CINDY MARTIN VS AMMEC INVESTMENTS INC ET AL

Tentative Rulings

Case Number: BC669147    Hearing Date: January 21, 2021    Dept: 48

[TENTATIVE] ORDER RE: CROSS-DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

On September 11, 2017, Cross-Complainant Ammec Investments, Inc. (“Cross-Complainant”) filed a cross-complaint against Cross-Defendants Cindy Martin, Greta Curtis, James Ogburn, Patricia Hooper, Lisa McGuire, Changemyrate.com, Fidelity National Title Company (“Fidelity”), D&G Escrow Corporation (“D&G”), Ifaomilekun LLC, Sisters In Law LLC, Dr. Roots Herbs LLC, and Ammec, Inc.

On October 30, 2020, D&G and McGuire (collectively, “Cross-Defendants”) filed this motion for summary judgment.

REQUEST FOR JUDICIAL NOTICE

Cross-Defendants request that the Court take judicial notice of (1) Martin’s complaint; (2) Cross-Complainant’s Cross-Complaint; (3) the grant deed transferring real property commonly known as 4829 4th Avenue, Los Angeles, California 90043, recorded in the Los Angeles County Recorder’s Office; (4) Ammec, Inc.’s Articles of Incorporation filed on April 15, 2016; (5) the Declaration of Carley Mak Lee, filed on March 15, 2019; (6) and Notice of Index of Exhibits, with exhibits, filed on March 15, 2019. The request is granted.

BACKGROUND FACTS

This action involves the real property commonly known as 4829 4th Avenue, Los Angeles, California, 90043 (“Property”), to which Martin acquired title on July 10, 2007. (Undisputed Material Facts “UMF” 1.)

Charles Hasbun has been the president and sole officer, employee, and director of Cross-Complainant since its incorporation in 2004, when it was known as Ammec Inc. (UMF 2.)

On or about June 3, 2007, Martin obtained a loan from Cross-Complainant in the amount of $69,000.00 (“$69K Loan”), secured by a deed of trust recorded on July 12, 2007, in the Los Angeles County Recorder’s Office as document number 20071654626 (“$69K DOT”). (UMF 3.) A note for the $69K Loan states that the interest rate is 14.75% and all payments are due July 1, 2008. (UMF 4.) Cross-Complainant provided a check for $37,000.00, dated June 3, 2007. (UMF 5.) Cross-Complainant has no other checks showing advances made to Martin under the $69K Loan. (UMF 5.)

Martin later obtained a loan from National City Mortgage (“National City Loan”), secured by a deed of trust. (UMF 6.) Some of the National City Loan was used to satisfy Cross-Complainant’s demand for payoff of the $69K Loan. (UMF 6-7.) On October 9, 2009, First American Title Insurance Company recorded a Release of Obligation Under Deed of Trust with the Los Angeles County Recorder's Office as document number 20091539719, stating that the obligation secured by the $69K DOT was satisfied and paid in full. (UMF 9.)

Cross-Complainant recorded two deeds of trust in favor of itself with Martin as the trustor: one for $31,000.00, dated October 4, 2007, recorded in the Los Angeles County Recorder’s Office as document number 20072298393 (“$31K DOT”); and one for $10,700.00, dated November 6, 2007, recorded in the Los Angeles County Recorder’s Office as document number 20160847185 (“$10K DOT”). (UMF 10-11.) The $31K DOT states that it secures “the repayment of the indebtedness evidenced by Borrower’s note . . . dated October 4, 2007 . . . .” (UMF 12.) According to Cross-Complainant, the $31K DOT secures the $15,000.00 balance of the $69K DOT after the $54,000.00 payoff demand was made, along with $16,000.00 in advances. (UMF 14.) The $10K DOT states that it secures a note dated November 6, 2007 (“$10K Note”). (UMF 15.) The $10K Note does not identify the lender and states that it is to be repaid by May 6, 2008. (UMF 17-18.)

The $10K DOT and the $31K DOT state that they grant, transfer, convey, and assign Martin’s interest in the Property to Cross-Complainant in consideration for the debt. (Cross-Complaint at ¶¶ 16-19; Mak Decl., Exs. E-F.) Both the $10K DOT and the $31K DOT purport to secure repayment of future advances with interest made pursuant to paragraph 19. (UMF 21.) Paragraph 19 provides that advances made thereunder “shall be secured by this Deed of Trust when evidenced by promissory notes stating that said notes are secured hereby.” (UMF 22.)

Cross-Complainant received a $10,000.00 check from Martin, but it did not cash the check. (UMF 20.)

Cross-Complainant’s corporate status as Ammec Inc. was suspended, and on April 15, 2016, “Ammec Inc.” was incorporated by another party. (UMF 24, 26.) On April 7, 2016, Hasbun amended Cross-Complainant’s articles of incorporation to change the name to Ammec Investments, Inc. (UMF 25.)

On November 7, 2016, a Substitution of Trustee and Full Reconveyance of the $10K Deed of Trust (“$10K Recon”) was recorded in the Los Angeles County Recorder’s Office as document number 20161380533. (UMF 27.) A Substitution of Trustee and Full Reconveyance of the $31K Deed of Trust was also recorded in the Los Angeles County Recorder’s Office as document number 20161380534 (“$31K Recon”). (UMF 28.) Fidelity, not D&G, recorded the $10K Recon and the $31K Recon. (UMF 49.)

Cross-Complainant alleges that Martin “designedly caused and/or procured” Cross-Defendants to record the $10K Recon and $31K Recon, thereby falsely reporting that the $10K DOT and $31 DOT were paid in full. (UMF 34; Cross-Complaint ¶ 47.) After doing so, Martin obtained two new loans secured by deeds of trust on the Property. (Cross Complaint at ¶ 33.) Cross-Complainant also alleges that it had the right to possess $41,700.00 owed by Martin. (UMF 36; Cross-Complaint ¶¶ 54-56.)

LEGAL STANDARD

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

DISCUSSION

Cross-Complainant alleges only the fourth cause of action for conversion against Cross-Defendants. “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.) “Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)

The Cross-Complaint alleges that Cross-Defendants “disposed of cross-complainant’s identity by recording” the $10K and $35K and “disposed of cross-complainant’s $41,700 owed by Martin to cross-complainant by recording” the $10K Recon and $35K Recon. (Cross-Complaint ¶¶ 55, 56.) Cross-Defendants submit undisputed evidence that D&G did not record the $10K Recon and $35K Recon, and that Fidelity National Title Company handled the recording of those documents. (UMF 49.) Therefore, Cross-Defendants have made a prima facie case that they did not engage in the activity that alleged resulted in conversion, and Cross-Complainant did not dispute that evidence.

In opposition, Cross-Complainant makes a new argument, not asserted in the conversion cause of action. Cross-Complainant contends Cross-Defendants engaged in conversion “to the extent that they closed escrow on November 7, 2016 by negating demands for payoff from Ammec Investments, Inc. dated and delivered to them on October 10, 2016, after conflicting demands for payoff dated September 27, 2016.” (Hasbun Decl. at p. 13; Opposition at p. 6.)

This new argument does not create disputed material facts. First, “the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Cross-Complainant did not allege the theory that Cross-Defendants converted property by “negating demands for payoff” from Cross-Complainant.

Second, the statement by Hasbun in his declaration suggesting that Cross-Defendants closed escrow by “negating demands for payoff from Ammec Investments” is not evidence that Cross-Defendants in fact did that. He phrases it in terms of “to the extent that they closed escrow . . . by negating demands for payoff,” indicating that he does not know if they actually took that action. Also, in support of his assertion, Hasbun cites Exhibit C, a Fidelity National Title Company Final Disbursement Report showing disbursements to six entities including to D&G Escrow. It does not show D&G Escrow “negating demands for payoff.” Therefore, Cross-Complainant did not show a triable issue of material fact.

The motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.