent to hinder, delay or defraud any creditor of the debtor.”

Plaintiffs assert that Defendants fraudulently transferred certain real property owned by the individual Defendants to an LLC to avoid repayment of a judgment from another bank. Plaintiffs contend that Mr. Kravetz also mispresented his ownership interest in the property to obtain the subject loan from Plaintiffs. In opposition, Defendants represent that there was no intent to hinder or defraud creditors when this transfer took place. According to Defendants, there was no practical change in ownership of the property and Defendants’ practice was to their place property into LLCs. This is sufficient to create a triable issue of fact as to fraudulent transfer.

The motion for summary adjudication of the claim for fraudulent transfer is DENIED.