This case was last updated from Los Angeles County Superior Courts on 11/22/2020 at 11:03:36 (UTC).

MARIA CARMEN LEAL VS. NELLY DAGSTANYAN

Case Summary

On 12/08/2015 MARIA CARMEN LEAL filed a Property - Other Property Fraud lawsuit against NELLY DAGSTANYAN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are DONNA FIELDS GOLDSTEIN, WILLIAM D. STEWART and BENNY C. OSORIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4805

  • Filing Date:

    12/08/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DONNA FIELDS GOLDSTEIN

WILLIAM D. STEWART

BENNY C. OSORIO

 

Party Details

Plaintiff

LEAL MARIA CARMEN

Defendants

DAGSTANYAN NELLY

HAROUTUNIAN MARO

MESTCHYAN KHACHIG

BASTRMAJIAN MARIKA

ALEKSANYAN ANDRANIK (DOE 1)

DAGSTYAN GRANT (DOE 2)

STEPANYAN ARESEN (DOE 3)

DAGSTYAN GRANT DOE 2

STEPANYAN ARESEN DOE 3

ALEKSANYAN ANDRANIK DOE 1

DAGSTANYAN GRANT H.

DAGSTANYAN GRANT DAR

ALEKSANYAN ANDRANIK

DAGSTANYAN NELLI

DAGSTANYAN DAR GRANT

DAGSTANYAN DAN GRANT

DAGSTANYAN DAR G.

MESDZHYAN KHACHIG

Other

LANCE A. BREWER

12 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

ELIO SARA LAW OFFICE OF

SAM HELMI

SARA ELIOT

ELIOT SARA

HELMI SAM

HELMI-KABIR SAM

BREWER & BREWER

Defendant Attorneys

GRIGORIAN LAW GROUP PC

TONY FORBERG ESQ.

ARNO H. KESHISHIAN

TONY FORBERG

KESHISHIAN ARNO H.

FORBERG TONY

 

Court Documents

Proof of Personal Service -

8/16/2018: Proof of Personal Service -

Declaration - DECLARATION OF NELLY DAGSTANYAN AND EXHIBITS IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES

8/12/2020: Declaration - DECLARATION OF NELLY DAGSTANYAN AND EXHIBITS IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION OF ISSUES

Judgment - JUDGMENT PURSUANT TO THE SANCTIONS ORDER ENTERED APRIL 19, 2019

11/22/2019: Judgment - JUDGMENT PURSUANT TO THE SANCTIONS ORDER ENTERED APRIL 19, 2019

Objection - OBJECTION TO EVIDENCE SUBMITTED IN OPPOSITION TO MOTION TO QUASH

7/8/2019: Objection - OBJECTION TO EVIDENCE SUBMITTED IN OPPOSITION TO MOTION TO QUASH

Opposition - OPPOSITION TO EX PARTE TO CHANGE GRANT DAGSTANYAN'S DEPOSITION DATE

5/14/2019: Opposition - OPPOSITION TO EX PARTE TO CHANGE GRANT DAGSTANYAN'S DEPOSITION DATE

Ex Parte Application - EX PARTE APPLICATION TO MODIFY THE COURT ORDER

5/14/2019: Ex Parte Application - EX PARTE APPLICATION TO MODIFY THE COURT ORDER

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)

4/19/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)

Minute Order - Minute order entered: 2016-05-17 00:00:00

5/17/2016: Minute Order - Minute order entered: 2016-05-17 00:00:00

Minute Order - Minute order entered: 2017-02-28 00:00:00

2/28/2017: Minute Order - Minute order entered: 2017-02-28 00:00:00

Notice of Case Reassignment and Order for Plaintiff to Give Notice

3/12/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Case Management Statement

12/9/2016: Case Management Statement

Legacy Document - LEGACY DOCUMENT TYPE: Ex-Parte Application

8/16/2017: Legacy Document - LEGACY DOCUMENT TYPE: Ex-Parte Application

Substitution of Attorney

8/25/2017: Substitution of Attorney

Legacy Document - LEGACY DOCUMENT TYPE: Notice of Hearing on Demurrer

3/7/2018: Legacy Document - LEGACY DOCUMENT TYPE: Notice of Hearing on Demurrer

Proof of Service (not Summons and Complaint)

4/2/2018: Proof of Service (not Summons and Complaint)

Legacy Document - LEGACY DOCUMENT TYPE: Opposition

4/16/2018: Legacy Document - LEGACY DOCUMENT TYPE: Opposition

Notice of Motion - and for leave to file first amended complaint; declaration of Sara Eliot

8/22/2016: Notice of Motion - and for leave to file first amended complaint; declaration of Sara Eliot

Proof of Personal Service -

9/13/2018: Proof of Personal Service -

262 More Documents Available

 

Docket Entries

  • 04/12/2021
  • Hearing04/12/2021 at 09:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Jury Trial

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  • 04/01/2021
  • Hearing04/01/2021 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Final Status Conference

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  • 11/06/2020
  • Docketat 08:30 AM in Department B; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 10/22/2020
  • DocketNotice of Change of Address or Other Contact Information; Filed by TONY FORBERG (Attorney)

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  • 09/30/2020
  • Docketat 08:30 AM in Department B; Trial Setting Conference - Held

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  • 09/30/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 09/18/2020
  • Docketat 08:30 AM in Department B; Hearing on Motion for Summary Adjudication (filed by Attorney for Plaintiff Becharoff Capital Corporation) - Held - Motion Denied

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  • 09/18/2020
  • Docketat 08:30 AM in Department B; Hearing on Motion for Summary Adjudication (filed by Attorney for Plaintiff Maria Carmen Leal) - Held - Motion Denied

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  • 09/18/2020
  • DocketOrder (Court's Order re: Plaintiff's Maria Carmen Leal's Motion for Summary Adjudication on the First Cause of Action in Plaintiff's Second Amended Complaint); Filed by Clerk

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  • 09/18/2020
  • DocketOrder (Court's Order re: Plaintiff Becharoff Capital Corp.'s Motion for Summary Adjudication on the First Cause of Action in Plaintiff's Complaint); Filed by Clerk

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356 More Docket Entries
  • 02/22/2016
  • Docketat 08:30 AM in Department B; Order to Show Cause Re: Failure to File Proof of Service - Held - Continued

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  • 02/22/2016
  • DocketMinute order entered: 2016-02-22 00:00:00; Filed by Clerk

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  • 01/19/2016
  • DocketAnswer; Filed by Maro Haroutunian (Defendant)

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  • 12/09/2015
  • DocketRequest For Copies

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  • 12/08/2015
  • DocketSummons; Filed by null

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  • 12/08/2015
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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  • 12/08/2015
  • DocketNotice of Related Case; Filed by Maria Carmen Leal (Plaintiff)

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  • 12/08/2015
  • DocketCivil Case Cover Sheet; Filed by Maria Carmen Leal (Plaintiff)

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  • 12/08/2015
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 12/08/2015
  • DocketNotice of Case Management Conference; Filed by Court

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Tentative Rulings

Case Number: EC064805    Hearing Date: September 18, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

maria carmen leal,

Plaintiff,

v.

GRANT H. DAGSTANYAN, et al.,

Defendants.

Case No. EC064805

(Consolidated with EC067628, Becharoff Capital Corp. v. Dagstanyan et al.)

