This case was last updated from Los Angeles County Superior Courts on 09/13/2021 at 11:20:34 (UTC).

ROBABEH AFSARI VS. ALEXANDER EVEREST, ET AL

Case Summary

On 12/23/2016 ROBABEH AFSARI filed a Contract - Other Contract lawsuit against ALEXANDER EVEREST. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is VIRGINIA KEENY. The case status is Not Classified By Court.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4978

  • Filing Date:

    12/23/2016

  • Case Status:

    Not Classified By Court

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

VIRGINIA KEENY

 

Party Details

Plaintiffs

AFSARI ROBABEH

AFSARY ROBABEH

SAYYAD NASRIN

Defendants and Not Classified By Court

GME MATCH.COM INC.

DOES 1-50

EVEREST ALEXANDER

ALEXANDER EDWIN

MIRHOSSEINI SHERRY

KAPLAN INC.

EASY GME MADE

GMEMATCH.COM LLC

KAPLAN EDUCATIONAL CENTERS

GME CONSULTANTS

EVEREST JULIANNE

TEST PARTY FOR TRUST CONVERSION

MOUNTAIN RECOVERY LLC

Not Classified By Court and Assignee

MOUNTAIN RECOVERY LLC

Attorney/Law Firm Details

Plaintiff Attorneys

M. AZHAR ASADI

FLECK DAVID LORENZO

Defendant Attorneys

STUART JOSLYN BETH

AMES SCOTT ROBERT

GOLD KATE SCHNEIDER

PAPAZIAN ARMEN F.

RUBIN MICHAEL PHILIP

Assignee Attorney

SHEM-TOV SHALEM

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH DEFENDANT'S MOTION TO QUASH SUBPOE...)

5/19/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH DEFENDANT'S MOTION TO QUASH SUBPOE...)

Proof of Service by Mail

7/16/2020: Proof of Service by Mail

Request for Judicial Notice

7/17/2020: Request for Judicial Notice

Memorandum of Points & Authorities

7/17/2020: Memorandum of Points & Authorities

Declaration - DECLARATION DECLARATION OF DEFENDANT ALEXANDER EVEREST'S IN SUPPORT OF MOTION TO SET ASIDE JUDGMENT AND TO GRANT NEW TRIAL

7/17/2020: Declaration - DECLARATION DECLARATION OF DEFENDANT ALEXANDER EVEREST'S IN SUPPORT OF MOTION TO SET ASIDE JUDGMENT AND TO GRANT NEW TRIAL

Substitution of Attorney

7/10/2020: Substitution of Attorney

Notice of Intent to Move for New Trial

7/10/2020: Notice of Intent to Move for New Trial

Objection - OBJECTION DEFENDANT ALEXANDER EVEREST'S OBJECTIONS TO DECLARATIONS AND EVIDENCE SUBMITTED BY ASSIGNEE OF RECORD MOUNTAIN RECOVERY, LLC IN ITS APPLICATION FOR OSC RE ORDER FOR SALE OF DWELL

1/27/2021: Objection - OBJECTION DEFENDANT ALEXANDER EVEREST'S OBJECTIONS TO DECLARATIONS AND EVIDENCE SUBMITTED BY ASSIGNEE OF RECORD MOUNTAIN RECOVERY, LLC IN ITS APPLICATION FOR OSC RE ORDER FOR SALE OF DWELL

