Motion_for_summary_judgmentadjudicationMotionCal. Super. - 4th Dist.April 11, 2018S M I T H LC a ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John S. Clifford, State Bar No. 172263 Michael H. Cooper, State Bar No. 272124 SMITH LC 3161 Michelson Drive, Suite 925 Irvine, CA 92612 Telephone: (949) 416-5000 Facsimile: (949) 416-5555 Email: jelifford@smith-lc.com Email: mcooper@smith-lc.com Attorneys for Defendant PARVENEH KHAYAT CARTER :0 0 PM 7 /’ Co un ty of Or an ge E L E C T R O N I C A L L Y FI LE D Su pe ri or Co ur t of Ca li fo rn ia , 0 2 / 2 2 / 2 0 1 9 at 03 :4 Cl er k of th e Su pe ri or Co ur t B y J e a n n e t t e D o w l i n g , D e p u t y Cl er k SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE — CENTRAL JUSTICE CENTER THE McEWAN GROUP, LLC, a California limited liability company, Plaintiff, vs. PATRICK SEAN CARTER, an individual, PARVENEH KHAYAT CARTER, an individual, and DOES 1-20, inclusive, Defendants. CASE NO: 30-2018-00985532-CU-BC-CIC JUDGE: MELISSA R. McCORMICK DEPT.: C13 DEFENDANT PARVENEH KHAYAT CARTER’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION AS TO EVERY CAUSE OF ACTION; MEMORANDUM OF POINTS AND AUTHORITIES [Concurrently filed with Compendium of Exhibits; Declaration of Michael H. Cooper, Declaration of Patrick S. Carter in Support, and Separate Statement of Undisputed Facts] DATE: May9, 2019 TIME: 1:30 p.m. DEPT: C13 Reservation No. : 72990678 Complaint Filed: April 11, 2018 Trial Date: May 24, 2019 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 9, 2019, at 1:30 p.m., in Department C13 of the above-entitled court, located at 700 Civic Center Drive West, Santa Ana, CA, 92868, Defendant 1 DEFENDANT PARVENEH KHAYAT CARTER’S MOTION FOR SUMMARY JUDGMENT S M I T H LC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Parveneh Khayat Carter (“Parveneh”) will move this Court for an Order for summary judgment, or in the alternative, summary adjudication, as to each and every cause of action asserted by Plaintiff. This Motion is based on the following: 1. Defendant Parveneh Khayat Carter is not a party to the any agreement alleged in the Complaint; and 2. Plaintiff has not identified any property that Defendant Parveneh Khayat Carter received by way of fraudulent transfer. This motion is made pursuant to California Code of Civil Procedure §§437c and 437¢(f)(1) and based upon this Notice and Motion, the attached Memorandum of Points and Authorities in support thereof, the concurrently filed Compendium of Exhibits; Declaration of Michael H. Cooper, Separate Statement of Undisputed Facts, and Declaration of Patrick S. Carter, on any and all pleadings, papers or documents already on file in this matter, and upon such other documentary or oral evidence offered at the time of the hearing on this Motion. Dated: February 22, 2019 SMITH LC By: / // - JOHN S. CLIFFORD ? MICHAEL H. COOPER ttorneys for Defendant PARVENE AYAT CARTER 2 DEFENDANT PARVENEH KHAYAT CARTER’S MOTION FOR SUMMARY JUDGMENT SM IT H LC OO 0 NN N n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION TO ISSUES This case arises from a commercial real estate lease between Plaintiff, the McEwan Group (Lessor) and Real Income Group, LLC (Lessee/tenant) (“RIG”) in 2015. The subject lease involved premises to be used as a classic car restoration and storage facility. The lease was for a period of five years starting on January 2016 and going to December 31% of 2020. The lease was signed on behalf of RIG by Patrick S. Carter. Defendant Patrick S. Carter executed a “guaranty of Lease” on September 29, 2015. Unfortunately, Defendant Patrick S. Carter’s business did not perform as quickly as expected. In April of 2017, Plaintiff commenced an unlawful detainer action in the Orange County Superior Court, Case No. 30-2017-00904376. On April 24, 2017, Plaintiff obtained judgment against