Hearing Date: September 18, 2020 (cont. from August 21, 2020)

[TENTATIVE] order RE:

Plaintiff maria carmen leal’s motion for summary adjudication on the first cause of ACTION in plaintiff’s second amended complaint

BACKGROUND

A. Allegations in the EC064805 Action

The lead case in this consolidated action, Leal v. Dagstanyan, et al. (Case No. EC064805 “Leal Action”), arises from Plaintiff Maria Carmen Leal’s (“Plaintiff” or “Leal”) attempt to enforce a judgment in a prior case by claiming that Defendant Nelly Dagstanyan (“Mrs. Dagstanyan”) engaged in a fraudulent transfer of property to avoid the judgment. On October 3, 2013, Leal received an “Order, Decision or Award of the Labor Commissioner” of the State of California for $66,756.57 for unpaid wages against Mrs. Dagstanyan and SQWASH Corporation (“October 3, 2013 Order”). On February 26, 2014, a “Clerk’s Notice of Entry of Judgment” was made on the order under LASC Case No. LS024960.

Plaintiff alleges that after the October 3, 2013 Order, on October 7, 2013, Mrs. Dagstanyan opened escrow to transfer her interest in the real property at 1317 N. Lamer St. in Burbank (“Lamer Property”) to Defendant Maro Haroutunian (“Mrs. Haroutunian”). On October 8, 2013, Mrs. Haroutunian purchased the Lamer Property, she signed a deed of trust in favor of Mrs. Dagstanyan for $349,581, and Mrs. Dagstanyan transferred the property to Mrs. Haroutunian on October 15, 2013. On October 16, 2013, Mrs. Dagstanyan entered into an agreement with Defendant Khachig Mestchyan to sell SQWASH and its assets to WASHOWASH (Mr. Mestchyan’s corporation) for no consideration. On December 12, 2016, Mrs. Haroutunian sold the property to Defendant Andranik Aleksayan.

The second amended complaint, filed June 22, 2018 in the EC064805 action, alleges causes of action for: (1) fraudulent transfer of real property under the Uniform Voidable Transactions Act (“UVTA”) against Grant Dagstanyan, Nelly Dagstanyan, Aresen Stepanyan, Maro Haroutunian, Marika Bastramajian, and Andranik Aleksayan; (2) fraudulent transfer of corporate property and assets under the UVTA against Grant Dagstanyan, Nelly Dagstanyan and Khachig Mestchyan; (3) constructive trust against Grant Dagstanyan, Nelly Dagstanyan, and Andranik Aleksayan; (4) declaratory relief against Grant, Nelly, Aresen Stepanyan, Maro Haroutunian, Marika Bastramajian, and Andranik Aleksayan; (5) declaratory relief against Grant Dagstanyan, Nelly Dagstanyan, and Khachig Mestchyan; (6) tort of another against Aresen Stepanyan, Maro Haroutunian, Marika Bastramajian, and Andranik Aleksayan; and (7) tort of another against Khachig Mestchyan.

On December 11, 2018, the default of Marika Bastrmajian was entered in EC064805. On June 6, 2019, the default of Khachig Mestchyan was entered in EC064805. On January 30, 2020, the default of Aresen Stepanyan was entered in EC064805.

B. Allegations in the EC067628 Action

In Becharoff Capital Corp. v. Dagstanyan et al. (Case No. EC067628, “Becharoff Action”), Becharoff Capital Corp. (“Becharoff”) seeks to enforce a judgment entered on June 26, 2009 in the amount of $110,340.72 in a prior case (Case No. BC047457, “Underlying Action”) against Mr. Dagstanyan and Sav-On-Monolan, Inc., which Becharoff claims is wholly unsatisfied. Becharoff alleges that Defendant Mr. Dagstanyan engaged in a fraudulent transfer of property (including the Lamer Property) to avoid the judgment. The Becharoff complaint was filed on November 30, 2017.

The two cases have been related and consolidated, and are before Department B. The Court entered the order to relate and consolidate the matters on September 7, 2018.

C. Plaintiff’s Motion for Summary Adjudication

On March 13, 2020, Plaintiff Maria Carmen Leal filed a motion for summary adjudication as to the 1st cause of action for fraudulent transfer of real property alleged in the SAC. She seeks adjudication on the following issues:

· Issue 1: Plaintiff is entitled to judgment as a matter of law against Defendant Nelly Dagstanyan on the 1st cause of action under Civil Code, §3439.04(a)(1) and (b).

· Issue 2: Plaintiff is entitled to judgment as a matter of law against Defendant Nelly Dagstanyan on the 1st cause of action under Civil Code, §3439.05.

· Issue 3: Plaintiff is entitled to judgment as a matter of law against Defendant Maro Haroutunian on the 1st cause of action under Civil Code, §§3439.04(a)(1) and (b) and 3439.08(a).

· Issue 4: Plaintiff is entitled to judgment as a matter of law against Defendant Andranik Aleksanyan on the 1st cause of action under Civil Code, §§3439.04(a)(1) and (b) and 3439.08(a).

On August 7, 2020, Defendants Nelly Dagstanyan, Maro Haroutunian, and Andranik Aleksanyan filed an opposition.

On August 13, 2020, Plaintiff filed a reply brief. The matter came for hearing on August 21, 2020. The Court continued the hearing to September 18, 2020 to allow defense counsel to serve the Declaration of Mrs. Dagnstanyan on the other parties by August 28, 2020.

On August 28, 2020, Plaintiff filed a sur-reply.

EVIDENTIARY OBJECTIONS

Defendants submitted evidentiary objections with the opposition papers. The Court rules as follows:

· Declaration of Sam Helmi: The Court sustains the objections at –

o Objection No. 3 regarding ¶5 at page 2, lines 17-20: “Therefore, after Nelly divested herself of her interest in Squash and the Real Property, she was left with no significant assets against which a judgment could be enforced. Therefore, she effectively made herself insolvent, which resulted in Plaintiff being blocked from collecting on her subject Judgment.”

o Objection No. 5 regarding ¶9 at page 3, lines 10-12: “However, there is no evidence that has been discovered that any portion of the sum of $349,581.63 that is reflected on this deed of trust was ever paid.”

o Objection No. 8 regarding ¶12 at page 3, line 28 to page 4, line 4: “However, once again, there is no evidence that has been disclosed that any money was actually paid in connection with such transaction. Moreover, this transaction demonstrates Nelly’s continuing claim to an ownership interest in the Real Property, at least as a “Beneficiary” of the Deed of Trust, at least until January 3, 2017.”

o Objection No. 20 regarding ¶25 at page 6, lines 7-9: “However, In [sic] the course of investigation and discovery in this case, Defendants have failed to provide evidence that any consideration was actually paid on behalf of Andranik to Maro in exchange for this Grant Deed.”

o Objection No. 21 regarding ¶26 at page 6, lines 12-13: “However, there is no evidence that Maro paid.”

o These declaration statements are conclusory and lack evidentiary support (i.e., discovery responses). Further, Mr. Helmi has not shown upon what basis that he has personal knowledge or foundation to make such statements.

· Exhibits attached to the declaration of Mr. Helmi: Objection Nos. 22-43 to the exhibits are overruled.

· The Court need not rule on the remainder of the objections to Mr. Helmi’s declaration. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP §437c(q).) The Court also notes that to the extent Defendants argue that Mr. Helmi’s statements are not true, the Court will not sustain such objections as those facts should be disputed with opposing evidence.

Defendant “objected” to various facts in the separate statement. However, objections to facts stated in the separate statement are not proper. Rather, written objections must be made to specific evidence. (CRC Rule 3.1354(b).) Thus, the objections raised in the separate statement are overruled as improper.

With the sur-reply, Plaintiff submitted evidentiary objections to Defendants’ opposition. The Court overrules objection nos. 1-16.

DISCUSSION

A. Relevant Law Regarding Fraudulent Transfers

“A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 648.) “A transfer of assets made by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer, if the debtor made the transfer [a](1) with an actual intent to hinder, delay, or defraud any creditor, or [a](2) without receiving reasonably equivalent value in return, and either [A] was engaged in or about to engage in a business or transaction for which the debtor's assets were unreasonably small, or [B] intended to, or reasonably believed, or reasonably should have believed, that he or she would incur debts beyond his or her ability to pay as they became due. [Citations.]” (Id. at 648 [citing Civ. Code, §3439.04(a)].) Actual fraud is defined in subdivision (a)(1) and constructive fraud is defined in subdivision (a)(2). (Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1401.)

Indications of “actual intent” under subdivision (a)(1), include but are not limited to: (1) whether the transfer or obligation was to an insider; (2) whether the debtor retained possession or control of the property transferred after the transfer; (3) whether the transfer or obligation was disclosed or concealed; (4) whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) whether the transfer was of substantially all the debtor's assets; (6) whether the debtor absconded; (7) whether the debtor removed or concealed assets; (8) whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) whether the transfer occurred shortly before or shortly after a substantial debt was incurred; (11) whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor. (Civ. Code, §3439.04(b).)

A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or obligee.” (Civ. Code, §3439.08(a).)

Civil Code, §3439.05(a) states: “A transfer made or obligation incurred by a debtor is voidable as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” (Civ. Code, §3439.05(a).) “A creditor making a claim for relief under subdivision (a) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.” (Civ. Code, §3439.05(b).)

B. Merits of the Motion for Summary Adjudication on the 1st cause of action for Fraudulent Transfer of Real Property

In support of the motion, Plaintiff provides the following facts. Plaintiff worked for Mrs. Dagstanyan and Sqwash. Plaintiff filed a claim with the Labor Commission’s Office for unpaid wages on October 1, 2012. (Pl.’s Fact 1-2.) After Mr. and Mrs. Dagstanyan testified at trial regarding Plaintiff’s claim, the Labor Commissioner issued the October 3, 2013 Order in the sum of $61,160.50 in favor of Plaintiff and against Mrs. Dagstanyan and Sqwash. (Id. at 3-4.) The October 3, 2013 Order was entered as a judgment by the Clerk of the Los Angeles Superior Court on January 31, 2014. (Id. at 5.) At that time, Mrs. Dagstanyan’s assets included her interest in Sqwash and the Lamer Property. (Id. at 6.) In her moving papers, Plaintiff argues that after these transfers, Mrs. Dagstanyan lacked significant assets, which prevented Plaintiff from collecting on the judgment. (See evidentiary objection above.) Plaintiff provides some background and the relevant transactions that occurred after the October 3, 2013 Order:

· On October 8, 2013, Mrs. Dagstanyan executed a Grant Deed transferring her interest in the Lamer Property to Maro Haroutunian for no consideration, which was recorded on October 15, 2013. (Id. at 8, 10.) Plaintiff argues that Mrs. Haroutunian is an “insider” by virtue of being the second cousin of Mrs. Dagstanyan’s father-in-law. (Id. at 9.)

· On October 17, 2013, Mrs. Dagstanyan recorded a Notice to Creditors of Bulk Sale and transferred her interest in Sqwash to Khachig Mestchyan, and completed a bill of sale on November 13, 2013. (Id. at 13.)

· On December 12, 2016, Mrs. Haroutunian transferred the Lamer Property to Andranik Aleksanyan (Mrs. Haroutunian’s step-daughter’s husband) for no consideration and without opening escrow. (Id. at 11.) Plaintiff argues that Aleksanyan is another “insider” and that Mr. Dagstanyan knew him since the early 2000s and had business dealings with him. (Id. at 12.)

· After divesting her interest in the Lamer Property and Sqwash, Mrs. Dagstanyan moved to Armenia. (Id. at 14.) The date of her move is not specified by Plaintiff. Mrs. Dagstanyan states in her declaration that she has not lived in the United States since 2017. (N. Dagstanyan Decl., ¶14.)

o Plaintiff provides facts from November 8, 2013 to August 2018, stating that the Dagstanyans still use the Lamer Property address for their bank accounts and credit applications, Mr. Dagstanyan paid the property taxes in 2017, and Mari Dagstanyan (Mrs. Dagstanyan’s mother-in-law) lives at the Lamer Property. (Id. at 16-28.)

· On January 3, 2017, Mrs. Hartounian and Harout Haroutunian (Maro Haroutunian’s husband) executed a Substitution of Trustee and Full Reconveyance (recorded January 23, 2017), making themselves the beneficiary and trustee under the Deed of Trust for the Lamer Property, which confirms Mrs. Dagstanyan’s continuing ownership claim to the property. (Id. at 15.)

Plaintiff argues that she has met the elements of a fraudulent transfer claim.[1] First, Plaintiff has shown that she has a right to payment based on the October 3, 2013 Order, whereby judgment was entered in Plaintiff’s favor for $61,160.50 and against Mrs. Dagstanyan and Sqwash. Second, Plaintiff has shown that Mrs. Dagstanyan transferred the Lamer Property to Mrs. Haroutunian within 2 weeks of the October 3, 2013 Order; and Mrs. Haroutunian thereafter transferred the Lamer Property to Aleksanyan 2 years later. In addition, Mrs. Dagstanyan sold her interest in Sqwash to Mestchyan on October 17, 2013 and transferred the assets in November. Plaintiff argues there are indications of “actual intent” to hinder, delay, or defraud a creditor pursuant to section 3439.04(b) because: Mrs. Haroutunian and Aleksanyan are related to the family and thus are “insiders”; after the transfer of the Lamer Property, the Dagstanyans continued to use the address for their accounts and Mrs. Dagstanyan’s mother-in-law still lives there; the transfers of Sqwash and the Lamer Property occurred, with little to no consideration, soon after the October 3, 2013 Order was entered and the debt incurred; these transfers included substantially all of Mrs. Dagstanyan’s assets, making Mrs. Dagstanyan essentially insolvent; and Mrs. Dagstanyan left the United States and moved to Armenia, where she still lives. Plaintiff argues that these factors not only show actual fraudulent transfers, but also show that Mrs. Dagstanyan engaged in constructive fraudulent transfers as well. Based on these transactions, Plaintiff argues that subsequent transfers between Mrs. Haroutunian and Aleksanyan are voidable because they did not take the property in good faith, did not provide adequate consideration or for the property’s reasonable value. (Mot. at p.11.) (By making these statements, the Court is not making a finding that Plaintiff has established these factors; rather, the Court is summarizing Plaintiff’s arguments made in the motion.)

However, Plaintiff has not shown with the evidence in Facts 10 and 11 that the transfer of the Lamer Property to Mrs. Haroutunian was for no or little consideration. On its face, the Grant Deed states that Mrs. Dagstanyan granted to Mrs. Haroutunian the property for “VALUABLE CONSIDERATION.” (Pl.’s Evid., Ex. 2.) The Grant Deed from Mrs. Haroutunian to Aleksanyan states the same. (Pl.’s Evid., Ex. 7.) The only other evidence Plaintiff provides in support of the assertion that no or relatively no consideration was given is the declaration of her counsel, Sam Helmi, but Mr. Helmi lacks personal knowledge of the transactions to make such statements in his declaration. (See Helmi Decl., ¶¶7, 10.) As noted above, the Court has sustained the objections to Mr. Helmi’s declaration. Mr. Helmi’s bare statements without personal knowledge, foundational support, or accompanying exhibits are not sufficient for Plaintiff to uphold her burden at this stage.

