Judge: Michael E. Whitaker, Case: 23SMCV05759, Date: 2024-03-07 Tentative Ruling
Case Number: 23SMCV05759 Hearing Date: March 7, 2024 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
March
7, 2024 |
|
CASE NUMBER |
23SMCV05759 |
|
MOTION |
Motion
for Summary Judgment |
|
MOVING PARTY |
Plaintiff
Armon Funding, LLC |
|
OPPOSING PARTY |
none |
MOVING PAPERS:
BACKGROUND
Plaintiff Armon Funding, LLC (“Plaintiff”) filed a verified unlawful
detainer complaint against Defendants MMK Capital, Inc. (“Defendant”) and all
unknown occupants, tenants, and subtenants on December 8, 2023.
Plaintiff now moves for summary judgment. Defendant has not filed an opposition to the
motion.
REQUEST
FOR JUDICIAL NOTICE
Plaintiff requests the Court
to take judicial notice of the following:
·
Exhibit
A: Certified recorded “Deed of Trust,” recorded as Instrument Number
20210977020 in the Official Records of Los Angeles County on June 22, 2021.
·
Exhibit
B: Certified recorded collective “Substitutions of Trustee,” recorded as
Instrument Numbers 20230281024, 20230281025, 20230281026, 20230281027,
20230281028, 20230281029, 20230281030, 20230281031, 20230281032, 20230281033 in
the Official Records of Los Angeles County on May 1, 2023.
·
Exhibit
C: Certified recorded “Notice of Default and Election to Sell Under Deed
of Trust” recorded as Instrument Number 20230281034 in the Official Records of
Los Angeles County on May 1, 2023.
·
Exhibit
D: Certified recorded “Assignment of Deed of Trust,” recorded as
Instrument Number 20230350980 in the Official Records of Los Angeles County on
May 31, 2023.
·
Exhibit
E: Certified recorded “Notice of Trustee’s Sale,” recorded as Instrument
Number 20230513121 in the Official Records of Los Angeles County on August 3,
2023.
·
Exhibit
F: “Stipulation Among Chapter 7 Trustee, Lenders, and Receiver re:
Commonwealth Properties, LLC,” filed on or about August 22, 2023 in the United
States Bankruptcy Court, Central District of California. Case No.
2:22-bk-13500-ER.
·
Exhibit
G: “Order Approving Stipulation Among Chapter 7 Trustee, Lenders, and
Receiver re: Commonwealth Properties, LLC,” filed on or about August 24, 2023
in the United States Bankruptcy Court, Central District of California. Case No.
2:22-bk-13500-ER.
·
Exhibit
H: Certified recorded “Trustee’s Deed Upon Sale” recorded as Instrument
Number 20230828030 in the Official Records of Los Angeles County on November
30, 2023.
·
Exhibit
I: Certified recorded “Subordination Agreement,” recorded as Instrument
Number 20210977018 in the Official Records of Los Angeles County on June 22,
2021.
·
Exhibit
J: Certified recorded “Subordination Agreement,” recorded as Instrument
Number 20210977019 in the Official Records of Los Angeles County on June 22,
2021.
·
Exhibit
K: “Notice of Trustee’s Intention to Abandon Property of the Estate
Pursuant to 11 U.S.C. § 554(a)” filed on or about December 12, 2023 in the
United States Bankruptcy Court, Central District of California. Case No.
2:22-bk-13500-NB.
With respect to the deeds and
other recorded documents, courts can take judicial notice of the existence and
recordation of real property records, including deeds, if authenticity is not
reasonably disputed. (Fontenot v. Wells
Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) “The official act of recordation and the
common use of a notary public in the execution of such documents assure their
reliability, and the maintenance of the documents in the recorder’s office
makes their existence and text capable of ready confirmation, thereby placing
such documents beyond reasonable dispute.”
(Ibid.) Moreover, courts
can take judicial notice not only of the existence and recordation of recorded
documents but also matters that can be deduced from the documents, including
the parties, dates, and legal consequences of recorded documents relating to
real estate transactions. (Ibid.) Therefore, the Court takes judicial notice of
the recorded documents.
With respect to documents from
the bankruptcy court proceedings, judicial notice may be taken of records of any court of record of the
United States. (Evid. Code, § 452, subd.
