25325 Dana Point Harbor Drive, LLC vs. Beverly Hills Hospitality Group, LLC

Motion for Judgment on the Pleadings

Cal. Super. - 4th Dist.May 7, 2015

© 00 N N oO Oa Bb Ww O N = N N ND ND ND ND DD ND DMD DN mm av m m m y y m e y co N N Oo Oo A W N =~ O O © 00 N o Oo Pb ww nN ~~ OO JON H. FREIS, Esq. [CSB# 204708] LAW OFFICES OF JON H. FREIS 136 EL CAMINO DRIVE, SUITE 412 BEVERLY HILLS, CA 90212-2723 TEL: (310) 276-1218 FAX: (310) 276-1961 ELECTRONICALLY FILED Superior Court of California, County of Orange 02/23/2017 at 11:08:00 A Clerk of the Superior Court By Brnma Castle, Deputy Clerk Attorneys for Defendants BEVERLY HILLS HOSPITALITY GROUP, LLC; GAL LIPKIN; MICHAEL DRAZ; AND PETER NEWTON SUPERIOR COURT THE STATE OF CALIFORNIA COUNTY OF ORANGE 25325 DANA POINT HARBOR DRIVE, LLC Plaintiffs, Vs. BEVERLY HILLS HOSPITALITY GROUP, LLC, ET AL. Defendants. CASE NO. 30-2015-00786537-CU-OR- CJC DEFENDANT'S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS AS TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; REQUEST FOR JUDICIAL NOTICE Date: May 10, 2017 Time: 10:00 a.m. Dept: C-25 Reservation Number: 72537797 TO ALL PARTIES, THEIR ATTORNEYS OF RECORD, AND THE HONORABLE COURT; PLEASE TAKE NOTICE that on May 10, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Department C-25 of the above-entitled court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendants BEVERLY HILLS HOSPITALITY GROUP, LLC; GAL LIPKIN; MICHAEL DRAZ; AND PETER NEWTON will move the Court for an order for judgment on the pleadings as to Plaintiff 25325 DANA POINT HARBOR DRIVE, LLC’s Complaint specifically dismissing Plaintiffs Complaint, on NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS © 00 N N oOo a Bb W N = N N N D ND ND ND DN DN D D N ND a m n m y m m m n e n o n o m co N N oO oa HA Ww W N N 2 O O © 0 0 N N Oo oa b b w N N ~ ~ OO the grounds that the Complaint fails to state valid causes of action because the Plaintiff is not the real party in interest. This motion is based upon this Notice of Motion and the attached Memorandum of Points and Authorities, the exhibits attached thereto of which the Court is requested to take judicial notice, the papers and pleadings on file in this action and upon such further oral or documentary evidence as may be presented at the hearing on this motion. Dated: February 22, 2017 LAW OFFICES OF JON H. FREIS JB Jon H. Freis, Esq. Attorneys for Defendants, GAL LIPKIN; MICHAEL DRAZ; AND PETER NEWTON 2 NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS © 00 N N oO Oa Bb Ww O N = N N ND ND ND ND DD ND DMD DN mm av m m m y y m e y co N N Oo Oo A W N =~ O O © 00 N o Oo Pb ww nN ~~ OO MEMORANDUM OF POINTS AND AUTHORITIES l. INTRODUCTION Plaintiff brought this action for judicial foreclosure of three parcels of real property on the grounds that the borrower/defendant BEVERLY HILLS HOSPITALITY GROUP, LLC ("BHHG”) had breached the terms of the loan(s). Plaintiff has also brought causes of action for money damages against Defendants GAL LIPKIN, MICHAEL DRAZ, and PETER NEWTON (hereinafter the “Individual Defendants”) on the basis that they signed personal guarantees of the loan(s) in question. All causes of action arise out of certain loans made by Plaintiff's predecessor in interest. (Verified Complaint 7-15). In preparation for the recent Deposition of Plaintiff, Defendants have recently discovered that Plaintiff is not the “real party in interest” in this action as Plaintiff assigned and transferred all right, title, and interest in and to the loan(s) to another entity. That other entity is not the Plaintiff. The Assignment, dated March 23, 2016, was duly recorded in the Official Records of the County of Recorder on April 4, 2016 (Exhibit “A”, hereto). As such, Defendants are entitled to judgment on Plaintiffs’s complaint because the Complaint is not being prosecuted by the “real party in interest”. Il. PLAINTIFF'S COMPLAINT FAILS TO STATE A CAUSE OF ACTION A motion for judgment