TENTATIVE RULING

Calendar:    1

Date:          06/06/2025 

Case No: 22 GDCV00946 Trial Date: January 5, 2026   

Case Name: Derboghossian v. Derboghossian, et al. 

MOTION FOR SUMMARY JUDGMENT

(Or, in the Alternative, Summary Adjudication)

Moving Party:            Defendants Hagop Derboghossian, individually and as trustee of the Haghop Derboghossian Living Trust and Haroutun Derboghossian        

Responding Party: Plaintiff Hovsep Derboghossian 

RELIEF REQUESTED:

Summary judgment in favor of defendants.

CAUSES OF ACTION: from First Amended Complaint   

1) Quiet Title 

2) Waste 

3) Breach of Oral Joint Venture Agreement

4) Imposition of Constructive Trust 

5) Fraudulent Conveyance 

6) For Partition 

7) For Declaratory Judgment 

SUMMARY OF FACTS:

Plaintiff Hovsep Derboghossian brings this action against his younger brothers, defendants Hagop Derboghossian and Haroutyun Derboghossian, concerning properties located at 641 W. California Ave. and 645 W. California Ave. in Glendale. 

The operative complaint, the First Amended Complaint (FAC), alleges that in late 1987, 641 W. California was purchased with family (parents’ and plaintiff’s commingled) money.  The property was put into plaintiff Hovsep’s name, along with the parents’ names, but the parents filed quitclaim deeds almost immediately, putting title solely in plaintiff’s name.  Plaintiff’s life savings of $20,000 was used to purchase the property.  

In 1993, 645 W. California was purchased with family (parents’ and plaintiff’s commingled) money as a down payment and title was taken by plaintiff. 

In the early 1990s, a third property, 649 W. California, was purchased with family (parents’ and plaintiff’s commingled) money as a down payment and put into defendant Hagop’s name.  Issues with the 649 W. California property arose when the loan came up and neither defendants nor plaintiff could qualify for a new loan.  A family friend, Curtis Harris, then stepped in as a strawman and the loan was put in his name along with the deeds/title to 641 W. California and 645 W. California.  Harris made it known that he wanted the tax benefit of the interest deductions even though plaintiff, defendants, and their parents continued to make the mortgage payments on all three properties.  Harris signed grant deeds for all three properties back over to plaintiff and defendants, which remain unrecorded.    

The FAC alleges that when purchasing the three properties, plaintiff and defendant’s parents orally made their wishes clear that each of the three properties were purchased with the purpose that the three brothers would inherit the properties as tenants in common, with a 33% undivided interest each, after the parents had passed away, and the properties were to be held in constructive trust for the benefit of all three brothers until the parents’ deaths.  Defendants Hagop and Haroutyun were aware of plaintiff and defendants’ parents’ agreement and participated in making it work. 

Over the years, title to the subject properties changed.   Harris held title for a number of years for all three properties.  Hagop then took title at some point of the 641 W. California and 645 W. California properties.  649 W. California remained in Harris’ name, and is not a subject of this action. 

The FAC alleges that plaintiff Hovsep and his wife began renovating the 645 W. California front house (there are three units on the 645 W. California property) shortly after they got married, using their own money and after a few years were able to move in, in November of 2007. 

In late 2009, the relationship with Harris soured and he evicted plaintiff’s mother and defendant Hagop from the 649 W. California house, and took both legal and equitable title to 649 W. California. 

As a result of the eviction, defendant Hagop moved in with plaintiff at 645 W. California, and plaintiff’s mother moved into a unit at 641 W. California which was being used by Haroutyan.  A unit was remodeled with plaintiff’s money and commingled family money that Hagop was controlling. 

Plaintiff alleges that as part of a joint venture among plaintiff, defendants, and their parents, in July of 2003, Harris transferred the 641 W. California property to defendant Hagop for the alleged sum of $495,000 to hold for the benefit of all three brothers, and as part of the same joint venture, in February of 2004, Harris transferred the 645 W. California property to defendant Hagop for the alleged sum of $498,000, also to hold for the benefit of all three brothers.   

In August of 2015, with plaintiff’s knowledge, defendant Hagob transferred the two properties to the Hagop Derboghossian Living Trust for asset protection purposes. At that time, and for several years thereafter, plaintiff was led to believe he was a beneficiary of the trust and that the transfers were to protect the properties from foreclosure and litigation by lenders. 

