Judge: Yolanda Orozco, Case: 20STCV24920, Date: 2022-10-24 Tentative Ruling
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Case Number: 20STCV24920 Hearing Date: October 24, 2022 Dept: 31
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION IS GRANTED
Background
On July 1, 2020, Plaintiff Manuk “Mike” Akopyan (“Plaintiff”) commenced this action against Defendants Arianna Zadourian (“Zadourian”); M&A Lifestyle, Inc. (“M&A”); Mara Lifestyle, Inc. (“Mara”); and Pure C Inc. (“Pure”) (collectively, “Defendants”).
The Second Amended Complaint (SAC) alleges causes of action for:
2) Involuntary Dissolution,
3) Breach of Fiduciary Duty,
4) Concealment,
5) Negligent Misrepresentation,
6) Intentional misrepresentation,
7) Misappropriation,
8) Accounting, and
9) Fraudulent Transfer
On March 16, 2021, Zadourian filed a Cross-Complaint against Plaintiff. Defendant’s Cross-Complaint alleges the following causes of action: (1) Common Law Assault; (2) Common Law Battery; (3) Intentional Infliction of Emotional Distress; and (4) Breach of Fiduciary Duty/Joint Venture Agreement.
On April 27, 2022, Defendants filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication.
On September 28 and 29, Plaintiff filed opposing papers.
On October 07, 2022, Defendants filed a reply.
Legal Standard
The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿¿¿
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (Cal. Code of Civ. Proc. §437c(f).)
A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Id.)¿¿
“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿
On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿
Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [a 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.”] [emphasis added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿
Plaintiff submitted Evidentiary Objections to the Declaration of Arianna Zadourian. Defendant Zadourian submitted a supplemental response in response to Plaintiff’s objections.
Objections Nos. 1 to 7, and 9 to 14 are OVERRULED
Objection No. 8 is SUSTAINED.
Defendants submitted Evidentiary Objections to the Declaration of Manuk Akopyan and the attached Exhibits. Plaintiff did not submit a response to Defendant’s objections.
Objections Nos. 1 to 30 are SUSTAINED.
Plaintiff attaches text messages and magazine articles and asserts that they are “true and correct copies” but fails to authenticate the exhibits or explain how the exhibits are exempt from the hearsay rule.
Defendants submitted Evidentiary Objections to the Declaration of Aren Debarseghian. Plaintiff did not submit a response.
Objections Nos. 1 to 5 are SUSTAINED.
Discussion
Plaintiff’s Request for Additional Discovery
Plaintiff asserts that he has been prevented from conducting additional discovery that is needed and that he should be granted leave to seek such discovery under Code of Civil Procedure section 473c(h). In particular, Plaintiff requests additional discovery as to corporate documents, taxes, and other documents and communications at issue. (Derbarseghian Decl ¶ 2).
The previous denial was based on the fact that Plaintiff had failed to show ownership interest beyond Pure C. Plaintiff’s counsel asserts the previous Judge denied the motion to compel without prejudice. Plaintiff’s counsel fails to explain why the motion for additional discovery was not brought earlier or that Defendants have unreasonably failed to allow discovery into the above matters. As stated in section 473c(h): “This section does not affect or limit the ability of a party to compel discovery under the Civil Discovery Act[.]” (Code Civ. Proc., § 473c subd. (h).
Since Plaintiff failed to promptly seek discovery into the corporate documents, Plaintiff’s request to conduct additional discovery is DENIED.
Plaintiff’s Evidence
Plaintiff's evidence consists of text messages, magazine articles, and other documents. Plaintiff has failed to lay the foundation for each individual exhibit and authenticate the evidence presented. In addition, many of the offered evidence consists of hearsay statements and Plaintiff has failed to establish that such statements fall within any recognized hearsay exception. For these reasons the Court has sustained Defendants’ evidentiary objections.
“A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543, 213 Cal.Rptr.3d 764, 389 P.3d 1.) A motion for summary judgment and its opposition may rely on hearsay presented through affidavits and deposition testimony. (Code Civ. Proc., § 437c, subd. (b)(1), (b)(2).) Such affidavits or declarations “shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Code Civ. Proc., § 437c, subd. (d).) “In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639–640.)
Having failed to respond to Defendants’ evidentiary objections and correct the deficiencies regarding authentication and lack of foundation, Plaintiff's evidence is inadmissible.