Notice - NOTICE NOTICE OF COURT ORDERS FOLLOWING INFORMAL DISCOVERY CONFERENCE

1/15/2021: Notice - NOTICE NOTICE OF COURT ORDERS FOLLOWING INFORMAL DISCOVERY CONFERENCE

Opposition - OPPOSITION DEFENDANT ALEXANDER EVEREST'S OPPOSITION TO MOTION FOR CHARGING ORDER

10/15/2020: Opposition - OPPOSITION DEFENDANT ALEXANDER EVEREST'S OPPOSITION TO MOTION FOR CHARGING ORDER

Request for Entry of Default / Judgment

3/30/2017: Request for Entry of Default / Judgment

Legacy Document - LEGACY DOCUMENT TYPE: DEFAULT ENTERED

4/3/2017: Legacy Document - LEGACY DOCUMENT TYPE: DEFAULT ENTERED

Minute Order - MINUTE ORDER ENTERED: 2017-07-20 00:00:00

7/20/2017: Minute Order - MINUTE ORDER ENTERED: 2017-07-20 00:00:00

Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

10/12/2017: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

3/16/2018: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Complaint -

8/27/2018: Complaint -

Declaration -

9/21/2018: Declaration -

Memorandum of Costs (Summary)

1/28/2019: Memorandum of Costs (Summary)

186 More Documents Available

 

Docket Entries

  • 09/17/2021
  • Hearing09/17/2021 at 08:30 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Application for Order for Appearance and Examination

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  • 09/17/2021
  • Hearing09/17/2021 at 08:30 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Application for Order for Appearance and Examination

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  • 09/01/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Application for Order for Appearance and Examination - Held - Continued

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  • 09/01/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Bench Warrant Hearing - Held

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  • 09/01/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Application for Order for Appearance and Examination - Held - Continued

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  • 09/01/2021
  • DocketMinute Order ( (Bench Warrant Hearing; Hearing on Application for Order for A...)); Filed by Clerk

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  • 08/30/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Motion to Compel Further Discovery Responses

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  • 06/29/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Application for Order for Appearance and Examination

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  • 06/25/2021
  • Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Application for Order for Appearance and Examination - Held - Continued

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  • 06/25/2021
  • DocketMinute Order ( (Hearing on Application for Order for Appearance and Examination)); Filed by Clerk

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264 More Docket Entries
  • 03/30/2017
  • DocketRequest for Entry of Default / Judgment; Filed by Robabeh Afsary (Plaintiff)

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  • 03/30/2017
  • DocketNotice of Rejection Default/Clerk's Judgment (Section 6B Defective.); Filed by Clerk

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  • 03/30/2017
  • DocketRequest for Entry of Default / Judgment; Filed by Robabeh Afsary (Plaintiff)

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  • 03/08/2017
  • DocketProof of Service of Summons and Complaint; Filed by Robabeh Afsary (Plaintiff)

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  • 03/08/2017
  • DocketProof of Service of Summons and Complaint; Filed by Robabeh Afsary (Plaintiff)

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  • 01/20/2017
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Robabeh Afsary (Plaintiff)

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  • 12/23/2016
  • DocketCivil Case Cover Sheet; Filed by Robabeh Afsary (Plaintiff); Nasrin, Sayyad (Plaintiff)

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  • 12/23/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/23/2016
  • DocketSummons; Filed by Robabeh Afsary (Plaintiff)

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  • 12/23/2016
  • DocketComplaint; Filed by Robabeh Afsary (Plaintiff); Nasrin, Sayyad (Plaintiff)

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Tentative Rulings

Case Number: LC104978    Hearing Date: May 19, 2021    Dept: W

ROBABEH AFSARI V. ALEXANDER EVEREST, ET AL.

defendant everest’s motion to quash subpoena issued to umpqua bank by mountain recovery, llc and request for sanctions

Date of Hearing: May 19, 2021 Trial Date: N/A

Department: W Case No.: LC104978

Moving Party: Defendant Alexander Everest

Responding Party: Assignee of Record Mountain Recovery, LLC

BACKGROUND

The original complaint in this action was filed on December 23, 2016 by Robabeh Afsari against defendant Alexander Everest and a company he was alleged to control, GMEMATCH.COM. Plaintiff, a foreign trained physician who sought to become licensed in California, alleged that Everest had fraudulently induced her to enter into an agreement with GME at the cost of over $100,000, falsely promising to assist her to obtain a postgraduate residency required for licensure. Defendants demurred and moved to strike the complaint. On November 9, 2017, the court overruled the demurrer as to the contract and fraud based causes of action (First through Seventh Causes of action). On January 12, 2018, Plaintiff filed a First Amended Complaint, joining as a new plaintiff, another foreign trained physician, Nasrin Sayyad and adding Defendants Kaplan and Mirhosseini to the complaint.