In October of 2019, with plaintiff’s knowledge, defendant Hagop transferred the 645 W. California property to himself individually in order to refinance the property, and in March of 2021, with plaintiff’s knowledge, defendant Hagop transferred the 641 W. California property to himself individually in order to refinance the property.   

Plaintiff alleges that in October of 2019, without plaintiff’s knowledge, defendant Hagop transferred the 645 W. California property back to the Trust, and in March of 2021, without plaintiff’s knowledge, transferred the 641 W. California property back to the Trust.  The FAC alleges that defendant Hagop claims he owns both properties even though they were bought with commingled family money and has unilaterally assumed control over the subject properties and disclaimed the constructive trust intended for the benefit of the three brothers.  Defendant Haroutyun has also disclaimed the constructive trust intended for the benefit of all three brothers, and instead believes the properties are held in constructive trust only for the benefit of defendants Hagop and Haroutyan.  

It is also alleged that since defendant Hagop assumed control of the properties, defendants have not maintained them or made necessary repairs, and have allowed units to remain vacant for extended periods of time.  

In September of 2022, defendant Hagop filed an unlawful detainer action against plaintiff related to the 645 W. California property, where plaintiff resides with his family. Plaintiff alleges that it was at this time that plaintiff discovered that defendant Hagop surreptitiously had transferred the properties back to the Trust and that the joint venture had been breached.   Plaintiff alleges that the subject properties were intended by plaintiff and plaintiff’s mother, who passed away in 2019, to benefit all three brothers equally. 

The FAC alleges causes of action for quiet title, waste, breach or oral joint venture agreement, imposition of constructive trust, fraudulent conveyance, partition and declaratory judgment.   

ANALYSIS:

Procedural

Summary Adjudication   

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Under CRC Rule 3.1350(b):

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.” 

1. Plaintiff has paid no money toward the purchase or maintenance of the subject property

2. Defendant Hagob Derboghassian or the Haghop Derboghassian Living Trust paid for the subject property with no assistance from Plaintiff 

3. Plaintiff has no legal or equitable rights in the subject property 

4. Defendant Haroutyun Derboghassian, who has no claims on any of these properties is an improper party to this action since he has no interest for or against Plaintiff in this case. 

There is no indication in the notice of what specific cause of action, affirmative defense, claims for damages, or issues of duty each issue is directed to.  

Moreover, the separate statement filed with the motion does not include the summary adjudication issues, as required under CRC Rule 3.1350(b), above (requiring issues “must…be repeated, verbatim, in the separate statement of undisputed facts.”)

    The court under the circumstances denies the motion to the extent it seeks summary adjudication of issues.   

Substantive 

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant... has met that burden, the burden shifts to the plaintiff... 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(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Judicial Admission

In Schedule A—Real Property, plaintiff lists a piece of commercial property located at 716-718 W. Wilson, Glendale, California. [UMF No. 7, and evidence cited, Schedule A]. No mention is made of the properties which are the subject of this action. 

Defendants argue that the court may take judicial notice of the bankruptcy schedules pursuant to Evidence Code section 452(d), as a record of the United States bankruptcy court.   

Under Evidence Code § 452(d), judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or any state of the United States.” 

A trial court’s ruling on a request for judicial notice is reviewed for abuse of discretion.  Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App.4th 256, 264, citing Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.

Plaintiff argues in the opposition that the court cannot take judicial notice of the truth of any matters included in the court record, such as plaintiff’s representation concerning his interest in real property.  Generally, with respect to judicial notice of court records, it is held,

“A court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file.  A court may take judicial notice of the existence of each document in a court file but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”

Day v. Sharp (1975) 50 Cal.App.3d 904, 914, quoting Jefferson, Cal.Evid. Benchbook (1972) Judicial Notice § 47.3, p. 840 (italics in original).   

However, in Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, the Second District, in affirming a judgment of dismissal entered on a ruling sustaining a demurrer without leave to amend, noted with respect to bankruptcy filing documents:

Plaintiffs contend that most of the documents judicially noticed by the trial court were not properly the subject of judicial notice because they were not certified copies and had no file stamps. The trial court observed that all documents could be verified by using the bankruptcy court's “webPACER” system; that plaintiffs did not dispute that the documents were what they purported to be; and that judicial notice was requested not for the truth of matters asserted in the documents but rather for the fact the documents were filed “and that they say what they say.”  We see no error.

Hamilton, at 1608, n.3.

Similarly, here, plaintiff does not dispute that the Schedule is what it purports to be, and the documents are relied upon for the fact that they say what they say, or do not say.   The court takes judicial notice that the subject properties were not listed by plaintiff in his 2013 bankruptcy filing.  

