On 08/27/2020 CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION filed an Other lawsuit against ATM PROFESSIONAL, INC . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.
*******2749
08/27/2020
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
SERENA R. MURILLO
CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION
ATM PROFESSIONAL INC.
ZARGAR MICHAEL
FABIAN SARAH LYNN
12/30/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
10/29/2020: Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt
10/20/2020: Proof of Service (Sister State Judgment) - Proof of Service (Sister State Judgment)
10/20/2020: Notice of Hearing on Petition - Notice of Hearing on Petition
8/27/2020: Declaration (name extension) - Declaration Declaration of Warren Klomp, Jr.
8/27/2020: Petition (name extension) - Petition Petition for Hearing on Third Party Claim, Code Civ. Proc., 720.310 et seq
8/27/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
8/27/2020: Declaration (name extension) - Declaration Declaration of Maryanne Brauer
8/27/2020: Memorandum (name extension) - Memorandum MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATIONS PETITION FOR HEARING ON THIRD-PARTY CLAIM
8/27/2020: First Amended Standing Order - First Amended Standing Order
8/27/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
8/27/2020: Notice of Hearing on Petition - Notice of Hearing on Petition
Hearing02/24/2021 at 11:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Petition (name extension)
DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk
DocketPursuant to the request of moving party, Hearing on Claim of Exemption/Third-Party Claim scheduled for 02/24/2021 at 11:30 AM in Spring Street Courthouse at Department 26 Not Held - Taken Off Calendar by Party on 12/30/2020
DocketDue to Clerical Error, Hearing on Petition Petition for Hearing on Third Party Claim, Code Civ. Proc., 720.310 et seq scheduled for 12/31/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Rescheduled by Court was rescheduled to 02/24/2021 11:30 AM
DocketNotice and Acknowledgment of Receipt; Filed by: California Department of Tax and Fee Administration (Petitioner); As to: Michael Zargar (Respondent)
DocketNotice of Hearing on Petition; Filed by: California Department of Tax and Fee Administration (Petitioner)
DocketProof of Service (Sister State Judgment); Filed by: California Department of Tax and Fee Administration (Petitioner); As to: ATM Professional, Inc. (Respondent); Service Date: 09/01/2020
DocketThe case is placed in special status of: Stay - Other
DocketPetition Petition for Hearing on Third Party Claim, Code Civ. Proc., 720.310 et seq; Filed by: California Department of Tax and Fee Administration (Petitioner); As to: ATM Professional, Inc. (Respondent); Michael Zargar (Respondent)
DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse
DocketDeclaration Declaration of Warren Klomp, Jr. Filed by: California Department of Tax and Fee Administration (Petitioner); As to: ATM Professional, Inc. (Respondent); Michael Zargar (Respondent)
DocketCivil Case Cover Sheet; Filed by: California Department of Tax and Fee Administration (Petitioner); As to: ATM Professional, Inc. (Respondent); Michael Zargar (Respondent)
DocketMemorandum MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION?S PETITION FOR HEARING ON THIRD-PARTY CLAIM; Filed by: California Department of Tax and Fee Administration (Petitioner); As to: ATM Professional, Inc. (Respondent); Michael Zargar (Respondent)
DocketDeclaration Declaration of Maryanne Brauer; Filed by: California Department of Tax and Fee Administration (Petitioner); As to: ATM Professional, Inc. (Respondent); Michael Zargar (Respondent)
DocketNotice of Hearing on Petition; Filed by: Clerk
DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
DocketFirst Amended Standing Order; Filed by: Clerk
DocketHearing on Petition Petition for Hearing on Third Party Claim, Code Civ. Proc., 720.310 et seq scheduled for 12/31/2020 at 08:30 AM in Spring Street Courthouse at Department 26
Case Number: 20STCP02749 Hearing Date: December 31, 2020 Dept: 26
California
Department of Tax and Fee Administration v. ATM Professional, Inc., et al PETITION FOR HEARING ON THIRD PARTY
CLAIM (CCP § 720.310) TENTATIVE
RULING: Following
the hearing on Petitioner California Department of
Tax and Fee Administration’s Petition for Hearing on Third Party Claim, the
Court finds Claimants ATM
Professional, Inc. and Michael Zargar have not
demonstrated the validity of their claim. Petitioner to file proposed order
within ten (10) days’ service of this order. ANALYSIS:
Petitioner California Department of Tax and Fee
Administration (“Petitioner’) filed the instant Petition for Determination of Third
Party Claim on August 27, 2020 against Respondents ATM Professional, Inc. and
Michael Zargar (“Claimants”). On October 2, 2020, Petitioner filed Notice of
Hearing and Proof of Service. On October 29, 2020, Petitioner filed a Notice of
Acknowledgment of Receipt. Legal Standard A third person who has a claim of ownership or
a right to possession in property that is superior to a judgment creditor’s
lien may file a third party claim. (Code Civ. Proc., § 720.110.) This procedure
is also applicable to funds seized by a government agency. (Code Civ. Proc., §
688.030.) The third party claim must contain: (1) the third party’s name and
address in California where service by mail may be made; (2) a description of
the property involved and the interest claimed, including a statement of facts
on which the claim is based; and (3) an estimate of the market value of the
interest claimed. (Code Civ. Proc., § 720.130, subd. (a).) Either the judgment creditor or the third person
may petition the court for a hearing to determine the validity of the claim and
the proper disposition of the property. (Code Civ. Proc., § 720.310, subd. (a).)