At the hearing and in the supplemental reply papers, Plaintiff argued that in considering “actual intent” under Civil Code, §3439.04(a)(1), the Court need not consider whether consideration or value was received by Mrs. Dagstanyan and that establishing 4 of 11 factors is sufficient to grant summary adjudication on this cause of action. Plaintiff also argued that consideration need only be considered if moving under subsection (a)(2). However, in determining “actual intent” using the factors provided in section 3439.04(b), factor 8 of the 11 factors includes: “Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.” Thus, the Court may consider the issue of consideration as a relevant and important factor for finding whether Mrs. Dagstanyan had actual intent to hinder, delay, or defraud a creditor and, as this is a matter of equity, the Court may want more factors regarding actual intent to be established. It is not up to Plaintiff and her counsel to cherry pick 4 factors of “actual intent” to argue that she has established her entire burden on this matter. At the summary adjudication stage, the Court does not find that Plaintiff has upheld her burden in showing such actual intent.[2]

Generally, whether a transfer was actually fraudulent (i.e., made with the intent to hinder, delay, or defraud creditors) is a question of fact that is dependent on the circumstances that surround the questioned transaction and the inferences that the trier of fact may reasonably draw therefrom. (Bulmash v. Davis At this stage, though the timing of the purported transfers is suspect, whether Mrs. Dagastanyan acted with the intent to hinder, delay, or defraud her creditors cannot be determined based on the evidence provided by Plaintiff. Mrs. Dagastanyan’s declaration raises more questions than it answers, and has little evidentiary value, but on summary judgment, Plaintiff must carry the initial burden. The issue of intent is a question of fact that must be addressed more fully at a trial on the matters. In any event, if the transfer is fraudulent, it may be fraudulent as to multiple creditors, and a trial will be necessary to determine the proper remedy.

The Court finds that Plaintiff has not satisfied her initial burden in showing that Mrs. Dagstanyan’s actions constituted constructive fraud (i.e., a transfer made without receiving reasonably equivalent value in return). Thus, Plaintiff’s motion for summary adjudication on the 1st cause of action alleged in the SAC is denied.

CONCLUSION AND ORDER

Plaintiff’s motion for summary adjudication to the 1st cause of action is denied.

Plaintiff Leal shall give notice of this order.


[1] Plaintiff relies on the elements provided in CACI 4200 for “Actual Intent to Hinder, Delay, or Defraud a Creditor” (Civ. Code, ¶3439.04(a)(1)), which includes: (1) Plaintiff has a right to payment from the debtor for a certain amount; (2) the debtor transferred the property/incurred an obligation to another; (3) the debtor transferred the property/incurred the obligation with intent to hinder, delay, or defraud one or more of his creditors; (4) Plaintiff was harmed; and (5) the debtor’s conduct was a substantial factor in causing Plaintiff’s harm.

[2] In the supplemental reply, Plaintiff relies on Neumeyer v. Crown Funding Corp. However, the appeal followed a bench trial. In contrast, this is a motion for summary adjudication. Further, the Court relies not only on the lack of consideration as a factor, but also on the grounds that numerous other factors have not been met by Plaintiff to find “actual intent” on the part of Mrs. Dagstanyan. At the summary judgment/adjudication stage, the Court does not find that Plaintiff has upheld her burden. “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  These facts and arguments are better addressed at trial. 

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Superior Court of California

County of Los Angeles

North Central District

Department B

maria carmen leal,

GRANT H. DAGSTANYAN, et al.,

Case No. EC064805

Plaintiff becharoff capital corp.’s motion for summary adjudication on the first cause of ACTION in plaintiff’s complaint

BACKGROUND

A. Allegations in the EC067628 Action

In Becharoff Capital Corp. v. Dagstanyan et al. (Case No. EC067628, “Becharoff Action”), Becharoff Capital Corp. (“Becharoff”) seeks to enforce a judgment entered on June 26, 2009 in the amount of $110,340.72 in a prior case (Case No. BC047457, “Underlying Action”) against Mr. Dagstanyan and Sav-On-Monolan, Inc., which Becharoff claims is wholly unsatisfied.  Becharoff alleges that Defendant Grant Dagstanyan engaged in a fraudulent transfer of property, including the property at 1317 N Lamer St. in Burbank (“Lamer Property”) to avoid the judgment. 

The Becharoff complaint was filed on November 30, 2017 and alleges causes of action for: (1) to set aside fraudulent conveyance against Mr. Dagnstanyan, Nelly Dagnstanyan, Maro Haroutunian, Marika Bastrmajian, and Andranik Aleksanyan; (2) declaratory relief against Mr. and Mrs. Dagnstanyan, Haroutunian, Bastrmajian, and Aleksanyan; (3) to set aside fraudulent conveyance; (4) declaratory relief against Mr. and Mrs. Dagnstanyan and Mestchyan; (5) declaratory relief against Haroutunian; (6) tort of another against Haroutunian, Khachig Bastrmajian, and Mestchyan; (7) intentional interference with economic advantage against Defendants.   

This case has been related and consolidated with Leal v. Dagstanyan, et al. (Case No. EC064805 “Leal Action”), which is the lead case. 

B. Becharoff’s Motion for Summary Adjudication

On June 30, 2020, Becharoff filed a motion for summary adjudication as to the 1st cause of action for fraudulent transfer of real property alleged in its complaint.  It seeks adjudication on the following issues:

· Issue 1: Becharoff is entitled to judgment as a matter of law against Defendant Grant Dagstanyan on the 1st cause of action under Civil Code, §3439.04(a)(1) and (b).

· Issue 2: Becharoff is entitled to judgment as a matter of law against Mr. Dagstanyan on the 1st cause of action under Civil Code, §3439.05. 

· Issue 3: Becharoff is entitled to judgment as a matter of law against Defendant Maro Haroutunian on the 1st cause of action under Civil Code, §§3439.04(a)(1) and (b) and 3439.08(a).

· Issue 4: Becharoff is entitled to judgment as a matter of law against Defendant Andranik Aleksanyan on the 1st cause of action under Civil Code, §§3439.04(a)(1) and (b) and 3439.08(a).

On September 4, 2020, Defendants Nelly Dagstanyan, Maro Haroutunian, and Andranik Aleksanyan filed an opposition.  The Court notes that though the opposition is labeled as an opposition to Plaintiff Maria Carmen’s motion for summary adjudication, the content of the opposition and separate statement are directed against Becharoff’s papers and separate statement.  The declarations of Nelly and Grant Dagstanyan were filed on September 8, 2020. 

EVIDENTIARY OBJECTIONS

· Declaration of Charles Ferrari: The Court sustains the objections at nos. 1, 3, 4, 7, 9, and 13 (regarding whether the Dagtanyans had any significant assets and made themselves insolvent).  However, the Court overrules the objections in part as to the exhibits attached.  The Court need not rule on the remainder of the objections to Mr. Ferrari’s declaration. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”  (CCP §437c(q).)

· Exhibits attached to the declaration of Charles Ferrari are overruled.  (See Objections on pages 17-26.) 

