Case Number: GC050867 Hearing Date: May 02, 2014 Dept: B

ATTENTION: THE COURT WILL BE DARK ON MAY 2, 2014.

TO ALL COUNSEL AND UNREPRESENTED PARTIES:
PLEASE REVIEW THE TENTATIVES BELOW, AND ADVISE THE CLERK OF THE COURT AT (818) 557-3472 WHETHER YOU SUBMIT TO THE TENTATIVE OR WISH TO SCHEDULE ANOTHER HEARING DATE. IF YOU WISH TO SCHEDULE ANOTHER HEARING DATE, PLEASE CONTACT ALL OPPOSING PARTIES AND AGREE ON A HEARING DATE OF MAY 16, MAY 23, OR MAY 30, AND INFORM THE CLERK OF THE SELECTED DATE.

Motion for Summary Judgment

The Complaint alleges that a full reconveyance of a deed of trust held by the Plaintiff was recorded in error on the property at 456 N. Michigan Ave., Pasadena, CA 91106. The loan secured by the deed of trust has not been paid in full.

The Plaintiff seeks a judgment to cancel the erroneous reconveyance and to quiet title for the Plaintiff’s interest.

CAUSES OF ACTION IN THE COMPLAINT:
1) Cancellation of Instrument
2) Quiet Title
3) Declaratory Relief
4) Equitable Lien

An initial issue is that the Plaintiff’s notice of motion is defective because it cannot be determined against which Defendants the Plaintiff is seeking relief. Under CCP section 437c, a motion for summary judgment may be made at any time “after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed”. Since the Plaintiff did not identify the Defendants against whom the motion is directed, it cannot be determined whether the Plaintiff’s motion is timely.

The caption on the notice of motion identifies the following Defendants: Maria Galdamez, Karine Sahakyan, Karl Kratzmann, Marianne Kratzmann, David Fishman, and Marc Lantzman. A review of the Plaintiff’s papers reveals the following about these and other Defendants.

The Plaintiff’s attorney, Rachel Opatik states that the Plaintiff has dismissed four Defendants, Karl Kratzmann, Marianne Kratzmann, David Fishman, and Marc Lantzman. This leaves Maria Galdamez and Karine Sahakyan. However, the Plaintiff has named a number of other Defendants who are not identified in its notice of motion.

Ms. Opatik states that defaults have been entered against the following Defendants:

1) Maria Galdamez on August 26, 2013;
2) Esperanza Galdamez (DOE Defendant 1) on August 26, 2013;
3) JPMorgan Chase Bank aka Chase Auto Fin Corp. on August 26, 2013;
4) State of California, Employment Lien Group, on August 20, 2013;

Finally, Ms. Opatik states that the Franchise Tax Board and the Board of Equalization of the State of California filed disclaimers of interest.

Based on Ms. Opatik’s declaration, there appear to be the following five additional Defendants:

1) Karine Sahakyan;
2) Javier Arriaga (DOE Defendant 3);
3) Christina Arriaga (DOE Defendant 2);
4) Internal Revenue Service of the United States (DOE Defendant 4); and
5) the Los Angeles County Tax Collector (DOE Defendant 6).

A review of the Court file reveals that the Court issued an order on December 19, 2013 for service by publication on Defendants, Karine Sahakyan, Javier Arriaga, and Christina Arriaga. The Plaintiff filed proofs of service by publication on March 13, 2014. After the Defendants did not respond, the Plaintiff filed requests for the entry of default. However, the Court denied the requests for default on April 14, 2014 because sections 4 and 5 of the request for entry of default were incomplete (see Court file).

Further, a review of the Court file reveals that on April 14, 2014, the Defendant, United States of America, filed a stipulation that its tax liens were subordinate to the Plaintiff’s interest. Further, the parties agreed that no judgment would be sought against the United States and that both sides would bear their own costs.

In addition, the Los Angeles County Tax Collector filed a disclaimer of interest on February 3, 2014.

As noted above, the caption on the notice of motion identified the following Defendants: Maria Galdamez, Karine Sahakyan, Karl Kratzmann, Marianne Kratzmann, David Fishman, and Marc Lantzman. The above review of the Plaintiff’s papers reveals the following about these Defendants:

1) Maria Galdamez, in default;
2) Karine Sahakyan, served, but no default entered;
3) Karl Kratzmann, dismissed;
4) Marianne Kratzmann, dismissed;
5) David Fishman, dismissed;
6) Marc Lantzman, dismissed.

Accordingly, it appears that there are no active Defendants remaining in this case. Although the Plaintiff has served three Defendants by publication, Karine Sahakyan, Javier Arriaga, and Christina Arriaga, no default has been entered against them. As noted above, the Plaintiff cannot file a motion for summary judgment against these three Defendants because under CCP section 437c, a motion for summary judgment may be made at any time “after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed”. Since these three Defendants have not made a general appearance, no motion for summary judgment may be directed at them.

Further, the Plaintiff is seeking summary judgment of its claims regarding the property. This motion cannot be heard until all the necessary parties, i.e., the Defendants with an interest in the property, have made general appearances and had the opportunity to oppose the motion. It appears that the Plaintiff filed this motion while it was still attempting to serve Defendants with the summons and complaint, e.g., Karine Sahakyan.

Therefore, the Court must deny the Plaintiff’s motion for summary judgment based on the defect in the notice of motion. The Plaintiff did not identify the specific Defendants against which it is seeking summary judgment.

Further, a review of the Court file reveals that there are no active Defendants against which a motion for summary judgment could be directed because the Defendants have been dismissed, have filed disclaimers of interest or stipulations, or have not made a general appearance in the action.

Instead, Plaintiff should file corrected requests for entry of default on the three Defendants by publication, Karine Sahakyan, Javier Arriaga, and Christina Arriaga, unless general appearances are made before default is entered. Once that is done a default prove-up hearing will be scheduled to resolve the claims against the Defendants in default, which include Maria Galdamez (on August 26, 2013),) Esperanza Galdamez (on August 26, 2013), JPMorgan Chase Bank aka Chase Auto Fin Corp. (on August 26, 2013), and State of California, Employment Lien Group (on August 20, 2013), plus Karine Sahakyan, Javier Arriaga, and Christina Arriaga once a default is entered against them.