Judge: Melvin D. Sandvig, Case: 21CHCV00606, Date: 2024-08-27 Tentative Ruling
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Case Number: 21CHCV00606 Hearing Date: August 27, 2024 Dept: F47
Dept. F47
Date: 8/27/24
Case #21CHCV00606
MOTION FOR: (1)
CHARGING ORDER & (2) APPOINTMENT OF A RECEIVER
Motion filed on 7/18/24.
MOVING PARTY: Plaintiff Rexford Industrial Realty, L.P.
RESPONDING PARTY: Defendant Stephen Mastey
Additionally,
Plaintiff requests an order appointing a receiver to collect the Defendant’s
share of OPM LLC’s profits and any other moneys due, or to become due,
Defendant from OPM LLC.
RULING: The motion is placed off calendar.
SUMMARY OF ACTION & PROCEDURAL HISTORY
This is a commercial unlawful detainer action filed by
Plaintiff Rexford Industrial Realty,
L.P. (Plaintiff) against Defendant Stephen Mastey (Defendant) regarding
premises located at 25413 Rye Canyon Road, Santa Clarita, CA 91355 (the
Premises).
On 5/5/22, Judgment was entered against Defendant for
$149,950.06 in monetary damages and possession of the Premises/real property
due to Defendant having breached the Stipulated Judgment entered on 11/19/21.
Plaintiff contends that Defendant operated a commercial
enterprise manufacturing, selling and/or distributing cosmetic and hair care
products from the Premises purportedly operating under the name “DermOrganic
Laboratories, Inc.” (See Uss
Decl.). That closely-held corporation
was suspended by the California Franchise Tax Board in 2015. (Id., Ex.2). Defendant was the only identified director
and/or officer of DermOrganic Laboratories, Inc. (Id., Ex.3). Organic Products Manufacturing LLC (OPM LLC) was
organized on 11/23/21 with Defendant identified as the only manager and/or
member of OPM LLC. (Uss Decl., Ex.4, 5).
After the entry of Judgment on 5/5/22, Plaintiff began
efforts to collect and perfect its judgment against Defendant. To ascertain Defendant’s finances, Plaintiff
served third-party subpoenas to various financial institutions. Plaintiff also served a wage garnishment
request to OPM LLC. The employer
response, which Plaintiff contends was prepared by Defendant’s spouse, states
that Defendant is not an employee of OPM LLC even though the website identifies
Defendant and Defendant’s association with OPM LLC. (Id., Ex.6, 7).
Plaintiff has also identified numerous cancelled checks
from OPM LLC’s accounts that show Defendant as the signatory. (Id., Ex.8, 9). Plaintiff contends that Defendant has used
OPM LLC’s corporate funds for his and his spouse’s personal use and avoided all
efforts to satisfy the judgment against him.
Based on the foregoing, on 7/18/24, Plaintiff filed the
instant motion seeking: (1) A Charging Order against the interest of Defendant
Stephen Mastey (Judgment Debtor/Defendant), charging the membership interests
in that certain limited liability company known as Organic Products
Manufacturing LLC (OPM LLC) held by Defendant and (2) directing OPM LLC, and
all members thereof, to pay any money or property due or to become due to
Plaintiff (Defendant?) directly to Plaintiff until the amount remaining due on
the judgment, plus all accrued interest and post-judgment costs thereon, is
paid in full. Additionally, Plaintiff
requests an order appointing a receiver to collect the Defendant’s share of OPM
LLC’s profits and any other moneys due, or to become due, Defendant from OPM
LLC.
The proof of service attached to the motion indicates
that it was served on 7/18/24 by U.S. Mail and electronic transmission on:
Nnana Awa
LAW ANGELES
3055 Wilshire Blvd., Suite 600
Los Angeles, CA 90010
Email: nnana@lawangeles.com
Attorneys for Defendant Stephen
Mastey
Stephen Mastey
4841 Avenue Tibbitts
Santa Clarita, CA, 91355
Email: shop@dermorganic.com
Organic Products Manufacturing LLC
Santa Clarita, CA, 91355
Email: shop@dermorganic.com
On 8/20/24, Defendant filed a declaration claiming that
he was not properly served with the motion.