DISCUSSION

A. Relevant Law Regarding Fraudulent Transfers

“A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.”  (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 648.)  “A transfer of assets made by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer, if the debtor made the transfer [a](1) with an actual intent to hinder, delay, or defraud any creditor, or [a](2) without receiving reasonably equivalent value in return, and either [A] was engaged in or about to engage in a business or transaction for which the debtor's assets were unreasonably small, or [B] intended to, or reasonably believed, or reasonably should have believed, that he or she would incur debts beyond his or her ability to pay as they became due. [Citations.]”  (Id. at 648 [citing Civ. Code, §3439.04(a)].)  Actual fraud is defined in subdivision (a)(1) and constructive fraud is defined in subdivision (a)(2).  (Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1401.) 

Indications of “actual intent” under subdivision (a)(1), include but are not limited to: (1) whether the transfer or obligation was to an insider; (2) whether the debtor retained possession or control of the property transferred after the transfer; (3) whether the transfer or obligation was disclosed or concealed; (4) whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) whether the transfer was of substantially all the debtor's assets; (6) whether the debtor absconded; (7) whether the debtor removed or concealed assets; (8) whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) whether the transfer occurred shortly before or shortly after a substantial debt was incurred; (11) whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor.  (Civ. Code, §3439.04(b).) 

A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or obligee.”  (Civ. Code, §3439.08(a).) 

Civil Code, §3439.05(a) states: “A transfer made or obligation incurred by a debtor is voidable as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.”  (Civ. Code, §3439.05(a).)  “A creditor making a claim for relief under subdivision (a) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.”  (Civ. Code, §3439.05(b).)

B. Merits of the Motion for Summary Adjudication on the 1st cause of action for Fraudulent Conveyance

In support of the motion, Becharoff provides the following facts.  Mr. and Mrs. Dagstanyan were married in 1992 and are still married.  (Becharoff Fact 1.)  In December 1997, they purchased the Lamer Property and took title as joint tenants.  (Id. at 2-3, 9.)  On January 1, 2000, Mr. Dagstanyan caused Sav-On-Monolan (“Sav-On”) to be formed.  (Id. at 4.)  By early 2005, Sav-On began having financial problems and the Dagstanyans obtained a $500,000 loan secured by a deed of trust on the Lamer Property, which was used on the business.  (Id. at 5-6.)  By June 2007, Sav-On was in dire financial hardship.  (Id. at 7.)  Thereafter, several transactions relevant to this action occurred:

· On June 19, 2007, Mr. Dagstanyan transferred the Lamer Property to Mrs. Dagstanyan as her separate property and a friend name Arsen Stepanyan.  (Id. at 8.)  

o Becharoff argues that this conveyance of title between the Dagnstanyans was for no consideration.  (Id. at 10.)  The conveyance of title between Mr. Dagstanyan and Stepanyan was in exchange for a $450,000 loan, which was never repaid.  (Id. at 11-12.)    

· On June 26, 2009, Bank of America obtained a judgment against Sav-On for $110,340.72 (“Sav-On Judgment”).  (Id. at 13.)

· On January 16, 2008, Ms. Dagstanyan caused Sqwash to be formed.  (Id. at 16.)  As of January 30, 2014, Mrs. Dagstanyan (CEO) and Mr. Dagstanyan (CFO, Secretary) were the sole owns rand officers of Sqwash.  (Id. at 17.)

· On October 3, 2013, the Labor Commissioner issued an award in the sum of $65,160.50 against Mrs. Dagstanyan and Sqwash for unpaid wages to Plaintiff Maria Carmen Leal in the consolidated case (“Sqwash Judgment”).  (Id. at 18.) 

· On October 8, 2013, Mrs. Dagstanyan executed a grant deed transferring her interest in the Lamer Property to Maro Haroutunian, (second cousin of Mrs. Dagstanyan’s father-in-law) which was recorded on October 15, 2013.  (Id. at 19-20.) 

· On October 17, 2013, Mrs. Dagstanyan recorded a Notice to Creditors of Bulk Sale and transferred her interest in Sqwash and all its assets to Mestchyan, and thereafter completed a bill of sale for Sqwash’s assets on November 13, 2013.  (Id. at 23.) 

· On January 31, 2014, the Labor Commissioner’s Award was entered as a judgment by the clerk of the Los Angeles Superior Court.  (Id. at 24.) 

· On November 2, 2015, the BOFA Judgment was assigned to Becharoff.  (Id. at 15.)

· On December 12, 2016, Mrs. Haroutunian transferred the Lamer Property to Andranik Aleksanyan (her son-in-law) without opening escrow.  (Id. at 25.)  Becharoff argues that Mr. Dagstanyan knew Andranik since the early 2000s and had conducted business dealings with him.  (Id. at 26.) 

· After divesting herself of her interest in the Lamer Property and Sqwash, Mrs. Dagstanyan moved to Armenia.  (Id. at 27.) 

· On January 3, 2017, Mrs. Dagstanyan and Harout Haroutunian (Mrs. Haroutunian’s husband) executed a Substitution of Trustee and Full Reconveyance, recorded on January 23, 2017, making themselves the Beneficiary and Trustee under the deed of trust pertaining to the Lamer Property.  (Id. at 28.)  Becharoff argues that his confirms Mrs. Dagstanyan’s continuing claim to ownership of the Lamer Property at least as of January 23, 2017.  (Id.)

· Becharoff provides facts from November 8, 2013 to August 2018, stating that the Dagstanyans still use the Lamer Property address for their bank accounts and credit applications, Mr. Dagstanyan paid the property taxes in 2017, their daughter paid the taxes in 2012, 2014, and 2015, and Mari Dagstanyan (Mrs. Dagstanyan’s mother-in-law) lives at the Lamer Property.  (Id. at 29-41.)  Becharoff argues that this shows that the Dagstanyans have continued ownership and control of the Lamer Property. 

Becharoff argues that it can establish that the transfers of the Lamer Property made since June 2007 were actually and constructive fraudulent transfers.  (Mot. at p.5.) 

First, Becharoff argues there was a “secret trust” between the Dagstanyans, based on Lukins v. Aird (1867) 73 U.S. 78, which consists of a two-paragraph opinion.  (Mot. at p.6. [citing also Hanscome-James-Winship v. Ainger (1925) 71 Cal.App. 735, 742 (“[C]onveyances with secret reservations for the benefit of the grantor, and such transfers of property cannot be upheld as against the rights of the creditors of the grantor.”)].)  For example, in Hanscome, the husband voluntarily conveyed property to his wife, with the secret understanding or reservation that the grantee should sell the property and turn over to him the full amount of the purchase price.  However, here, Becharoff has not established what “reservations” were made in favor of Mr. Dagstanyan after his transfer of interest to Mrs. Dagstnayan and Stepanyan.  (Becharoff cites to other pre-1900 California cases, out of state cases, and federal cases to support this theory.)  The Court does not find that this theory based on “secret trust” applies to the facts of this case.     Second, Becharoff argues that it can establish that the Dagstanyans engaged in actual and constructive fraudulent transfers of the Lamer Property because it had a right to payment against Mr. Dagstanyan arising from the June 26, 2009 Sav-On Judgment against him and Sav-On in the amount of $110,340.72, but Mr. Dagstanyan effectively made himself insolvent.  Becharoff also argues that it could not collect against Mrs. Dagstanyan either from community property because she transferred her interest in the Lamer Property to Mrs. Haroutunian after the Sqwash Judgment, who then transferred it to Aleksanyan. 

With regard to “actual” fraudulent transfers, Becharoff argues that Mr. Dagstanyan had actual intent to defraud creditors when he engaged in a secret transfer of community property to Mrs. Dagstanyan’s sole separate property.  It also argues there were two subsequent transfers of the Lamer Property to “insiders”: (1) by Mrs. Dagstanyan to Mrs. Haroutunian, a member of her family, on October 8, 2013; and (2) Mrs. Haroutunian to Aleksanyan, her son-in-law, on December 12, 2016.  (See Civ. Code, §3439.04(b)(1).)  Becharoff argues that the value of consideration she received from Mrs. Haroutunian was not reasonably equivalent to the value of the Lamer Property transferred because Mrs. Haroutunian paid no consideration for it.  (See Civ. Code, §3439.04(b)(8).)  Becharoff also argues that Mrs. Dagstanyan retained possession and/or control of the Lamer Property after the trnasfers were made, despite Aleksanyan’s name on the title documents.  (See Civ. Code, §3439.04(b)(2).)  Next, Becharoff argues that the transfer occurred only 5 days after the Sqwash Judgment.  (See Civ. Code, §3439.04(b)(10).)  It argues Mrs. Dagstanyan’s October 8, 2013 transfer was substantially all of her assets, including her interest in Sqwash, thereby making her insolvent.  (See Civ. Code, §3439.04(b)(5), (9).) After the transfers, Mrs. Dagstanyan moved to Armenia.  (See Civ. Code, §3439.04(b)(6).)

However, the Court does not find that Becharoff has shown with proper, admissible supporting evidence that Facts 14, 22, or 42 regarding Mr. and Mrs. Dagstanyans’ assets or insolvency have been established.  The supporting evidence relied upon for these facts are the declaration of Charles Ferrari (Becharoff’s counsel) and Exhibit 1.  For Fact 42, Mr. Ferrari states that Mrs. Dagstanyan’s only assets as of October 13, 2013 were her interest in Sqwash and the Lamer Property, and that “[he is] not aware of any other assets that Nelly had at that time” based on his investigation and discovery.  (Ferrari Decl., ¶19.)  However, Mr. Ferrari has not established that he has personal knowledge or foundational support for such statements.  For Fact 22, Mr. Ferrari states that Mrs. Dagstanyan transferred her interest in the Lamer Property shortly after the Sqwash Judgment.  (Id., ¶16; Ex. 12 [Grant Deed].)  But this in itself does not establish that the Lamer Property and the Sqwash business were her only assets.  For Fact 14, Becharoff relies on Mr. Dagstanyan’s deposition at page 27, lines 4-5, wherein he states that until 2009 he was trying to save the business, but could not.  This deposition statement does not establish whether by June 26, 2009, Mr. Dagstanyan had no significant assets.  Thus, at the summary adjudication stage, Becharoff has not upheld its burden in showing the factor that the Dagstanyans were insolvent at the time of the Sav-On Judgment.

Becharoff has also not provided admissible evidence regarding whether adequate consideration was received in exchange for the Lamer Property.  Fact 21 is supported by Becharoff’s evidence based on Exhibits 13 and 14.  In Mrs. Haroutunian’s discovery responses, she states that she is the second cousin of Mrs. Dagstanyan’s father-in-law.  (Ferrari Decl., ¶17, Ex. 13 [SROG request No. 2], Ex. 14 [SROG response No. 2].)  However, SROG no. 2 only asked what the basis of Mrs. Haroutunian’s relationship with Mrs. Dagstanyan was and no. 3 asked what consideration she paid for purchasing Sqwash.  These SROG requests did not seek responses regarding the consideration paid for the Lamer Property.  Thus, the cited evidence does not actually support Fact 21. 

Similarly, Becharoff has not supported Fact 25 that Mrs. Haroutunian’s transfer of the Lamer Property to Aleksanyan was for no consideration.  The Grant Deed dated December 12, 2016 shows on its face that “FOR VALUABLE CONSIDERATION”, Mrs. Haroutunian granted to Aleksanyan the Lamer Property.  (See Ferrari Decl., Ex. 20.)  The only other evidence Becharoff provides in support of the assertion that no or relatively no consideration was given is the declaration of its counsel, but Mr. Ferrari lacks personal knowledge of the transactions to make such statements in his declaration.  Mr. Ferrari’s bare statements without personal knowledge, foundational support, or accompanying exhibits are not sufficient for Becharoff to uphold its burden at this stage.  

Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 834.)  The Filip case involved an appeal following a bench trial where “abundant evidence” was presented to support fraudulent transfer.  (Id.)  In contrast, the posture of this case is the summary judgment/adjudication stage, which involves a different standard under CCP §437c.  While Becharoff has established some factors supporting actual fraudulent intent, Becharoff has failed to establish several important factors that the Court deems particularly relevant to this action.  At this stage, though the timing of the purported transfers is suspect, whether the Dagastanyans were insolvent or acted with the intent to hinder, delay, or defraud their creditors cannot be determined based on the evidence provided by Becharoff.  As the issue of intent is a question of fact, this will better be addressed more fully at a trial on the matters.  In any event, if the transfer is fraudulent, it may be fraudulent as to multiple creditors, and a trial will be necessary to determine the proper remedy. 

Third, Becharoff argues that it can establish constructive fraudulent transfers, which requires a finding that that the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor either: “(A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction” or “(B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due.”  (Civ. Code, §3439.04(a)(2)(A)-(B).)

For the reasons discussed above, the Court finds that Becharoff has not satisfied its initial burden in showing that the Dagstanyans’ actions constituted constructive fraud (i.e., a transfer made without receiving reasonably equivalent value in return).  Thus, Behcaroff’s motion for summary adjudication on the 1st cause of action alleged in the complaint is denied.

CONCLUSION AND ORDER

Becharoff’s motion for summary adjudication as to the 1st cause of action in the complaint is denied.

Becharoff shall give notice of this order.

Case Number: EC064805    Hearing Date: August 21, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

maria carmen leal,

Plaintiff,

v.

GRANT H. DAGSTANYAN, et al.,

Defendants.

Case No. EC064805

(Consolidated with EC067628, Becharoff Capital Corp. v. Dagstanyan et al.)

Hearing Date: September 11, 2020

[TENTATIVE] order RE:

motion for summary adjudication on the first cause of ACTION in plaintiff’s second amended complaint

BACKGROUND

A. Allegations in the EC064805 Action

The lead case in this consolidated action, Leal v. Dagstanyan, et al. (Case No. EC064805 “Leal Action”), arises from Plaintiff Maria Carmen Leal’s (“Plaintiff” or “Leal”) attempt to enforce a judgment in a prior case by claiming that Defendant Nelly Dagstanyan (“Mrs. Dagstanyan”) engaged in a fraudulent transfer of property to avoid the judgment. On October 3, 2013, Leal received an “Order, Decision or Award of the Labor Commissioner” of the State of California for $66,756.57 for unpaid wages against Mrs. Dagstanyan and SQWASH Corporation (“October 3, 2013 Order”). On February 26, 2014, a “Clerk’s Notice of Entry of Judgment” was made on the order under LASC Case No. LS024960.

Plaintiff alleges that after the October 3, 2013 Order, on October 7, 2013, Mrs. Dagstanyan opened escrow to transfer her interest in the real property at 1317 N. Lamer St. in Burbank (“Lamer Property”) to Defendant Maro Haroutunian (“Mrs. Haroutunian”). On October 8, 2013, Mrs. Haroutunian purchased the Lamer Property, she signed a deed of trust in favor of Mrs. Dagstanyan for $349,581, and Mrs. Dagstanyan transferred the property to Mrs. Haroutunian on October 15, 2013. On October 16, 2013, Mrs. Dagstanyan entered into an agreement with Defendant Khachig Mestchyan to sell SQWASH and its assets to WASHOWASH (Mr. Mestchyan’s corporation) for no consideration. On December 12, 2016, Mrs. Haroutunian sold the property to Defendant Andranik Aleksayan.

The second amended complaint, filed June 22, 2018 in the EC064805 action, alleges causes of action for: (1) fraudulent transfer of real property under the Uniform Voidable Transactions Act (“UVTA”) against Grant Dagstanyan, Nelly Dagstanyan, Aresen Stepanyan, Maro Haroutunian, Marika Bastramajian, and Andranik Aleksayan; (2) fraudulent transfer of corporate property and assets under the UVTA against Grant Dagstanyan, Nelly Dagstanyan and Khachig Mestchyan; (3) constructive trust against Grant Dagstanyan, Nelly Dagstanyan, and Andranik Aleksayan; (4) declaratory relief against Grant, Nelly, Aresen Stepanyan, Maro Haroutunian, Marika Bastramajian, and Andranik Aleksayan; (5) declaratory relief against Grant Dagstanyan, Nelly Dagstanyan, and Khachig Mestchyan; (6) tort of another against Aresen Stepanyan, Maro Haroutunian, Marika Bastramajian, and Andranik Aleksayan; and (7) tort of another against Khachig Mestchyan.

On December 11, 2018, the default of Marika Bastrmajian was entered in EC064805. On June 6, 2019, the default of Khachig Mestchyan was entered in EC064805. On January 30, 2020, the default of Aresen Stepanyan was entered in EC064805.

B. Allegations in the EC067628 Action

In Becharoff Capital Corp. v. Dagstanyan et al. (Case No. EC067628, “Becharoff Action”), Becharoff Capital Corp. (“Becharoff”) seeks to enforce a judgment entered on June 26, 2009 in the amount of $110,340.72 in a prior case (Case No. BC047457, “Underlying Action”) against Mr. Dagstanyan and Sav-On-Monolan, Inc., which Becharoff claims is wholly unsatisfied. Becharoff alleges that Defendant Mr. Dagstanyan engaged in a fraudulent transfer of property (including the Lamer Property) to avoid the judgment. The Becharoff complaint was filed on November 30, 2017.

The two cases have been related and consolidated, and are before Department B. The Court entered the order to relate and consolidate the matters on September 7, 2018.

C. Motion for Summary Adjudication

On March 13, 2020, Plaintiff Maria Carmen Leal filed a motion for summary adjudication as to the 1st cause of action for fraudulent transfer of real property alleged in the SAC. She seeks adjudication on the following issues:

· Issue 1: Plaintiff is entitled to judgment as a matter of law against Defendant Nelly Dagstanyan on the 1st cause of action under Civil Code, §3439.04(a)(1) and (b).

· Issue 2: Plaintiff is entitled to judgment as a matter of law against Defendant Nelly Dagstanyan on the 1st cause of action under Civil Code, §3439.05.

· Issue 3: Plaintiff is entitled to judgment as a matter of law against Defendant Maro Haroutunian on the 1st cause of action under Civil Code, §§3439.04(a)(1) and (b) and 3439.08(a).

· Issue 4: Plaintiff is entitled to judgment as a matter of law against Defendant Andranik Aleksanyan on the 1st cause of action under Civil Code, §§3439.04(a)(1) and (b) and 3439.08(a).

On August 7, 2020, Defendants Nelly Dagstanyan, Maro Haroutunian, and Andranik Aleksanyan filed an opposition.

On August 13, 2020, Plaintiff filed a reply brief.

EVIDENTIARY OBJECTIONS

Defendants submitted evidentiary objections with the opposition papers. The Court rules as follows:

· Declaration of Sam Helmi: The Court sustains the objections at –

o Objection No. 3 regarding ¶5 at page 2, lines 17-20: “Therefore, after Nelly divested herself of her interest in Squash and the Real Property, she was left with no significant assets against which a judgment could be enforced. Therefore, she effectively made herself insolvent, which resulted in Plaintiff being blocked from collecting on her subject Judgment.”

o Objection No. 5 regarding ¶9 at page 3, lines 10-12: “However, there is no evidence that has been discovered that any portion of the sum of $349,581.63 that is reflected on this deed of trust was ever paid.”

o Objection No. 8 regarding ¶12 at page 3, line 28 to page 4, line 4: “However, once again, there is no evidence that has been disclosed that any money was actually paid in connection with such transaction. Moreover, this transaction demonstrates Nelly’s continuing claim to an ownership interest in the Real Property, at least as a “Beneficiary” of the Deed of Trust, at least until January 3, 2017.”

o Objection No. 20 regarding ¶25 at page 6, lines 7-9: “However, In [sic] the course of investigation and discovery in this case, Defendants have failed to provide evidence that any consideration was actually paid on behalf of Andranik to Maro in exchange for this Grant Deed.”

o Objection No. 21 regarding ¶26 at page 6, lines 12-13: “However, there is no evidence that Maro paid.”

o These declaration statements are conclusory and lack evidentiary support (i.e., discovery responses). Further, Mr. Helmi has not shown upon what basis that he has personal knowledge or foundation to make such statements.

· Exhibits attached to the declaration of Mr. Helmi: Objection Nos. 22-43 to the exhibits are overruled.

· The Court need not rule on the remainder of the objections to Mr. Helmi’s declaration. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP §437c(q).) The Court also notes that to the extent Defendants argue that Mr. Helmi’s statements are not true, the Court will not sustain such objections as those facts should be disputed with opposing evidence.

Defendant “objected” to various facts in the separate statement. However, objections to facts stated in the separate statement are not proper. Rather, written objections must be made to specific evidence. (CRC Rule 3.1354(b).) Thus, the objections raised in the separate statement are overruled as improper.

DISCUSSION

A. Relevant Law Regarding Fraudulent Transfers

“A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 648.) “A transfer of assets made by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer, if the debtor made the transfer [a](1) with an actual intent to hinder, delay, or defraud any creditor, or [a](2) without receiving reasonably equivalent value in return, and either [A] was engaged in or about to engage in a business or transaction for which the debtor's assets were unreasonably small, or [B] intended to, or reasonably believed, or reasonably should have believed, that he or she would incur debts beyond his or her ability to pay as they became due. [Citations.]” (Id. at 648 [citing Civ. Code, §3439.04(a)].) Actual fraud is defined in subdivision (a)(1) and constructive fraud is defined in subdivision (a)(2). (Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1401.)

Indications of “actual intent” under subdivision (a)(1), include but are not limited to: (1) whether the transfer or obligation was to an insider; (2) whether the debtor retained possession or control of the property transferred after the transfer; (3) whether the transfer or obligation was disclosed or concealed; (4) whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) whether the transfer was of substantially all the debtor's assets; (6) whether the debtor absconded; (7) whether the debtor removed or concealed assets; (8) whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) whether the transfer occurred shortly before or shortly after a substantial debt was incurred; (11) whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor. (Civ. Code, §3439.04(b).)

A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or obligee.” (Civ. Code, §3439.08(a).)

Civil Code, §3439.05(a) states: “A transfer made or obligation incurred by a debtor is voidable as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” (Civ. Code, §3439.05(a).) “A creditor making a claim for relief under subdivision (a) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.” (Civ. Code, §3439.05(b).)