The moving papers argue very summarily that this constitutes a judicial admission.  

However, it is held that “a judicial admission can only arise from pleadings by a party in the case being litigated…”  Fireman’s Fund Ins. Co. v. Davis (1995) 37 Cal.App.4th 1432, 1440.  

As argued in the opposition, plaintiff has never alleged in this matter that he never owned any interest in the subject properties, and defendants have not relied on such an admission.  

Plaintiff cites to Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, in which the Second District affirmed the trial court’s denial of a motion to compel arbitration on grounds of waiver and the possibility of inconsistent rulings resulting from litigation with third parties. 

““Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. [Citations.] Facts established by pleadings as judicial admissions ‘ “are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her.” [Citations.] … [Citation.]’ ” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746 [100 Cal. Rptr. 3d 658]; see Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 [127 Cal. Rptr. 2d 436] (Valerio) [a judicial admission “ ‘is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues’ ”].)….

[A]judicial admission is ordinarily a factual allegation by one party that is admitted by the opposing party. The factual allegation is removed from the issues in the litigation because the parties agree as to its truth…. 

A judicial admission is therefore conclusive both as to the admitting party and as to that party’s opponent. (4 Witkin, Cal. Procedure, supra, Pleading, § 454, p. 587.) Thus, if a factual allegation is treated as a judicial admission, then neither party may attempt to contradict it—the admitted fact is effectively conceded by both sides.”

Barsegian, at 451-452, italics in original, footnotes omitted.

There has been no judicial admission made here.  The reply curiously argues that plaintiff admits in his opposition to this motion that at the time of his bankruptcy filings he had equitable interest in the property, which is not the type of admission at issue here. Defendants have failed to meet their initial burden on this argument.   The motion on this ground is denied.  

Judicial Estoppel

Judicial estoppel is the doctrine under which a party may be precluded from taking inconsistent positions in separate judicial proceedings.  The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831:

Swahn, at 841, citing, quoting Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 182. 

Jackson, at 183, citing Aguilar v. Lerner (2004) 32 Cal.4th 974, 986–987. 

In Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, discussed above, the Second District affirmed the trial court’s dismissal of an action based on the sustaining of a demurrer without leave to amend where plaintiff had brought a claim against his mortgage lender for predatory lending and failure to comply with non-judicial foreclosure statutes.   The Second District found that the trial court appropriately had applied the doctrine of judicial estoppel in finding that failure of plaintiff to disclose any claim against the lender in his bankruptcy schedules barred him from later bringing such claims in state court:

“Here, plaintiff Henry Hamilton declared under penalty of perjury that the schedules he filed were true and correct, and he failed to list his claim against the bank, one of his principal creditors, in answer to an express question about counterclaims and setoffs. The complaint shows the events on which plaintiffs base their fraud and breach of contract claims against the bank occurred many months before plaintiff filed his bankruptcy proceeding, so he must have known of the facts allegedly justifying the claim, yet he failed to disclose the claim. Unlike Ryan Operations and Cloud, this is a lender liability case, like Oneida Motor Freight. The application of estoppel and res judicata principles will not, as in Cloud, bestow a windfall on a noncreditor defendant. There is nothing here to take the case outside the Oneida Motor Freight rule, reiterated in Gottlieb, that “in completing bankruptcy schedules, a debtor should list any legal claims against a creditor whose wrongful conduct caused the bankruptcy; otherwise, an action on the claim is barred.” (Gottlieb, supra, 141 Cal.App.4th at p. 136.)”

Hamilton, at 1614. 

Lack of Documentary Evidence

CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”   See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718.  There are competing inferences here, defeating summary judgment.  

Under CCP § 437c(c): 

“(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

It is held that in ruling on a motion for summary judgment, pursuant to this subdivision, the court “must view such evidence and such inferences in the light most favorable to the opposing party.”  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, internal citations omitted.   

It is also held that under this subdivision, the trial court may not weigh the evidence or inferences.  Aguilar, at 856 (“Aguilar also claims that the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact. We agree here as well.”) 

Viewing the evidence and inferences most favorable to plaintiff, defendants have failed to meet any initial burden in support of this basis for summary judgment. 