In an uncontested bench trial, judgment was entered in Plaintiff’s favor and against Defendant Everest on October 18, 2019. Mountain Recovery is the assignee of the judgment creditors.

On February 9, 2021, the court denied Mountain Recovery, LLC’s Motion for Application to Set OSC for Sale of Dwelling. On March 16, 2021, the court granted Mountain Recovery, LLC’s motion to extend the duration of the ORAP lien upon judgment debtor Alexander Everest’s personal property.

Defendant Everest now moves the court for an order quashing the deposition subpoena for the production of business records, requiring the production of certain consumer and financial records from Umpqua Bank, and for sanctions in the amount of $4,097.50 against Mountain and its counsel of record.

[Tentative] Ruling

Defendant Everest’s Motion to Quash Subpoena Issued to Umpqua Bank by Mountain Recovery is DENIED.

EVIDENTIARY OBJECTIONS

Defendant Everest objects to the declaration of Shalem Shem-Tov offered in support of the opposition to the motion to quash. Defendant Everest objects to paragraphs 3 of the declaration on the grounds it lacks foundation and contains hearsay.

The court sustains the objection.

DISCUSSION

Defendant Everest moves the court for an order quashing the deposition subpoena for the production of business records issued and served by Mountain Recovery, LLC, requiring the production of certain consumer and financial records from Umpqua Bank, and for sanctions in the amount of $4,097.50 against Mountain and its counsel of record. Defendant Everest makes the motion on the grounds there is no good cause for the production of the documents sought, as said consumer records subpoena improperly seeks information which, if disclosed, would violate Defendants' right of privacy and is irrelevant to the subject matter of this action.

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (CCP §2017.010; Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754, 761.)

Code of Civil Procedure section 1987.1 states, “When a subpoena requires the attendance of a witness or the production of [documents], the court, upon motion reasonably made by the party, the witness or any consumer described in Section 1985.3…may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.” “The court may make any other order as may be appropriate to protect the parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violations of a witness’s or consumer’s right of privacy.” (Ibid.)

“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) “Courts must . . . place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies.” (Id. at p. 557.)

Defendant Everest opposes the subpoena on several grounds. Defendant Everest first argues Mountain's request for documents in their subpoena is entirely overbroad in its scope. Defendant Everest contends the subpoena requests three pages worth of documents by the Custodian of Records for Umpqua Bank, but the said documents include not only records of Defendant, but also third parties, as it requests records related to any third party which Defendant has or had signatory authority for in the past four years.

In opposition, Mountain Recovery argues a judgment debtor may investigate third parties to the extent such investigation may reasonably lead the creditor to information and assets that may be used for the execution of the judgment. Mountain Recovery contends the fact that the debtor no longer owns certain corporate entities does not affect such right and believes that judgment debtor fraudulently transferred funds from and amongst several corporate entities and himself in order to avoid creditors.

A judgment creditor may obtain an order to examine a third party if it convinces the court that the third party “has possession or control of property in which the judgment creditor has an interest or is indebted to the judgment creditor in an amount exceeding” $250. (CCP §708.120; Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1220.) As a result, the fact that the subpoena requests records of third parties does not itself make the subpoena overbroad or irrelevant.

Defendant Everest next argues Mountain seeks private financial information of Defendant via its consumer records subpoena. Defendant contends Mountain's request is all encompassing and makes no effort to limit the documents sought to items which would be relevant to the subject matter of this litigation. In addition, Mountain's overbroad demand would necessarily include private financial information of Defendant, including his personal income, expenses, his spending habits, medical billing information/payments information, and family expenditures, etc.