on the pleadings may be made by a defendant where the complaint does not state facts sufficient to constitute a cause of action against that defendant. Code of Civil Procedure § 438(c)(1)(B)(ii). A common law motion has also been established by case law, and cases after the enactment of the statute support the continued viability of non-statutory common law motions for judgments on the pleadings. See Colberg, Inc. v. California (1967) 67 Ca1.2d 408, 412; Smiley v. Citibank (1995) 11 Cal.4th 138, 145. Such motion may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim. Stoops v. Abbassi (2002)100 Cal.App.4th 644, 650. Further, unlike a demurrer, a motion for judgment on the pleadings can be made at any time during a lawsuit, even during 3 NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS © 00 N N oO Oa Bb Ww O N = N N ND ND ND ND DD ND DMD DN mm av m m m y y m e y co N N Oo Oo A W N =~ O O © 00 N o Oo Pb ww nN ~~ OO trial. Sofias v. Bank of America (1985) 172 Cal. App. 3d 583, 586. Further, the motion can be directed at the entire pleading or as to any causes of action contained therein. Code of Civil Procedure § 438(c). On March 23, 2016, Plaintiff assigned and transferred all beneficial interest in the loan to a new entity known as Dana Point Harbor Drive Land, LLC, which is not a Plaintiff in this action. The Assignment of Deed of Trust (“Assignment”) dated March 23, 2016 was recorded with the County Recorder of Orange County on April 4, 2016 as instrument no. 2016000142550. A true and correct copy of the Assignment is attached hereto as Exhibit “A”. The aforementioned document constitutes a public record judicially noticeable pursuant Evidence Code Sections 452(c)(d) and 453. Among other things, the Assignment provides that Plaintiff “hereby grants, assigns and transfers to Dana Point Harbor Land, LLC all beneficial interest” under the Deed of Trust...." TOGETHER with the note or notes therein described and secured thereby, the money due and to become due thereon, with interest....". In other words, Plaintiff transferred all of its rights. Code of Civil Procedure section 367 states: "Every action must be prosecuted in the name of the real party in interest ...." Code of Civil Procedure section 369 codifies the only exceptions to that rule, the one pertinent to this appeal being: "... [a] trustee of an express trust ... may sue without joining with him the persons for whose benefit the action is prosecuted ...." If an action is brought by other than a real party in interest, it is subject to general demurrer. (3 Witkin, Cal. Procedure (2d ed.) Pleading, § 93.). lll. CONCLUSION For the foregoing reasons, Defendant's Motion for Judgment on Pleadings should be granted in its entirety, and judgment entered on the complaint in favor of Defendants, and costs of suit. Further, all right to attach orders issued in this case should b vacated and all writs of attachment quashed forthwith. 4 NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS © 00 N N oOo a Bb W N = N N N D ND ND ND DN DN D D N ND a m n m y m m m n e n o n o m co N N oO oa HA Ww W N N 2 O O © 0 0 N N Oo oa b b w N N ~ ~ OO Dated:February 22, 2017 5 LAW OFFICES OF JON H. FREIS Jon H. Freis,”Esq. Attorneys for Defendants NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS © 00 N N oOo a Bb W N = N N N D ND ND ND DN DN D D N ND a m n m y m m m n e n o n o m co N N oO oa HA Ww W N N 2 O O © 0 0 N N Oo oa b b w N N ~ ~ OO REQUEST FOR JUDICIAL NOTICE Pursuant o California Evidence Code Sections 452 and 453, Defendants request that the Court take judicial notice of the document attached hereto as Exhibit “A" which is a true and correct copy of the Assignment of Deed of Trust dated March 23, 2016 and recorded with the County Recorder of Orange County on April 4, 2016 as instrument no. 2016000142550. The aforementioned documents constitute public records judicially noticeable pursuant Evidence Code Sections 452(c)(d) and 