Even if the burden had shifted, plaintiff in opposition argues that testimonial evidence is admissible in this matter, and here is substantial.  Plaintiff points out that defendants admit that both properties were titled in plaintiff’s name and submits documentary evidence of this title as to one of the properties.  [Hovsep Decl., para. 4, Ex. A].  Plaintiff in his declaration explains that the properties were purchased using his parents’ funds, and plaintiff used his own funds of $20,000.00 to pay down the principal on the mortgage for the 641 property, and that plaintiff also contributed money to the purchase of the 645 property.  [Hovsep Decl., paras. 2, 3].  Plaintiff testifies:

“When purchasing the three properties, the parties entered into a valid and binding oral Joint Venture agreement wherein the Properties purchased were to be held in constructive trust for the benefit of all three brothers until after the death of both parents, at which time the three brothers would inherit the properties as tenants in common (33% undivided interest each). In furtherance of this understanding and agreement among the parties, both Properties were placed in my name because I was an adult at the time, while Hagop and Haroutyun were minors.”

[Hovsep Decl., para. 4]. 

Plaintiff describes that plaintiff, defendants, and their parents lived on the property for several years, and rented out other units, with plaintiff treating the rental income as communal money, and using it to cover the property related expenses, including mortgage payments, insurance, property taxes and maintenance. [Hovsep Decl., para. 5].  Plaintiff also disputes defendants’ position that Hagop paid to obtain the properties back from Harris, stating that the properties were transferred to Harris, a close family friend, who stepped in to help as a strawman in exchange for obtaining more favorable mortgage interest rate terms and gaining tax advantages.  [Hovsep Decl., para. 6].  It appears that the brothers collectively managed the property during Harris’ ownership and continued to direct the rent toward the property expenses.  [Hovsep Decl., paras. 7-8].  Plaintiff indicates that the property was transferred to Hagop to hold for the benefit of all three brothers because Hagop’s income was better documented to obtain financing, and that “despite the transfers appearing as ‘arms-length,’ there was no money transferred to Mr. Harris.”  [Hovsep Decl., para. 9].  Family members continued to occupy units rent free, and by 2004, Hovsep and his wife took possession of one of the units and paid substantial sums to upgrade the unit, and Hovsep testifies that “In line with the parties’ joint venture, I never paid rent, but did contribute considerable funds toward expenses relating to the Properties.”  [Hovsep Decl., para. 11].   

As noted above, the deposition transcript of plaintiff submitted with the moving papers also provides some of these details. 

This showing is sufficient to raise triable issues of material fact with respect to plaintiff having an interest in the properties, based on an agreement concerning the joint entitlement of the brothers, supported by an initial investment by plaintiff,  There is also an alleged agreement by the parties’ long time conduct with respect to the properties, such as applying rents to the maintenance, and living in the properties and improving them without seeking reimbursement.  The motion on this basis is denied. 

Defendant Haroutyun as Improper Party

Defendants argue that defendant Haroutyun is not a proper party to this action because he has no interest in any of the properties in this action and has taken no position that favors himself at the expense of plaintiff.   No evidence is cited in support of this argument, and no facts are set forth in the separate statement addressing this argument.  There is no declaration of Haroutyun disclaiming all ownership in the subject properties.  It is clear  that if plaintiff is claiming that each of the three parties are entitled to a one-third interest in the properties, all three would be necessary parties.  

In addition, as pointed out in the opposition, Haroutyun filed a verified Answer in this action, in which, in response to paragraph 30 of the First Amended Complaint, which states, “Defendant Haroutyun has also disclaimed the constructive trust intended for the benefit of all three (3) brothers, and instead believes the property is held in constructive trust only for the benefit of Defendants Hagop and Haroutyun,” the Answer states, “Defendants admit the allegations contained in paragraph…30…of the Complaint.”  [Additional Fact No. 23, and evidence cited, RFJN, Ex. 1, FAC, para. 30; Ex. 2, Verified Answer, para. 3].  Plaintiff also relies on deposition testimony given by plaintiff that there were several occasions when Haroutyun identified himself as the owner of the properties, such as to tenants, police officers, and people picking fruit from the trees on the properties.  [Additional Fact No. 24, and evidence cited, Plaintiff’s Depo. pp. 31-33].  The reply does not address plaintiff’s arguments.     

Summary judgment accordingly is denied on this issue. 

Statute of Frauds 

Defendants argue that summary judgment is proper here based on the defense of the statute of frauds.  

The statute of frauds as set forth in Civil Code section 1624 (a) provides, in pertinent part:

“(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:...

(3) An agreement... for the sale of real property, or of an interest therein;...”

Defendants also rely on CCP section 1971:

“No estate or interest in real property, other than for leases for a term not exceeding one year, nor any power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by the party's lawful agent thereunto authorized by writing.”