In opposition, Mountain Recovery argues Defendant Everest has not established a right to privacy over the financial records sought by the Subpoenas as judgment debtor’s financial records, including those financial accounts on which he was a signatory on behalf of corporate entities, are directly related to Judgment Creditor’s attempts to enforce the judgment and such records may – and judgment creditor believes is likely to – show comingling of funds, secreting of assets and other information in aid of enforcement of the judgment herein.

The court agrees. Defendant Everest has not established a right to privacy over the financial records sought by the subpoena. While a legally protected privacy interests exists in one’s financial affairs (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004), the right to privacy does not attach unless the claimant has an objectively reasonable expectation of privacy in the given circumstances.

This is an action to collect on a judgment. To prove a fraudulent transfer without evidence of actual intent, a plaintiff may show that debtor did not receive a “reasonably equivalent value in exchange for the transfer” and “the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer.” (PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 169.) As Mountain Recovery alleges, these requests for Everest’s financial information from these third parties is tailored to show Everest fraudulently transferred funds from and amongst several corporate entities and himself in order to avoid creditors and that the corporate entities were transferred to judgment debtor’s wife and at least one other individual who is acting as a strawman, holding legal interest to these entities for the benefit of judgment debtor.

The case at hand differs from Finance Holding Co. LLC v. The American Institute of Certified Tax Coaches, Inc. (2018) 29 Cal.App.5th 663. In Finance Holding Co. LLC, the judgment creditor “acknowledged that it was not seeking documents to support an alter ego theory, and it was requesting the information solely to determine the existence or location of [judgment debtor’s] assets, including property or outstanding debts owed to her.” (Finance Holding Co. LLC v. The American Institute of Certified Tax Coaches, Inc. (2018) 29 Cal.App.5th 663, 682.) As a result, the court did not have the authority to require the third party to produce all of its documents regardless of their relevance to the judgment debtor. Moreover, the holding in Fortunato v. Superior Court (2003) 114 Cal. App. 4th 475, was not an absolute bar to seeking private information. The court in Fortunato held “[e]ven if confidential customer information is not ‘wholly privileged [or] insulated from scrutiny by civil litigants,’ a court faced with a motion for protective order should carefully balance ‘the right of civil litigants to discover relevant facts, on the one hand, with the right of bank customers to maintain reasonable privacy regarding their financial affairs, on the other.’ [Citation.]” (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 481.) Defendant Everest has not demonstrated the extent or seriousness of the prospective invasion relating to collecting on the judgment.

However, the court notes if a creditor convinces the court that the third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor, “the court shall make an order directing the third person to appear ... to answer concerning such property or debt.” (§ 708.120, italics added.) Under its plain meaning, this statutory language provides the trial court with the authority to permit a creditor to seek information regarding the existence of the debtor's property in the third party's possession and/or a debt owed to the debtor. A third party document subpoena must therefore be limited to “confirm[ing] the existence of the subject property [and/or] debt.” (Fox Johns, supra, 219 Cal.App.4th at p. 1222.)

Defendant Everest further argues Mountain Recovery seeks documents totally irrelevant to the subject matter of this suit. Specifically, the subpoena seeks irrelevant information from third parties up to four years ago, which will not shed any light on the current enforcement of the judgment. Defendant Everest claims the documents held by Umpqua Bank instead contain private financial information of Defendant and third parties which Mountain has no standing to inquire into. Defendant Everest contends it is unclear how these private documents, of Defendant and third parties, could in any way be directly relevant to Mountain's enforcement of the judgment.

However, as discussed above, these requests for Everest’s financial information from these third parties is tailored to show Everest fraudulently transferred funds from and amongst several corporate entities and himself in order to avoid creditors and that the corporate entities were transferred to judgment debtor’s wife and at least one other individual who is acting as a strawman, holding legal interest to these entities for the benefit of judgment debtor.

Lastly, Defendant Everest argues none of these third parties were served with the subpoena at issue. California Code of Civil Procedure § 1985.3 requires that when any records are sought from a bank, the subpoenaing party must personally serve the consumer whose personal records are sought.

