2017-00220161-CU-EN

Park East Ventures, LLC vs. Americap Direct

Nature of Proceeding: Motion to Vacate Sister State Judgment

Filed By: Hunt, Terry R.

Defendants John and Clarissa M. Lewis Cohen’s Motion to Vacate Sister State Judgment is denied.

Park East Ventures, LLC’s (Park) Requests for Judicial Notice of the Dismissal of the Notice of Appeal, the Complaint and Answer filed by defendants in the Florida action, and the ruling on the Motion for Final Summary Judgment in the Florida action are granted.

Defendants John Cohen and Clarissa M. Lewis Cohen’s Request for Judicial Notice of the Notice of Appeal in the Florida action is granted.

Defendant’s Evidentiary objections to the Declaration’s of Steven Wittmer are denied.

Defendant’s Objection to the Request for Judicial Notice is overruled. The Court can take judicial notice of the truth of the contents of Court orders, including the dismissal of the appeal, and may take judicial notice of judicial admissions made in the Answers filed by defendants in the Florida action.

Defendants move to set aside the sister state judgment entered in the State of Florida on the following grounds:

1. The partnership defendant either does not exist or is not related to moving defendants.

2. The individual defendants do not have sufficient contacts with Florida such that jurisdiction is proper.
3. The individual defendants were never sued by Park East Ventures LLC such that jurisdiction is improper; and
4. The individual defendants were never served with a summons and complaint in the above entitled action (this California action.)

5. A notice of appeal has been filed in the Florida case and enforcement of the alleged judgment is improper in California.

In support of the motion, defendants state in their conclusory declarations that they were never served with a summons and complaint in either this case or the Florida action, that they never conducted any business in Florida, that they have not conducted business as a general partnership as alleged in the Florida Complaint and

have not filed partnership documents with the California Secretary of State, that they never individually executed any agreements with plaintiff, and that the appeal of the Florida action is pending. (Declaration of John Cohen, Declaration of Clarissa M.

Lewis Cohen)

In opposition to the motion, Park East Ventures addresses each of the above grounds for the motion and offers evidence to defeat each ground.

In the Florida case, for which Park obtained judgment against Americap, and John and Clarissa Cohen, Park alleges a real property transaction that was not completed. As alleged in the Fourth Amended Complaint, Americap received monies representing an escrow deposit. Thereafter, Americap and the Cohens transferred the escrow funds to the Cohens without the approval of plaintiff. When the purchase transaction failed to close escrow, Americap and the Cohens failed and refused to reimburse Park for the misappropriation of escrow funds.

(See Fourth Amended Complaint attached as Exhibit 1 to Opposition.) In August of 2015, representatives of Park and Judgment Debtors negotiated a resolution whereby Americap would pay to Park the sum of $100,000, and payment was to be received by Park prior to September 9, 2015. Americap failed to pay Park as promised and Park filed suit. Thus, not only had Americap taken escrow funds belonging to Park, but Americap failed to pay Park $100,000 as promised pursuant to a negotiated settlement. (See Declaration of Steven Wittmer)

In July of 2017 the Twelfth Judicial District Circuit Court of Florida, in a ruling on a Motion for Summary Final Judgment, found in favor of Park and against moving parties in the amount of $100,000, plus pre judgment interest for a total judgment of $108,979.03. (Ex 3 to Application for Entry of Sister State Judgment.)

A sister state judgment entered pursuant to the Sister State and Foreign Money-Judgments Act, Code Civ. Proc., § 1710.10 et seq., may be vacated on any ground which would be a defense to an action in California on the sister state judgment. Code Civ. Proc., § 1710.40, subd. (a). Common defenses to enforcement of a sister state judgment include the following: (1) the judgment is not final and unconditional; (2) the judgment was obtained by extrinsic fraud; (3) the judgment was rendered in excess of jurisdiction; (4) the judgment is not enforceable in the state of rendition; (5) the plaintiff is guilty of misconduct; (6) the judgment has already been paid; and (7) suit on the judgment is barred by the statute of limitations in the state where enforcement is sought. . Canseco Marketing, LLC v. IFA & Insurance Services, Inc.(2013) 221 Cal., App.4th 831, 839. Judgment Debtors bear the burden of proof to show by a preponderance of the evidence why they are entitled to relief on this motion. Canseco, supra, 841. Judgment Debtors have not met this burden.