453. Dated:February 22, 2017 LAW QFFICES Q N H. FREIS JP Jon H. Freis, Esq. Attorneys for Defendants 6 NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS ORANGE COAST TITLE AND WHEN RECORDED MAIL TQ Assured Lender Services, Inc. 2552 Walnut Avenue Suite 100 Tustin, CA 92780 Recorded in Official Records, Orange County Hugh Nguyen, Clerk-Recorder 2016000142550 9:52 am 04/04/16 37406 A32 F13 2 0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00 Space above this line for recorder’s use only Trustee aale No. F14-00077 Loan No. Beverly Hills Hospitality Group, LLC Title Order No. 109255 ASSIGNMENT OF DEED OF TRUST FOR VALUE RECEIVED, the undersigned hereby grants, assigns and transfers to Dana Point Harbor Drive Land, LLC, a _ Delaware limited liability company all beneficial interest under that certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated 09/21/2007, (the “Deed of Trust”), executed by BEVERLY HILLS HOSPITALITY GROUP, "LLC, a California limited liability company, as Trustor; to STEWART TITLE OF CALIFORNIA, a California corporation, as Trustee; and recorded on 09/28/07 as Document No. 2007000590040 modified by that certain Loan Modification Agreement dated July 18, 2008, recorded 07/25/08 as Document No. 2008000355150, and amended by that certain Amendment to Deed of Trust dated December 31, 2009, recorded 01/25/10 as Document No. 2010000036892, and further amended by that certain Amendment to Deed of Trust dated November 23, 2010, recorded 12/02/10 as Document No. 2010000645906, and further amended by that certain Amendment to Deed of Trust dated December 26, 2012, recorded 12/28/12 as Document No. 2012000812444 of official records in the Office of the County Recorder of Orange County, California. | TOGETHER with the note or notes therein described and secured thereby, the money due and to become due thereon, with interest, and all rights accrued or to accrue under said Deed of Trust including the right to have reconveyed, in Binge or in part, the real ~ property described therein. DATE: March 23, 2016 25325 DANA POINT HARBOR DRIVE, LLC, a Delaware limited liability company sy (lewtlp fells, Name: C (x le) Kell. S Title: Vite for es Exhibit A Trustee Sale No. F14-00077 Loan No. Beverly Hills Hospitality Group, LLC Title Order No. 1 09255 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to pr which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. stateor Hl [(~er3 countyor Cowl | | On _ Maw cb 2 afppeforeme, Af cole lance personally appeared Chey! (oc who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed tote within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of zl li s13 that the foregoing paragraph is true and | correct. : co WITNESS my hand and official seal. Aifr ry Public in an fl forsaid ‘County and State CFRCIAL SEAL NICOLE LARUE 1 NOTARY PUBLIC, STATE OF ILLINOIS . 5 ommission Expires Feb 25, 2020 "| P - © 00 N N oOo a Bb W N = N N N D ND ND ND DN DN D D N ND a m n m y m m m n e n o n o m co N N oO oa HA Ww W N N 2 O O © 0 0 N N Oo oa b b w N N ~ ~ OO PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES | am employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action; my address is 136 El Camino Drive, Suite 412, Beverly Hills, California 90212. On February 23, 2017, | served the foregoing document described as: OPPOSITION TO MOTION FORSUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES on all interested parties in this action by placing a true copy thereof enclosed in sealed envelope addressed as follows: Richard P. Ormond, Esq. Buchalter Nemer, APC 1000 Wilshire Boulevard, Suite 1500 Los Angeles, CA 90017 | caused such envelope, with first-class postage affixed thereon, fully prepaid, to be placed in the U.S. Mail, at Beverly Hills, California. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. EXECUTED on February 23, 2017, at Beverly Hills, Californi JI Jon H. Freis 7 NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS