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This case was last updated from Los Angeles County Superior Courts on 08/02/2021 at 05:57:44 (UTC).

ARMAN YEGIYANTS VS HAGOP BARDAKJIAN

Case Summary

On 06/27/2014 ARMAN YEGIYANTS filed a Property - Other Real Property lawsuit against HAGOP BARDAKJIAN. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID A. ROSEN, WILLIAM D. STEWART, LAURA A. MATZ, CURTIS A. KIN and SUZANNE G. BRUGUERA. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0144

  • Filing Date:

    06/27/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Glendale Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DAVID A. ROSEN

WILLIAM D. STEWART

LAURA A. MATZ

CURTIS A. KIN

SUZANNE G. BRUGUERA

 

Party Details

Plaintiffs and Petitioners

YEGIYANTS ARMAN

10415 COMMERCE LLC

YEGIYANTS AN INDIVIDUAL ARMAN

Defendants, Respondents and Cross Defendants

BARDAKJIAN HAGOP

BARDAKJIAN HRATCHIA

DOES 1 THROUGH 25

CHOI AN INDIVIDUAL OSCAR YONGHWAN

707 E. ANGELENO LLC A WYOMING LIMITED LIABILITY COMPANY

BARDAKJIAN AN INDIVIDUAL HRATCHIA

S.B.S. TRUST DEED NETWORK A CALIFORNIA CORPORATION

COMMERCIAL FUNDING LLC A WYOMING LIMITED LIABILITY COMPANY

703 E. ANGELENO LLC A WYOMING LIMITED LIABILITY COMPANY

DAWOOD AN INDIVIDUAL JIM

BARDAKJIAN AN INDIVIDUAL HAGOP

DAVID JOHN M.

10415 COMMERCE LLC

CA REO PROPERTIES LLC

DAWOOD JAMAL NATHAN

YEGIYANTS AN INDIVIDUAL ARMAN

CITY NATIONAL FINANCE

DAWOOD CHRISTINE ARMANI

Cross Plaintiffs, Defendants and Cross Defendants

707 E. ANGELENO LLC A WYOMING LIMITED LIABILITY COMPANY

COMMERCIAL FUNDING LLC A WYOMING LIMITED LIABILITY COMPANY

703 E. ANGELENO LLC A WYOMING LIMITED LIABILITY COMPANY

DAVID AN INDIVIDUAL JOHN M

17 More Parties Available

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

FISHER DAVID S.

GRAY * DUFFY LLP

DAVID S. FISHER APC

Plaintiff and Petitioner Attorney

GRAY * DUFFY LLP

Defendant, Respondent and Cross Plaintiff Attorneys

GERAGOS LAW GROUP

GERAGOS MATTHEW J.

SINA REZA

FERNALD BRANDON CLAUS

WILSON DENNIS PATRICK

FERNALD BRANDON ESQ.

FERNALD LAW GROUP LLP

FRIEDMAN JOSHUA P

LUDWIG MITCHELL BRIAN

Defendant and Respondent Attorneys

SINA REZA

FERNALD BRANDON ESQ.

Defendant, Cross Defendant and Cross Plaintiff Attorneys

WILSON DENNIS PATRICK

LUDWIG MITCHELL BRIAN

Plaintiff, Cross Defendant and Cross Plaintiff Attorneys

FISHER DAVID S.

WILSON DENNIS PATRICK

FRIEDMAN JOSHUA P

LUDWIG MITCHELL BRIAN

CROSBY MARY CANDICE

BRYNER CANDICE

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER FOR PRELIMINARY INJUNCTION FILED ON...)

10/25/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER FOR PRELIMINARY INJUNCTION FILED ON...)

Proof of Service by Mail

7/26/2021: Proof of Service by Mail

Motion re: - MOTION RE: MOTION FOR PEREMPTORY DISQUALIFICATION (CCP 170.6)

1/28/2021: Motion re: - MOTION RE: MOTION FOR PEREMPTORY DISQUALIFICATION (CCP 170.6)

Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER - CASE REASSIGNMENT

2/4/2021: Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER - CASE REASSIGNMENT

Minute Order - Minute order entered: 2017-01-27 00:00:00

1/27/2017: Minute Order - Minute order entered: 2017-01-27 00:00:00

Minute Order - Minute order entered: 2017-09-15 00:00:00

9/15/2017: Minute Order - Minute order entered: 2017-09-15 00:00:00

Notice of Case Reassignment/Vacate Hearings

12/19/2018: Notice of Case Reassignment/Vacate Hearings

Notice - NOTICE OF CIVIL DEPOSIT IN LIEU OF BOND

5/1/2019: Notice - NOTICE OF CIVIL DEPOSIT IN LIEU OF BOND

Proof of Service (not Summons and Complaint)

9/9/2019: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION BRANDON C FERNALD

10/15/2019: Declaration - DECLARATION BRANDON C FERNALD

Objection - OBJECTION TO DECLARATION OF HRATCHIA BARDAKJIAN

10/18/2019: Objection - OBJECTION TO DECLARATION OF HRATCHIA BARDAKJIAN

Proof of Service (not Summons and Complaint)

11/15/2019: Proof of Service (not Summons and Complaint)

Separate Statement

5/26/2020: Separate Statement

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SETTING OF HEARING ON MOTION TO COMPE...)

7/30/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SETTING OF HEARING ON MOTION TO COMPE...)

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO FO...)

10/30/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO FO...)

Summons - SUMMONS ON CROSS COMPLAINT

11/19/2020: Summons - SUMMONS ON CROSS COMPLAINT

448 More Documents Available

 

Docket Entries

  • 05/02/2022
  • Hearing05/02/2022 at 09:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Jury Trial

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  • 04/21/2022
  • Hearing04/21/2022 at 10:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Final Status Conference

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  • 09/03/2021
  • Hearing09/03/2021 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion to be Relieved as Counsel

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  • 09/03/2021
  • Hearing09/03/2021 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion to be Relieved as Counsel

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  • 07/26/2021
  • DocketMotion to Be Relieved as Counsel; Filed by 10415 COMMERCE, LLC (Plaintiff)

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  • 07/26/2021
  • DocketSubstitution of Attorney; Filed by ARMAN YEGIYANTS, an individual (Plaintiff)

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  • 07/26/2021
  • DocketDeclaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by 10415 COMMERCE, LLC (Plaintiff)

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  • 07/26/2021
  • DocketProof of Service by Mail; Filed by 10415 COMMERCE, LLC (Plaintiff)

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  • 07/26/2021
  • DocketMotion to Be Relieved as Counsel; Filed by ARMAN YEGIYANTS, an individual (Plaintiff)

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  • 07/26/2021
  • DocketDeclaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by ARMAN YEGIYANTS, an individual (Plaintiff)

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637 More Docket Entries
  • 07/03/2014
  • DocketNotice-Case Management Conference; Filed by Clerk

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  • 07/03/2014
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/27/2014
  • DocketComplaint; Filed by 10415 COMMERCE, LLC (Plaintiff); ARMAN YEGIYANTS, an individual (Plaintiff)

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  • 06/27/2014
  • DocketCOMPLAINT TO SET ASIDE FRAUDULENT TRANSFER/OBLIGATION AND FOR DAMAGES

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  • 06/27/2014
  • DocketComplaint

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  • 06/27/2014
  • DocketCivil Case Cover Sheet

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  • 06/27/2014
  • DocketSummons (on Complaint)

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  • 06/27/2014
  • DocketSUMMONS

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  • 02/04/2014
  • Docketat 10:00 AM in Department 71; Unknown Event Type - Held - Continued

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  • 02/04/2014
  • DocketMinute order entered: 2014-02-04 00:00:00; Filed by Clerk

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Tentative Rulings

Case Number: BC550144    Hearing Date: April 23, 2021    Dept: E

MOTIONS TO DISMISS (x3)

Date: 4/23/21 (2:00 PM)

Case: Arman Yegiyants v. Hagop Bardakjian et al. (BC550144)

TENTATIVE RULING:

The Motions to Dismiss filed by 1) Defendants 703 E. Angeleno, LLC, a Wyoming limited liability company; 707 E. Angeleno LLC, a Wyoming limited liability company; and Commercial Funding, LLC, a Wyoming limited liability company (collectively “Wyoming Defendants”); 2) Defendant Hagop Bardakjian; and 3) Defendant Hratchia Bardakjian are GRANTED IN PART.