Defendants argue that plaintiff has on multiple occasions indicated that he has no writing that would support his contention that the parties had an agreement with regard to the properties which are the subject of this action.  There is no citation to any evidence in support of this argument, either in the moving papers or the reply, and no reference to the separate statement or any undisputed fact.  

Under CCP section 437c(b)(1), in connection with motions for summary judgment:

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” 

Under CCP § 437c(f)(1), “A party may move for summary adjudication as to…one or more affirmative defenses…if the party contends that there is no merit to an affirmative defense….  A motion for summary adjudication shall be granted only if it completely disposes of… an affirmative defense…” 

It is recognized that “A defendant moving for summary judgment based on an affirmative defense must present evidence that supports each element of its affirmative defense, which would also be its burden at trial.”  Acosta v. Glenfed Development Corp.  (2005) 128 Cal.App.4th 1278, 1292-1293, italics in original, citation omitted.   

Under CRC Rule 3.1350(d)(1):

“(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.”

“The terms “constructive trust” and “resulting trust” have often been confused by attorneys, as well as some courts. (Kraus v. Willow Park, supra., 73 Cal.App.3d at p. 373; see 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 704, p. 2326; 5 Scott on Trusts, supra., § 462.1, p. 3416.) Both are involuntary trusts implied by law and exempt from the statute of frauds. (See Civ. Code, § 852.)”

Martin, at 238. 

“(a) Section 1971 shall not be construed to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.”

Plaintiff also cites to Dallman Co. v. Southern Heater Co. (1968) 262 Cal.App.2d 582, in which the court of appeal observed:

“An oral agreement (otherwise within the statute of frauds) will be held enforceable if the plaintiff, in justified reliance upon it, has so changed position that unconscionable injury would result, or the defendant, having accepted the benefit of the contract, would be unjustly enriched by its nonenforcement.”

Dallman, at 588-589, citations omitted.  

See also, Alfaro v. Community Housing Improvement System & Planning Ass'n, Inc. (2009) 171 Cal.App.4th 1356, 1396 (“The doctrine of part performance by the purchaser is a well-recognized exception to the statute of frauds as applied to contracts for the sale or lease of real property,” quoting Sutton v. Warner (1993) 12 Cal.App.4th 415, 422).  

Plaintiff argues that here plaintiff has relied on the oral joint venture agreement between the parties showing agreement by conduct.  The conduct includes holding title to the properties for over a decade, during which time none of the DerBoghossians paid him rent, but plaintiff used the rental income generated from the 7-units to cover all property-related expenses, including mortgage, property tax and insurance.  [Additional Facts Nos. 13, 14, and evidence cited, Hovsep Decl., paras. 3, 4, Plaintiff Depo., pp. 58-60].  

Plaintiff submits evidence that during the subsequent ownership of the properties, the property expenses were covered by the rental income, and payments were made by the Derboghassians.  [Additional Facts No. 17, and evidence cited; Hovsep Decl., para. 8, Plaintiff’s Depo., p. 74].  Plaintiff argues that similarly, when the properties were transferred to Hagop in 2003 and 2004, Hagop continued to earn the rental income generated by both Properties, which was sufficient to cover all property-related expenses. [Additional Fact No. 19, and evidence cited, Hovsep Decl., para. 10].  Plaintiff argues that plaintiff would not have continued to manage the properties had he not believed and trusted his brothers to adhere to the terms of the joint venture.  Plaintiff also indicates that he spent considerable sums of money upgrading the unit he has been possessing for more than two decades, including plumbing, electrical, gas lines, walls, etcetera.  Plaintiff also alleges that while not paying rent, he contributed considerable funds toward the expenses relating to the properties, in reliance upon the terms of the joint venture agreement.  [Additional Fact No. 20, and evidence cited, Hovsep Decl., para. 11, Plaintiff’s Depo, p. 70.]  

This showing is sufficient to raise triable issues of material fact with respect to part performance of the joint venture agreement. This evidence demonstrates that, in effect, plaintiff, in justified reliance upon the oral agreement, changed his position so that unconscionable injury would result.  It also shows that defendants, having accepted the benefit of the agreement, and the management of and improvements to the properties provided by plaintiff over the years, would be unjustly enriched by its nonenforcement.   

The motion for summary judgment on this ground properly is denied. 

The motion for summary judgment is denied in its entirety.   

RULING:

Defendants’ Motion for Summary Judgment or in the Alternative Summary Adjudication of Issues:

Motion for Summary Judgment is DENIED.  