In opposition, Mountain Recovery argues judgment debtor has no standing to make any argument on behalf of such entities and moreover, the subpoena did not directly seek documents of third parties, but seeks documents related to financial accounts on which judgment debtor is or was a signatory. As a result, judgment creditor does not know to whom these accounts belong and therefore cannot give notice to third parties of which it is unaware. The court agrees that Mountain Recover has complied with the notice requirements by providing notice to the account holder, Everest. There is no method for Mountain to provide notice to unknown persons with whom Everest transacted business and the court does not believe that the Code intended to impose that requirement on the subpoenaing party.

Accordingly, Defendant Everest’s Motion to Quash Subpoena is DENIED.

Sanctions

Both parties seek sanctions. California Code of Civil Procedure section 1987.2 provides that “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP §1987.2(a).)

Defendant Everest seeks monetary sanctions in the amount of $4,097.50 against Mountain and its counsel of record on the grounds Mountain has no justification, let alone substantial justification to oppose this motion or fail to withdraw the subpoena that it issued while knowing that it sought third party records, without proper service. (Papazian Decl. ¶6.)

Mountain Recovery seeks sanctions in the amount of $1,200 on the grounds there was no substantial justification for bringing the Motion. A judgment creditor has the right to seek documents in aid of judgment enforcement, which is exactly what the subpoena at issue is aimed at doing. (Shem-Tov Decl. ¶4.)

In light of the discussion above, the court denies both requests for sanctions.

Case Number: LC104978    Hearing Date: March 16, 2021    Dept: W

ROBABEH AFSARI V. ALEXANDER EVEREST, ET AL.

judgment creditor’s motion to extend duration of orap lien

Date of Hearing:  March 16, 2021 Trial Date:       N/A

Department:  W Case No.: LC104978

Moving Party: Assignee of Record Mountain Recovery, LLC

Responding Party:     No opposition.

BACKGROUND

The original complaint in this action was filed on December 23, 2016 by Robabeh Afasari against defendant Alexander Everest and a company he was alleged to control, GMEMATCH.COM. Plaintiff, a foreign trained physician who sought to become licensed in California, alleged that Everest had fraudulently induced her to enter into an agreement with GME at the cost of over $100,000, falsely promising to assist her to obtain a postgraduate residency required for licensure. Defendants demurred and moved to strike the complaint. On November 9, 2017, the court overruled the demurrer as to the contract and fraud based causes of action (First through Seventh Causes of action). On January 12, 2018, Plaintiff filed a First Amended Complaint, joining as a new plaintiff, another foreign trained physician, Nasrin Sayyad and adding Defendants Kaplan and Mirhosseini to the complaint.

In an uncontested bench trial, judgment was entered in Plaintiff’s favor and against Defendant Everest on October 18, 2019.

On February 9, 2021, the court denied Mountain Recovery, LLC’s Motion for Application to Set OSC for Sale of Dwelling. Mountain Reocvery, LLC now moves the court to to extend the duration of the ORAP lien upon judgment debtor Alexander Everest’s personal property.

[Tentative] Ruling

Mountain Recovery, LLC’s Motion to Exend Duration of ORAP Lien is GRANTED.

DISCUSSION

Mountain Recovery, LLC moves this court to extend the duration of the ORAP lien upon judgment debtor Alexander Everest’s personal property. This motion is made pursuant to the Code of Civil Procedure §708.110(d).

Mountain Recovery, LLC is the Judgment Creditor of Alexander Everest through a judgment entered on October 28, 2019 in the amount of $650,500 and through an Acknowledgement of Assignment filed on January 6, 2020. (Shem-Tov Decl., ¶¶2-3, Exhs. A-B.) Judgment Creditor submitted evidence showing an Order to Appear for Examination (“ORAP”) was served on March 23, 2020 and for an examination to be conducted on April 21, 2020. (Shem-Tov Decl., ¶4, Exh. C.) Service of the ORAP created a lien on all personal property of Judgment Debtor for a period of one year from the date of the order unless extended or sooner terminated by the court. (CCP §708.110(d).) Section 708.110(d) provides that “[t]he judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for the examination. Service shall be made in the manner specified in Section 415.10. Service of the order creates a lien on the personal property of the judgment debtor for a period of one year from the date of the order unless extended or sooner terminated by the court.” (CCP §708.110(d).)