The third party claim constitutes the claimant’s pleading, and the judgment
creditor’s statement opposing a claim by a secured party constitutes the
creditor’s pleading. (Code Civ. Proc., § 720.310, subd. (a).) The third party
or the creditor may petition the court for a hearing to determine the validity
of the claim no later than 15 days after the claim is filed. (Code Civ. Proc.,
§ 720.310, subd. (a).) The petitioner must then serve the non-petitioner with
notice of the time and place of the hearing personally or by mail, and file a
copy with the levying officer. (Code Civ. Proc., § 720.320, subd. (a).) Substantively, the burden of proof lies with
the party claiming the exemption. (Code Civ. Proc., § 720.360.) At the
conclusion of the hearing, the court must give judgment determining the
validity of the claim and may order disposition of the property or its proceeds
in accordance with the respective interests of the parties. (Code Civ. Proc., §
720.390.) Subject to appeal under Code of Civil Procedure section 720.420, the
judgment is conclusive between the parties to the proceedings. (Code Civ.
Proc., § 720.390.) Discussion David Marlon Garcia doing business as Green
Door (“Green Door”) sells cannabis and cannabis related products at 5522
Cahuenga Boulevard, North Hollywood (“the Business Location”). (Pet., Brauer Decl.,
¶3.) Green Door previously operated without a license or permit, and even after
registering for a seller’s permit, did not file tax returns or remit taxes. (Id.
at ¶¶3-6.) Petitioner determined that Green
Door owes tax, interest, and penalties in the amount of $257,152.92. (Id. at
¶¶7-8 and Exh. A.) Petitioner issued a till tap warrant that the California
Highway Patrol executed, resulting in the seizure of $13,000.00 from the ATM at
the Business Location. (Pet., Klomp Decl., ¶¶6-7 and Exh. A-B.) On August 12, 2020, third-party
claimants Michael Zargar and ATM Professional, Inc. (“Claimants”) delivered a
verified third party claim to Petitioner, requesting the ATM funds seized from
the Business Location. (Pet., Brauer Decl., ¶9 and Exh. B.) Claimants’
evidence in support of their claim to the ATM funds is as follows: · A completed Tax Seizure Tally Receipt
itemizing the cash seized from the ATM; · A letter from Zargar to Petitioner dated August
12, 2020 stating that ATM PRO is the owner of the ATM machine and Funds and
requesting that the ATM Funds be refunded to Zargar personally; · A completed ATM Source of Funds Provider
Declaration Agreement indicating that ATM PRO is the source of the funds
disbursed by the ATM; · A copy of an ATM Professional, Inc. Location
Agreement between Green Door and ATM PRO dated January 13, 2018, which is signed
by Zargar as ATM PRO’s president and “Lisa Woo” as president of Green Door; · A copy of a purchase invoice indicating that
the ATM was jointly purchased by Zargar and ATM PRO; · An “ATM Monthly Statement” reflecting the
daily withdrawal from the ATM for the period of December 2019 to May 2020; and · A document entitled “Daily Deposits”
summarizing the ATM’s daily activity of cash withdrawn from the ATM and related
surcharges. (Pet., Brauer Decl., Exhs. B, D.) The first
two documents simply contain allegations in support of the claim made by ATM
PRO and Zargar without supporting evidence. The next document, the ATM Source
of Funds Provider Declaration Agreement, does not prove that Claimants are the
source of the ATM Funds. Rather, the Source of Funds Provider Declaration
Agreement is just an application made to MetaBank with respect to the ATM at
the Business Location. (Id. at Exh. B.) There is nothing on the document
indicating that the application was accepted, who financed the ATM funds, or
the amount of funds to be placed in the ATM. (Ibid.) The next document
is an ATM location agreement between Green Door and ATM PRO. (Ibid.) Again,
the ATM location agreement does not state who is responsible for the funds in
the ATM; the terms only to pertain to ATM PRO’s obligation to provide and
operate the ATM at the Business Location. (Ibid.) Additional documents provided by Claimants at
Petitioner’s request include an ATM purchase invoice. (Id. at Exh. D.)
Again, this is not relevant to the source of the money in the subject ATM.
Similarly, the ATM Monthly Statement and Daily Deposits only shows activity
with respect to the ATM funds but offer no information about the source of the
funds. (Ibid.) Despite Petitioner’s request, Claimants did not provide
copies of bank statements showing that the funds in the ATM were withdrawn from
any account belonging to ATM PRO or Zargar. (Id. at ¶¶15, 18.) Based on the foregoing, Claimants have not
carried their burden of proof to demonstrate the validity of their claim to the
ATM funds. Conclusion Following
the hearing on Petitioner California Department of
Tax and Fee Administration’s Petition for Hearing on Third Party Claim, the
Court finds Claimants ATM
Professional, Inc. and Michael Zargar have not
demonstrated the validity of their claim. Petitioner to file proposed order
within ten (10) days’ service of this order. Petitioner to give notice.