Judge Stephanie M. Bowick, Case Number: 22STCV02754, Date: 2024-07-16 Tentative Ruling

Judge: Stephanie M. Bowick, Case: 22STCV02754, Date: 2024-07-16 Tentative Ruling

DEPARTMENT 19 LAW AND MOTION RULINGS
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Case Number: 22STCV02754 Hearing Date: July 16, 2024 Dept: 19

After full consideration of the papers filed and oral argument at the hearing, Prospective Interveners Kyun Kyu Jung aka Brian K. Jung, Bongyong Song, and Sung Eun Lee’s unopposed Motion for Leave to File Complaint in Intervention is GRANTED.

The Court signs the proposed order filed on June 18, 2024 after indicating that Prospective Interveners Kyun Kyu Jung aka Brian K. Jung, Bongyong Song, and Sung Eun Lee must formally file the Verified Complaint in Intervention within 5 court days.

On the Court's own motion, the Case Management Conference is CONTINUED TO September 17, 2024, at 8:30 a.m.

Counsel for Moving Parties to give notice.

STATEMENT OF THE CASE

This is a fraud action. In the verified First Amended Complaint (“FAC”), Plaintiff Cynthia D. Brown-Lee (“Plaintiff”) brings suit against Defendant Guy Gary (“Defendant”) alleging the following causes of action:

1. Intentional Misrepresentation Deceit;

2. Fraud; and

3. False Personation and Cheats.

The FAC alleges that Defendant fraudulently induced Plaintiff to execute a quitclaim deed transferring to Defendant real property with APN 5116-016-013 (the “Subject Property”).

Prospective Interveners Kyun Kyu Jung aka Brian K. Jung, Bongyong Song, and Sung Eun Lee (hereafter, “Prospective Intervenors”) filed the instant Motion for Leave to File Complaint in Intervention (the “Motion”).

GROUNDS FOR MOTION

Pursuant to Code of Civil Procedure section 387, subdivision (b), Prospective Intervenors move to intervene on the ground that they are the owners of the real property at issue and seek to expunge the lis pendens recorded by Plaintiff.

REQUEST FOR JUDICIAL NOTICE

The Court GRANTS Prospective Intervenors’ unopposed request to take judicial notice of Exhibits 1-3. (See Evid. Code, § 452(h); see Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264, disapproved of on other grounds in Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256, 264 [pursuant to Evidence Code section 452, subdivisions (c) and (h), “courts have taken judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged,” because “[t]he 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.”].)

The Court notes that “the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106.) In Poseidon, the Court of Appeal held that, “although… it would have been improper to take judicial notice of the truth of statements of fact recited within the documents,” the trial court did not err in taking judicial notice of the effect of the recorded document when the validity of the document was not in dispute and the effect being judicially noticed “could not be clearer” and was “not reasonably subject to dispute.” (Id. at 1117-1118.)

DISCUSSION

As an initial matter, Plaintiff does not oppose the instant Motion, effectively consenting to the Court granting it. (See Cal. R. Ct., 8.54(c) [“A failure to oppose a motion may be deemed a consent to the granting of the motion.”].)

Code of Civil Procedure section 387 provides, in part, that:

(b) 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.

(c) 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.

(d) (1) 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.

(2) 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.

(e) If leave to intervene is granted by the court, the intervenor shall do both of the following:

(1) Separately file the complaint in intervention, answer in intervention, or both.

(2) Serve a copy of the order, or notice of the court’s decision or order, granting leave to intervene and the pleadings in intervention as follows:

(A) A party to the action or proceeding who has not yet appeared shall be served in the same manner for service of summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2.

(B) A party who has appeared in the action or proceeding, whether represented by an attorney or not represented by an attorney, shall be served in the same manner for service of summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2, or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.

(Code Civ. Proc., § 387(b)-(d).)

Code of Civil Procedure section 405.30 provides, in relevant part:

At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice.

(Code Civ. Proc., § 405.30.)

Here, the Court finds that Prospective Intervenors may intervene as a matter of right. In the [Proposed] Verified Complaint In Intervention, (Dina A. Ariza Decl., ¶ 12, Ex. A), Prospective Intervenors allege that they have ownership interests in the real property that is the subject of the action. (See, e.g., [Proposed] Verified Complaint In Intervention, ¶¶ 1-3, 5, 7-13.) Given the allegations and relief sought in the FAC, the Court finds that Prospective Intervenors are so situated that the disposition of the action may impair or impede their ability to protect their ownership interests.

Thus, the Court GRANTS the Motion.