(d)(1).) Because the documents from the
bankruptcy proceedings are federal court records, the Court may take judicial
notice of them. (Ibid.) However, “while courts are free to take
judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files. Courts may not take judicial notice of
allegations in affidavits, declarations and probation reports in court records
because such matters are reasonably subject to dispute and therefore require
formal proof.” (Lockley v. Law Office
of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875,
882 [cleaned up].) Accordingly, the
Court takes judicial notice of the existence of the bankruptcy case documents
as court records, but not the truth of any allegations contained therein.
LEGAL STANDARDS – SUMMARY JUDGMENT
“[T]he party moving for
summary judgment bears the burden of persuasion that there is no triable issue
of material fact and that he is entitled to judgment as a matter of law[.]
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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“[T]he party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact; if he carries his burden of production, he causes a shift,
and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a
triable issue of material fact.” (Ibid.)
“On a summary judgment
motion, the court must therefore consider what inferences favoring the opposing
party a factfinder could reasonably draw from the evidence. While viewing the
evidence in this manner, the court must bear in mind that its primary function
is to identify issues rather than to determine issues. Only when the inferences are indisputable may
the court decide the issues as a matter of law. If the evidence is in conflict,
the factual issues must be resolved by trial.”
(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839
[cleaned up].) Further, “the trial court
may not weigh the evidence in the manner of a factfinder to determine whose
version is more likely true. Nor may the
trial court grant summary judgment based on the court's evaluation of
credibility.” (Id. at p. 840
[cleaned up]; see also Weiss v. People ex rel. Department of Transportation
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
DISCUSSION
Timeliness
For unlawful detainer cases, “A motion for
summary judgment may be made at any time after the answer is filed upon giving
five days notice. Summary judgment shall be granted or denied on the same basis
as a motion under Section 437c.” (Code
Civ. Proc., § 1170.7.) In case of
service by mail, the notice period shall be extended five calendar days, and
for electronic service, such notice period shall be extended by two court days. (Cal. Rules of Court, rule 3.1351(a); Code
Civ. Proc., §§ 1013, 1010.6, subd. (3)(B).)
Here,
the proof of service indicates Plaintiff served the moving papers both
electronically and by mail on February 23, 2024. Therefore, the Motion is timely.
Similarly,
“Any opposition to the motion and any reply to an opposition may be made orally
at the time of hearing or in writing as set forth in (c).” (Cal. Rules of Court, rule 3.1351(b).) “If a party seeks to have a written
opposition considered in advance of the hearing, the written opposition must be
filed and served on or before the court day before the hearing.” (Cal. Rules of Court, rule 3.1351(c).) “The court, in its discretion, may consider
written opposition filed later.” (Ibid.)
As
of the posting of the tentative ruling, no written opposition had yet been
received by the Court.
Motion
Code
of Civil Procedure section 1161a, subdivision (b) provides, “a person who holds
over and continues in possession of […] real property after a three-day written
notice to quit the property has been served upon the person, or if there is a
subtenant in actual occupation of the premises, also upon such subtenant, as
prescribed in Section 1162, may be removed therefrom” in situations “[w]here
the property has been sold in accordance with Section 2924 of the Civil Code,
under a power of sale contained in a deed of trust executed by such person, or
a person under whom such person claims, and the title under the sale has been
duly perfected.”
Section
2924 requires: (1) a notice of default be recorded; (2) a notice of sale is
recorded no sooner than five days before three months after the notice of
default is recorded and the date of sale is no earlier than three months and
twenty days after recording the notice of default.
In
support of its Motion for Summary Judgment, Plaintiff proffers the following
evidence:
·
On or
about June 9, 2021, Commonwealth Properties LLC (“Commonwealth”) took an $8
million loan out and recorded a deed of trust with a power of sale for the
commercial real property located at 445 South Beverly Drive, Suite 100, Beverly
Hills, CA 90212, to trustee ZBS Law, LLP for the benefit of the various lenders
as follows:
o
Plaintiff
(as to an undivided $2.5 million)
o
Ryzman
Family Partnership (as to an undivided $1.85 million)
o
Benson
Capital Partners, LLC (as to an undivided $1.5 million)
o
RNGF
Investments #1, LLC (as to an undivided $750 thousand)
o
Ryzman
Foundation (as to an undivided $750 thousand)
o
Rafael
Ryzman (as to an undivided $250 thousand)
o
Elimor
Godwicht (as to an undivided $150 thousand)
o
Philana
Chen (as to an undivided $150 thousand)
o
Michael
Fenig (as to an undivided $50 thousand)
o
Elie
Ryzman (as to an undivided $50 thousand)
(RJN Ex. A.)
