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Filed 9 15 10 Altman v Katz CA2 8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court rule 8 1115 a prohibits courts and parties from citing or relying on opi

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Filed 9 15 10 Altman v Katz CA2 8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court rule 8 1115 a prohibits courts and parties from citing or relying on opi Powered By Docstoc
					Filed 9/15/10 Altman v. Katz CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


JACK YAKOV ALTMAN,                                                   B209858

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC341627)
         v.

ALEX KATZ et al.,

         Defendants and Respondents.



         APPEALS from summary judgments of the Superior Court of Los Angeles
County. Conrad Aragon, Judge. Affirmed.

         Law Office of David J. Altman and David J. Altman for Plaintiff and Appellant.

         Lisitsa Law Corporation and Yevgeniya Lisitsa for Defendant and Respondent
Alex Katz.

         David S. Fisher for Defendant and Respondent Metrostate Financial and Real
Estate Corporation and for Defendants and Respondents Alex Brik and Marina Brik.


                                      ____________________________
       Plaintiff/appellant Jack Altman filed a fraud and quiet title action alleging he made
a series of loans which were not repaid, and which ultimately ended up not being secured
by real property in the manner represented. The primary defendants named in Altman’s
action are the borrower and a real estate agent who arranged the loan transactions, but a
number of other defendants were also named. In consolidated appeals, Altman
challenges three separate summary judgments entered in favor of four of the tangential
defendants. We affirm all three judgments.
                                         FACTS
       On dates not readily ascertainable from Altman’s opening brief on appeal, or from
the evidence in the record cited in his opening brief, Ed Akselrod (a named defendant)
worked as a real estate agent at a real estate business known as Reliant Real Estate or the
Reliant Group. At some point in time not readily ascertainable from Altman’s opening
brief on appeal, or from the evidence in the record cited in his opening brief, Akselrod
and Altman became acquainted when they had a “business dealing” of some unspecified
nature.1




1
        Altman’s operative pleading alleges that he loaned $100,000 to Akselrod in 2001
for the down payment on a parcel of real property located on Meadowridge Road,
Encino, which Akselrod purchased for the purpose of repairing and reselling. The terms
of the $100,000 loan were included in a written agreement which provided that the loan
would be secured by a second mortgage on the Meadowridge Road property. The written
agreement provided that the Meadowridge Road property would be resold as soon as it
was repaired. Upon the resale Altman was to be repaid, along with $20,000, out of the
proceeds of the resale. In the event the Meadowridge Road property did not resell within
six months, the parties’ agreement provided that Akselrod himself would repay Altman’s
loan, along with $20,000. In other words, it appears the parties contemplated that Altman
would make a 20 percent return on his loan in a maximum of six months. According to
Altman’s operative pleading, Akselrod eventually sold the Meadowridge Road property
to Stanley Azrilyan in July 2002, following which Altman “was repaid on [his]
loans . . . as described” in the parties’ agreement. According to Altman’s operative
pleading, Stanley Azrilyan arranged for record title in the Meadowridge Road property to
be placed in his mother’s name, Alla Azrilyan.

                                             2
       The current litigation has its genesis in a meeting which took place in March 2002
at Altman’s home. During that meeting, Akselrod introduced Altman to Stanley Azrilyan
(a named defendant). Akselrod said that he and Azrilyan had been friends for a long
time, that Azrilyan was “a very affluent and thriving entrepreneur with large real estate
holdings,” and that Azrilyan also had “successful pharmaceutical and medical care
businesses . . . generating $50,000 . . . per month in profits.” Akselrod told Altman that
Azrilyan was interested in raising money to invest into his businesses. There were more
meetings, and Altman eventually agreed to loan money to Azrilyan.
       On April 10, 2002, Altman gave $225,000 to Azrilyan. In exchange, Azrilyan
executed a “Secured Promissory Note” in Altman’s presence. The terms of the note
stated that Azrilyan, along with Alex Brik and Marina Brik (both named defendants),
promised to pay $225,000 to Altman in one year, together with interest at the rate of 6.7
percent per annum.2 The note further stated that a deed of trust would issue for an
identified parcel of real property on 11th Avenue in Los Angeles.3 The note included
language stating that the loan had been “arranged by Ed Akselrod and Alex
Katz . . . (collectively, ‘Brokers’) . . . .” According to allegations in Altman’s operative
pleading, Alex Katz was Akselrod’s “broker of record” at the time of the loan transaction.
The Briks did not execute the promissory note at the same time as Azrilyan. Instead,
Azrilyan represented to Altman that he (Azrilyan) would take the note to the Briks,
obtain their signatures, and then give the fully-executed note back to Altman. A day or
so later, Azrilyan delivered the note –– which then ostensibly included the Briks’
signatures –– to Altman.




