Judge: Michael P. Linfield, Case: BC629067, Date: 2022-08-17 Tentative Ruling
Case Number: BC629067 Hearing Date: August 17, 2022 Dept: 34
SUBJECT: Motion to Enforce Lien and
Leave to Intervene for Purposes of Collection of Judgment Entered on January
18, 2022
Moving
Party: Lienholder Nayrie Tarpinian
Resp.
Party: None
Lienholder Nayrie Tarpinian’s Motion to
Enforce Lien and Leave to Intervene for Purposes of Collection of Judgment
Entered on January 18, 2022 is GRANTED.
I.
BACKGROUND
On August 1, 2016, Plaintiff Wealthquest, LLC
filed a complaint against Defendants Levon Isadzhanyan dba LSI General
Engineering & Construction Co. (“LSI”) and Business Alliance Insurance
Company (“BAIC”) alleging the following causes of action:
1.
Breach of Contract;
2.
Negligence;
3.
Breach of Express Warranty;
4.
Unjust Enrichment; and
5.
Recovery on Surety Bond
On December 14, 2016, LSI filed a First Amended
Cross-Complaint against Cross Defendants Wealthquest, LLC and National Ready
Mixed Concrete Co. alleging the following causes of action:
1.
Breach of Contract;
2.
Indebitatus Assumpsit;
3.
Quantum Meruit;
4.
Account Stated;
5.
Open Book Account;
6.
Implied Total Indemnity;
7.
Equitable Indemnity on a Comparable Fault Basis;
8.
Declaratory Relief; and
9.
Foreclosure of Mechanic’s Lien
On April 16, 2020, LSI filed an amendment to
the cross-complaint, replacing ROE 1 with Levon Hairapetian.
On March 3, 2021, default was entered against
Defendant Hairapetian.
On October 13, 2021, Defendants Levon
Isadzhanyan, dba LSI General Engineering & Construction and Business
Alliance Insurance Company filed a motion to dismiss for failure to prosecute.
The motion was unopposed. Defendants’ Motion to Dismiss for Failure to
Prosecute this Action pursuant to CCP §§ 583.410, 583.420, and 583.430 and Cal.
Rules of Court Rules 3.1340 and 3.132 was granted.
On October 18, 2021, Defendant Levon
Isadzhanyan dba LSI General Engineering & Construction Co. filed a default
judgment against Defendant Levon Hairapetian (Roe 1).
On January 12, 2022, the Court entered
default judgment in the amount of $111,549.63. (Minute Order, January 12, 2022,
p. 1.)
On January 18, 2022, the Court signed its
default judgment.
On April 14, 2022, LSI moved the Court “for
an order amending the Judgment entered in this matter and filed January 18,
2022, so that the Amended Judgment complies with CCP section 708.460.” (Motion
to Amend Judgment, filed April 14, 2022, p. 1:5-7.)
On May 9, 2022, the Court granted Defendant
and Cross-Complainant Levon Isadzhanyan dba LSI General Engineering &
Construction Co.'s Motion for Amending Judgment.
On June 17, 2022, Cross-Defendant Levon
Hairapetian moved the Court “for an order granting relief from the entry of
default and default judgment entered by Defendant/Cross-Complainant Levon
Isadzhanyan dba LSI General Engineering & Construction Co. against Mr.
Hairapetian, based on the California Code of Civil Procedure section 473(b)
(mandatory and discretionary relief) and the Court’s inherent powers to grant
equitable relief due to Mr. Hairapetian’s former counsel negligence.” (Motion,
filed June 17, 2022, p. ii:4-9.)
On July 13, 2022, the Court denied
Cross-Defendant Levon Hairapetian’s Motion for Relief from Entry of Default and
Default Judgment.
On July 21, 2022, Lienholder Nayrie Tarpinian
moved the Court for an order granting her lien in this action and granting her
leave to intervene to collect the judgment entered January 18, 2022.
II.
ANALYSIS
A.
Legal Standard
1.
Order for Satisfaction of Lien
“If the judgment debtor is entitled to money
or property under the judgment in the action or special proceeding and a lien
created under this article exists, upon application of any party to the action
or special proceeding, the court may order that the judgment debtor's rights to
money or property under the judgment be applied to the satisfaction of the lien
created under this article as ordered by the court. Application for an order under
this section shall be on noticed motion. The notice of motion shall be served
on all other parties. Service shall be made personally or by mail.” (CCP §
708.470(a).)
A lien created under this article may be
enforced by any applicable procedure:
(a) After the judgment subject to the lien is
entered and the time for appeal from the judgment has expired.
(b) If an appeal is filed from the judgment
subject to the lien, after the appeal is finally determined. (CCP § 708.480.)