With respect to the argument that plaintiff’s action is barred by his purported judicial admission in his bankruptcy filings that plaintiff did not then hold an interest in the subject properties, the motion is DENIED.  Defendants have failed to meet their initial burden on this motion, as the evidence relied upon in support of this argument are statements or omissions included in plaintiff’s bankruptcy filings submitted in another action, plaintiff’s 2013 bankruptcy petition and proceedings. [See UMF Nos. 5-7, and evidence cited, RFJN Ex. 2, Moghadami Decl., Ex. 2, Schedule A].

It is held that “a judicial admission can only arise from pleadings by a party in the case being litigated…”  Fireman’s Fund Ins. Co. v. Davis (1995) 37 Cal.App.4th 1432, 1440; Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446 451-452.  As argued in the opposition, plaintiff has never alleged or admitted in this matter that he never owned any interest in the subject properties.

There has been no judicial admission made in this action.  Defendants have failed to meet their initial burden on this argument.  The motion on this ground is denied.   

With respect to the argument that plaintiff’s action is barred by judicial estoppel based on plaintiff’s bankruptcy filings, the motion is DENIED.  Plaintiff has raised triable issues of material fact with respect to the application of judicial estoppel here in circumstances where at the time plaintiff filed his bankruptcy petition in 2013, plaintiff did not make the full required disclosure concerning his interests in the subject properties.  Specifically, plaintiff submits evidence supporting a reasonable inference that plaintiff was not required to disclose his interests, because he did not have a right to an interest in the properties because his mother was alive at the time, and the joint venture agreement between the parties was that the properties purchased were to be held in constructive trust for the benefit of all three brothers until after the death of both parents, at which time the three brothers would inherit the properties as tenants in common, with a 33% undivided interest each.  [Additional Fact No. 13, and evidence cited, Hovsep Decl., para. 4, Hovsep Depo., p. 60].   The brothers’ mother died on March 13, 2019.  [Additional Fact No. 22, and evidence cited, Hovsep Decl., para. 13].  See also 11 U.S.C. 541 (a), 11 USC section 541(a)(5)(A) (providing that the bankruptcy estate includes, “(5) Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date—(A) by bequest, devise, or inheritance.”); See also, In re Chenowith (U.S.D.C, S.D. Ill. 1992) 143 BR 527, 533. 

Triable issues of material facts remain.  The motion on this ground is denied.   

With respect to the argument that summary judgment is warranted because plaintiff admits that he lacks any documentary evidence to support his contention that he has an interest in the subject properties, the motion is DENIED.  Defendants rely on evidence that plaintiff lacks documentary evidence supporting his claim to interest in the properties, while defendant has documentary evidence supporting his interests. [UMF Nos. 9, 10, and evidence cited, Plaintiff’s Depo, pp. 71, 74, 97, 116-122; Hagop Decl., para. 6, Moghaddami Decl., Exs. 4, 5].  

However, in support of the motion, the moving parties have submitted plaintiff’s Deposition transcript which, in addition to the testimony relied upon by defendants, also includes testimony that plaintiff’s parents told plaintiff they put the property in his name originally because, “They were trying to build a future for their three sons,” and also includes testimony that plaintiff paid a little more than $20,000.00 on the mortgage on the first property, contributed to the second property, and later paid the mortgage.  [Plaintiff’s Depo., pp. 56-60].  This showing supports a competing reasonable inference that there was an agreement to hold and operate the properties for the benefit of the three sons.  

CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”   See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718.  There are competing inferences presented by the moving papers here, defeating summary judgment.  

Moreover, the overall argument appears to be that documentary evidence is entitled to more weight than oral or testimonial evidence, based on case law under which written admissions made before a controversy arises were found properly given more weight than oral testimony given after a controversy had arisen in connection with a judgment after trial.   Moore v. Grayson (1901) 132 Cal. 602.  The argument is directed to the weight of the evidence to be afforded by the trier of fact, which is not the proper determination to be made on a motion for summary judgment.  See CCP § 437c(c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 856 (“Aguilar also claims that the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact. We agree here as well.”) 

Viewing the evidence and inferences most favorable to plaintiff, defendants have failed to meet any initial burden in support of this basis for summary judgment. 

Even if the burden had shifted, plaintiff in the opposition argues that testimonial evidence is admissible in this matter and submits and points to evidence raising triable raises triable issues of material fact with respect to whether the plaintiff has evidence supporting a reasonable inference that his claims to interest in the subject properties are viable.  Specifically, plaintiff submits evidence that defendants admit that both properties were titled in plaintiff’s name and submits documentary evidence of this title as to one of the properties.  [Hovsep Decl., para. 4, Ex. A].  Plaintiff in his declaration explains that the properties were purchased using his parents’ funds, and plaintiff used his own funds of $20,000.00 to pay down the principal on the mortgage for the 641 property, and that plaintiff also contributed money to the purchase of the 645 property.  [Hovsep Decl., paras. 2, 3; See also Plaintiff’s Depo. pp. 56-60].  Plaintiff testifies:

“When purchasing the three properties, the parties entered into a valid and binding oral Joint Venture agreement wherein the Properties purchased were to be held in constructive trust for the benefit of all three brothers until after the death of both parents, at which time the three brothers would inherit the properties as tenants in common (33% undivided interest each). In furtherance of this understanding and agreement among the parties, both Properties were placed in my name because I was an adult at the time, while Hagop and Haroutyun were minors.” [Hovsep Decl., para. 4]. 

Plaintiff describes that plaintiff, defendants, and their parents lived on the property for several years, and rented out other units, with plaintiff treating the rental income as communal money, and using it to cover the property related expenses, including mortgage payments, insurance, property taxes and maintenance. [Hovsep Decl., para. 5].  Plaintiff also disputes defendants’ position that Hagop paid to obtain the properties back from Harris, stating that the properties were transferred to Harris, a close family friend, who stepped in to help as a strawman in exchange for obtaining more favorable mortgage interest rare terms and gaining the tax advantages.  [Hovsep Decl., para. 6].  It appears that the brothers collectively managed the property during Harris’ ownership and continued to direct the rent toward the property expenses.  [Hovsep Decl., paras. 7-8].  Plaintiff indicates that the property was transferred to Hagop to hold for the benefit of all three brothers because Hagop’s income was better documented to obtain financing, and that “despite the transfers appearing as ‘arms-length,’ there was no money transferred to Mr. Harris.”  [Hovsep Decl., para. 9].  Family members continued to occupy units rent free, and by 2004, Hovsep and his wife took possession of one of the units and paid substantial sums to upgrade the unit, and Hovsep testifies that “In line with the parties’ joint venture, I never paid rent, but did contribute considerable funds toward expenses relating to the Properties.”  [Hovsep Decl., para. 11].  

 

Even if the burden had shifted, triable issues of material fact have been raised.  The motion on this ground is denied. 

With respect to the argument that defendant Haroutyun is not a proper party to this action because he is not claiming any interest in the properties, the motion is DENIED.  No evidence is cited in support of this argument, and no facts are set forth in the separate statement addressing this argument.  

Moreover, defendant Haroutyun filed a verified Answer in this action, in which, he admitted that he believes the property, is held in constructive trust only for the benefit of Defendants Hagop and Haroutyun. [Additional Fact No. 23, and evidence cited, RFJN, Ex. 1, FAC, para. 30; Ex. 2, Verified Answer, para. 3].  Plaintiff has also pointed to deposition testimony given by plaintiff indicating that there have been several occasions when Haroutyun identified himself as the owner of the subject properties, such as to tenants, police officers, and people picking fruit from the trees on the properties.  [Additional Fact No. 24, and evidence cited, Plaintiff’s Depo. pp. 31-33]  

Summary judgment properly is denied on this issue.  

With respect to the issue of the action being barred by the defense of the statute of frauds, the motion is DENIED.  

Defendants argue that plaintiff has on multiple occasions indicated that he has no writing that would support his contention that the parties had an agreement with regard to the properties which are the subject of this action.  There is no citation to any evidence in support of this argument, and no reference to the separate statement or any undisputed fact, as required under CCP section 437c(b)(1) (“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken”) and CRC Rule 3.1350 (d).  See also Acosta v. Glenfed Development Corp.  (2005) 128 Cal.App.4th 1278, 1292-1293 (“A defendant moving for summary judgment based on an affirmative defense must present evidence that supports each element of its affirmative defense, which would also be its burden at trial.”  Acosta at 1292-1293, italics in original, citation omitted.)  

Defendants in the moving papers have failed to meet this burden.  The motion on this issue is denied. 

Even if the burden had shifted, plaintiff argues in opposition that the action includes a claim for imposition of a constructive trust, which is exempt from the statute of frauds.  Martin v. Kehl (1983) 145 Cal.App.3d 228, 238.  The FAC includes the fourth cause of action for imposition of a constructive trust, and the moving papers fail to argue how this cause of action would be barred by the statute of frauds.  Summary judgment on this ground accordingly is denied.  