2
       At the time that Azrilyan executed the note, Alex Brik was Azrilyan’s business
partner in a pharmaceutical distribution company, while Marina Brik was Alex Brik’s ex-
spouse.
3
       The identified property on 11th Avenue belonged to Alex Brik.


                                              3
       On June 18, 2004, Altman gave an additional $269,100 to Azrilyan, who, in turn,
executed a second “Secured Promissory Note.”4 As with the first note, the second note
stated that Azrilyan, along with Alex and Marina Brik, promised to pay Altman on the
note. Again, Azrilyan represented that he would obtain the Briks’ signatures on the note.
The second note provided that Azrilyan and the Briks would pay Altman the amount of
$269,100 in one year, together with interest at the rate of 8 percent per annum. The
second note provided that a trust deed would issue for parcels of real property on 11th
Avenue in Los Angeles (see footnote 3, ante), Waring Avenue in Los Angeles,5 and
Meadowridge Road in Encino (see footnote 1, ante). As with the first note, the second
note also included language stating that the loan had been “arranged by Ed Akselrod and
Alex Katz . . . (collectively, ‘Brokers’).”
       On March 15, 2005, Altman delivered another $400,000 to Azrilyan. In turn, he
executed a third “Secured Promissory Note.”6 The third note stated that Azrilyan
promised to pay $400,000 to Altman in one year, together with interest at the rate of 8
percent per annum. The note further stated that a trust deed would issue on real property
on Meadowridge Road in Encino.7 The note included language stating that the loan had
been “arranged by Ed Akselrod.”
The Litigation
       In October 2005, Altman filed his current action. In May 2006, Altman filed his
operative second amended complaint (SAC). The SAC names the following persons as
defendants: Stanley Azrilyan, Alla Azrilyan, Ed Akselrod, Alex Katz, Alex Brik, Marina
Brik, Irena Mirov (who may have purchased the Waring Avenue property from Alla
Azrilyan), Igor Seleznyev (who may have purchased the Meadowridge Road property

4
       The second note was also executed by Azrilyan’s mother, Alla Azrilyan.
5
      The identified property on Waring Avenue may have belonged to Azrilyan’s
mother, Alla Azrilyan, at the time of the second loan transaction in June 2004.
6
       Again, Azrilyan’s mother, Alla Azrilyan, also executed the note.
7
       As noted above, the Meadowridge Road property appears to have been Azrilyan’s
residence (possibly in his mother’s name) by the time of the third loan transaction.

                                              4
from Stanley Azrilyan and/or Alla Azrilyan), and Metrostate Financial and Real Estate
Corporation (a lien holder on Seleznyev’s loan on the Meadowridge Road property).
Altman’s SAC alleges that Azrilyan had promised to repay loans, and to secure the loans
against three different parcels of real property, and that he had done neither. Instead, it
alleged, he conveyed the properties in a series of transactions designed to frustrate
Altman’s ability to enforce payment on the loans. The SAC alleged the following four
causes of action as to each defendant: (1) To quiet title in the 11th Avenue, Waring
Avenue, and Meadowridge Road properties; (2) Judicial foreclosure of liens in favor of
Altman (apparently as to all of the properties); (3) To set aside fraudulent conveyances of
the Meadowridge Road property to Igor Seleznyev and Metrostate Financial; and
(4) Fraud.
       In November 2007, the Briks filed a motion for summary judgment. The Briks’
evidence in support of their motion for summary judgment showed that they had nothing
at all to do with the loan transactions between Altman and Azrilyan. According to the
Briks, they never talked to Altman, never met Altman, and did not know Altman. To the
extent their signatures ostensibly appeared on any documents, the evidence showed, their
signatures had been forged. In short, the Briks’ showed that their identities had been
stolen in connection with the loan transactions between Altman and Azrilyan. In his
opposition to the Briks’ motion for summary judgment, Altman presented hearsay
evidence showing that Azrilyan had made comments indicating that the Briks were
involved the loan transactions.
       In December 2007, Katz filed a motion for summary judgment. Katz’s evidence
in support of his motion for summary judgment showed that Akselrod had acted
completely on his own in arranging the loan transactions between Altman and Azrilyan,
and that Katz had no knowledge of the transactions, and had no involvement in the
transactions. In opposition to Katz’s motion for summary judgment, Altman presented
hearsay evidence showing Akselrod had made comments indicating that Katz was
involved.