B. Merits of the Motion for Summary Adjudication on the 1st cause of action for Fraudulent Transfer of Real Property

In support of the motion, Plaintiff provides the following facts. Plaintiff worked for Mrs. Dagstanyan and Sqwash. Plaintiff filed a claim with the Labor Commission’s Office for unpaid wages on October 1, 2012. (Pl.’s Fact 1-2.) After Mr. and Mrs. Dagstanyan testified at trial regarding Plaintiff’s claim, the Labor Commissioner issued the October 3, 2013 Order in the sum of $61,160.50 in favor of Plaintiff and against Mrs. Dagstanyan and Sqwash. (Id. at 3-4.) The October 3, 2013 Order was entered as a judgment by the Clerk of the Los Angeles Superior Court on January 31, 2014. (Id. at 5.) At that time, Mrs. Dagstanyan’s assets included her interest in Sqwash and the Lamer Property. (Id. at 6.) In her moving papers, Plaintiff argues that after these transfers, Mrs. Dagstanyan lacked significant assets, which prevented Plaintiff from collecting on the judgment. (See evidentiary objection above.) Plaintiff provides some background and the relevant transactions that occurred after the October 3, 2013 Order:

· On October 8, 2013, Mrs. Dagstanyan executed a Grant Deed transferring her interest in the Lamer Property to Maro Haroutunian for no consideration, which was recorded on October 15, 2013. (Id. at 8, 10.) Plaintiff argues that Mrs. Haroutunian is an “insider” by virtue of being the second cousin of Mrs. Dagstanyan’s father-in-law. (Id. at 9.)

· On October 17, 2013, Mrs. Dagstanyan recorded a Notice to Creditors of Bulk Sale and transferred her interest in Sqwash to Khachig Mestchyan, and completed a bill of sale on November 13, 2013. (Id. at 13.)

· On December 12, 2016, Mrs. Haroutunian transferred the Lamer Property to Andranik Aleksanyan (Mrs. Haroutunian’s step-daughter’s husband) for no consideration and without opening escrow. (Id. at 11.) Plaintiff argues that Aleksanyan is another “insider” and that Mr. Dagstanyan knew him since the early 2000s and had business dealings with him. (Id. at 12.)

· After divesting her interest in the Lamer Property and Sqwash, Mrs. Dagstanyan moved to Armenia. (Id. at 14.) The date of her move is not specified by Plaintiff. Mrs. Dagstanyan states in her declaration that she has not lived in the United States since 2017. (N. Dagstanyan Decl., ¶14.)

o Plaintiff provides facts from November 8, 2013 to August 2018, stating that the Dagstanyans still use the Lamer Property address for their bank accounts and credit applications, Mr. Dagstanyan paid the property taxes in 2017, and Mari Dagstanyan (Mrs. Dagstanyan’s mother-in-law) lives at the Lamer Property. (Id. at 16-28.)

· On January 3, 2017, Mrs. Hartounian and Harout Haroutunian (Maro Haroutunian’s husband) executed a Substitution of Trustee and Full Reconveyance (recorded January 23, 2017), making themselves the beneficiary and trustee under the Deed of Trust for the Lamer Property, which confirms Mrs. Dagstanyan’s continuing ownership claim to the property. (Id. at 15.)

Plaintiff argues that she has met the elements of a fraudulent transfer claim.[1] First, Plaintiff has shown that she has a right to payment based on the October 3, 2013 Order, whereby judgment was entered in Plaintiff’s favor for $61,160.50 and against Mrs. Dagstanyan and Sqwash. Second, Plaintiff has shown that Mrs. Dagstanyan transferred the Lamer Property to Mrs. Haroutunian within 2 weeks of the October 3, 2013 Order; and Mrs. Haroutunian thereafter transferred the Lamer Property to Aleksanyan 2 years later. In addition, Mrs. Dagstanyan sold her interest in Sqwash to Mestchyan on October 17, 2013 and transferred the assets in November. Plaintiff argues there are indications of “actual intent” to hinder, delay, or defraud a creditor pursuant to section 3439.04(b) because: Mrs. Haroutunian and Aleksanyan are related to the family and thus are “insiders”; after the transfer of the Lamer Property, the Dagstanyans continued to use the address for their accounts and Mrs. Dagstanyan’s mother-in-law still lives there; the transfers of Sqwash and the Lamer Property occurred, with little to no consideration, soon after the October 3, 2013 Order was entered and the debt incurred; these transfers included substantially all of Mrs. Dagstanyan’s assets, making Mrs. Dagstanyan essentially insolvent; and Mrs. Dagstanyan left the United States and moved to Armenia, where she still lives. Plaintiff argues that these factors not only show actual fraudulent transfers, but also show that Mrs. Dagstanyan engaged in constructive fraudulent transfers as well.

Based on these transactions, Plaintiff argues that subsequent transfers between Mrs. Haroutunian and Aleksanyan are voidable because they did not take the property in good faith, did not provide adequate consideration or for the property’s reasonable value. (Mot. at p.11.)

However, Plaintiff has not shown with the evidence in Facts 10 and 11 that the transfer of the Lamer Property to Mrs. Haroutunian was for no or little consideration. On its face, the Grant Deed states that Mrs. Dagstanyan granted to Mrs. Haroutunian the property for “VALUABLE CONSIDERATION.” (Pl.’s Evid., Ex. 2.) The Grant Deed from Mrs. Haroutunian to Aleksanyan states the same. (Pl.’s Evid., Ex. 7.) The only other evidence Plaintiff provides in support of the assertion that no or relatively no consideration was given is the declaration of her counsel, Sam Helmi, but Mr. Helmi lacks personal knowledge of the transactions to make such statements in his declaration. (See Helmi Decl., ¶¶7, 10.) As noted above, the Court has sustained the objections to Mr. Helmi’s declaration. Mr. Helmi’s bare statements without personal knowledge, foundational support, or accompanying exhibits are not sufficient for Plaintiff to uphold her burden at this stage.

Generally, whether a transfer was actually fraudulent (i.e., made with the intent to hinder, delay, or defraud creditors) is a question of fact that is dependent on the circumstances that surround the questioned transaction and the inferences that the trier of fact may reasonably draw therefrom. (Bulmash v. Davis At this stage, though the timing of the purported transfers is suspect, whether Mrs. Dagastanyan acted with the intent to hinder, delay, or defraud her creditors cannot be determined based on the evidence provided by Plaintiff. Mrs. Dagastanyan’s declaration raises more questions than it answers, and has little evidentiary value, but on summary judgment, Plaintiff must carry the initial burden. The issue of intent is a question of fact that must be addressed more fully at a trial on the matters. In any event, if the transfer is fraudulent, it may be fraudulent as to multiple creditors, and a trial will be necessary to determine the proper remedy.

The Court finds that Plaintiff has not satisfied her initial burden in showing that Mrs. Dagstanyan’s actions constituted constructive fraud (i.e., a transfer made without receiving reasonably equivalent value in return). Thus, Plaintiff’s motion for summary adjudication on the 1st cause of action alleged in the Complaint is denied.

CONCLUSION AND ORDER

Plaintiff’s motion for summary adjudication asserted in the complaint is denied.

Plaintiff Leal shall give notice of this order.


[1] Plaintiff relies on the elements provided in CACI 4200 for “Actual Intent to Hinder, Delay, or Defraud a Creditor” (Civ. Code, ¶3439.04(a)(1), which includes: (1) Plaintiff has a right to payment from the debtor for a certain amount; (2) the debtor transferred the property/incurred an obligation to another; (3) the debtor transferred the property/incurred the obligation with intent to hinder, delay, or defraud one or more of his creditors; (4) Plaintiff was harmed; and (5) the debtor’s conduct was a substantial factor in causing Plaintiff’s harm.