Plaintiff also argues that even if the statute of frauds were to apply, plaintiff’s part performance takes the oral joint venture out of the statute of frauds.  CCP § 1972(a) (“(a) Section 1971 shall not be construed to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.”). Dallman Co. v. Southern Heater Co. (1968) 262 Cal.App.2d 582, 588-589.  (“An oral agreement (otherwise within the statute of frauds) will be held enforceable if the plaintiff, in justified reliance upon it, has so changed position that unconscionable injury would result, or the defendant, having accepted the benefit of the contract, would be unjustly enriched by its nonenforcement.”)

Plaintiff has submitted evidence which would support a reasonable inference that plaintiff, in justified reliance on the oral agreement, has changed position so that unconscionable injury would result, or defendants, having accepted the benefit of the contract would be unjustly enriched by its performance.  Specifically, plaintiff submits evidence that plaintiff relied on the oral joint venture agreement between the parties, including holding title to the properties for over a decade, during which time none of the DerBoghossians paid him rent, but plaintiff used the rental income generated from the 7 units to cover all property-related expenses, including mortgage, property taxes and insurance.  [Additional Facts Nos. 13, 14, and evidence cited, Hovsep Decl., paras. 3, 4, Plaintiff Depo., pp. 58-60]. There is also evidence that during the subsequent ownerships of the properties, the property expenses were covered by the rental income, and payments were made by the Derboghassians.  [Additional Facts No. 17, and evidence cited; Hovsep Decl., para. 8, Plaintiff’s Depo., p. 74].  Similarly, when the properties were transferred to Hagop in 2003 and 2004, Hagop continued to earn the rental income generated by both Properties, which was sufficient to cover all property-related expenses. [Additional Fact No. 19, and evidence cited, Hovsep Decl., para. 10].  It would appear that on reliance on the oral agreement, plaintiff continued to manage the properties and would not have done so had he not believed and trusted his brothers to adhere to the terms of the joint venture.  Plaintiff also submits evidence that he spent unreimbursed funds upgrading the unit he has been possessing for more than two decades, including plumbing, electrical, gas lines, walls, etcetera, and while not paying rent, contributed funds toward the expenses relating to the properties, in reliance upon the terms of the joint venture agreement, to the enrichment of defendants.  [Additional Fact No. 20, and evidence cited, Hovsep Decl., para. 11, Plaintiff’s Depo, p. 70.]  

Triable issues of material fact have been raised.  The motion on this ground properly is denied.

The motion for summary judgment is DENIED IN ITS ENTIRETY.  

 

Motion for Summary Adjudication is DENIED.

The issues as stated do not indicate to what cause of action they apply or how the adjudication of each issue disposes of an entire cause of action, or is otherwise a proper subject of summary adjudication, in violation of  CCP § 437c(f)(1) (“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty”) and CRC Rule 3.1350(b) (“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”) 

The specifics are not provided in the notice and the separate statement filed with the motion does not include the summary adjudication issues.  Defendants failed to seek an order in advance to summarily adjudicate issues other than those permitted by statute.  Hence, the motion for summary adjudication of issues is denied on the ground the procedural requirements have not been met. 

Moreover, as to each issue sought to be summarily adjudicated, triable issues have been raised as set forth in connection with the motion for summary judgment, above. 

1. Plaintiff has paid no money toward the purchase or maintenance of the subject property

2. Defendant Hagob Derboghassian or the Haghop Derboghassian Living Trust paid for the subject property with no assistance from Plaintiff 

3. Plaintiff has no legal or equitable rights in the subject property 

4. Defendant Haroutyun Derboghassian, who has no claims on any of these properties is an improper party to this action since he has no interest for or against Plaintiff in this case.

Summary adjudication of this issue is denied on the same grounds summary judgment is denied on this ground, as discussed in detail above.  [See Additional Facts Nos. 23, 24, and evidence cited, RFJN, Ex. 1, FAC, para. 30; Ex. 2, Verified Answer, para. 3; Plaintiff’s Depo. pp. 31-33].  

 

Defendants’ Request for Judicial Notice in Support of  Motion for Summary Judgment or in the Alternative Summary Adjudication of Issues is GRANTED.

UNOPPOSED Request for Judicial Notice in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment or in the Alternative Summary Adjudication of Issues is GRANTED. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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