Order to Show Cause re: Preliminary Injunction
In Bugna v. Fike (2000) 80 Cal.App.4th 229, the appellate court further explained the rationale behind binding nonsignatories to a forum selection clause:
The key to the closely related test is whether the nonsignatories were close to the contractual relationship, not whether they were close to the third party signator. This makes sense because the forum selection clause is part of the underlying contract, and it is the contractual relationship gone awry that presumably spawns litigation and activates the clause. Giving standing to all closely related entities honors general principles of judicial economy by making all parties closely allied to the contractual relationship accountable in the same forum, thereby abating a proliferation of actions and inconsistent rulings.
(Id. at p. 235.) There, the appellate court affirmed an order staying proceedings as to all parties pursuant to a forum selection clause, including non-signatories of the underlying contract. The court noted that “there is no question but that respondents were closely related to the contractual relationship between SCN and appellants. Indeed, they were key transaction participants—the deal makers who negotiated, evaluated, and otherwise put together the very SCN transactions that appellants now attack. (Ibid.)
Here, all of Plaintiff’s causes of action arise out of the alleged false representations made to induce Plaintiff to invest in Defendants’ funds and Defendants’ failure to pay required distributions under LPA II and LPA III. Plaintiff alleges that all Defendants breached their fiduciary duties to Plaintiff as the managers, administrators, organizers, services, and operators of Fund 2 and Fund 3. (Compl. ¶ 134.) Plaintiff also alleges that the limited liability company defendants and limited partnership defendants were at all relevant times the alter egos of one another and the individual defendants and the individual defendants dominated, influenced, and controlled the entity defendants. (Compl. ¶¶ 6-7.)
Plaintiff has sued all Defendants, regardless of whether they are parties to the contracts or alleged to have actively engaged in the fraudulent misrepresentations, based on Plaintiff’s resulting contractual relationship. Plaintiff cannot attempt to hold these non-contracting Defendants liable while at the same time side-stepping the forum selection clauses.
In light of the above, and based on applicable law, the Motion to Dismiss is GRANTED.
Defendants’ request for attorney’s fees pursuant to Code of Civil Procedure section 396b is DENIED, as section 396b is not applicable here.
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Moving party to give notice.
10. 30-2026-01561390 1. Order to Show Cause re: Preliminary Injunction
Cathay Bank vs. Iridium Plaintiff, Cathay Bank (“Plaintiff” or “the Bank”), applies for an order appointing a receiver Property Investments, LLC over a commercial property generating monthly rents in excess of $158,000, commonly known as 2201 Alton Parkway and 16940 Von Karman Avenue, Irvine, California, Assessor’s Parcel Number 435-034-12 (the “Property”).
Plaintiff contends that the Property secures a fully matured loan by the Bank with an outstanding balance in excess of $11,400,000.00 (“Loan”) to Iridium Property Investments, LLC (“Borrower” and/or “Iridium”); that the Borrower defaulted under the terms of the loan documents by failing to pay all sums due on the January 15, 2026 maturity date of the Note; that Defendant Michael J. Rogerson (“Rogerson”) and the Michael J. Rogerson Trust Dated May 7, 2011, as Amended (“Trust”) (collectively, the “Guarantors”) executed their Continuing Guaranties (“Guaranties”) pursuant to which they guaranteed repayment to the Bank of all sums owed by the Iridium to the Bank; that the Guarantors have paid no sums pursuant to the terms of their Guaranties; that under Section 1.11 of the Deed of Trust and Assignment of Rents, the Borrower has expressly consented to the appointment of a receiver; that Code of Civil Procedure section 564(b)(1), (2), (9), and (11) empower the Court to appoint a receiver in the present case because the terms of the Deed of Trust provide Plaintiff with an assignment of all the rents generated from the Property; and that the appointment of a receiver is necessary to take over the management and control of the Property, with the power to collect all rents, revenues and profits, manage, lease, protect and preserve the collateral as without one there is immediate and substantial danger that the collateral may be lost, secreted, and/or misappropriated, all to the detriment and irreparable loss to Plaintiff.
No opposition has been filed.
Receivers are agents of the court, not of any party, and may be appointed only when authorized by statute. (Marsch v. