Superior Court of California

County of Los Angeles

LEVON MGRDICHIAN, an individual,

Plaintiff,

vs.

TONY MAVUSI, an individual, PROFESSIONAL BUSINESS PROPERTIES, INC., a California Corporation; PYRAMID TECHNOLOGIES INC.; PROFESSIONAL BUSINESS PROPERTIES, INC., a California Corporation; and DOES 1 through 50, inclusive,

Defendants.

Case No.: 23STCV30259

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: 12/12/23

[1st Amended Complaint Filed: 4/4/24]

Trial Date: None set.

Hearing date: November 18, 2024

Moving Party: Defendant Nicole Alexandra Feryanitz

Responding Party: Plaintiff Levon Mgrdichian

Defendant Nicole Alexandra Feryantiz’s Motion to Expunge Lis Pendens

The Court considered the moving papers and opposition, no reply was filed.

The motion is DENIED.

Background

This action arises from a series of allegedly fraudulent transfers of the real property located at 1539-1541 West Olympic Boulevard, Montebello, California 90640 (the “Montebello Property”). On December 12, 2023, Plaintiff Mgrdichian (“Plaintiff”) filed the instant action against Defendants Tony Mavusi (“Mavusi”), Professional Business Properties, Inc. (“Professional”), PBP Properties Inc. (“PBP”), Pyramid Technologies Inc. (“Pyramid”) (collectively, “Defendants”), and Does 1 through 50.

On April 4, 2024, Plaintiff filed the operative First Amended Complaint, alleging the following causes of action against Defendants: (1) fraudulent transfer, (2) conspiracy to defraud, and (3) constructive trust. Also on April 4, 2024, Plaintiff filed a Notice of Lis Pendens with this court, indicating that Plaintiff had served Defendants with a Notice of Pendency of Action on or around December 12, 2023, and recorded such notice with the County on or around December 13, 2023.

This present action involves Defendants’ activities during the pendency of a lawsuit Plaintiff previously filed against Defendants. On April 2, 2019, Plaintiff sued Defendants in the Superior Court of California, County of Los Angeles, LASC Case No. 19STCV11143 (“Fraud Action”). In this prior lawsuit, Plaintiff alleged that Defendants participated in a scheme to defraud him for nearly $3,000,000.00. Plaintiff provided these funds for Defendants to purchase a cannabis growing facility upon Defendants’ fraudulent representations that they would repay such funds and would provide Plaintiff shares of Pyramid, however Defendants never repaid any of Plaintiff’s funds. (2/21/24 Minute Order, LASC Case No. 19STCV11143, p. 2.) On March 29, 2024, the Court entered judgment in favor Plaintiff in the amount of $5,386,168.94, including $2,844,300.00 in damages, $2,530,688.82 in prejudgment interest, and $11,180.12 in costs. (Exh. E.)

Plaintiff alleges that Pyramid, with Mavusi as its principal, originally had an ownership interest in the Montebello Property. (Exh. A.) On January 24, 2018, Pyramid transferred its interest in the Montebello Property to Professional, with Mavusi also as its principal, for no consideration. (Id.) The transfer document indicates that the conveyance was executed to secure a debt. (Id.) Plaintiff further alleges that on January 17, 2023, during the pendency of the Fraud Action, Professional, through Mavusi, conveyed its interest in the Montebello Property to PBP for no consideration (Exh. B), a company which also lists Mavusi as its principal (Exh. C).

Additionally, on April 3, 2024, immediately after judgment in the Fraud Action had been ordered, Professional and PBP conveyed their interest in the Montebello Property to Nicole Alexandra Feryanitz (“Feryanitz”) as a bona fide gift, and for no consideration. (Exh. F.) Plaintiff believes Feryanitz to be Mavusi’s girlfriend. However, before this purported transfer to Feryantiz took place, on December 26, 2023, Mavusi, through Professional and PBP also attempted to convey their interest in the Montebello Property to East Orient Investment Group LLC, a Wyoming limited liability company (“East Orient”). (Exh. G.) After discovering the deeds to East Orient and Feryanitz, plaintiff named these parties as defendants in this case on April 4, 2024, and May 3, 2024, respectively.