                                              5
       On April 17, 2008, the trial court entered a six-page minute order explaining its
reasons for granting the motions for summary judgment filed by the Briks and by Katz.
In sum, the trial court’s order sets forth its findings that the evidence presented by the
Briks and Katz showed they were not involved in any wrongdoing, and that Altman had
not presented any admissible evidence showing otherwise.
       The trial court also entered summary judgment in favor of the Briks and Katz.8
       In October 2008, Metrostate Financial and Real Estate Corporation (Metrostate)
filed a motion for summary judgment. Metrostate’s evidence in support of its motion for
summary judgment showed that it had nothing to do with the loan transactions between
Azrilyan and Altman, and that it otherwise was a “bona fide encumbrancer” of the
Meadowridge Road property because it had received value for its mortgage lien against
the property, without notice of any prior lien in favor of Altman. In opposition to
Metrostate’s motion for summary judgment, Altman offered that Metrostate was
“accused” of being a co-conspirator in Azrilyan’s fraud.
       The trial court entered a five-page minute order explaining its reasons for granting
Metrostate’s motion for summary judgment and entered judgment in favor of Metrostate.
       Altman filed notices of appeal from the three separate summary judgments noted
above. Altman thereafter filed a motion in our court to consolidate his appeals, and we
granted his motion.
                                       DISCUSSION
I.     Defendant Alex Katz
       A. The Statement of Reasons for Granting Summary Judgment
       Altman contends the summary judgment in favor of Alex Katz must be reversed
because the trial court failed to set forth the reasons for its determination in violation of

8
       The summary judgment entered in favor of Katz is in the form of an “order”
dismissing Altman’s operative complaint against Katz, with prejudice, but the “order”
follows the trial court’s ruling on Katz’s motion for summary judgment, and it is, for all
substantive purposes, a summary judgment. Altman’s present appeal, which points to the
June 2008 document, challenges the propriety of summary judgment in favor of Katz.
The form of the summary judgment in favor of Katz has no bearing on Altman’s appeal.

                                               6
Code of Civil Procedure section 437c, subdivision (g). Altman’s argument points to the
summary judgment entered by the trial court on June 9, 2008; he ignores the trial court’s
extensive discussion of its reasons for granting Katz’s motion for summary judgment laid
out in the court’s minute order dated April 17, 2008. Because the trial court’s stated
reasons in its minute order are sufficient, we will not reverse the summary judgment in
favor of Katz on the ground proffered by Altman.
       B. Triable Issues of Fact
       Altman contends summary judgment in favor of Katz must be reversed because
there are triable issues of fact as to Katz’s participation as a co-conspirator in the alleged
fraudulent scheme that injured Altman. We disagree.
       Katz’s evidence in support of his motion for summary judgment consisted of two
declarations, one from himself and one from co-defendant Ed Akselrod. The evidence in
the declarations showed that Katz had no involvement whatsoever with the loan
transactions between Altman and Azrilyan. The trial court found that Altman presented
no admissible evidence showing facts to the contrary. Altman’s arguments on appeal do
not persuade us that the trial court incorrectly assessed the state of the evidence. At best,
Altman’s arguments correctly discuss the rules of law which make co-conspirators jointly
liable for a tort committed by either conspirator (see, e.g., Wyatt v. Union Mortgage Co.
(1979) 24 Cal.3d 773), but he has failed to point us to any evidence in the record tending
to support a factual finding or inference that Katz actually was a co-conspirator. Instead,
Altman tells us that he “understood” Katz was involved in the loan transactions, and that,
“if” Katz participated in the transactions then he shared in any liability arising from the
transactions, and that “if Katz allowed himself to be used to promote fraud” then he may
also be liable. The simple problem with Altman’s arguments, such as they are, is that
“mere speculation . . . is legally insufficient to defeat a summary judgment.” (Buehler v.
Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.)