In February 2016, in the Florida action, Judgment Debtors answered Park’s Fourth Amended Complaint, thereby consenting to personal jurisdiction by a general appearance and also specifically admitting the allegation in the complaint that the State of Florida had personal jurisdiction over defendants. First, at paragraph 5 of Judgment Debtors’ Answer, Judgment Debtors admit the allegation in Park’s Fourth Amended Complaint that: “5. Americap Direct is a California General Partnership whose principal place of business is 3050 Fite Circle, Suite 203, Sacramento, Ca, 95927, This Defendant has conducted sufficient business activities within the State of Florida and therefore this court has personal jurisdiction over said defendant.” The second admission made by Judgment Debtors is found in paragraph 6 of their Answer,

wherein Judgment Debtors admit the following allegations contained in Park’s complaint; “6. Upon information and belief, the Defendants John Cohen and Clarissa M. Lewis Cohen are residents of the state of California. These individuals were the general partners of Americap. Upon information and belief, these Defendants reside at 9957 Albacore Way, Elk Grove, Ca 95757. These Defendants have conducted sufficient business activities within the State of Florida to establish personal jurisdiction over said Defendants.” )See plaintiff’s Ex. 2, Judgment Debtors Answer to Park’s Fourth Amended Complaint.)

Thus, Defendants general appearance in the Florida action, and defendant’s prior judicial admissions in their Answer to the Fourth Amended Complaint concerning personal jurisdiction prevail over their conclusory and unsupported assertions that the State of Florida had no personal jurisdiction over them, that they did not do business as general partners of Americap Direct general partnership, or that they were not sued by Park East Ventures, LLC. In addition, the Court in Florida found that defendants are general partners of Americap and that plaintiff is entitled to a joint and several judgment against Americap Direct and its general partners, John and Clarissa Cohen. (See Opposition Ex. 3, Summary Final Judgment, pages 1 and 2)

Defendants have not met their burden to show that they were not served with summons and complaint in this action. The Court finds that the process server’s declaration of service at the Elk Grove address prevails over defendants’ wholly conclusory declarations. Defendants have not provided any supporting facts to their statements that “I was never personally served with the California Judgment in Case Number 34-2017-0220161.” (See Exhibit 5 opposition, at Register of Actions Items 12 and 13)

Concerning the Florida Appeal, that Appeal did not stay enforcement of the judgment. The notice of appeal does not stay enforcement of a sister state judgment because defendants filed no undertaking to stay enforcement of the judgment. Florida Rules of Appellate Procedure, Rule 9.310, provides that a stay of an appeal requires either the filing of a motion or by posting a bond equal to the principal amount of the judgment. Additionally, Rule 9.310(b)(1) states that a party may obtain an automatic stay pending review, by “posting a good and sufficient bond.” The rule also states that multiple parties having common liability may “file a single bond.” Saliently, the act of filing a bond requires service of the bond on all parties. See Fla. R. App. P. 9.420(b). Without such service, the parties might be unaware that an automatic stay has gone into effect. Even if a bond had posted, no showing is made by defendants consistent with Florida law. On the necessity of a bond, California law is analogous. CCP 917.1(a). As with California, Florida law holds that the purpose of an appellate stay is to maintain the status quo in the lower tribunal while an appeal proceeds. If no bond is posted, the judgment creditor may execute on the judgment during the appeal. Under Florida law, the posting of a good and sufficient bond as provided in Rule 9.310(b) results in an automatic stay pending appeal of an adverse money judgment.

Moreover, the supplemental papers filed by plaintiff establish that the appeal has been dismissed. The appeal was dismissed on November 30 before the defendants filed their initial reply to their motion. (See Request for Judicial filed December 19, Ex. 5) Therefore, there is no longer any basis to stay enforcement based on an appeal.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.