The Wyoming Defendants’ requests for judicial notice as to Exhibits A through C and E through H, and I are GRANTED, pursuant to Evidence Code § 452(d).

The Wyoming Defendants’ request for judicial notice as to Exhibits D and J through T are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code, § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

Plaintiffs’ objection to Hagop Bardakjian’s motion is OVERRULED.

Plaintiffs’ objections to the replies are OVERRULED.

Defendants bring motions to dismiss this action on the grounds that more than five years have elapsed since the commencement of this action, even when accounting for exclusions of time from the calculation. (CCP §§ 583.310, 583.340, 583.360.)

Plaintiffs commenced this action on June 27, 2014. Without any exclusions of time, the time to bring this action to trial would be June 27, 2019. (CCP § 583.310.)

The Court finds that this five-year deadline to bring the action to trial was extended by the following:

A. October 3, 2018 Stipulation (45 Days)

On October 3, 2018, during defendants Hagop Bardakjian’s Ex Parte Application to Continue Trial, the Court, Hon. Benny C. Osorio presiding, continued the trial from November 26, 2018 to February 11, 2019. (RJN Ex. E.) As is reflected in the Minute Order from the proceeding, the parties also stipulated as follows before the Court: “The parties stipulate pursuant to Civil Code of Procedure 583.330 to extend the time within an action to be brought by six months after the trial date of February 11, 2019.” (RJN Ex. E.) Counsel for plaintiffs, David Fisher, and counsel for defendants Hagop Bardakjian and Hratchia Bardakjian, Brandon Fernald, were present at the hearing to enter such stipulation. (RJN Ex. E.)

CCP § 583.330(b) allows parties to extend the time to bring an action to trial by “oral agreement made in open court, if entered in the minutes of the court . . . .” Accordingly, the time to bring this action to trial was extended to six months after February 11, 2019, i.e., to August 11, 2019. Notably, their stipulation to a date certain for the time in which to bring the action to trial under CCP § 583.310 precluded any tolling periods prior to October 3, 2018. (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 696 [“stipulation [identifying five-year period to bring action to trial under CCP § 583.310] precludes the possibility of reliance on any additional tolling periods before the date of the stipulation”].) Thus, from the original five-year date of June 27, 2019 to August 11, 2019, the time to bring the action to trial was extended by 45 days.

Plaintiffs argue that no such stipulation occurred and that accordingly the Court should consider tolling periods occurring prior to the October 3, 2018 stipulation. In support of this contention, plaintiffs’ counsel states in a declaration that defendant Hagop Bardakjian did not mention the five-year rule in the ex parte application to continue the November 26, 2018 trial date. (Fisher Decl. re: Wyoming LLCs ¶ 94.) Plaintiffs’ counsel further states that there was no mention during oral argument of the five-year rule by any counsel. (Fisher Decl. re: Wyoming LLCs ¶ 100(B).) But these contentions are not inconsistent with the parties having reached an oral stipulation concerning the five-year rule during that October 3, 2018 hearing, as is reflected by the Court’s Minute Order for that hearing. Nor do they rebut defendants’ evidence that such a stipulation was in fact reached by the parties. Defendant Hagop Bardakjian’s former counsel, Brandon Fernald, states in a declaration that, during the October 3, 2018 hearing, “Judge Osorio brought up the fact that the case had been pending for quite some time and inquired as to whether a further continuance would pose a five-year problem. The issue was discussed in open court and Judge Osorio ultimately suggested that the parties simply stipulate to a date certain for the five-year deadline of 6 months after the continued trial date.” (Fernald Supp. Decl. ¶ 12.) Fernald further states: “I had no issue and stipulated to the same. Mr. Fisher stipulated as well. Judge Osorio indicated he would document the stipulation in an order. Both sides waived notice.” (Fernald Supp. Decl. ¶ 13.) Such evidence is entirely consistent with the October 3, 2018 Minute Order, and plaintiffs provide no evidence to directly contradict it.

Moreover, even if plaintiffs’ counsel’s averments in his declaration could be construed as conflicting with the October 3, 2018 Minute Order and Fernald’s declaration, the Court would resolve such conflict in favor of defendants’ evidence. Fernald’s explanation of what occurred at the hearing makes sense. On October 3, 2018, at the time of the hearing, the relatively imminent arrival of the June 27, 2019 five-year date to bring this action to trial was a legitimate and reasonable concern. The ex parte application to continue the trial date having been granted, it is hardly surprising that the issue of the five-year deadline would have then arisen after the argument over whether to grant the trial continuance. Further, although Hagop Bardakjian may not have raised the five-year rule in his ex parte application, it is sensible to credit Fernald’s explanation that the Court raised concerns about the five-year rule on its own. (See CCP § 583.360(a) [“An action shall be dismissed by the court on its own motion . . . after notice to the parties, if the action is not brought to trial within the time prescribed in this article”].) By contrast, what is not sensible is to conclude that Judge Osorio issued an order modifying the five-year date without notice to any of the parties, which is what plaintiffs here suggest essentially.

Lastly, even if the Minute Order concerning the extension of the date to bring this action to trial was entered by mistake, that purported mistake was made in a publicly filed document to which plaintiffs’ had full access, and it is hard to credit plaintiffs’ explanation that such a glaring and potentially consequential error went unnoticed and, more importantly, unaddressed by plaintiff. (See Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 434 [“[I]t is a plaintiff's duty, rather than the trial court's, to keep track of critical dates . . . . ‘ “The burden is upon the plaintiff to call to the attention of the court the necessity for setting the trial for a time within the period fixed by [section 583].” ’ This rule is well founded: the burden of keeping track of the relevant dates should properly fall on plaintiffs, because it is they who have the interest, and the statutory duty under section 583.310, to timely prosecute their cases”].)

Because the Court finds that the parties did stipulate as reflected in the October 3, 2018 Minute Order, the Court need not address plaintiff’s arguments concerning tolling periods prior to October 3, 2018, as they are irrelevant. (Dowling, 208 Cal.App.4th at, 696.)

With respect to plaintiffs’ argument that trial was impossible, impracticable, or futile while Hagop Bardakjian was out of the country after October 3, 2018 (see CCP § 583.340(c)), the Court notes that Hagop Bardakjian had already appeared in the action, which means the Court had jurisdiction over this defendant. (See 10/22/2014 Answer filed by Hagop Bardakjian.) Plaintiff was therefore note prevented from litigating against this defendant. To the extent that Hagop Bardakjian’s absence inhibited plaintiff from obtaining discovery, plaintiff was free to seek relief from this Court in the form of orders to compel and/or sanctions for failing to respond to discovery requests. Indeed, for Hagop Bardakjian’s non-compliance with discovery obligations, plaintiffs could have sought issue, evidence, or terminating sanctions against this defendant—all of which surely would have assist plaintiffs in establishing liability against this defendant at trial. Hagop Bardakjian’s absence from the country thus did not render trial impossible, impracticable, or futile.

Plaintiffs also argue that defendants are estopped from contending the October 3, 2018 Minute Order precludes any prior tolling periods. (See CCP § 583.140 [five-year deadline to bring action to trial does not preclude applications of waiver or estoppel].) Defendants purportedly allowed nearly two years of litigation to continue after the August 11, 2019 five-year trial deadline identified in the October 3, 2018 minute order. This argument by plaintiffs is an improper attempt to shift the burden to defendants to keep track of the five-year trial deadline. (Howard, 10 Cal.4th at 434.) Moreover, plaintiffs also make no showing that defendants lulled plaintiffs into believing that defendants had no objection to a trial after August 11, 2019. Plaintiffs argue that, when Hagop Bardakjian sought a trial continuance in October 2018, it was done to push the trial date beyond the five-year period. (Opp. re: Wyoming LLCs at 23:1-4.) However, Hagop Bardakjian only sought to continue the trial from November 26, 2018 to March 26 or at most, April 26, 2019—all of which fell within the original five-year trial deadline of June 27, 2019. (Fisher Decl. re: Wyoming LLCs ¶ 94 & Ex. 3 at 1:2-7, 7:10-13.) Because Hagop Bardakjian did not seek a trial deadline past the original five-year trial deadline, plaintiffs fail to show how defendant deceived plaintiffs into foregoing their obligation to prosecute this action within five years of its commencement.