·
On or
about June 15, 2021, Defendant signed subordination agreements subjecting
Defendant’s unrecorded January 1, 2020 leasehold estate in units 100 and 300 of
the property to a lower priority than Plaintiff’s deed of trust. (RJN Exs. I & J.)
·
On May
1, 2023, Nestor Services, LLC (“Nestor”) substituted as the successor trustee
under the Deed of Trust, recorded a notice of default against the property, and
served the Notice of Default by first class mail to Commonwealth. (RJN Exs. B-C; Nestor Decl. ¶ 7 and
Ex. 1.)
·
On May
31, 2023, Philana Chen assigned her interest in the Deed of Trust to fellow
investor Rafael Ryzman. (RJN Ex. D.)
·
Nestor
posted and mailed the Notice of Trustee’s Sale to Commonwealth on August 2,
recorded the Notice of Trustee’s Sale on August 3, and had the Notice of
Trustee’s Sale published in Beverly Hills Weekly newspaper on August 3, 10, and
17, 2023. (Nestor Decl. ¶¶ 8-9, 11 and
Exs. 2-4; RJN Ex. E.)
·
Moussa
Moradieh Kashani (“Kashini”) owed a 96% membership interest in Commonwealth
that was subject to administration by the Chapter 7 bankruptcy trustee. (RJN Ex. F.)
·
On
August 22, 2023, Plaintiff and the other lenders entered into a stipulation
with the Chapter 7 bankruptcy trustee and the receiver to forebear from holding
a foreclosure auction for 90 days, which the bankruptcy court approved on
August 24, 2023. (RJN Exs. F-G.)
·
On
November 21, 2023, a nonjudicial foreclosure sale was held and Plaintiff
obtained ownership of the property, as evidenced by the Trustee’s Deed Upon
Sale, which was recorded on November 30, 2023.
(RJN Ex. H.)
·
Process
server Marco Toscano could not locate a person at the subject property to serve
Defendant, so on December 1 he posted a 3-Day Notice to Vacate for Unit 100 and
for Unit 300 on the main elevator, a large door near the elevator, a door that
leads to the property from the front of the building, and a door that leads to
the property from the back of the building.
(Toscano Decl. ¶¶ 3-4 and Exs. 2-3.)
On December 4, Toscano mailed copies of the notices to their respective
units 100 and 300. (Toscano Decl. ¶ 4
and Ex. 4.)
·
On
December 12, 2023, the bankruptcy trustee filed a notice of intention to
abandon the bankruptcy estate’s interest in Commonwealth. (RJN Ex. K.)
Thus, Plaintiff has provided
evidence that (1) the notice of default was recorded on May 1, 2023; (2) the
notice of trustee’s sale was recorded more than 90 days later, on August 3; (3)
the foreclosure sale was November 21, 2023; (4) Plaintiff perfected title by
recording a Trustee’s Deed Upon Sale on November 30; (5) the three-day notice
to vacate was posted on December 1 and mailed on December 4, yet the tenants
have held over possession.
As such, Plaintiff has met its
burdens of production and persuasion in demonstrating that it has satisfied the
elements of unlawful detainer. Plaintiff
has shifted the burden of production to Defendant to raise triable issues of
material fact.
Defendant has not opposed the motion. As such, Defendant has not met its burden of
production to make a prima facie showing of the existence of a triable issue of
material fact. Absent that showing, Defendant
cannot prevail.
CONCLUSION AND ORDER
For the reasons stated above,
the Court grants Plaintiff’s motion for summary judgment in its entirety.
Further, the Court orders
Plaintiff to file and serve a proposed Order and Judgment in conformity with
the Court’s ruling on or before March 15, 2024.
With the granting of the
motion for summary judgment, the Court on its own motion advances and vacates
the Case Management Conference scheduled for May 8, 2024.
The Court orders Plaintiff to
give notice of the Court’s ruling, and to file a proof of service of such.
DATED: March 7, 2024 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court