RIG and RIG vacated the premises on May 9, 2017. The case at bar asserts causes of action for (1) Breach of Lease, against RIG; (2) Breach of Lease — Waste, against Patrick Carter; (3) Breach of Guaranty of Lease, against Patrick Carter; and (4) Set Aside Fraudulent Transfer, against Patrick Carter and Parveneh Khayat Carter. Summary judgment should be granted as to Defendant Parveneh Khayat Carter because she was not a party to the lease and never signed a “Guaranty of Lease.” She is simply not a party to this subject agreement. Additionally, Plaintiff has not presented any evidence that Defendant Parveneh Khayat Carter was the recipient of any fraudulent transfer. Plaintiff’s claims are without merit. Plaintiff will not be able to show any triable issue of fact, albeit a triable issue of material fact that permits it to maintain the instant action. Summary Judgment should be granted. III. STATEMENT OF UNDISPUTED FACTS The parties to the subject lease agreement are Plaintiff, The McEwan Group (Lessor) and Real Income Group, LLC (Lessee/tenant) (“RIG”). Statement of Undisputed Fact. (“SSUF”’) No. 1. The lease was signed on behalf of RIG by Patrick S. Carter. SSUF No. 2. Defendant Patrick S. Carter executed a “guaranty of Lease” on September 29, 2015. SSUF No. 3. Defendant Parveneh Khayat Carter was not a party to the lease agreement. SSUF No. 4. Defendant 3 DEFENDANT PARVENEH KHAYAT CARTER’S MOTION FOR SUMMARY JUDGMENT S M I T H LC EA N OO 00 ~~ O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Parveneh Khayat Carter was not a guarantor of the lease. SSUF No. 5. In April of 2017, Plaintiff commenced an unlawful detainer action in the Orange County Superior Court, Case No. 30-2017-00904376. SSUF No. 6. Defendant Parveneh Khayat Carter was not a party to the unlawful detainer action. SSUF No. 7. While Judgment was entered in the unlawful detainer action, it was only entered against Real Income Group, LLC. SSUF No. 8. Defendant Parveneh Khayat Carter was never assigned the rights and/or obligations of the subject lease. SSUF No. 9. In addition, Plaintiff has not provided any evidence that Defendant Parveneh Khayat Carter received any property as a result of a fraudulent transfer from anyone. SSUF No. 10. For these reasons alone, Defendant Parveneh Khayat Carter’s motion for summary judgment should be granted. IV. SUMMARY JUDGMENT STANDARD Summary judgment shall be granted if the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Code of Civ. Proc. §437c; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579. A Defendant is entitled to summary judgment if they show one or more elements of the Plaintiff's case cannot be established or that they have a complete defense to the cause of action. Code Civ. Proc. §437¢c(0)(2); Alszeh_ v. Home Box Office (1998) 67 Cal.App.4th 1456, 1460. Once the Defendant has met their initial burden, Plaintiff must demonstrate, by submitting admissible evidence of specific facts, that a triable issue of material fact exists. Id. Factually devoid, vague, or speculative discovery responses may be used to show the absence of evidence to support a party’s case. See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 589 When the moving party has met its burden, the opposing party then has the substantive burden of presenting sufficient admissible evidence to demonstrate that there is at least one triable issue of material fact on at least one of the elements necessary for judgment for the moving party. Code of Civ. Proc. §437c(p); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. 