B. December 13, 2018 Stay by Court of Appeal (45 Days)

The parties agree that, on December 13, 2018, the Court of Appeal stayed the action for 45 days. (Wyoming Mot. at 1:12-13; Hagop Mot. at 4:7-14; see also Fisher Decl. re: Wyoming LLCs ¶ 67 [Court of Appeal stayed trial court order on December 13, 2018].) From the original five-year date of June 27, 2019 to August 11, 2019, the time to bring the action to trial was extended by an additional 45 days.

C. February 19, 2019 Minute Order (At Most 161 Days)

Plaintiffs also contend the February 19, 2019 minute order issued by the Hon. Ralph C. Hofer provides for another 360 days of tolling. (Opp. re: Wyoming LLCs at 16:13-16.) That order states: “Court order this Casem [sic] BC550144 Arman Yegiyants v. Hagop Bardakjian et al., STAYED, pending the results from the Appeal taken in Related Case BC469194 10415 Commerce LLC v. Hratchia Bardakjian et al.” (RJN Ex. F.) It is undisputed that the remittitur from the Court of Appeal issued in the related case on July 30, 2019, which was 161 days after February 19, 2019. (Fisher Decl. re: Wyoming LLCs ¶ 41.)

Plaintiffs, however, contend that any stay imposed by Judge Hofer on February 19 ,2019 lasted until February 14, 2020, which was 360 days. There appears to be no factual basis for this position. Plaintiffs claim that “[o]n February 14, 2020, the Court ordered the stay of the case lifted.” (Opp. re: Wyoming LLCs at 16:14-15.) The Court’s February 14, 2020 Minute Order, however, does not make any mention of a stay. (RJN Ex. H.) Rather, the only mention of a stay is one of plaintiffs’ creation. In plaintiffs’ Notice of Ruling from the February 14, 2020 hearing (which had to do with plaintiffs’ Motion for an Order Setting Aside Trustee’s Sales), plaintiffs state: “The Court lifted the stay of case.” (RJN Ex. I, Notice of Ruling at ¶ 2.) Notably, even the Court’s tentative ruling attached by plaintiffs to their notice or ruling contains no mention of a stay. (RJN Ex. I, Notice of Ruling attachment.)

In any event, the language of the February 19, 2019 minute order is clear. Insofar as that Minute Order imposed a stay, any such stay was limited to the time the appeal in Case No. BC469194 was pending. The Court of Appeal issued a remittitur on July 30, 2019 (Fisher Decl. re: Wyoming LLCs ¶ 41), which is the last possible date that appeal could still be considered pending. Accordingly, assuming that the February 19, 2019 minute order stayed this action, the five-year trial deadline was extended by 161 days at most.

Of course, there may be good reason to question whether any stay imposed by the February 19, 2019 Minute Order was lifted, dissolved, or effectively ended much earlier. The Wyoming Defendants contend that the February 19, 2019 minute order did not stay the action because plaintiffs continued to litigate this action between February 19, 2019 and July 30, 2019. CCP § 583.340(b) “contemplates a bright-line, nondiscretionary rule that excludes from the time in which a plaintiff must bring a case to trial only that time during which all the proceedings in an action are stayed.” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 726.) As pointed out by the Wyoming defendants, plaintiffs engaged in active litigation during the purported stay period, including the filing of a motion for preliminary injunction in April 5, 2019, and the request for entry of default on June 14, 2019. The Court, however, need not resolve whether any stay imposed by the February 19, 2019 Minute Order was lifted at an earlier date, because, as discussed below, the maximum stay period that could have been imposed by the February 19, 2019 Minute Order was 161 days, which does not alter the result of the instant motions.

D. Summary of Excludable Time Periods

For the foregoing reasons, the five-year deadline to bring this action to trial was extended by, at most, 251 days – i.e., (1) 45 days due to the October 3, 2018 stipulation; (2) 45 days due to the December 13, 2018 issuance of a stay by the Court of Appeal; and (3) at most 161 days due to the February 19, 2019 Minute Order.

Two hundred fifty-one (251) days from June 27, 2019, the original five-year trial deadline, is March 4, 2020. Under CCP § 583.360(b), dismissal of the first cause of action, which was first asserted in the original Complaint filed on June 27, 2014, is mandatory.

Because the five-year trial deadline expired on March 4, 2020, plaintiffs’ arguments concerning tolling periods after this date are irrelevant.

Plaintiffs argue that the second and third causes of action do not relate back to the first cause of action, which was first asserted on June 27, 2014 and only against Hagop Bardakjian and Hratchia Bardakjian. The second and third causes of action to set aside trustee’s sale and to quiet title were first asserted against in the Second Amended Complaint filed on October 4, 2019 based on events starting in 2019 and asserted against additional defendants 703 E. Angeleno, LLC and 707 E. Angeleno, LLC. (RJN Ex. K at ¶ 29.) The third cause of action for quiet title was first asserted against defendant Commercial Funding, LLC in the Third Amended Complaint filed on February 13, 2020.

Causes of action asserted in an amended complaint that do not relate back to the filing of prior complaint are commenced for purposes of the five-year rule when the amended complaint is filed. (Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 320 [“If . . . the relation-back doctrine should be applied to section 583.210 for that reason, it should be applied to section 583.310 as well”].) The Wyoming Defendants appear to concede this argument. (Wyoming Mot. at 5, fn. 2; Wyoming Reply at 9:22-24 [“If Plaintiff wants to avoid mandatory dismissal, Plaintiff should conclusively affirm that his claims as to the Wyoming Defendants only relate to facts and events which first occurred in 2019”].) Accordingly, because five years have not elapsed since the filing of the Second or Third Amended Complaints, the second and third causes of action may not be dismissed under the five-year rule.

The motions are GRANTED IN PART as to the first cause of action To Set Aside Fraudulent Conveyance/Encumbrances.

Case Number: BC550144    Hearing Date: November 06, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 17

Date: 11/6/2020

Case No: BC 550144 Trial Date: None Set

Case Name: Yegiyants v. Bardakjian, et al.

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (4)

Moving Party: Plaintiff 10415 Commerce, LLC

Responding Party: Defendant Hagop Bardakjian

RELIEF REQUESTED:

Further Responses to Form Interrogatories, Set One

Further Responses to Requests for Production of Documents, Set One

Further Responses to Requests for Admissions, Set No. 1

Terminating or Evidence/Issue Sanctions or Order Compelling deposition of Hagop Bardakjian

FACTUAL BACKGROUND

This is an action for fraudulent transfer brought by plaintiffs Arman Yegiyants and 10415 Commerce, LLC, alleging that defendant Hratchia Bardakjian has wrongfully become record owner of real property belonging to plaintiffs, and has wrongfully transferred it to his brother, defendant Hagop Bardakjian, in order to avoid a monetary claim by plaintiffs.

The matter has been deemed related to a case brought by plaintiff 10415 Commerce, LLC, BC 469194, alleging that defendants Hratchia Bardakjian, Polosajian and unnamed co-conspirators Allison Roberts and Overland Properties conspired to fraudulently convey and deprive Commerce of its primary assets, including real properties and money, which Bardakjian improperly conveyed to himself and then conspired with the remaining defendants to keep from Commerce.

The 10415 Commerce action was ordered to arbitration between Commerce and Hratchia Bardakjian. On August 3, 2017, a judgment confirming the arbitration award was entered. That judgment ordered the transfer of certain properties, including 703 E. Angelo and 707 E. Angelo, to 10415 Commerce. That judgment was appealed.

On April 26, 2019, the court in this action granted a motion for preliminary injunction and ordered that defendants Hagop Bardakjian, Hratchia Bardakjian, S.B.S. Trust Deed Network, were restrained from “directly or indirectly, or through their agents, employees, servants, business entities or any other persons,” from participating in a trustees or foreclosure sale of the E. Angelo properties. The court ordered a bond of $2,500. On May 1, 2019, plaintiffs deposited with the court $2,500 cash in lieu of bond.

In the other matter, on May 28, 2019, the court of appeal issued its opinion affirming the trial court’s judgment, and issued remittitur on July 30, 2019.

On September 6, 2019, the court heard an ex parte application brought by plaintiffs for an order cancelling a trustee’s sale conducted in violation of the court’s April 26, 2019 preliminary injunction. The court granted the motion to the extent it sought a temporary restraining order, and issued an order “enjoining the defendants and all persons acting by, through or on their behalf, from any further transfers sales, liens or encumbrances against the Angeleno Properties,” and set the OSC re preliminary injunction for hearing. The minute order states, “All parties encompasses Hagop Bardakjian, Hratchia Bardakjian, SBS Trust Deed Network, 703 E. Angeleno LLC, 707 E. Angeleno, LLC and John David.” ra

On October 4, 2019, the court granted a motion by plaintiffs for leave to file a Second Amended Complaint to allege recently occurring facts and add new parties, which was granted. The file shows the SAC was filed on October 4, 2019, and various new defendants have been added via Amendment to Complaint filings.

On December 19, 2019, the court heard an ex parte application filed by plaintiffs to add Commercial Funding, LLC to the existing TRO, which was granted.

On February 7, 2020, plaintiffs brought an ex parte application for an order allowing plaintiffs to file a third amended complaint pursuant to the stipulation of the parties, which was granted.

On February 14, 2020, the court granted a motion adding all named parties to the TRO and preliminary injunction, with the order including all liens and encumbrances, pending trial

ANALYSIS:

Interrogatories, Document Demands and Requests for Admissions

Defendant Hagop Bardakjian indicates in the opposition and the reply concedes that since the filing of the motion, on July 1, 2020, defendant served plaintiff with supplemental discovery responses. [Consolidated Supplemental Friedman Decl., para. 2, Exs. A-D]. This renders the motions moot, leaving only the issue of monetary sanctions, which will be discussed below.

Motion for Terminating Sanctions/Deposition

The motion is a bit confusing, as it appears to be a motion to compel attendance at a deposition, but also concedes that in November of 2018, the court, Judge Kralick presiding, issued evidentiary and issue sanctions against defendant Hagop Bardakjian, based on his refusal to be deposed, including an order that Hagop was barred from producing at trial any evidence that relates to the documents requested in the deposition notice, and from testifying at the time of trial as to any of his affirmative defenses. [Fisher Decl., Ex. 1]. The minute order of November 19, 2018 states:

“The Court, having taken the matter under submission on 11/16/2018, now rules as follows:

The motion to impose evidentiary and monetary sanctions against Hagop Bardakjian is granted. Hagop Bardakjian is barred at the time of trial from: (a) producing any evidence (written, oral, demonstrative, or any other form) that relates to the categories of documents Hagop Bardakhian failed and refused to produce pursuant to the deposition notices; and (b) testifying as to any of his affirmative defenses set forth in his answer to the FAC.”

[Fisher Decl., Ex.1, Ruling on Submitted Matter, p. 1 of 2].

The motion appears to seek further evidence and issue sanctions based on a new notice of deposition, which the motion indicates requests materials and documents which pertain to Hagop’s affirmative defenses, when there is already an order barring defendant from testifying at trial as to any of his affirmative defenses. In addition, to the extent the relief is sought pursuant to a new deposition notice, it is not clear that a deposition is appropriately pursued for a second time without leave of court. Moreover, the sanctions sought are ordinarily issued when there has been failure to obey a court order, which has not yet occurred here with respect to the second deposition notice, as no court order has yet been obtained, so defendant had not failed to obey it.

The motion accordingly denies without prejudice to plaintiff appropriately seeking a second deposition, and court orders in connection with such deposition which do not duplicate the court order already issued.

Sanctions

This leaves the issue of monetary sanctions, which, with respect to the motions to compel further responses, are sought by both sides.

With respect to interrogatories, CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Similar provisions apply to motions to compel further responses to document demands, and to compel further responses to requests for admissions. CCP § 2031.310 (h), 2033.290(d).

Under CCP § 2023.010, misuse of the discovery process includes “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.

Under CRC Rule 3.1030(a):

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though...the requested discovery was provided to the moving party after the motion was filed.”

Here, although the motions have been rendered moot by the service of supplemental responses, a review of the separate statements show that the responses served included improper objections and evasive responses, and the motions would likely have been granted, and it appears that responding party has made these motions necessary.

The opposition argues that sanctions are not warranted because the meet and confer letter sent by plaintiff initially was confusing, as it referred to defendant Hratchia Bardakjian, and that by the time this error was clarified, plaintiff demanded that defendant serve supplemental responses within five days. [Friedman Decl., paras. 4-5; Exs. B, C]. Counsel for defendant indicates that he sent an email agreeing to provide supplemental responses but asked for more than five days, explaining that defendant currently resides in Syria, has a language barrier with counsel, so required more time to respond to the voluminous discovery, but counsel for plaintiff unreasonably refused. [Friedman Decl., para. 6; Exs. C, D]. The email from counsel for plaintiff argues, “In the past, you have been able to reach your client and oppose ex parte proceedings and motions on a whim, that is, within mere hours. Hagop has been seen coming and going to court has he pleases, all the while claiming under oath that he is a virtual political prisoner in Syria.” [Friedman Decl., para. 6: Ex. D]. This has resulted in various pleadings back and forth between the parties regarding the situation and the problems with international travel, which appear not particularly relevant to the written discovery, which required no travel.

The reply points out that there was a clear meet and confer letter following up and pointing out the same issues with discovery responses in connection with the responses of Hagop Bardakjian, and that, although the letter requested that supplemental responses be provided within five days, the motion itself was not filed until 22 days after the letter, and that supplemental responses were not served until the motions were filed. [See Reply Fisher Decl., para. 3, Ex. 1].

Overall, it would appear that the conduct of defendant in providing deficient responses initially, and then delaying well beyond the time within which supplemental responses could have realistically been prepared to serve supplemental responses resulted in the motion being prepared and filed, to reasonable preserve the right to compel further responses, and that the expense of the motions should be borne by defendant.

Sanctions will be awarded to the moving party. The sanctions sought in the moving papers are $4,225 for the interrogatories, $2,440 to compel further responses to document demands, and $3,035 to compel further responses to requests for admissions. The motions seek time to appear at the hearing for 1 hour at $595 for each of four motions, which time will be reduced to account for the fact that the motions will be heard together. The sanctions sought also appear high for the largely repetitive nature of the motions, and will be adjusted accordingly.

The opposition papers to the three motions for further responses argue that plaintiff should be sanctioned for making, without substantial justification, a motion to compel further responses under CCP section 2031.310 (h), and similar statutes, which provides that sanctions may be imposed “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response” to a discovery demand.

Evidently, the argument is that these motions should not have been filed because defendant had agreed to supplement responses. However, the motions were in fact meritorious, were not filed until three weeks after the meet and confer had been sent, and the motions were not unsuccessfully made, but were rendered moot by an apparent concession on the part of defendant that they had merit. No sanctions will be awarded to the responding party.

These motions are the same as the discovery motions the court adjudicated on October 30, 2020 as to defendant Hratchia Bardakjian whereby the court awarded sanctions as follows: Form Interrogatories: $2,975.00 (5 hours) plus costs $60.00; Document Requests: $1,785.00 (3 hours) plus costs of $60.00 and RFAs: $2,380.00 (4 hours) plus costs of $60.00. The court awards the same sanctions here for the same categories of motions to compel discovery.

With respect to the motion for terminating sanctions, since the motion will be denied, no monetary sanctions will be awarded to the moving party.

RULING:

Plaintiff 10415 Commerce, LLC’s Motion to Compel Further Answers to Form Interrogatories, Set One is MOOT in light of the service of Supplemental Responses to the subject discovery on July 1, 2020.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $2,975.00 (5 hours @ $550/hour) (7 hours requested) plus costs of $60 filing fee [Amount Requested $4,225], which sum is to be awarded in favor of plaintiff 10415 Commerce, LLC, and against defendant Hagop Bardakjian, payable within 30 days. CCP §§ 2030.300(c), 2023.010 (e) and (f), and 2023.030(a) and CRC Rule 3.1030(a).

Plaintiff 10415 Commerce, LLC’s Motion to Compel Further Answers to Request for Production of Documents, Set One is MOOT in light of the service of Supplemental Responses to the subject discovery on July 1, 2020.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $1,785.00 (3 hours @ $595/hour) (4 hours requested) plus costs of $60 filing fee [Amount Requested $2,440], which sum is to be awarded in favor of plaintiff 10415 Commerce, LLC, and against defendant Hagop Bardakjian, payable within 30 days. CCP §§ 2031.310(h), 2023.010 (e) and (f), and 2023.030(a) and CRC Rule 3.1030(a).

Plaintiff 10415 Commerce, LLC’s Motion to Compel Further Answers to Requests for Admissions is MOOT in light of the service of Supplemental Responses to the subject discovery on July 1, 2020.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $2,380.00 (4 hours @ $595/hour) (4 hours requested) plus costs of $60 filing fee [Amount Requested $3,035], which sum is to be awarded in favor of plaintiff 10415 Commerce, LLC, and against defendant Hagob Bardakjian, payable within 30 days. CCP §§ 2033.290(d), 2023.010 (e) and (f), and 2023.030(a) and CRC Rule 3.1030(a).

Motion for: (A) Terminating Sanctions; (B) Evidence and Issue Sanctions; or (C) An Order Compelling the Deposition of Hagop Barkakjian is DENIED WITHOUT PREJUDICE.

Monetary sanctions requested by moving party are DENIED.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC550144    Hearing Date: October 30, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 18

Date: 10/30/2020

Case No: BC 550144 Trial Date: None Set

Case Name: Yegiyants v. Bardakjian, et al.

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (4)

Moving Party: Plaintiff 10415 Commerce, LLC

Responding Party: Defendant Hratchia Bardakjian

RELIEF REQUESTED:

Order Compelling deposition of Hratchia Bardakjian

Further Responses to Form Interrogatories, Set One

Further Responses to Requests for Production of Documents, Set One

Further Responses to Requests for Admissions, Set No. 1

FACTUAL BACKGROUND

This is an action for fraudulent transfer brought by plaintiffs Arman Yegiyants and 10415 Commerce, LLC, alleging that defendant Hratchia Bardakjian has wrongfully become record owner of real property belonging to plaintiffs, and has wrongfully transferred it to his brother, defendant Hagop Bardakjian, in order to avoid a monetary claim by plaintiffs.

The matter has been deemed related to a case brought by plaintiff 10415 Commerce, LLC, BC 469194, alleging that defendants Hratchia Bardakjian, Polosajian and unnamed co-conspirators Allison Roberts and Overland Properties conspired to fraudulently convey and deprive Commerce of its primary assets, including real properties and money, which Bardakjian improperly conveyed to himself and then conspired with the remaining defendants to keep from Commerce.

The 10415 Commerce action was ordered to arbitration between Commerce and Hratchia Bardakjian. On August 3, 2017, a judgment confirming the arbitration award was entered. That judgment ordered the transfer of certain properties, including 703 E. Angelo and 707 E. Angelo, to 10415 Commerce. That judgment was appealed.

On April 26, 2019, the court in this action granted a motion for preliminary injunction and ordered that defendants Hagop Bardakjian, Hratchia Bardakjian, S.B.S. Trust Deed Network, were restrained from “directly or indirectly, or through their agents, employees, servants, business entities or any other persons,” from participating in a trustees or foreclosure sale of the E. Angelo properties. The court ordered a bond of $2,500. On May 1, 2019, plaintiffs deposited with the court $2,500 cash in lieu of bond.

In the other matter, on May 28, 2019, the court of appeal issued its opinion affirming the trial court’s judgment and issued remittitur on July 30, 2019.

On September 6, 2019, the court heard an ex parte application brought by plaintiffs for an order cancelling a trustee’s sale conducted in violation of the court’s April 26, 2019 preliminary injunction. The court granted the motion to the extent it sought a temporary restraining order, and issued an order “enjoining the defendants and all persons acting by, through or on their behalf, from any further transfers sales, liens or encumbrances against the Angeleno Properties,” and set the OSC re preliminary injunction for hearing. The minute order states, “All parties encompasses Hagop Bardakjian, Hratchia Bardakjian, SBS Trust Deed Network, 703 E. Angeleno LLC, 707 E. Angeleno, LLC and John David.” ra

On October 4, 2019, the court granted a motion by plaintiffs for leave to file a Second Amended Complaint to allege recently occurring facts and add new parties, which was granted. The file shows the SAC was filed on October 4, 2019, and various new defendants have been added via Amendment to Complaint filings.

On December 19, 2019, the court heard an ex parte application filed by plaintiffs to add Commercial Funding, LLC to the existing TRO, which was granted.

On February 7, 2020, plaintiffs brought an ex parte application for an order allowing plaintiffs to file a third amended complaint pursuant to the stipulation of the parties, which was granted.

On February 14, 2020, the court granted a motion adding all named parties to the TRO and preliminary injunction, with the order including all liens and encumbrances, pending trial

ANALYSIS:

Deposition

Plaintiff Commerce seeks to compel the deposition of defendant Hratchia Bardakjian, which plaintiff noticed on March 12, 2020, for May 20, 2020. Pursuant to the request of the deponent, the deposition was continued to June 17, 2020, but on the eve of that date, defendant refused to attend. Written objections were evidently served. [Fisher Decl., ¶¶ 2-11; Exs. 1, 3].

CCP § 2025.450 (a) provides, in pertinent part:

“(a) If, after service of a deposition notice, a party to the action…, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

The moving papers sufficiently establish here that defendant, a party to the action, failed to appear for the examination. The objection filed indicates that defendant and his counsel will make themselves available via Zoom. While it appears that defendant has also argued that defendant’s deposition has already been taken in this case, the meet and confer correspondence appears to concede that only new matter set forth in the Third Amended Complaint will be the subject of the deposition.

Defendant did not serve and file timely opposition to this motion, and on the date reply was due, plaintiff filed a notice indicating no timely opposition had been filed. That same date, an opposition was filed by defendant, with the incorrect hearing date of November 6, 2020. The opposition argues that defendant desires to have his day in court, and evidently intends to appear for deposition, but that due to language barriers, distance

and poor internet quality in Syria, defendant is unable to appear for a remote deposition. It is also argued that plaintiff brought a motion in 2018 to compel the deposition of defendant, which was granted and the court issued evidentiary and monetary sanctions, so that it is improper for plaintiff to continue to pursue more and additional penalties on an issue previously ruled upon.

It would appear from the Notice of Non-opposition that defendant is willing to sit for a remote deposition as he is now in Las Vegas, Nevada, not Syria. [See Notice, Fisher Decl., Ex. 1].

The Court orders that the deposition take place remotely.

The motion also seeks that the court order defendant to provide document production along with the deposition testimony.

Under CCP § 2025.450 (b):

“(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

The motion provides a sufficient declaration, which explains good cause for the documents requested, which appear to be documents concerning events which have occurred since any previous deposition. [Fisher Decl. para. 13]. The opposition does not address the document demands, so defendant has failed to justify any of his objections. The court finds good cause to grant the order compelling production of responsive documents as well.

Interrogatories

Plaintiff Commerce seeks to compel defendant Hratchia Bardakjian to serve further responses to Form Interrogatories, Set No. One.

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

CCP § 2030.300(a) provides that if the party propounding interrogatories deems that “an answer to a particular interrogatory is evasive or incomplete,” or that an “objection to an interrogatory is without merit or too general,” “the propounding party may move for an order compelling a further response...”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or

denial of a motion to compel is in the discretion of the trial court. Coy, at 221-222. A court should generally consider the following factors:

The relationship of the information sought to the issues framed in the pleadings;

The likelihood that disclosure will be of practical benefit to the party seeking discovery;

The burden or expense likely to be encountered by the responding party in furnishing the information sought.

Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

The motion concerns standard form interrogatories, including those requesting identifying and background information on defendant, the identification of witnesses, written or recorded statements, photographs, films or videotapes, diagrams, reports, inspections, surveillance, information regarding allegations of violation of statute, ordinance, or regulation, denials of material allegations, responses to RFAs, and information concerning agreements alleged in the pleading.

The responses include a Preliminary Statement and a set of General Objections, and then the response to each is to incorporate the Preliminary Statement and General Objections, and object to the extent the interrogatory seeks information that is not each relevant or reasonably calculated to lead to the discovery of admissible evidence, and further objects that identical form interrogatories were served on responding party on behalf of plaintiffs in April 2017, to which responses were served on June 6, 2017.

The motion argues that it is improper to include the Preliminary Statement and General Objections, and that defendant has not adequately established that the discovery is identical, as the form interrogatories referenced were served by a separate plaintiff, Arman Yegiyants.

With respect to the Preliminary Statement and General Objections, these are improper.

Under CCP section 2030.210:

“(a)

(emphasis added).

There is no provision for any general objections or preliminary statement, which would not comply with the requirement of responding as described above “separately to each interrogatory” with the specified responses.

Moreover, under CCP § 2030.210 (c):

“(c) Each answer, exercise of option, or objection in the response shall bear the same identifying number and be in the same sequence as the corresponding interrogatory, but the text of that interrogatory need not be repeated.”

(emphasis added).

The general objections do not bear the same number or expressly apply to a corresponding interrogatory, and so are improper.

Defendant has submitted a consolidated opposition to the motions, which argues only that it is established that a party may not serve identical discovery in succession in order to avoid the deadlines with respect to compelling further discovery. The opposition is accompanied by a declaration of counsel, which attaches the subject discovery claimed to be identical. The declaration indicates that attached are Responses to a First Set of Form Interrogatories, but the attachment actually is Amended Responses to Demand for Production and Inspection of Documents, not Form Interrogatories. [Fernald Decl., para. 4, Ex. B]. No responses to Form Interrogatories are attached. Accordingly, defendant has failed to justify objection on this ground, and the objection is overruled. Moreover, all of the attached responses which are claimed to be to identical discovery show on their face that the “Propounding Party” of the previous discovery was “Plaintiff ARMAN YEGIYANTS,” not plaintiff Commerce. [See Fernald Decl., Exs. A, B, C].

In the case relied on by defendant, Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, the court of appeal vacated a trial court order granting a motion to compel further responses to interrogatories where a second set of interrogatories set out a question that had already been asked in a previous set of interrogatories. As pointed out in the reply, that case involved a situation where there was a single plaintiff who in fact propounded two sets of interrogatories. Defendant has pointed to no case law under which a different plaintiff may not propound the same discovery on a responding party.

Moreover, the opposition confusingly argues that to the extent the discovery is not identical, defendant has sufficiently responded, seeming to concede that there are points of difference.

The opposition and separate statement does not justify any of the objections to these standard Judicial Council approved Form Interrogatories. The motion accordingly is granted, and defendant is ordered to serve further complete responses without objection.

Document Requests

Plaintiff Commerce seeks further responses to requests for documents from Hratchia Bardakjian.

CCP § 2031.310 provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

“(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.”

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

Requests Nos. 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23

The motion sufficiently establishes that the requests call for material relevant to plaintiff’s allegations in the TAC that responding defendant prepared false notes and deeds of trust in favor of his brother Hagop for no consideration, sold those notes for no consideration to the Wyoming defendants, and otherwise colluded to foreclose on or impose liens on the Angelo properties to prevent plaintiff from executing on the judgment. This is sufficient to meet propounding party’s initial burden.

The responses are preceded by a Preliminary Statement and General Objections, and then as to these requests consist of a series of boilerplate objections, with a response, such as, “Following a diligent search and reasonable inquiry, Responding Party does not have the original note in his possession, custody, or control.”

Again, with respect to the Preliminary Statement and General Objections, this is improper. Under CCP § 2031.210 (c):

“(c) Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated.”

The preliminary statement and general objections do not bear the same number or expressly apply to a corresponding item or category in the demand, and so are improper.

The consolidated opposition, as noted above, focuses on the objection that the discovery is duplicative of what has already been propounded by another party, which objection is not sufficiently established here.

The separate statement in opposition also focuses on requests being identical, when the previous discovery was propounded by a different party, and the objection on this ground will again be overruled. The separate statement also argues that to the extent defendant has stated he does not have possession of original notes or documents, this would ordinarily be the case with the types of documents requested.

As argued in the moving papers, to the extent defendant is insisting that he has no responsive documents, the opposition separate statement appears to concede that some responsive documents exist, but that they are just not in defendant’s possession, custody or control, and the responses fail to fully comply with the requirements for stating an inability to comply.

Specifically, under CCP section 2031.210, a response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection.

With respect to a statement of inability to comply, CCP section 2031.230 requires:

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been , or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

The responses here do not specify why there is an inability to comply, or set forth the name and address of persons believed to have the documents. Further responses which comply with this statute are ordered to be served.

Defendant has failed to justify objections, and the further responses will be ordered to be without objection.

Requests Nos. 5, 6, 7, and 8

The responses to these requests also refer to the improper preliminary statement and general objections, and assert a series of objections defendant has failed to justify. The responses are then, “Responding Party has already produced responsive documents in this case. Subject to this production, Responding Party will produce any additional responsive documents in his possession, custody or control.”

To the extent these are intended to be statements of compliance, they are incomplete.

With respect to a statement of compliance, CCP section 2031.220 requires:

“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being make will be included in the production.”

The statements do not state that all documents in the demanded category will be included, and it is not appropriate to state that information is already in the possession of plaintiff; plaintiff is entitled to information in the possession of defendant, and is also entitled to have discovery from which plaintiff can ascertain which responsive documents are responsive to each request. Further responses, without objection, and which fully comply with this statute, are ordered to be served.

Requests for Admissions.

Plaintiff Commerce seeks further responses to Requests for Admissions it propounded on Hratchia Bardakjian.

Under CCP Section 2033.290:

“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) An answer to a particular request is evasive or incomplete.

(2) An objection to a particular request is without merit or too general.”

The motion argues that the General Objections asserted are improper. Again, as discussed above, such objections are improper, and the statute with respect to Requests for Admissions similarly requires responses to each request separately, including objections. See CCP section 2033.210(a). These objections accordingly are overruled.

Requests Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10

These requests seek that plaintiff admit that the various transactions beginning in 2011 were shams, that loans were not made, and repayment was never received.

The responses are, “Responding Party objects to this request as being identical to the request served by Plaintiffs 3 years ago in April 2017.”

As discussed above, there is no showing that any previous requests were served by the moving plaintiff which were identical, and this objection will be overruled.

Further responses are ordered served, without objection.

Such responses must fully comply with CCP § 2033.220(b):

(b) Each answer shall:  (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue.  (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”

Requests Nos. 15, 16, 17, 18, 19 and 20

These request admissions that Commercial Funding, LLC never loaned money to 703 E. Angeleno, LLC, or 707 E. Angeleno, and that the deeds of trust are sham, and that there was not proper notice given of the trustee’s sales.

The responses are a series of objections, and that “Responding Party has insufficient facts to permit him to either admit or deny the request. Discovery continues.”

The motion argues that these responses fail to fully comply with CCP section 2033.220(c):

“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information readily known or readily obtainable is insufficient to enable that party to admit the matter.”

The responses do not comply with this section, and further responses are ordered to be served. The responses will be ordered to be made without objection, as no objections have been justified in the opposition papers.

Sanctions

This leaves the issue of monetary sanctions, which are sought by the moving party.

With respect to a motion to compel a deposition, under CCP § 2025.450 (g)(1):

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

With respect to interrogatories, CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Similar provisions apply to motions to compel further responses to document demands, and to compel further responses to requests for admissions. CCP § 2031.310 (h), 2033.290(d).

Under CCP § 2023.010, misuse of the discovery process includes “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.

Here, the responses served included objections which responding party has failed to justify, and evasive responses, and responding party has made these motions necessary. Sanctions are awarded. The sanctions sought in the moving papers are $3,497 for the deposition, $4,225 for the interrogatories, $2,440 to compel further responses to document demands, and $3,035 to compel further responses to requests for admissions. The motions seek time to appear at the hearing for 1 hour at $595 for each of four motions, which time will be reduced to account for the fact that the motions will be heard together and will be heard remotely. The sanctions sought also appear high for the largely repetitive nature of the motions, and adjusted accordingly, as follows: Depositions 4 hours at $595.00 per hour is $2,380.00; Interrogatories 5 hours at $595.00 per hour is $2,975.00; Document Requests 3 hours at $595.00 per hour is $1,785.00; and Requests for Admissions 4 hours at $595.00 per hour is $2,380.00.

RULING:

Motion to Compel Deposition of Hratchia Bardakjian:

The Court notes the service and filing of an untimely opposition, four court days late, which specifies a November 6, 2020 hearing date, and which was filed and served the same date that moving party filed Notice of Nonopposition. The Court in its discretion has considered the opposition, and will permit moving party to address the opposition at the hearing.

Motion is GRANTED.

