Judge: Maurice A. Leiter, Case: BC706996, Date: 2023-03-23 Tentative Ruling

Case Number: BC706996    Hearing Date: March 23, 2023    Dept: 54

Hearing Date: March 23, 2023

Department 54, Judge Maurice A. Leiter

Motion for Summary Adjudication

Moving Party: Plaintiffs Standard General L.P., et al.

Responding Party: Defendants Charney, Apex RE and Art, Commerce & Manfacturing Solitions, LLC; Charney’s Bankruptcy Trustee

T/R:     PLAINTIFFS’ MOTION IS DENIED.

PLAINTIFFS 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 and oppositions.

BACKGROUND

On May 24, 2018, Plaintiffs Standard General L.P., Standard General Master Fund, L.P., P Standard General LTD filed the operative first amended complaint against Defendants Dov Charney, Los Angeles Apparel Inc., Art Commerce and Manufacturing Solutions, LLC, Apex Real Estate Management LLC, Keith Fink, and Apex Property Management Inc.  Plaintiffs assert six causes of action for actual and constructive fraudulent transfer and seek a permanent injunction. Plaintiffs are Defendant Charney’s judgment creditors. Plaintiffs allege that Charney has fraudulently transferred title and interests in his residence to other Defendants, including his attorney Defendant Fink, to avoid paying his judgment creditors.

On November 18, 2022, the Court granted Fink’s motion for summary adjudication.

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).

Plaintiffs move for summary adjudication of the fourth cause of action for constructive fraudulent transfer against Dov Charney and Apex Property Management, LLC. Plaintiffs assert that Charney accidentally deeded title of the real property at issue in this case to APM and when he intended to deed the property to Defendant Apex RE (Apex Real Estate Management LLC).

In the moving papers, Plaintiffs represent that APM has not appeared in this action. In opposition, Defendants Charney, Apex RE and Art, Commerce & Manfacturing Solitions, LLC also represent that APM has not appeared in this action. Defendants argue that the motion must be denied under CCP § 437c(a)(1), which prohibits summary judgment motions from being made before 60 days have elapsed since the general appearance in the action of each party against whom the motion is directed.

Charney’s bankruptcy trustee also has filed a declaration in response to the motion. The trustee requests that the Court grant the motion as to APM only and not Charney. 

Plaintiffs state that the entity they seek judgment against has not appeared in this action. The motion against an entity that has not appeared is improper under Code of Civil Procedure § 437c(a)(1). The Court’s record does reflect that on October 22, 2018 counsel Keith A. Fink filed an answer to Plaintiffs’ FAC on behalf of an entity called “Apex Property Management, LLC.” But the parties do not acknowledge or explain the October 22, 2018 answer or how it may relate to this motion. The Court cannot grant adjudication against APM based on this record.

Nor can the Court grant this motion against Charney. CCP § 437c(a)(1) requires that the motion be made after 60 days have elapsed since the general appearance of “each party against whom the motion is directed.” This language states that the motion cannot be granted against any party unless 60 days have elapsed since the general appearance of every party against whom the motion is directed.

The Court DENIES Plaintiffs’ motion.