No proof of service for Defendant’s declaration has been filed.
ANALYSIS
As noted above, Defendant claims that he was not properly
served with instant motion and only became aware of it on 8/14/24. (See Mastey Decl. ¶¶3-5). While the motion was also served on
Defendant’s counsel of record, Nnana Awa of Law Angeles, Defendant claims that attorney
Awa is his “former counsel” whom Defendant believes no longer works for the
firm where he was served. (Mastey Decl.
¶6). The last time attorney Awa appeared
on behalf of Defendant was on 5/5/22.
OPM LLC is entitled to service of the notice of this
motion. See CCP 708.320(a)(2). Based on the evidence presented by Plaintiff,
OPM LLC was not properly served with the motion. The business address listed for OPM LLC in
its Articles of Organization is 2108 N. St Ste N, Sacramento, California 95816
and its agent for service of process is Northwest Registered Agent, Inc. (Uss Decl., Ex.4). The foregoing address is also listed on the
Statement of Information for OPM LLC and Defendant as its Manager/Member. (Id., Ex.5). The Statement of Information also lists
Northwest Registered Agent, Inc. as OPM LLC’s agent for service of process. Id.
Further, Plaintiff seemingly served Northwest Registered Agent, Inc. at
the foregoing address on behalf of OPM LLC with the Wage Garnishment in or
around May 2024. (Id., Ex.6).
Despite the foregoing, Plaintiff served OPM LLC with this
motion by mailing it to “4841 Avenue Tibbitts” in Valencia, California. (See Motion Proof of Service, pdf 61). Even if mailing the motion to an address
other than that listed for the Agent for Service of process could be deemed
valid, Plaintiff’s evidence shows the motion was served on an incorrect street
address for OPM LLC. As noted above, the
proof of service shows that the motion was mailed to OPM LLC and Defendant at “4841
Avenue Tibbitts.” (See
Motion Proof of Service, pdf 61).
However, OPM LLC’s bank statement attached to the motion as Exhibit 10
shows its address as 24841 Avenue Tibbitts. (See Ex.10, Motion pdf 48). The Writ of Execution issued on 1/4/24 also
lists Defendant’s address as 24841 Avenue Tibbitts, Valencia, CA
91355-3405. Defendant also indicates
that he does not recognize the address where the motion was purportedly mailed
to him and OPM LLC and that such address is incorrect and/or invalid. (See Mastey Decl. ¶5).
Defendant also states that the email address where the
motion was sent to him is not his email address. (See Mastey Decl. ¶4).
Based on the foregoing, even if Defendant is deemed to
have been properly served with the motion through attorney Awa who still
appears as his attorney of record in eCourt, OPM LLC did not have proper notice
of the hearing on this motion.
Therefore, it must be placed off calendar.
The Court also notes that while Plaintiff has requested
the appointment of a receiver to obtain performance of the charging order,
Plaintiff has not nominated anyone to act as a receiver. See CCP 566(a). Nor has Plaintiff given any indication of the
appropriate amount of an undertaking for the receiver. CCP 567(b).
There is also no information regarding how the receiver will be paid.
CONCLUSION
Based on the foregoing, the motion is placed off
calendar.
Plaintiff is ordered to provide notice of this ruling to Defendant’s
counsel of record and to Defendant at the street address and email address
listed on the declaration filed by Defendant on 8/20/24: 24844 Anza Drive, Unit
D, Valencia, CA 91355 and Stephen@Mastey.com.
If Defendant intends to represent himself in this action
going forward, he must file an appropriate Substitution of Attorney form.
The Court further notes that Plaintiff has failed to
electronically bookmark the exhibits attached to the Uss declaration as
required by CRC 3.1110(f)(4). Counsel
for the parties are warned that failure to comply with this rule in the future
may result in matters being continued so that papers can be resubmitted in
compliance with the rule, papers not being considered and/or the imposition of
sanctions.