Defendant Hratchia Bardakjian is ordered to appear for deposition, which will be conducted remotely, and to give testimony on November 13, 2010 at 9:00 a.m. remotely from Las Vegas, Nevada. Good cause appearing, defendant is also ordered to produce for inspection at the deposition all materials described in the deposition notice served March 12, 2020.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $2,380.00 (4 hours @ $595/hour) (6.25 hours requested) plus costs of $60 filing fee [Amount Requested $3,497], which sum is to be

awarded in favor of plaintiff 10415 Commerce, LLC, and against defendant Hratchia Bardakjian, and defendant’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2025.450 (g)(1).

Plaintiff 10415 Commerce, LLC’s Motion to Compel Further Answers to Form Interrogatories, Set One is GRANTED.

Defendant Hratchia Bardakjian is ordered to serve further complete verified responses to Form Interrogatories, Set No. 1, without objection, within ten days.

The Court has considered the objections and finds they are without merit and defendant has failed to justify them, so all further responses are to be without objection.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $2,975.00 (5 hours @ $595/hour) (7 hours requested) plus costs of $60 filing fee [Amount Requested $4,225], which sum is to be awarded in favor of plaintiff 10415 Commerce, LLC, and against defendant Hratchia Bardakjian, and defendant’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).

Plaintiff 10415 Commerce, LLC’s Motion to Compel Further Answers to Request for Production of Documents, Set One is GRANTED.

Defendant Hratchia Bardakjian is ordered to serve further verified responses to Requests for Production of Documents, Set One, without objection, and to permit inspection and copying of all responsive documents within ten days.

Responses to Requests Nos. 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 must

must fully comply with CCP § 2031.230, including for each request a statement specifying whether any inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party, and which sets forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

Further responses to Requests Nos. 5, 6, 7, and 8 must fully comply with CCP § 2031.220, including, for each response, a statement that plaintiffs will comply with the particular demand, including a statement that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of plaintiffs be included in the production.

The Court does not find acceptable a response that information is already in the possession of plaintiff, or that it has been previously produced by defendant.

The Court has considered the objections and finds they are without merit and defendant has failed to justify them, so all further responses are to be without objection.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $1,785.00 (3 hours @ $595/hour) (4 hours requested) plus costs of $60 filing fee [Amount Requested $2,440], which sum is to be awarded in favor of plaintiff 10415 Commerce, LLC, and against defendant Hratchia Bardakjian, and defendant’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2031.310(h), 2023.010 (e) and (f), and 2023.030(a).

Plaintiff 10415 Commerce, LLC’s Motion to Compel Further Answers to Requests for Admissions is GRANTED.

Defendant Hratchia Bardakjian is ordered to serve verified responses to Requests for Admissions, Set No. 1, without objection, within ten days.

As to Requests Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, each response must be without objection, and must comply with CCP § 2033.220, including for each request intended to be denied, a statement which clearly states that the matter is unequivocally denied, or clearly denies “so much of the matter involved in the request as is untrue,” pursuant to CCP §2033.220 (b)(2), and for each request intended to be admitted, a statement which clearly states that the matter is unequivocally admitted, or admits so much of the matter which is true, “as reasonably and clearly qualified by the responding party,” as required under 2033.220(b)(1).

With respect to RFAs Nos. 15, 16, 17, 18, 19 and 20, defendant is ordered to provide further responses which fully comply with CCP § 2033.220(c) (“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information readily known or readily obtainable is insufficient to enable that party to admit the matter.”)

The Court has considered the objections and finds they are without merit and defendant has failed to justify them, so all further responses are to be without objection.

The Court does not find acceptable a response that discovery is continuing.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the

totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s

fees and costs incurred for the work performed in connection with the pending motion is $2,380.00 (4 hours @ $595/hour) (4 hours requested) plus costs of $60 filing fee [Amount Requested $3,035], which sum is to be awarded in favor of plaintiff 10415 Commerce, LLC, and against defendant Hratchia Bardakjian, and defendant’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2033.290(d), 2023.010 (e) and (f), and 2023.030(a).

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC550144    Hearing Date: February 14, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 20

Date: 2/14/20 Trial Date: None Set

Case No: BC 550144

Case Name: Yegiyants, et al. v. Bardakjian, et al

MOTION TO SET ASIDE TRUSTEE’S SALE

Moving Party: Plaintiffs Arman Yegiyants and 10415 Commerce, LLC

Responding Party: Defendants Hagop Bardakjian and Hratchia Bardakjian

Defendants 703 E. Angeleno, LLC, 707 E. Angeleno, LLC,

and Commercial Funding, LLC

RELIEF REQUESTED:

Order Setting Aside Trustee’s Sales

In the Alternative, Further Preliminary Injunction

RELEVANT FACTS:

This is an action for fraudulent transfer brought by plaintiffs Arman Yegiyants and 10415 Commerce, LLC, alleging that defendant Hratchia Bardakjian has wrongfully become record owner of real property belonging to plaintiffs, and has wrongfully transferred it to his brother, defendant Hagop Bardakjian, in order to avoid a monetary claim by plaintiffs.

The matter has been deemed related to a case brought by plaintiff 10415 Commerce, LLC, BC 469194, alleging that defendants Hratchia Bardakjian, Polosajian and unnamed co-conspirators Allison Roberts and Overland Properties conspired to fraudulently convey and deprive Commerce of its primary assets, including real properties and money, which Bardakjian improperly conveyed to himself and then conspired with the remaining defendants to keep from Commerce.

The 10415 Commerce action was ordered to arbitration between Commerce and Hratchia Bardakjian. On August 3, 2017, a judgment confirming the arbitration award was entered. That judgment ordered the transfer of certain properties, including 703 E. Angelo and 707 E. Angelo to 10415 Commerce. That judgment was appealed.

On April 26, 2019, the court in this action granted a motion for preliminary injunction and ordered that defendants Hagop Bardakjian, Hratchia Bardakjian, S.B.S. Trust Deed Network, were restrained from “directly or indirectly, or through their agents, employees, servants, business entities or any other persons,” from participating in a trustees or foreclosure sale of the E. Angelo properties. The court ordered a bond of $2,500. On May 1, 2019, plaintiffs deposited with the court $2,500 cash in lieu of bond.

In the other matter, on May 28, 2019, the court of appeal issued its opinion affirming the trial court’s judgment and issued remittitur on July 30, 2019.

On September 6, 2019, the court heard an ex parte application brought by plaintiffs for an order cancelling a trustee’s sale conducted in violation of the court’s April 26, 2019 preliminary injunction. The court granted the motion to the extent it sought a temporary restraining order and issued an order “enjoining the defendants and all persona acting by, through or on their behalf, from any further transfers sales, liens or encumbrances against the Angeleno Properties,” and set the OSC re preliminary injunction for hearing. The minute order states, “All parties encompasses Hagop Bardakjian, Hratchia Bardakjian, SBS Trust Deed Network, 703 E. Angeleno LLC, 707 E. Angeleno, LLC and John David.” ra

On October 4, 2019, the court granted a motion by plaintiffs for leave to file a Second Amended Complaint to allege recently occurring facts and add new parties, which was granted. The file shows the SAC was filed on October 4, 2019, and various new defendants have been added via Amendment to Complaint filings.

On October 25, 2019, the OSC re preliminary injunction and motion to set aside the trustee’s sale were heard. The court published its tentative ruling and the minute order which show that the court had questions on certain issues and requested further briefing on these issues. The court eventually continued this hearing on plaintiff’s Motion for Preliminary Injunction to this date, February 14, 2020 with TRO entered April 26, 2019 as modified on September 6, 2019 remaining in place until February 14, 2020.

The minute order of October 25, 2019 shows that the hearing was continued to December 13, 2019.

On December 5, 2019, defendant Hratchia Bardakjian brought an ex parte application to continue the hearing date, which was granted, and the matter continued to this date. The TRO was ordered to remain in full effect until this date.

On December 19, 2019, the court heard an ex parte application filed by plaintiffs to add Commercial Funding, LLC to the exiting TRO, which was granted.

On February 7, 2020, plaintiffs brought an ex parte application for an order allowing plaintiffs to file a third amended complaint pursuant to the stipulation of the parties, which was granted.

ANALYSIS:

Plaintiffs bring this motion to set aside a Trustee’s Sale and the recorded documents emanating from that sale, but do not provide legal authority pursuant to which the court can do so on a simple noticed motion.