                                               7
II.    Defendant Metrostate
       A. Weighing the Evidence
       Altman contends the summary judgment in favor of Metrostate must be reversed
because the trial court “improperly weighed evidence and made factual determinations.”
More specifically, Altman argues the trial court “assign[ed] a great deal of significance to
the fact that no direct evidence exists showing that [Metrostate] was aware of and agreed
to participate in a conspiracy to defraud Altman,” and that the trial court “should not have
granted the lack of direct evidence much, if any, weight.” Elsewhere, Altman appears to
clarify that he is suggesting that participation in a conspiracy is rarely the subject of a
direct admission, and that, consequently, the existence of a conspiracy may properly be
inferred from circumstantial evidence. We agree with Altman’s abstract statement of law
about proving a conspiracy (Wyatt v. Union Mortgage Co., supra, 24 Cal.3d at pp. 784-
785), but find it largely unhelpful in addressing the correctness of the trial court’s
decision to grant Metrostate’s summary judgment motion. The problem with Altman’s
challenge to the summary judgment in favor of Metrostate is not with the applicable legal
rules, but with the state of the evidentiary showing in the context of Metrostate’s motion
for summary judgment. On appeal, Altman again has not pointed us to evidence tending
to support an inference that Metrostate participated in a conspiracy to defraud Altman.
Given a fair recap, the material evidence in the record shows that Metrostate funded a
mortgage loan to Igor Seleznyev, secured by a deed of trust. That’s it. This state of
evidence does not reasonably support an inference that Metrostate was involved in any
wrongdoing against Altman. And, absent wrongdoing, there is no basis for invalidating
Metrostate’s lien interest in the Meadowridge Road property.
       B. Spoliation of Evidence
       Altman contends summary judgment in favor of Metrostate must be reversed
because the company did not retain all of the documents in its Seleznyev loan file, and/or
that Metrostate’s documentation for the loan did not conform to regulatory requirements
and/or lender industry standards. The myriad problems with the Seleznyev loan file, says
Altman, means that a trier of fact would be permitted to draw unfavorable presumptions

                                               8
against Metrostate, and infer that Metrostate was a participant in the fraud perpetrated on
Altman. Assuming without deciding that Metrostate violated lending regulations and/or
standards in making its loan to Seleznyev, Altman’s arguments on appeal do not persuade
us to reject the trial court’s assessment of Altman’s claims against Metrostate. Altman’s
arguments to not persuade us that anything Metrostate did or did not do related to its loan
to Selezynev would support a reasonable inference that Metrostate acted with others to
defraud Altman. The evidence shows Metrostate funded a loan for the benefit of
Seleznyev; the evidence does not show Metrostate did so to harm Altman.
III.   Defendants Alex Brik and Marina Brik
       A. The Statement of Reasons for Granting Summary Judgment
       Altman contends the summary judgment in favor of Alex Brik and Marina Brik
must be reversed because the trial court failed to specify the reasons for granting their
motion for summary judgment. Altman is wrong. He points to the summary judgment
entered by the trial court on May 27, 2008; he ignores the trial court’s minute order of
April 17, 2008, granting the Briks’ motion for summary judgment. Because the trial
court’s stated reasons in its minute order are sufficient, we will not reverse the summary
judgment in favor of the Briks on the ground proffered by Altman.
       B. Triable Issue of Fact
       Altman contends the summary judgment in favor of the Briks must be reversed
because “triable issues of fact and law exist concerning the Briks’ participation as a co-
conspirator in the alleged fraudulent scheme that injured Altman.” We disagree.
       The Briks moved for summary judgment on the ground that their signatures on the
documents involved in Altman’s action had been forged, and that they (the Briks) had
been the victims of identity theft insofar as their names were used in connection with the
loan transactions between Altman and Azrilyan. The evidence offered by Altman in
opposition to the Briks’ motion for summary judgment, and which is cited in Altman’s
opening brief on appeal, consists of declarations from Altman’s lawyer, David Altman,
and from Altman himself. Those declarations aver that Azrilyan told Altman that the
Briks were involved. The trial court correctly ruled that Altman’s evidence was nothing

                                              9
more than inadmissible hearsay. It follows that Altman presented no evidence to create
any triable issue of fact regarding the Briks’ participation in any conspiracy to defraud.
There is no merit in Altman’s arguments against the summary judgment in favor of the
Briks.
                                      DISPOSITION
         The summary judgment entered on May 27, 2008, in favor of Alex Brik and
Marina Brik, is affirmed. The Briks shall recover their costs on appeal.
         The summary judgment entered in favor of Alex Katz on June 9, 2008, is
affirmed. Katz shall recover his costs on appeal.
         The summary judgment entered in favor of Metrostate Financial and Real Estate
Corporation on April 15, 2009, is affirmed. Metrostate shall recover its costs on appeal.




                                                         BIGELOW, P. J.
We concur:


               RUBIN, J.




               GRIMES, J.




                                             10

				
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