Judge: Teresa A. Beaudet, Case: BC627822, Date: 2023-04-07 Tentative Ruling

Case Number: BC627822    Hearing Date: April 7, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On July 21, 2016, Plaintiff Lawrence B. Robbins, M.D. (“Plaintiff”) filed this action against Defendant David L. Kagel (“Defendant”). The Complaint alleges causes of action for (1) breach of contract, (2) fraud, (3) conversion, and (4) constructive trust.

On August 22, 2018, a default judgment was entered in this action in favor of Plaintiff and against Defendant in the total amount of $2,172,468.85.

Jessica Robbins Marino (“Marino”), successor in interest to Plaintiff, now moves for an order “(1) charging the membership interest of Judgment Debtor, David L. Kagel, in the limited liability company known as ZoeNico, LLC with payment of the unpaid balance of the judgment entered in this action, which currently totals $2,179,676.85, and (2) directing ZoeNico, LLC and all members thereof to pay any money or property due or to become due to David L. Kagel or being held by ZoeNico, LLC for the benefit of David L. Kagel, directly to the Judgment Creditor until the amount remaining due on the judgment, plus all accrued interest thereon, is paid in full.” Non-Party ZoeNico, LLC (“ZoeNico”) opposes. 

Request for Judicial Notice

The Court grants Marino’s request for judicial notice.

Discussion

As an initial matter, the Court notes that Marino has not provided competent evidence demonstrating that she is Plaintiff’s successor in interest. The Court notes that Code of Civil Procedure section 377.32 provides, inter alia, as follows:

“The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent’s name.

(2) The date and place of the decedent’s death.

(3) ‘No proceeding is now pending in California for administration of the decedent’s estate.’

(4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) ‘The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.’

(B) ‘The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.’

(6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’

(7) ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’” (Code Civ. Proc.,           § 377.32, subd. (a).)

“Literally, [Code of Civil Procedure section 377.32] does not require that the affidavit be filed as a condition precedent to commencing or continuing the action. However, failure to file the affidavit could possibly subject the action to a plea in abatement.” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523-1524.)

            In any event, notwithstanding the foregoing, the Court does not find that Marino has demonstrated that the Court must grant the instant motion.

            Marino cites to Code of Civil Procedure section 708.310, which provides that “[i]f a money judgment is rendered against a partner or member but not against the partnership or limited liability company, the judgment debtor’s interest in the partnership or limited liability company may be applied toward the satisfaction of the judgment by an order charging the judgment debtor’s interest pursuant to Section 15907.03, 16504, or 17705.03 of the Corporations Code.” Corporations Code section 17705.03, subdivision (a) provides that “[o]n application by a judgment creditor of a member or transferee, a court may enter a charging order against the transferable interest of the judgment debtor for the unsatisfied amount of the judgment. A charging order constitutes a lien on a judgment debtor’s transferable interest and requires the limited liability company to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor.” 

Marino asserts that Defendant is a member of ZoeNico. Marino submits the declaration of her counsel, who states that she “believe[s] the Judgment Debtor, David L. Kagel, is a member of ZoeNico, LLC.” (Martinez Decl., ¶ 8.)

Marino also indicates that on December 3, 2020, the Honorable Ana Maria Luna issued an Order Re: Petition for Enforcement of Money Judgment Against Beneficiary’s Trust Instrument in the case In Re the Trust Matter of: The Kagel Family Trust Dated September 21, 1993, Case No. 20STPB04956. (Marino’s RJN, Ex. 2.) The December 3, 2020 Order provides, inter alia, that “[t]he Court reviewed Dr. Robbins’ Petition for enforcement of his August 22, 2018 judgment obtained in Los Angeles Superior Court, case number BC627822, in the amount of $2,172,468.85, against Respondent, David L. Kagel’s, beneficial interest in the Kagel Family Trust dated September 21, 1993, and ordered as follows:

1. Ina P. Kagel, Trustee of The Kagel Family Trust dated September 21, 1993, shall pay Petitioner, Dr. Lawrence B. Robbins, all benefits and distributions which would otherwise be payable to David L. Kagel on account of his interest in The Kagel Family Trust, until such time as Dr. Robbins’ judgment amounting to $2,172,468.85 is fully satisfied with interest;

2. A lien shall be imposed on David L. Kagel’s interest in The Kagel Family Trust in favor of Dr. Lawrence B. Robbins until such time as Dr. Robbins’ judgment amounting to $2,172,468.85 is fully satisfied with interest; and

3. The Kagel Family Trust’s property shall be liquefied and transferred to Dr. Lawrence B. Robbins in order to fully satisfy Dr. Robbins’ judgment amounting to $2,172,468.85 with interest.” (Marino’s RJN, Ex. 2.)

Marino’s counsel states that she subpoenaed the Kagel Family Trust’s account statements from J.P. Morgan Chase. (Martinez Decl., ¶ 16.) Marino’s counsel further states that the account statements from J.P. Morgan Chase evidence that a combined total of $618,429.02 was transferred from the “Ina Kagel Trust” to ZoeNico, LLC in April 2021. (Martinez Decl., ¶¶ 16-17, Exs. A-B.) The Court notes that the December 3, 2020 Order in Case No. 20STPB04956 references the “Kagel Family Trust,” not the “Ina Kagel Trust.” (Marino’s RJN, Ex. 2.)

In addition, ZoeNico asserts that the facts establish that Defendant did not and does not have any interest in ZoeNico. ZoeNico submits the Declaration of Eric Kagel, the son of Defendant and Ina Kagel. (Eric Kagel Decl., ¶¶ 2, 4.) Eric Kagel states that he and his sister Andrea Weinberger are “the Co-Managers of Zoenico LLC and co-manage the funds of Zoenico LLC, a California limited liability company established by [Eric Kagel’s] mother as the sole member.” (Eric Kagel Decl., ¶ 6.) Upon Ina Kagel’s death, Eric Kagel and Andrea Weinberger each inherited 50% of their mother’s assets. (Eric Kagel Decl., ¶ 13.) Eric Kagel and Andrea Weinberger now “each have a fifty percent…ownership interest in ZoeNico LLC, pursuant to the terms of [their] mother’s Trust Agreement.” (Eric Kagel Decl., ¶ 14.)

Eric Kagel asserts that Defendant “never had or possessed any beneficiary interest in [Eric Kagel’s] mother’s Trust as [Eric Kagel] and [his] sister were the sole beneficiaries and the Successor Trustees thereof.” (Eric Kagel Decl., ¶ 16.) Eric Kagel further states that “David Kagel, never did and does not now have any interest in Zoenico LLC. He never had any membership interest in Zoenico, LLC. There never have been any money or property due to David Kagel by the LLC. There never been [sic] any money or property being held by ZoeNico LLC for the benefit of David Kagel.” (Eric Kagel Decl., ¶ 7.) Eric Kagel also asserts that “[a]ll funds that were invested in ZoeNico came from [his] Mother’s Trust which consisted of the proceeds of the sale of the real property located at 9400 Readcrest Drive, Beverly Hills, CA.” (Eric Kagel Decl., ¶ 8.) Eric Kagel states that it is his understanding that the “9400 Readcrest Drive property was [his] mother’s sole and separate property.” (Eric Kagel Decl., ¶ 12.) 

            Marino did not file a reply in support of the instant motion and thus does not address the foregoing evidence.

Conclusion

Based on the foregoing, Marino’s motion is denied.

Marino is ordered to give notice of this ruling.

DATED:  April 7, 2023                                  ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court