Plaintiffs appear to seek in the alternative that the court extend the preliminary injunction to the new parties who engaged in the conduct which resulted in the transfer of title to the property so that title is no longer in Bardakjian. It appears from the documents submitted that on September 10, 2018, Assignments of Deeds of Trust were recorded against the properties, executed by John David, as attorney in fact for Hagop Bardakjian, assigning and transferring the properties to Wyoming domestic limited liability companies, 707 E. Angeleno LLC and 707 E. Angeleno, LLC, notices of default were recorded on January 9, 2019 by SBS Trust Deed Network, notices of trustee’s sale were recorded on July 16, 2019, setting the sales for August 9, 2019, and on August 20, 2019, Trustee’s deeds upon sale were recorded granting the property to the Wyoming entities.

The court hereby extends the preliminary injunction to apply to the Wyoming entities, as well as to Commercial Funding, LLC, who have now appeared in this matter. It will also be discussed at the hearing if there are other parties which have been served and appeared and have been formally made parties subject to the preliminary injunction, including John M. David and Jim Dawood. Plaintiffs have named Oscar Choi, but a dismissal of that party was requested and entered on February 5, 2020. The opposition filed by the Wyoming entities and Commercial Funding does not appear to object to the entry of an order maintaining the status quo. The opposition seems to argue that the motion is moot because on September 24, 2019, grant deeds were executed by John M. David as manager of the Wyoming corporations in favor of plaintiff 10415 Commerce. [RFJN, Exs. 5, 6]. It would appear that title to the properties is now in conformity with the August 3, 2017 judgment entered in the other case by way of confirmation of the arbitration award in which the arbitrator ordered the transfer of the properties to 10415 Commerce.

In any case, the court has already made a finding in this case that injunctive relief is appropriate in this matter, as plaintiffs have established a probability of prevailing on their claim that defendants are engaging in fraudulent transfer of the subject properties, and that the burden to defendants of refraining from further transfer of the properties is outweighed by the harm to plaintiffs if the properties are subject to further transfer. The injunction is extended to the new parties to the matter. The court orders plaintiff’s counsel to prepare a comprehensive preliminary injunction order which includes any and all new defendants, even those potential defendants who are not named as defendants but will be added as defendants by plaintiff in the near future.

RULING:

Motion for an Order Setting Aside the Trustee’s Sales is DENIED in part and GRANTED in part.

Request for Order setting aside the trustee’s sales is DENIED WITHOUT PREJUDICE to such relief being awarded after trial or other proceedings.

Request for extension of preliminary injunction to new parties is GRANTED.

Good cause appearing, the court orders that its preliminary injunction of April 26, 2019 is extended to all parties to this litigation, and specifically includes defendants 703 E. Angeleno, LLC, 707 E. Angeleno, LLC, Commercial Funding, LLC, John M. David, and Jim Dawood.

Pending trial, defendants HAGOP BARKAKJIAN, HRATCHIA BARDAKJIAN, S.B.S. TRUST DEED NETWORK, 703 E. ANGELENO, LLC, 707 E. ANGELENO, LLC, COMMERCIAL FUNDING, LLC, JOHN M. DAVID and JIM DAWOOD are jointly and severally restrained and enjoined from directly or indirectly, or through their agents, employees, servants, business entities or any other persons:

A. Conducting, engaging in, or otherwise participating in a trustee’s sale of the real property described as (i) 703 E. Angeleno, Burbank, California (703 ANGELENO) and (ii) 707 E. Angeleno, Burbank, California (707 ANGELENO) (collectively, the ANGELENO PROPERTIES).

B. Cash deposited by plaintiffs on May 1, 2019 to be maintained by the court in lieu of bond.

Case Number: BC550144    Hearing Date: October 25, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 8

Date: 10/25/19 Trial Date: None Set

Case No: BC 550144

Case Name: Yegiyants, et al. v. Bardakjian, et al

MOTION TO SET ASIDE TRUSTEE’S SALE

Moving Party: Plaintiffs Arman Yegiyants and 10415 Commerce, LLC

Responding Party: Defendants Hagop Bardakjian and Hratchia Bardakjian

RELIEF REQUESTED:

Order Setting Aside Trustee’s Sales

In the Alternative, Further Preliminary Injunction

RELEVANT FACTS:

This is an action for fraudulent transfer brought by plaintiffs Arman Yegiyants and 10415 Commerce, LLC, alleging that defendant Hratchia Bardakjian has wrongfully become record owner of real property belonging to plaintiffs, and has wrongfully transferred it to his brother, defendant Hagop Bardakjian, in order to avoid a monetary claim by plaintiffs.

The matter has been deemed related to a case brought by plaintiff 10415 Commerce, LLC, BC 469194, alleging that defendants Hratchia Bardakjian, Polosajian and unnamed co-conspirators Allison Roberts and Overland Properties conspired to fraudulently convey and deprive Commerce of its primary assets, including real properties and money, which Bardakjian improperly conveyed to himself and then conspired with the remaining defendants to keep from Commerce.

The 10415 Commerce action was ordered to arbitration between Commerce and Hratchia Bardakjian. On August 3, 2017, a judgment confirming the arbitration award was entered. That judgment ordered the transfer of certain properties, including 703 E. Angelo and 707 E. Angelo to 10415 Commerce. That judgment was appealed.

On April 26, 2019, the court in this action granted a motion for preliminary injunction and ordered that defendants were restrained from participating in a trustees or foreclosure sale of the E. Angelo properties.

In the other matter, on May 28, 2019, the court of appeal issued its opinion affirming the trial court’s judgment and issued remittitur on July 30, 2019.

On October 4, 2019, the court granted a motion by plaintiffs for leave to file a Second Amended Complaint to allege recently occurring facts and add new parties, which was granted. The file shows the SAC was filed on October 4, 2019, and various new defendants have been added via Amendment to Complaint filings.

OPPOSITION:

Defendant Hratchia Bardakjian has filed a “Response” to the motion indicating he has no stake in the Trustee’s Sale, had no involvement in the foreclosure and has no basis to oppose the motion.

ANALYSIS:

Plaintiffs bring this motion to set aside a Trustee’s Sale and the recorded documents emanating from that sale but does not provide legal authority pursuant to which the court can do so when the sale evidently involved parties other than the defendants here, Hagop Bardakjian and Hratchia Bardakjian, who are subject to the preliminary injunction issued on April 26, 2019.

It is not clear how the court can enforce its injunction against persons and entities who have only recently been named as parties in this action, and evidently have not yet been served or appeared. Plaintiffs have not attempted to obtain an order of contempt against the Bardakjian defendants.

Plaintiffs in the alternative seek to extend the preliminary injunction to apply to the newly named defendants, which also seems to be premature until the court has obtained jurisdiction over those parties. The court will discuss the matter at the hearing, with a view toward exploring what can be done within the authority of the court to ensure that its orders are obeyed.

Otherwise, the issues presented by the motion to the extent requesting that this court set aside the sale and void various documents, appears to be a result which can only be ordered following some proceeding on the merits of the claims that defendants are engaging in fraudulent transfers. Any preliminary injunction would be redundant until new parties are added.

RULING:

Motion for an Order Setting Aside the Trustee’s Sales:

The court will hear argument addressing the following issues:

Are the subject properties the subject of recorded Lis Pendens with respect to this case or

LASC Case No. BC 469194?

What is the status of service of the Second Amended Complaint on the new defendants?

How does the court have jurisdiction to extend the preliminary injunction to parties and persons not yet before it?

What is the chain of title and timing here in connection with any conduct of the Bardakjian defendants? Has there been any contempt of the court’s order which can be pursued?

The August 17, 2019 judgment in BC 469194 which has now been affirmed on appeal, included an order pursuant to which Yegiyants is to apply to the court for an order that the clerk of the court execute a quitclaim deed. [See Ex. 22 ¶ 5]. The moving papers include such deeds and indicate they are pending. [Exs. 45, 46]. When were they submitted, what is their status, and should they be executed forthwith?

The court will set a new hearing date of December 13, 2019 to allow plaintiff to effectuate service on the new DOE party defendants. The plaintiff would need to file a motion for amended preliminary injunction as to the new defendants and set it for hearing for December 13, 2019 and allowing for the plaintiff to obtain a TRO in the interim per an ex parte procedure as to the new defendants.

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