Plaintiff cannot merely summarize the contents of an exhibit that consists of handwritten notes and text messages or other documents without laying the foundation for each item and authenticating each item as being what the declarant claims it to be. Furthermore, courts have found that matters alleged in a newspaper are inadmissible hearsay and have even been excluded for the purposes of impeachment when a proper foundation for their admission has not been laid. (See Harmon v. Pacific Tel. & Tel. Co. (1962) 201 Cal.App.2d 453, 456 [“Of course, the matter which allegedly appeared in a newspaper was inadmissible hearsay.”]; Shumate v. Johnson Pub. Co. (1956) 139 Cal.App.2d 121, 134 [newspaper article inadmissible without proper foundation or authentication even for the limited purpose of impeachment.].)
Moreover, Plaintiff fails to show how the text messages, screenshots, and other documents are not hearsay or are exempt from the hearsay rule. For this reason, Plaintiff’s evidence is inadmissible.
Summary of Dispute
Plaintiff Manuk Akopyan and Defendant Arianna Zadourian were romantically involved in or around the time Defendant is alleged to have founded and been the sole owner of the business entities known as M&A Lifestyle Inc. d/b/a Pure CBD (“M&A”) and Mara Lifestyle d/b/a Pure CBD (“Mara”). Plaintiff disputes that Defendant was the sole owner and alleges that at the time of the founding of M&A and Mara, the parties were both romantic and business partners and that the parties had orally agreed to be equal owners and operators of the stores.
Defendant asserts she and Plaintiff are co-owners of the third business entity “Pure C Inc.,” of which Plaintiff claims to be the sole owner of. The relationship between the parties soured and Plaintiff brought this action to claim ownership over M&A and Mara as well as seek damages against Defendant Zadourian and M&A Lifestyle, Inc. (“M&A”); Mara Lifestyle, Inc. (“Mara”); and Pure C. Inc. (“Pure”) (collectively, “Defendants”).
Defendants now move for summary judgment, or in the alternative, summary adjudication, as to all causes of action alleged in Plaintiff’s Second Amended Complaint.
First COA: Breach of Partnership Agreement
“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. [Citation.]” (Richmond v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
Defendants assert that Plaintiff has failed to show that an oral partnership agreement existed between the parties. This is supported by the Articles of Incorporation and the Bylaws for M&A and Mara filed with the California Secretary of State, as well as Minute Orders, Stock Certificates, and Bank Statements (SSUF Nos. 3-4, 19, 21,23-24, 26, 27, 80.) As to M&A, the only appointed officer is Defendant Zadourian and only she was allowed to make corporate filings, including filings before the Secretary of State.
Furthermore, Defendants assert that under Evidence Code section 662, there is an evidentiary presumption that Plaintiff is the sole legal owner of “M&A” and “Mara”, and this presumption can only be rebutted by clear and convincing evidence. (See Evid. Code, § 662 [“The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.”].)
Plaintiff asserts that the presumption of title under section 662 only applies to real property not ownership of a business. The Court disagrees. Section 662 has been used in other cases regarding disputes of legal title to bank funds and corporations. (See People v. Semaan (2007) 42 Cal.4th 79, 85, Grotenhuis v. County of Santa Barbara (2010) 182 Cal.App.4th 1158, 1165.) However, Plaintiff is disputing the validity of Defendants’ corporate documents and alleges they were obtained through fraud. Therefore, Plaintiff negates the applicability of section 662. (See Semaan, supra, 42 Cal.4th at 88 [“Evidence Code section 662 does not apply, however, when title itself is challenged as not genuine.”].)
Therefore, the Court looks at Plaintiff’s evidence to see if Plaintiff has raised a material issue of fact as to the existence of an oral agreement. Plaintiff relies on hearsay statements and other inadmissible evidence to raise the inference that the Defendants held herself out as co-owner or that Plaintiff engaged in activities in which an owner rather than an employee would engage in.
As to corporate filings allegedly made by Plaintiff, Defendant Zadourian has presented sufficient evidence in the form of bylaws and articles of incorporation and minute orders for M&A and Mara that only Zadourian and not Plaintiff was permitted to make the corporate filings as the only corporate officer for M&A and Mara. (Zadourian Decl. ¶ 5, Ex. H, K) These filings predate Plaintiff’s corporate filings of ownership before the California Secretary of State and thus these are rendered void. (Akopyan Decl. ¶ 19, Ex. 20.) Furthermore, since the evidence presented by Plaintiff is inadmissible for the reasons discussed above, Plaintiff has failed to show that a triable issue of material fact exists as to the first cause of action.
