On 04/24/2018 IN RE 130 NORTH MARTEL AVENUE LOS ANGELES, CA 90036 was filed as a Property - Other Property Fraud lawsuit. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
QUALITY LOAN SERVICE CORP.
WELLS FARGO BANK N.A.
JASON RUBIN TRUSTEE OF THE CIRA ROSS QUALIFIED DOMESTIC TRUST
EMPLOYMENT DEVELOPMENT DEPARTMENT
STATE OF CALIFORNIA FRANCHISE TAX BOARD
UNITED STATES OF AMERICA
SALINAS DELFINA TAPIA
TAPIA FLOR DE MARIA
COUTTS MELISSA ROBBINS ESQ.
GENTINO ROBERT ESQ.
TREDER EDWARD A. ESQ.
TREDER EDWARD A.
MATHEWS SUMAN RACHEL
GREENE GAVIN L.
RHIM J. ALEXANDRA
BOURKE THOMAS K.
6/19/2018: EMPLOYMENT DEVELOPMENT DEPARTMENT'S CLAIM TO SURPLUS FUNDS
8/27/2018: Proof of Service
9/14/2018: 1. NOTICE OF MOTION FOR RELIEF; 2. MEMORANDUM OF POINTS AND AUTHORITIES; 3. DECLARATION OF THOMAS K. BOURKE IN SUPPORT; AND 4. DECLARATION OF MATTY UITZ IN SUPPORT.
9/14/2018: CLAIM TO SURPLUS FUNDS BY FLOR DE MARIA DEL TAPIA AND DELFINA TAPIA SALINAS
9/21/2018: STATE OF CALIFORNIA FRANCHISE TAX BOARD'S CLAIMS TO SURPLUS FUNDS
9/28/2018: Minute Order
10/17/2018: Other -
10/25/2018: Status Report
10/25/2018: Status Report
11/16/2018: Other -
12/17/2018: Minute Order
2/8/2019: Status Report
2/14/2019: Minute Order
4/8/2019: Minute Order
5/10/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
at 08:30 AM in Department 34; Trial Setting Conference - HeldRead MoreRead Less
Minute Order ( (Trial Setting Conference)); Filed by ClerkRead MoreRead Less
Proof of Service by Mail; Filed by Delfina Tapia Salinas (Respondent); Flor De Maria Tapia (Respondent)Read MoreRead Less
Status Report; Filed by Delfina Tapia Salinas (Respondent); Flor De Maria Tapia (Respondent)Read MoreRead Less
at 08:30 AM in Department 34; Status Conference - HeldRead MoreRead Less
Minute Order ( (Status Conference)); Filed by ClerkRead MoreRead Less
Joinder (to Joint Status Report); Filed by Jason Rubin, Trustee of the Cira Ross Qualified Domestic Trust (Claimant)Read MoreRead Less
Proof of Service by Mail; Filed by Delfina Tapia Salinas (Respondent)Read MoreRead Less
Status Report (JOINT STATUS REPORT); Filed by Delfina Tapia Salinas (Respondent); Flor De Maria Tapia (Respondent)Read MoreRead Less
Certificate of Mailing for ([Minute Order (Court Order re: Notice of Related Cases) of 12/17/2018]); Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by Quality Loan Service Corp. (Plaintiff)Read MoreRead Less
CLAIM TO SURPLUS FUNDS BY OWNER ROBERT GENTINORead MoreRead Less
Miscellaneous-Other; Filed by Robert Gentino (Claimant)Read MoreRead Less
Notice; Filed by Quality Loan Service Corp. (Plaintiff)Read MoreRead Less
NOTICE OF CASE ASSIGNMENTRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Petition; Filed by nullRead MoreRead Less
PETITION AND DECLARATION REGARDING UNRESOLVED CLAIMS AND DEPOSIT OF UNDISTRIBUTED SURPLUS PROCEEDS OF TRUSTEE'S SALERead MoreRead Less
Case Number: BS173431 Hearing Date: February 07, 2020 Dept: 34
SUBJECT: Motion to Vacate Judgment
Moving Party: Claimant Jason Rubin
Resp. Party: Claimant Robert Gentino
Claimant Jason Rubin, as Trustee of the Cira Ross Qualified Domestic Trust’s motion to vacate judgment is DENIED.
This case arises from the entitlement to surplus proceeds from a trustee’s sale.
Petitioner Quality Loan Service Corp filed a Petition and Declaration Regarding Unresolved Claims and Deposit of Undistributed Surplus Proceeds of Trustee’s Sale on April 24, 2018. On September 28, 2018, the Court granted the motion of Petitioner to deposit the funds and be discharged from the action. Petitioner deposited $390,073.28 on October 14, 2018.
Claimant Robert Gentino filed a claim for the funds on May 16, 2018. Claimants Flor De Maria Del Tapia and Delfina Tapia Salinas filed a claim on September 14, 2018 (Tapia claim). The State of California Franchise Tax Board filed a claim on September 21, 2018 (FTB claim). Claimants David and Leah Ross filed a claim on September 28, 2018 (Ross claim). Claimant Jason Rubin filed a claim on October 17, 2018 (Rubin claim).
After a bench trial, the Court found that Flor De Maria Tapia, Delfina Tapia, and Jason Rubin’s claims are barred by the statute of limitations and that Robert Gentino is entitled to the undistributed surplus proceeds of trustee’s sale. (11/12/19 Minute Order, p. 1.)
On December 12, 2019, judgment after trial was filed and signed. The Court ordered that the Surplus Funds be distributed as follows:
(a) $9,000 to Employment Development Department, Attn: T. Janney, 10969 Trade Center Dr., #202, Rancho Cordova, CA 95670.
(b) Remainder plus interest, if any, to Robert Gentino, 3151 Cahuenga Blvd. W., #201, Los Angeles, CA 90068. (Judgment After Trial, p. 2:3-7.)
The Court also ordered that “as the prevailing party against all other Claimants, Robert Gentino is awarded costs against all other Claimants except Employment Development Department.” (Id. at p. 2:9-10.)
On January 6, 2020, Claimant Jason Rubin, as Trustee of the Cira Ross Qualified Domestic Trust filed the instant motion to vacate judgment based on legal error pursuant to Code of Civil Procedure section 663.
A. Legal Standard
Code of Civil Procedure section 663 permits a court to set aside a judgment and enter a different judgment where the judgment is not consistent with the facts or where there is an incorrect or erroneous legal basis for the decision. (Code Civ. Proc., § 663, subd. (a).)
A motion to vacate a judgment under Section 663 is only available when the uncontroverted evidence reveals the existence of an erroneous judgment. (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) The court cannot reweigh the evidence. (Id.)
B. Timeliness of Opposition
Rubin argues that “Gentino waived any opposition as he failed to comply with the time periods under CCP §§663a and 659a and the opposition should be stricken.” (Reply, p. 2:9-10.)
Code of Civil Procedure section 663a, subdivision (d) states:
“The moving, opposing, and reply briefs and any accompanying documents shall be filed and served within the periods specified by Section 659a and the hearing on the motion shall be set in the same manner as the hearing on a motion for new trial under Section 660.” (Code Civ. Proc., § 663a, subd. (d).)
Code of Civil Procedure section 659a states:
“Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion. The other parties shall have 10 days after that service within which to serve upon the moving party and file any opposing briefs and accompanying documents, including counter-affidavits. The moving party shall have five days after that service to file any reply brief and accompanying documents. These deadlines may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days.” (Code Civ. Proc., §659a.)
Rubin filed and served this motion on January 6, 2020 and Gentino was required to file and serve his opposition by January 16, 2020. However, Gentino filed his opposition on January 29, 2020, without an extension to file the opposition late. The Court finds that Gentino did file his opposition late. However, given Rubin has filed a reply on the merits, no prejudice will result. The Court uses its discretion to consider the merits of the opposition. (Cal. Rules of Court, rule 3.1300(d).)
Rubin disagrees with the Court’s ruling “in favor of Gentino [and] reasoning that [Rubin’s] exclusive remedy was a successful action under the fraudulent transfer statute which was barred due to the seven (7) year statute of repose for fraudulent transfers.” (Motion, p. 2:15-17.) Instead, Rubin argues “that a different result is compelled by the Court’s findings because [Rubin] possesses other cumulative remedies.” (Id. at p. 2:19-20.) Rubin maintains that “pursuant to the Cass decision and California Civil Code § 3439.07, [Rubin] possesses the right to attach or execute on the surplus proceeds irrespective of [his] ability to prevail on a fraudulent transfer action.” (Id. at p. 2:20-22.) Rubin asserts that “these rights supplement any fraudulent transfer avoidance and are not contrary to the PGA West case relied upon by the Court.” (Id. at p. 2:22-23.) Accordingly, Rubin argues that he “is entitled to the surplus proceeds realized from the Property.” (Id. at p. 2:24.)