2.
Motion for Leave to Intervene
“An intervention
takes place when a nonparty, deemed an intervenor, becomes a party to an action
or proceeding between other persons by doing any of the following: (1) Joining
a plaintiff in claiming what is sought by the complaint. (2) Uniting with a defendant
in resisting the claims of a plaintiff. (3) Demanding anything adverse to both
a plaintiff and a defendant.” (Code Civ. Proc., § 387(b)(1)-(3).) “A nonparty
shall petition the court for leave to intervene by noticed motion or ex parte
application. The petition shall include a copy of the proposed complaint in
intervention or answer in intervention and set forth the grounds upon which
intervention rests.” (Code Civ. Proc., § 387, subd. (c).
“The court shall, upon
timely application, permit a nonparty to intervene in the action or proceeding
if either of the following conditions is satisfied: (A) A provision of law
confers an unconditional right to intervene. (B) The person seeking
intervention claims an interest relating to the property or transaction that is
the subject of the action and that person is so situated that the disposition
of the action may impair or impede that person's ability to protect that
interest, unless that person's interest is adequately represented by one or
more of the existing parties.” (Code Civ. Proc., § 387, subd. (d)(1)(A)-(B).)
“The court may, upon
timely application, permit a nonparty to intervene in the action or proceeding
if the person has an interest in the matter in litigation, or in the success of
either of the parties, or an interest against both.” (Code Civ. Proc., § 387,
subd. (d)(2).)
“It is well settled that the intervener's
interest in the matter in litigation must be direct, not consequential, and
that it must be an interest which is proper to be determined in the action in
which intervention is sought.” (Simpson Redwood Co. v. State of California
(1987) 196 Cal.App.3d 1192, 1199-1200.) An interest is consequential and thus
insufficient for intervention when the action in which intervention is sought
does not directly affect the proposed intervenor, although the results of the
action may indirectly benefit or harm the proposed intervenor. (Continental
Vinyl Products v. Mead Corp. (1972) 27 Cal.App.3d 543, 550.) Furthermore,
“the interest which entitles a party to intervene must be an interest in the
matter in litigation in the suit as originally brought, and of such a
present, direct, and immediate character that the intervener will either gain
or lose by the direct effect of the judgment. [Citations.] An intervener cannot
be permitted to broaden the scope or function of such special proceeding by
urging claims or contentions which have their proper forum elsewhere.” People
v. Brophy (1942) 49 Cal.App.2d 15, 34-35, emphasis in original.)
The court permits intervention when the
following factors are met: (1) the proper procedures have been followed; (2)
the nonparty has a direct and immediate interest in the action; (3) the
intervention will not enlarge the issues in the litigation; and (4) the reasons
for the intervention outweigh any opposition by the parties presently in the
action. (Siena Court Homeowners Ass’n v. Green Valley Corp. (2008) 164
Cal.App.4th 1416, 1428.) Code of Civil Procedure section 387 should be
liberally construed in favor of intervention. (Simpson Redwood Co. v. State
of California (1987) 196 Cal.App.3d 1192, 1200.)
B.
Discussion
On July 12, 2017, a Notice of Lien was filed
in a previous case against Defendants Levon Isadzhanyan and LSI General
Engineering & Construction, LLC by Lien Claimants Nayrie Tarpinian and Gary
Tarpinian following judgment in a previous case. (Schneider Decl., ¶¶ 1-3, Exs.
1-3.) On January 18, 2022, the Court signed its default judgment in the amount
of $111,549.63 against Defendant Levon Hairapetian. Two hundred nine days have
passed since the January 18, 2022 entry of default judgment, longer than the
one hundred eighty-day appeal period following default judgment.
The Court authorizes Tarpinian’s lien against
the January 18, 2022 default judgment.
The Court further GRANTS Ms. Tarpinian leave
to intervene to collect and resolve the judgment in this matter. The Court
finds that the required procedural standards have been met by the instant
motion. Ms. Tarpinian has a direct and immediate interest in the present case.
Further, there is no evidence that intervention at this step will enlarge
litigation issues. No opposition has been filed in the present case.
The Court GRANTS Tarpinian leave to collect
on her judgment from Mr. Hairapetian. The Court allows Mr. Hairapetian to
satisfy his judgment by paying Ms. Tarpinian. Ms. Tarpinian is ordered to
credit Mr. Isadzhanyan against the Tarpinian Judgment in the amount of the
judgment in this matter.
III. CONCLUSION
Lienholder Nayrie Tarpinian’s Motion to
Enforce Lien and Leave to Intervene for Purposes of Collection of Judgment
Entered on January 18, 2022 is GRANTED.