Therefore, summary adjudication as to the first cause of action is GRANTED.
Second COA: Involuntary Dissolution
To state a claim for dissolution, a plaintiff must be (1) one-half or more of the directors in office, (2) a shareholder holding shares which represent no less than 33 and 1/3 percent of the total number of outstanding shares, common, shares, or equity of the corporation, or any shareholder of a close corporation, (3) a shareholder if the ground for dissolution is that the period for which the corporation was formed has terminated without extension, or (4) be any other person authorized in the articles.¿ (Corp. Code¿§¿1800(a)(1)-(4).)
The grounds for involuntary dissolution are (1) the corporation has abandoned its business for over one year, (2) the corporation has an even number of shareholders who are equally divided and cannot agree as to the management of affairs such that the business can no longer be conducted to advantage or there is danger that the property or business will be impaired or lost and the holders of the voting shares are so divided they cannot elect a board with an uneven number, (3) there is internal dissension and two or more factions of shareholders are so deadlocked the corporation cannot conduct its business to the advantage of the shareholders or the shareholders fail at two consecutive meetings at which all voting power is exercised to elect successors to directors whose terms have expired or would expire upon election of successors, (4) those in control of the corporation are guilty of or have knowingly countenanced persistent and pervasive fraud, mismanagement, or abuse of authority or persistent unfairness toward any shareholder or the corporation’s property is being misapplied or wasted by the directors or officers, (5) a corporation with 35 or fewer shareholders when liquidation is reasonably necessary to protect the rights or interests of the complaining shareholder, or (6) the period for which the corporation was formed has terminated without extension.¿(Corp. Code¿§¿1800 subds. (b)(1)-(6).)
Defendants assert that because Plaintiff’s cause of action for Involuntary Dissolution hinges on Corporations Code section 1800(a)(2), Plaintiff lacks standing because he is not a shareholder to M&A and Mara. (SSUM 39, 40.) Plaintiff has not submitted any evidence to show that Plaintiff is a director, officer or shareholder, officer or a person authorized under the articles for M&A and Mara to assert a cause of action for Involuntary Dissolution. The fact that Plaintiff filed a verified complaint alleging a cause of action for Involuntary Dissolution is insufficient evidence to establish standing.
As to Pure C Inc. however, evidence exists that Plaintiff was an owner and an officer of Pure C Inc. who has the standing to assert a cause of action for Involuntary Dissolution. (SSUF No. 41.) Defendants Ex. S.) Plaintiff’s cause of action for Involuntary Dissolution is premised on Corporations Code section 1800 subdivision (b) but Plaintiff fails to present any evidence that Defendants “are guilty of or have knowingly countenanced persistent and pervasive fraud, mismanagement, or abuse of authority or persistent unfairness toward any shareholder or the corporation’s property is being misapplied or wasted by the directors or officers.” (Corp. Code § 1800 subd. (b).) Plaintiff only asserts that Defendant Zadourian, allegedly through unauthenticated text messages, offered a buyout for each of the three entities at $155,557 but not that she violated section 1800 subdivision (b). (Akopyan Decl. ¶ 14.)
For the reasons stated, the Court finds that Defendants have established that there is no triable issue of material fact as to this cause of action.
Accordingly, summary adjudication is GRANTED as to the second cause of action.
Third COA: Breach of Fiduciary Duty
The elements for a breach of fiduciary duty cause of action are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Thomson v. Canyon¿(2011) 198 Cal.App.4th¿594, 604.)¿¿
“‘[B]efore¿a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.’” (Hasso¿v.¿Hapke¿(2014) 227 Cal.App.4th 107, 140 (quoting¿Committee on Children’s Television, Inc. v. General Foods Corp.¿(1983) 35 Cal.3d 197, 221).) “A fiduciary duty under common law may arise ‘when one person enters into a confidential relationship with another.’” (Id.)¿
A¿partnership relationship is a fiduciary relationship. (See¿Enea¿v. Superior Court¿(2005) 132 Cal.App.4th 1559, 1564.)¿
Defendants assert that Plaintiff fails to show that a fiduciary obligation existed between the parties since Plaintiff failed to show that a partnership relationship exists between Plaintiff and Defendant Zadourian as to the business entities M&A and Mara. (SSUF Nos. 1-37.) However, a fiduciary relationship does exist between the parties as to the entity Pure C. Inc. since Defendant Zadourian does not dispute that Pure C. Inc. is the owner. However, Plaintiff must still establish a breach of the fiduciary duty as to Pure C. Inc.