Mountain Recovery attests Mr. Everest has failed to appear at his examination and has continually sought extension of his examination for a multitude of reasons. As of the date of this declaration, such examination has yet to be conducted. (Shem-Tov Decl. ¶5.) Mountain Recovery further attests on January 15, 2021, this court held an Informal Discovery Conference related to written discovery served upon Mr. Everest. (Shem-Tov Decl. ¶6.) During the IDC, Mountain Recovery’s counsel requested that the ORAP Lien be extended and the court granted the request, extending the lien through May 28, 2021; although neither the Minute Order nor the Notice of Ruling filed by Mr. Everest’s counsel indicate such extension. (Shem-Tov Decl. ¶6.) Counsel attests upon receipt of a copy of this Notice of Ruling, movant’s counsel emailed Mr. Everest’s counsel and asked that an amended Notice of Ruling be filed to reflect the extension of the ORAP Lien. (Shem-Tov Decl. ¶6.) Mr. Everest’s counsel refused to file such amended Notice. (Shem-Tov Decl. ¶6.)

The court understands that written discovery is still outstanding from the judgment debtor and that third party discovery has been objected to and is the subject of a pending motion to quash.  The court finds that the judgment creditor has diligently sought to conduct the debtor’s exam and that the various continuances have not been as a result of any delay on his part.   In addition, the court notes that the ORAP in this case was filed when this court was just entering lock down due to the Covid 19 pandemic, further impeding the process of completing this debtor’s examination. 

The instant motion will be heard prior to the expiration of the ORAP lien on March 22, 2021. Mountain Recovery has not been able to enforce the judgment in its entirety despite diligent efforts. As a result, the court finds the Judgment Creditor has demonstrated that the ORAP lien should be extended.  The court agrees that an extension of at least six months is appropriate. 

Case Number: LC104978    Hearing Date: October 28, 2020    Dept: W

AFSARI V. EVEREST, ET AL.

MOTION FOR CHARGING ORDER

Date of Hearing: October 28, 2020 Trial Date: N/A

Department: W Case No.: LC104978

Moving Party: Assignee of Record Mountain Recovery, LLC

Responding Party: Defendant Alexander Everest

Notice: Proper

BACKGROUND

Plaintiff Robabeh Afsary is a foreign trained physician who is in the process of obtaining a California medical license. In order to facilitate her search for an appropriate program, Plaintiff contacted Defendant GME. Plaintiff alleges that Defendant Alexander Everest, an agent and employee of GME, personally assured Plaintiff that GME would find a suitable residency program within a reasonable time.

Afsary alleges that on December 14, 2014, Plaintiff and GME entered into a written Agreement (“Agreement”) whereby GME promised to assist Plaintiff in exchange for $15,000.00 upon signing the Agreement, $20,000.00 payment for seven (7) hours of preparation, and $130,000.00 upon acceptance to a residency found by GME. The Agreement was amended on February 1, 2016. The amended Agreement required Plaintiff to pay $72,000.00 upon signing the amendment. Plaintiff paid GME $107,000.00 in accordance with the Agreement.

Plaintiff alleges that GME was not able to find any program for her. In June 2016, Plaintiff requested a refund of $72,000.00 in accordance with the amended Agreement. Plaintiff alleged that Defendants have refused and have been refusing to honor the Agreement with Plaintiff.

In an uncontested bench trial, judgment was entered in Plaintiff’s favor and against Defendant Everest on October 18, 2019.

[TENTATIVE] RULING:

Assignee of Record Mountain Recovery, LLC’s Motion for Charging Order is DENIED.

OBJECTIONS

Defendant Everest objects to several paragraphs and exhibits of Mountain Recovery, LLC’s Counsel’s Declaration including Paragraph 4, Exh. C; Paragraph 4, Exh. D; Paragraph 4, Exh. E; Paragraph 4, Exh. F; Paragraph 4, Exh. G; and Paragraph 4, Exh. H.

Plaintiff did not submit a request for judicial notice, as required for the court to consider the various attachments. As most appear on their face to be public records, it is likely that the court would take judicial notice of such documents. However, Evid. Code §455 does not allow the court to take judicial notice sua sponte of these records without the court permitting the opposing party an opportunity to object and the reasons for the objection at the hearing. The court withholds ruling on these objections as they pertain to request for judicial notice.

ANALYSIS

Assignee of Record Mountain Recovery, LLC moves for an order charging the following LLC and LP interests of Judgment Debtor, Alexander Everest, with the full amount of the judgment on file in this action: AGAPE RECOVERY CENTERS, LLC; EVEREST & ALEXANDER, LLC; BEST DETOX, LLC; PACIFICARE HOLDINGS, LLC; NEW LIFE TREATMENT AND RECOVERY CENTER, LLC; and BEST CARE SYSTEMS, LP on the grounds that Mountain Recovery, LLC is the assignee of record of Plaintiff and Judgment Creditor herein and as such, has a judgment against Defendant Everest as judgment debtor in the amount of $650,500 (excluding post-judgment interest). Mountain Recovery, LLC contends Mr. Everest holds interests in the above listed LLC’s and LP and judgment creditor is permitted to charge such interests with the subject judgment as a precursor to foreclosure of same.

Code of Civil Procedure section §708.310 provides as follows: “If a money judgment is rendered against a partner or member but not against the partnership or limited liability company, the judgment debtor's interest in the partnership or limited liability company may be applied toward the satisfaction of the judgment by an order charging the judgment debtor's interest pursuant to Section 15673, 16504, or 17302 of the Corporations Code.”

Corporations Code §17302 provides, in pertinent part, as follows:

(a) On application by a judgment creditor of a member or of a member's assignee, a court having jurisdiction may charge the assignable membership interest of the judgment debtor to satisfy the judgment. The court may appoint a receiver of the share of the distributions due or to become due to the judgment debtor in respect to the limited liability company and may make all other orders, directions, accounts, and inquiries that the judgment debtor might have made or that the circumstances of the case may require.

(b) A charging order constitutes a lien on the judgment debtor's assignable membership interest. The court may order a foreclosure on the membership interest subject to the charging order at any time. The purchaser at the foreclosure sale has the rights of an assignee.

Mountain Recovery, LLC has failed to show Defendant Everest and all members and partners of the LLCs and LPs were properly and timely served with the instant motion. Mountain Recovery, LLC filed a proof of service showing Defendant Everest was served with the instant motion, via electronic mail, on September 29, 2020. However, Mountain Recovery, LLC failed to submit a proof of service showing Defendant Everest and the members/partners of the LLC’s and LP’s were personally served with the instant motion. Code of Civil Procedure section §708.320(a) provides, as follows: “A lien on a judgment debtor’s interest in a partnership or limited liability company is created by service of a notice of motion for a charging order on the judgment debtor and either of the following: (1) All partners or the partnership. (2) All members or the limited liability company.” (Emphasis Added). Judgment Creditor did not submit a proof of service showing the instant motion was timely and properly served on all members or the limited liability companies. Moreover, “[s]ervice of the notice of motion as prescribed by the EJL creates a lien on the debtor's partnership or LLC interest (¶ 6:1472). The partnership or LLC should be personally served and proof of service filed with the court.” (7. [6:1465] Charging Orders Against Debtor Partnership/LLC Interests:, Cal. Prac. Guide Enf. J. & Debt Ch. 6G-7.)

Based on the foregoing, Assignee of Record Mountain Recovery, LLC’s Motion for Charging Order is DENIED without prejudice.

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