4 DEFENDANT PARVENEH KHAYAT CARTER’S MOTION FOR SUMMARY JUDGMENT S M I T H LC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A triable issue of material fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination, or guesswork. See Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 962, 977. Accordingly, assertions and allegations unsupported by evidence do not raise disputed facts. Thus, if Plaintiff’s Opposition rests on assertions that they will be able to prove their beliefs at trial, the motion must be granted. See Lyons v Security Pac. Nat'l Bank (1995) 40 Cal.App.4th 1001, 1014. V. SUMMARY JUDGMENT/SUMMARY ADJUDICATION SHOULD BE GRANTED (4) Defendant Parveneh Khayat Carter is Not a Party to Any Alleged Agreement In order to maintain a breach of lease agreement, a plaintiff must prove the existence of a formal contract. Namely, that Plaintiff and Defendant entered into an agreement. Judicial Council of California, Civil Jury Instructions (“CACI”) §303. Here, the commercial real estate lease agreement was between Plaintiff and Real Income Group, LLC. SSUF Nos. 1-2. Defendant Parveneh Khayat Carter was not a party to this agreement or a guarantor of it. SSUF Nos. 4, 5,9. Accordingly, Defendant Parveneh Khayat Carter cannot be sued for breach of contract and summary judgment should be granted. Alternatively, because Defendant was not a party to the agreement, summary adjudication should be granted as to Plaintiff’s First, Second, and Third causes of action. (B) Defendant Parveneh Khayat Carter Did Not Receive any Property Fraudulently In order to set any alleged fraudulent transfer, a plaintiff must first show that a fraudulent transfer was made. To date, Plaintiff has not made a showing that any property was transferred to Defendant Parveneh Khayat. SSUF No. 10. Regardless, if Plaintiff could show that any property was transferred to Defendant Parveneh Khayat Carter, Plaintiff would be unable to show that the property was transferred fraudulently. SSUF No. 10. Accordingly summary judgment should be granted as to Defendant Parveneh K. Carter. Alternatively, because Plaintiff has not presented any evidence that a fraudulent transfer has taken place, summary adjudication should also be granted as to Plaintiff’s fourth cause of action. 111 3 DEFENDANT PARVENEH KHAYAT CARTER’S MOTION FOR SUMMARY JUDGMENT S M I T H LC Oo o e a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. CONCLUSION As set forth in this motion, summary judgment should be granted as Plaintiff has failed to present sufficient evidence to maintain this action. Alternatively, summary adjudication should be granted to all causes of action because Plaintiff cannot establish each element of the various causes of action. Dated: February 22, 2019 SMITH LC 7 / JOHN S. CLIFFORD MICHAEL H. COOPER 6 DEFENDANT PARVENEH KHAYAT CARTER’S MOTION FOR SUMMARY JUDGMENT S M I T H LC 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 PROOF OF SERVICE The McEwan Group, LLC v. Patrick Sean Carter, et al. OCSC, Case No. 30-2018-00985532-CU-BC-CJC I, the undersigned, declare that I am over the age of 18 years, employed in the County of Orange, and not a party to the within action. My business address is 1800 North Broadway, Suite 200, Santa Ana, CA 92706. On February 22,2019, I served the following: DEFENDANT PARVENEH KHAYAT CARTER’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION AS TO EVERY CAUSE OF ACTION; MEMORANDUM OF POINTS AND AUTHORITIES and [PROPOSED] ORDER on all interested parties in this action by placing [ ] the original [X] a true copy thereof, enclosed in a sealed envelope with postage pre-paid, addressed as follows: Michael Obrand Obrand Law Group 34080 Golden Lantern, Suite 303 Dana Point, CA 92629 Phone: 949-240-6150 Fax: 949-240-6420 Email: michael@obrandlaw.com [PERSONAL DELIVERY] by causing delivery by DDS Legal Support of the document(s) listed above to the person(s) at the address(es) set forth above. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 22, 2019, in Santa Ana, California. ings Rage Annette S. Ragone 7 DEFENDANT PARVENEH KHAYAT CARTER’S MOTION FOR SUMMARY JUDGMENT
