This case was last updated from Los Angeles County Superior Courts on 06/14/2019 at 11:53:52 (UTC).

RODGER MARTIN GARIANO, ET AL VS. MARQUEE FUNDING GROUP, INC.

Case Summary

On 11/29/2017 RODGER MARTIN GARIANO filed a Property - Foreclosure lawsuit against MARQUEE FUNDING GROUP, INC. 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 SHIRLEY K. WATKINS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6526

  • Filing Date:

    11/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SHIRLEY K. WATKINS

 

Party Details

Plaintiffs

GARIANO RODGER MARTIN

GARIANO MARISA LUCILA

Defendants

NFS HOLDINGS

TOTAL LENDER SOLUTIONS INC. A NEVADA

MARQUEE FUNDING GROUP INC. A CALIFORNIA

DOES 1-50 INCLUSIVE

DAVID RONE EMMANUEL

RONE DAVID

ASLAN HOLDINGS CORPORATION A NEW YORK

RONI DAVID

NATIONWIDE FINANCE SERVICES

RONE DAVID AKA RONE EMMANUEL DAVID AKA DAVID RONI DBA NFS HOLDINGS DBA NATIONWIDE FINANCE SERVICES AN INDIVIDUAL

Attorney/Law Firm Details

Plaintiff Attorneys

FRISH VADIM

FRISH VADIM FELIX

Defendant Attorneys

MORRIS STEVEN ALBERT

SIEVERS PAUL JOHNSON

 

Court Documents

Notice of Case Management Conference

11/29/2017: Notice of Case Management Conference

Complaint

11/29/2017: Complaint

Proof of Service of Summons and Complaint

12/12/2017: Proof of Service of Summons and Complaint

Unknown

6/11/2018: Unknown

Unknown

6/14/2018: Unknown

Notice of Motion

7/30/2018: Notice of Motion

Notice of Related Case

8/2/2018: Notice of Related Case

Minute Order

8/29/2018: Minute Order

Notice of Case Reassignment and Order for Plaintiff to Give Notice

9/28/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Unknown

10/18/2018: Unknown

Unknown

12/14/2018: Unknown

Notice

1/29/2019: Notice

Declaration

2/13/2019: Declaration

Demand for Jury Trial

2/20/2019: Demand for Jury Trial

Proof of Service by Mail

2/20/2019: Proof of Service by Mail

Opposition

3/15/2019: Opposition

Proof of Service by Mail

4/30/2019: Proof of Service by Mail

Minute Order

5/16/2019: Minute Order

61 More Documents Available

 

Docket Entries

  • 05/16/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Case Management Conference - Held - Continued

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  • 05/16/2019
  • Notice (notice of ruling at case management conference and notice of continued case management conference and mandatory settlement conference); Filed by Rodger Martin Gariano (Plaintiff)

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  • 05/16/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 05/02/2019
  • Opposition (To Plaintiff North American Title Insurance Company's Motion for Leave to File Second Amended Complaint); Filed by Marquee Funding Group, Inc., a California Corporation (Defendant)

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  • 04/30/2019
  • Proof of Service by Mail; Filed by Rodger Martin Gariano (Plaintiff)

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  • 04/30/2019
  • Case Management Statement; Filed by Rodger Martin Gariano (Plaintiff)

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  • 04/04/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Demurrer - without Motion to Strike - Not Held - Taken Off Calendar by Party

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  • 04/04/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Demurrer - without Motion to Strike - Not Held - Taken Off Calendar by Party

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  • 04/04/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Case Management Conference - Held - Continued

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  • 04/04/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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87 More Docket Entries
  • 04/25/2018
  • Notice Re: Continuance of Hearing and Order; Filed by Rodger Martin Gariano (Plaintiff); Marisa Lucila Gariano (Plaintiff)

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  • 04/20/2018
  • Case Management Statement; Filed by Rodger Martin Gariano (Plaintiff); Marisa Lucila Gariano (Plaintiff)

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  • 03/28/2018
  • Notice of Case Management Conference; Filed by Rodger Martin Gariano (Plaintiff); Marisa Lucila Gariano (Plaintiff)

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  • 01/08/2018
  • Answer; Filed by Marquee Funding Group, Inc., a California Corporation (Defendant)

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  • 12/13/2017
  • Proof of Service of Summons and Complaint; Filed by Rodger Martin Gariano (Plaintiff); Marisa Lucila Gariano (Plaintiff)

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  • 12/12/2017
  • Proof of Service of Summons and Complaint; Filed by Rodger Martin Gariano (Plaintiff); Marisa Lucila Gariano (Plaintiff)

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  • 11/29/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 11/29/2017
  • Summons; Filed by null

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  • 11/29/2017
  • Complaint; Filed by Rodger Martin Gariano (Plaintiff); Marisa Lucila Gariano (Plaintiff)

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  • 11/29/2017
  • Civil Case Cover Sheet; Filed by Rodger Martin Gariano (Plaintiff); Marisa Lucila Gariano (Plaintiff)

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Tentative Rulings

Case Number: LC106526    Hearing Date: November 24, 2020    Dept: T

NORTH AMERICAN TITLE INSURANCE COMPANY,

Plaintiff,

vs.

RODGER MARTIN GARIANO; et. al.

Defendants.

CASE NO: BC696805 r/t LC106526

[TENTATIVE] ORDER RE:

DEMURRER TO SECOND AMENDED COMPLAINT

Dept. T

8:30 a.m.

November 24, 2020

[TENTATIVE] ORDER: The Demurrer to the Second Amended Complaint is MOOT as to the first cause of action and OVERRULED as to the second thru fifth, eighth and twelfth causes of action. Defendants’ Request for Judicial Notice as to Exhibit 1 is GRANTED except as to matters in dispute and as to Exhibit 2 is DENIED. Answer to be filed within 20 days.

INTRODUCTION

Defendants Marquee Funding Group Inc (“MFG”), Megan Lagerson (“Lagerson”) and Ryan Solovy aka R.J. Solovy (“Solovy”) (collectively “Defendants”) demur to the Second Amended Complaint (“SAC”) filed by Plaintiff North American Title Insurance Company (“NATIC” or “Plaintiff.”) Placed into issue are all causes of action (“COA”) except the sixth, seventh, ninth, tenth and eleventh COAs.

PROCEDURE

Despite Plaintiff Counsel Chris Greinke’s contention otherwise, Defendant sufficiently attempted to meet and confer in good faith prior to the filing of the demurrer to the SAC. (See Reply, Exh A.)

When a contract relates to a complaint, the court may take judicial notice of the contract in ruling on a demurrer. Ascherman v. General Reinsurance Corp. (1986) 183 Cal.App.3d 307, 310 (“Ascherman”). Defendants’ request for judicial notice (“RJN”) of the “Agreement to Procure a Loan & Lender-Borrower Escrow Instructions” (“Agreement”; RJN Exh. 1) is proper because it is expressly identified in the SAC with verbatim citation to certain provisions in the Agreement and it also forms the grounds for negligently performing under the Agreement and/or on the escrow. (SAC ¿¿18-19, 37, 43, 48, 56, 66, 90.)

Defendants further request judicial notice of a Payoff Demand Statement (“Payoff.”) (RJN Exh 2.) Judicial Notice of this document is improper under Ascherman because it is not a contract.

The Court notes that the first COA in the SAC is not alleged against moving Defendants. Therefore, the demurrer against the 1st COA is MOOT.

DISCUSSION

Defendants rely upon the exculpatory clause (Agreement ¿7.8) to show an absolute bar to the claims in the SAC. However, Plaintiff argues that the provision is ambiguous and/or is susceptible to more than one reasonable interpretation. “ ‘Joslin, supra, at page 375, 228 Cal.Rptr. 878 stated further, “ ‘judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.’ (Internal Citation Omitted.) The proper interpretation of a contract is disputable if the contract is susceptible of more than one reasonable interpretation, that is, if the contract is ambiguous. An ambiguity may appear on the face of a contract, or extrinsic evidence may reveal a latent ambiguity. (Internal Citation Omitted.) A court determining whether a contract is ambiguous must first consider extrinsic evidence offered to prove the parties' mutual intention. If the court determines that the contract is reasonably susceptible of an interpretation supported by extrinsic evidence, the court must admit that evidence for purposes of interpreting the contract. (Internal Citation Omitted.) A court cannot determine based on only the four corners of a document, without provisionally considering any extrinsic evidence offered by the parties, that the meaning of the document is clear and unambiguous. (Internal Citation Omitted.) Instead, a court must provisionally consider extrinsic evidence offered by the parties in the manner we have stated.” Fremont Indemnity Co. v Fremont General Corp. (2007) 148 Cal. App. 4th 97, 114-115. The facts alleged in the SAC show that two phrases of the exculpatory clause are in conflict. The conflict arises between the phrases: 1) “…failure to ascertain or comply with the provisions of any DOCUMENT delivered in escrow except for such DOCUMENTS that have been prepared or caused to have been prepared by [Marquee];” and 2) “forgeries or false impersonations;” (Agreement ¿7.8.) The SAC alleges that Co-Defendants Rone and Shanker committed fraud by providing Defendants with a Payoff Statement that did not identify the correct lender – Aslan Holdings Corp. (SAC ¿¿21-24, 29.) However, the SAC also alleges that the Payoff Statement was “caused to have been prepared” by Defendants. Plaintiff expressly alleges that Defendants contacted Co-Defendants Jacobson, Rone and Shanker and requested the Payoff Statement. (SAC ¿¿22-23.) Because it is alleged that Defendants caused the Payoff Statement to be prepared there is showing that an exception to the exculpatory clause could apply. With these competing applications of the exculpatory clause, there is sufficiently shown two reasonable interpretations of the exculpatory provision based upon the facts alleged in the SAC. With this conflict and ambiguity, it cannot be determined at the demurrer stage that the claims alleged against Defendants are absolutely barred. On this ground, the Demurer is not persuasive.

Plaintiff’s argument that the exculpatory clause being unenforceable is moot and not considered because the demurrer’s reliance upon the exculpatory clause is unpersuasive at this pleading stage.

Answer to be filed within 20 days.

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