The issues raised in this motion were thoroughly explored at the time the Court entered the judgment on the petition. For example, during the bench trial, the Court and the parties discussed whether Rubin had cumulative remedies that were not barred by the statute of limitations:
“Ms. Rhim [Rubin’s counel]: . . . Since the last issue that was discussed was the statute of limitations and the applicability of PGA West. I think we take sort of a different approach to that doctrine. . . . A fraudulent transfer action, that is one available remedy to creditors. And when you seek fraudulent transfer avoidance, you can, as a remedy, get one of two things. You can get the transaction unwound, so avoid it. That’s what it is called. Or you can get money damages.
That is not what we’re seeking to do here. We’re not seeking to impose a remedy under the . . . CUFTA. Our theory here is different and also, we don’t necessarily agree with the – well, I’ll say we don’t agree with the Tapias position that we need to be able to unwind the 2007 transfer to be able to prevail. That’s not our position here.
Our position is that we already have a judgment issued by the bankruptcy court, finding that there was a sham foreclosure. Clearly Mr. Ross was the main actor, but as the saying goes, it takes two to tango. That sham foreclosure was actively, knowingly, and tacitly facilitated by Mr. Gentino.
. . .
If the Court accepts that that was an overt act in furtherance of the conspiracy, then we’re entitled to claim the proceeds that Mr. Gentino claims as quote, unquote “the owner” because we already have a judgment. So we have superior rights to Mr. Gentino. We were a superior lien holder that was wiped out by Mr. Gentino’s acts.
The Court: But under PGA West, don’t you have seven years to do something about that? Isn’t that the import of PGA West . . .
Ms. Rhim: . . . I have read that decision. And, again, I go back to the argument that the fraudulent transfer of that statute and the reason of PGA West, that’s one of the remedies we could have sought. We chose not to; we did not; and we don’t dispute that. But that does not preclude us from claiming rights to the proceeds that Mr. Gentino is claiming.
And the reason is we claim that there was a civil conspiracy, aiding and abetting, and where that gets us is a clear entitlement to the proceeds because we’re entitled to impose a constructive trust or equitable lien on those proceeds. Because if you commit a wrongful act to prejudice us, then we step in the shoes and we should be entitled to those proceeds.
The Court: . . . Is there a time after which you can’t do that? In other words, it seems to the Court that PGA West says you can impose that equitable trust or constructive trust or equitable lien or however you want to do it, but you’ve got seven years to do it. You can’t come back 20 years later. You can’t come back 30 years later and do it. At some point there’s a repose – and the wrong doer – in this case, Mr. Gentino and in your opinion Mr. Ross- just get away with their wrong deeds after a certain amount of time.
Ms. Rhim: I don’t think that’s the case because again, the remedy we seek is not a remedy flowing from CUFTA . . . We’re here now because the foreclosure happened in late 2007 so the proceeds resulted beyond the seven-year repose. So that’s something we did not have control over. . .
. . .
The Court: The problem for the court . . . is the mandate of PGA West, which appears to say to this Court that you’ve got seven years and it doesn’t matter whether you’re filing under the UFTA, Fraudulent Transfer Act, or you’re filing under common law or you’re going any other way. You’ve got seven years after the fraudulent conveyance and that’s it.
You have to accept that that seven year statute of limitations is going to allow some bad actors or sometimes unscrupulous getters to get away with their scams. And that’s just the way the legislature wrote it. And that’s what we’re stuck with. And that’s the concern for the Court in terms of how to deal with this case.”
(Rhim Decl., ¶ 2, Ex. 2, pp. 38:27-39:22, 40:9-41:27, 45:9-24.)
Contrary to Rubin’s assertions, the Court did not find that avoidance under UFTA is the exclusive remedy for Rubin. The Court found that based on PGA West v. Residential Association, Inc., v. Hulven International, Inc. (2017) 14 Cal.App.5th 156, regardless of whether Rubin files under UFTA, Fraudulent Transfer Act, common law, or any other way, there is still a seven year statute of limitations that affects his claims. The judgment entered is consistent with the facts and the decision underlying the judgment is not based on an incorrect or erroneous legal basis.
The Court DENIES Rubin’s motion to vacate judgment.