Judge: Robert S. Draper, Case: 20STCV14796, Date: 2023-02-28 Tentative Ruling

Case Number: 20STCV14796    Hearing Date: February 28, 2023    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendant Elnaz Houshmand Naghashan’s Motion to Dismiss is DENIED.

FACTUAL BACKGROUND

This is an action for Fraudulent Conveyance. The Complaint alleges as follows. Plaintiff Shahrokh Mokhtarzadeh (“Plaintiff”), a law firm, represented Defendant Elnaz Houshmand Naghasan (“Defendant” or “Elnaz”) in her divorce proceedings from August 2015 to May 2017. (Complaint ¶ 7.) Defendant has not paid Plaintiff for services rendered and owes Plaintiff over $714,000.00. (Compl ¶ 8.) Throughout the course of the proceedings, the Court issued various orders for Defendant’s ex-husband to pay Plaintiff attorney fees. (Compl. ¶ 9.) Defendant has collected these fees but has not turned them over to Plaintiff. (Ibid.)

Plaintiff filed a suit in the Los Angeles Superior Court to recover the attorney fees it is owed. (Compl. ¶ 12.) Defendant has repeatedly tried to delay that proceeding by fraudulent means. (Compl. ¶ 13.)

Defendant, while claiming to be penniless and unable to pay Plaintiff, purchased a home (“Subject Property”) without telling Plaintiff or the Court. (Compl. ¶ 16.) Then, she conveyed the property to a newly formed LLC named “Le Gramercy LLC.” (Compl. ¶ 19.) This conveyance was made without payment or consideration. (Compl. ¶ 20.) Plaintiff alleges that Le Gramercy LLC is simply a business entity created by Defendant to hide her assets from Plaintiff and other creditors. (Compl. ¶ 22.) Next, Plaintiff transferred the property to her father, Defendant Iraj Houshmand Naghashan (“Iraj”). (Compl. ¶ 23.) Plaintiff alleges that Defendant has similarly transferred other property and income to family members to avoid Plaintiff and other creditors. (Compl. ¶¶ 25-26.)

PROCEDURAL HISTORY

On April 17, 2020, Plaintiff filed the Complaint asserting four Causes of Action:

1.    Fraudulent Conveyance;

2.    To Set Aside Fraudulent Conveyance of Real Property;

3.    To Set Aside Fraudulent Conveyance of Personal Property; and,

4.    Temporary, Preliminary and Permanent Injunction.

On June 3, 2020, Defendant Iraj demurred to the Complaint. That Demurrer was overruled.

On June 5, 2020, Defendant Elnaz moved the Court for sanctions against Plaintiff. That motion was denied.

On June 5, 2020, Defendant Elnaz demurred to the Complaint. That Demurrer was overruled.

On October 20, 2020, Defendant Elnaz answered the Complaint.

On December 7, 2020, Plaintiff requested Entry of Default against all Defendants. The Clerk denied that Request.

On January 5, 2022, Defendant Elnaz filed an Ex Parte Application to Continue Trial Date. That Application was denied.

On February 17, 2022, Defendant Elnaz filed an Ex Parte Application to Expunge Lis Pendens.

On February 18, 2022, the hearing for the Ex Parte Application to Expunge Lis Pendens was taken off calendar after Defendant Elnaz failed to appear.

On February 22, 2022, Defendant Elnaz filed an identical or substantially similar Ex Parte Application to Expunge Lis Pendens.

On February 23, 2022, the Honorable Monica Bachner denied the Application to Expunge Lis Pendens after Defendant failed to appear. The Court additionally found that there was no good cause, no showing of competent evidence, irreparable harm, immediate danger, or any other basis for ex parte relief.

On February 24, 2022, Defendant Elnaz filed an identical or substantially similar Ex Parte Application to Expunge Lis Pendens.

On February 25, 2022, Defendant Elnaz requested that the hearing for the Ex Parte Application to Expunge Lis Pendens be taken off calendar.

On February 28, 2022, Defendant Elnaz filed an identical or substantially similar Ex Parte Application to Expunge Lis Pendens.

On March 28, 2022, this Court denied the Ex Parte Application to Expunge Lis Pendens.

On October 10, 2022, Elnaz filed an Ex Parte Application to Dismiss Complaint. That Ex Parte Application was denied.

On January 4, 2023, Elnaz filed an Ex Parte Application to Dismiss Complaint. That Ex Parte Application was denied.

Also on January 4, 2023, Elnaz filed the instant Motion to Dismiss.

On January 9, 2023, Elnaz filed an Ex Parte Application to Reconsider the Court’s January 5^th Order Denying Elnaz’s Ex Parte Application to Dismiss and Expunge Lis Pendens. That Ex Parte Application was denied.

On February 6, 2023, Plaintiff filed a notice with the Court that Defendant had filed for Chapter 7 bankruptcy, and therefore the instant matter should be stayed.

On February 8, 2023, Defendant filed an Opposition to the instant Motion to Dismiss.

On February 15, 2023, Plaintiff filed a Reply. That Reply was substantially late.

DISCUSSION

      I.          MOTION TO DISMISS

Defendant Elnaz Houshmand Naghashan moves to dismiss the Complaint pursuant to Code of Civil Procedure section 438, et seq.

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.”  C.C.P. §438(b)(1) and (c)(1)(B)(ii). 

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)   

Here, Elnaz argues that the Complaint should be dismissed as there has been no fraudulent conveyance; Elnaz argues that, though the Subject Property has passed between her mother, her father, and her, these conveyances were due to Elnaz’s father’s inability to secure a loan because his lack of credit, and Elnaz’s mother’s inability to pay the delinquent mortgage.

As the Subject Property is back in Elnaz’s name, Elnaz argues that no fraudulent conveyance has occurred.

Additionally, Elnaz argues that the Notice of Lis Pendens must be vacated because service was not properly effectuated, and because there has been no judgment against Elnaz.

The Court finds no reason to dismiss the Complaint.

First, Elnaz’s entire argument is based on evidence extrinsic to the Complaint, which the Court is prohibited from considering in a Motion for Judgment on the Pleadings.

Second, Elnaz fails to explain how the fact that the Subject Property has returned to her negates the series of transfers that came before, which Plaintiff claims were effectuated to keep title from him and from the Court.

Third, any argument that Elnaz may have regarding the validity of the Lis Pendens is properly made in a Motion to Expunge Lis Pendens rather than a Motion to Dismiss.

Finally, as Plaintiff notes in his Opposition, Elnaz failed to serve the instant Motion on Plaintiff. Moreover, Elnaz has initiated a Title VII Bankruptcy proceeding, which initiates an automatic stay pursuant to Bankruptcy Code Section 362.

Accordingly, Defendant Elnaz Houshmand Naghashan’s Motion to Dismiss the Complaint is DENIED.

At hearing, the Court will address the issue of a bankruptcy stay with the parties.

DATED:  February 28, 2023             

______________________________

Hon. Robert S. Draper

Judge of the Superior Court