Now, on June 4, 2024, Defendant Nicole Alexandra Feryanitz filed the instant motion to expunge lis pendens.

On November 1, 2024, Plaintiff filed its opposition. No reply has been filed.

Legal Standard

In a motion to expunge a notice of lis pendens, the claimant who filed the lis pendens has the burden of proof. CCP §405.30. Thus, that claimant, in opposing the motion to expunge the lis pendens, must demonstrate the following: (1) the action affects title to or right of possession of the real property described in the notice; (2) in so far as the said notice is concerned, the party recording the notice has commenced the action for a proper purpose and in good faith; and (3) the probable validity of the real property claim by a preponderance of the evidence. (Hunting World, Inc. v. Sup. Ct. (1994) 22 Cal. App. 4th 67, 70; see also CCP §405.30, et seq.)

The court shall order the expungement if it finds the pleading on which the lis pendens was based “does not contain a real property claim,” or if it finds the party who filed the pleading “has not established by a preponderance of the evidence the probable validity of the real property claim.” (Code Civ. Proc., §§ 405.31 & 405.32.) “The party opposing a motion to expunge a lis pendens has the burden to show that a real property claim has been alleged and has probable validity based upon a preponderance of the evidence.” (Nunn v. JPMorgan Chase Bank, N.A. (2021) 64 Cal.App.5th 346, 363.) A claim has “probable validity” where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (CCP § 481.190.)

Discussion

Here, Plaintiff has satisfied his burden of showing a real property claim against Defendants and establishing the probable validity of such claim upon the preponderance of the evidence.

In his First Amended Complaint, Plaintiff alleges a cause of action for fraudulent transfer against Defendants, in violation of the Uniform Fraudulent Transfer Act (“UFTA”), California Civil Code section 3439.04, subdivision (a)(1). Under the UFTA, the elements of a fraudulent transfer are as follows:

1. A transfer made or obligation incurred by a debtor;

2. With actual intent to hinder, delay, or defraud any creditor of debtor;

3. Without receiving a reasonably equivalent value in exchange for the transfer or obligation;

a. Debtor was engaged or was about to engage in a business or a transaction for which remaining assets were unreasonably small in relation to the business or transaction; or

b. Intended to incur, or believed or reasonably have believed that debtor would incur, debts beyond ability to pay as they became due; and

4. Injury to the creditor.

(Civ Code, §§ 3439.04(a), 3439.05; see also Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 648-51 (fraudulent transfer was sufficiently alleged based on defendant’s transfer of property with the intent to defraud, hinder, or delay creditors in collection)

In Kirkeby, The California Supreme Court has held that fraudulent transfer claims under the UFTA are properly classified as “real property claim[s] for the purposes of the lis pendens statutes” because such claims, “if successful, may result in the voiding of a transfer of title of specific real property.” (Id., 33 Cal.4th at p. 649.)

Here, Plaintiff has established a probable validity of his fraudulent transfer claim as against Defendants, including Feryanitz, based on the allegations of the complaint and the evidence included in its opposition papers. Defendant’s motion merely states in a conclusory fashion that “Defendant submits that Plaintiff cannot a [sic] probable validity of his claim by preponderance of evidence or showing [sic] that he is likely to prevail on his complaint.” (Motion, p. 4:16-17.) However, Plaintiff’s evidence demonstrates Mavusi repeatedly transferring ownership interest in the Montebello Property to different corporate entities he has control over, for no consideration at all, as a means of frustrating Plaintiff’s ability to collect, and to prevent proper execution of the Court’s judgment. (Exh. E; Exh. B; Exh. F; Exh. G; see also Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298 (proof of fraudulent intent in conveyances often is inferences from the surrounding circumstances).)

Further, as Plaintiff notes, even if the transfer may be valid, Feryanitz seemingly does not have a valid interest in the Montebello Property to file the present action because title to the Property was transferred to East Orient before she acquired title. (Exh. G.)

Accordingly, Defendant Nicole Alexandra Feryanitz’s Motion to Expunge Lis Pendens is DENIED.

It is so ordered.

Dated:

_______________________

MEL RED RECANA

Judge of the Superior Court