Plaintiff’s evidence consists solely of Plaintiff’s declaration and other inadmissible evidence. Plaintiff’s entire separate statement is a copy and paste of Plaintiff’s declaration in opposition to the motion for summary judgment. Therefore, there is no admissible evidence to show that a triable issue of material fact exists as to the third cause of action.
Therefore, summary adjudication is granted as to the third cause of action.
Fourth COA: Concealment
“[T]he elements of an action for fraud and deceit based on a concealment are:(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)
“There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citations.]’” (See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)
Defendants assert that Plaintiffs’ fourth cause of action fails because Plaintiff cannot show that Defendant Zadourian owed a fiduciary relationship and a duty to disclose material facts to Plaintiff about Mara and M&A.
The Court agrees that absent a showing of ownership interest between Plaintiff and M&A and Mara, Defendant Zadourian did not owe any duties to Plaintiff pertaining to M&A and Mara. (SSUF Nos. 1-37.) As to any failure to disclose as to the entity known as Pure C. Inc., Defendants assert that they disclosed Plaintiff’s ownership interest as evinced by the corporate and bank documents. (SSUF Nos. 33-35.) Moreover, Defendants assert that even if Plaintiff were to prove that Zadourian failed to acknowledge Plaintiff’s joint interest in Pure C. Inc., Plaintiff fails to prove he has been damaged. (SSUF No. 35.)
Absent a partnership agreement between Plaintiff and Defendant regarding M&A and Mara, Plaintiff owed no legal duty to disclose. Plaintiff asserts that there is evidence that the parties discussed purchasing health insurance for the company, Pure CBD, and that Plaintiff incurred debt on behalf of the Defendant entities which Defendant Zadourian is refusing to cover. (PUMFS 75-78; Akopyan Decl. Ex. 7.) Without a proper foundation, the evidence offered by Plaintiff is inadmissible. Moreover, assuming Plaintiff did incur debt on behalf of Pure CBD, Plaintiff has not shown that the debt was a material fact or that Defendants hid or concealed that fact from Plaintiff. Moreover, an invoice for alarm monitoring and the health insurance by M&A Lifestyle, Inc. do not show or confer an ownership interest in Plaintiff for M&A and Mara. (Akopyan Ex. 7.) Therefore, Plaintiff has failed to show that a triable issue of material fact exists as to the fourth cause of action.
Summary adjudication is GRANTED as to the fourth cause of action.
Fifth COA and Sixth COA: Negligent Misrepresentation
The essential elements of a count for negligent misrepresentation are the as those for intentional misrepresentation except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230–231.) “The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Id.)
Defendants assert that Plaintiff cannot show that Defendant Zadourian misrepresented or omitted material facts to Plaintiff such as the fact that Defendant Zadourian told Plaintiff they would be equal shareholders in the Defendant entities, that Plaintiff would not steal from Defendant or take advantage of him, and that profit in the businesses would be split equally. (SAC ¶ 62.) Plaintiff’s evidence to support these assertions is his declaration filed in opposition to this motion. Yet, Plaintiff’s declaration is primarily hearsay and the text messages, magazine articles, and other exhibits lack proper authentication and are hearsay, and are therefore inadmissible. (See, e.g., Akopyan Decl.) Absent admissible evidence, Plaintiff has failed to show that a material issue of fact exists as to the fifth and sixth causes of action.
Therefore, summary adjudication is GRANTED as to the fifth and sixth causes of action.
Seventh COA: Misappropriation of Corporate Assets
“Directors owe a duty of highest good faith to the corporation and its stockholders, and this same duty is demanded of officers of the corporation. (Citation.) It is a violation of this duty for officers, or directors or majority stockholders to give away or appropriate to themselves any corporate assets. (Citation.)” (Mueller v. Macban (1976) 62 Cal.App.3d 258, 274.)
“[A] a director or dominant or controlling stockholder (or group of stockholders) is a fiduciary whose dealings with the corporation are subject to rigorous scrutiny and that ‘where any of their contracts or engagements with the corporation is challenged the burden is on the director or stockholder not only to prove the good faith of the transaction but also to show its inherent fairness from the viewpoint of the corporation and those interested therein.’ (Citation.)” (Id; see also Burt v. Irvine Co. (1965) 237 Cal.App.2d 828, 851.)
Defendants assert that Plaintiff has failed to produce any evidence that Defendant Zadourian misappropriated any assets belonging to Pure C. (SSUM Nos. 33-34.) As to M&A and Mara, Plaintiff has failed to show he has an ownership interest in these business entities or that he has standing to bring a claim for misappropriation of assets belonging to M&A and Mara.
Defendant Zadourian presented evidence that only she was permitted to make corporate filings as the sole shareholder and corporate officer for M&A and Mara. (Zadourian Decl. ¶ 3, Ex. G, H, K.) Therefore, any subsequent filings by Plaintiff are void and Plaintiff has not presented any evidence establishing the validity of documents or rebutting Defendant Zadourian’s evidence that the corporate filings filed on April 21, 2020 with the Secretary of State were authorized. Moreover, the fact that Plaintiff was an authorized user of the Bank Accounts for M&A and Mara does not rebut Defendant’s evidence that she was the sole owner of the accounts and that M&A and Mara’s governing documents authorized Zadourian to designate authorized users of the bank accounts. (Zadourian ¶¶ 11, 13 Ex. G.) Additional evidence submitted by Plaintiff is a chain of text messages and handwritten notes for which no foundation or authentication has been presented. (See Akopyan Decl. Ex. 4.) The evidence is inadmissible and insufficient to show that a triable issue of material fact exists.
Therefore, summary adjudication is GRANTED as to the seventh cause of action.
Eight COA: Accounting
“The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender.” (Teselle¿v. McLoughlin¿(2009) 173 Cal.App.4th 156,¿179-80.)¿¿
Defendants assert that Plaintiff cannot prove the existence of a relationship between Plaintiff and Defendants that requires an accounting. Plaintiff failed to produce admissible evidence to show he has an ownership interest in M&A and Mara. As to Pure C Inc., Defendants assert that Plaintiff fails to show there is a balance due to Akopyan. (SSUM Nos. 51-53.)
Although Plaintiff is not required to show a sum certain that is due, he is required to show that Defendants are in possession of money or property that Defendants were obligated to surrender to Plaintiff relating to Pure C Inc. As to the allegations that Defendant Zadourian locked Plaintiff out of the accounts, without proper authentication and a foundation there is no admissible evidence to show that Defendant Zadourian locked Plaintiff out of the Pure C. Inc. bank account. (See Akopyan Decl. ¶ 18, Ex. 5.) Therefore, Plaintiff fails to present admissible evidence to show a material issue of fact exists as to the eighth cause of action.
Summary Adjudication is GRANTED as to the eighth cause of action.
Ninth COA: Fraudulent Transfer
In California, a fraudulent conveyance under the Uniform Fraudulent Transfer Act (“UFTA”) involves “a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.” (Filip v.¿Bucurenciu¿(2005) 129 Cal.App.4th 825, 829.) A transfer under the UFTA is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor. (See Civ. Code, § 3439.04(a);¿Filip, supra, 129 Cal.App.4th at 829.)¿
California Civil Code section 3439.08(b)(1)(A) provides that to the extent a transfer is avoidable, a creditor may recover judgment for the value of the asset transferred or the amount necessary to satisfy the creditor’s claim, whichever is less, from the first transferee of the asset or the person for whose benefit the transfer was made. (See Cal. Civ. Code, § 3439.08(b)(1)(A).)
To find a transfer voidable as to a creditor, the transfer by the debtor must be made with actual intent to hinder, delay, or defraud the creditor of the debtor. (See¿id., § 3439.04(a).) Some factors that may be considered in determining actual intent are: (1) whether the transfer or obligation was to an insider; (2) whether the debtor retained possession or control of the property transferred after the transfer; (3) whether the transfer or obligation was disclosed or concealed; (4) whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) whether the transfer was of substantially all the debtor’s assets; (6) whether the debtor absconded; (7) whether the debtor removed or concealed assets; (8) whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) whether the transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor. (Id., § 3439.04(b).)¿¿
Defendants again assert that Plaintiff has presented no evidence that he has any interest in M&A or Mara assets. Similarly, Plaintiff has not presented evidence that any of Pure C’s asserts were fraudulently transferred by Zadourian or that Plaintiff was damaged by anything Zadourian did or was obligated to do. (SSUF No. 35, 55-56.) Since Plaintiff has cited no admissible evidence, Plaintiff has failed to show a triable issue of fact exists as to the ninth cause of action.
Summary adjudication is GRANTED as to the ninth cause of action.
Conclusion
Defendants’ Motion for Summary Judgment is GRANTED.
Defendants to give notice.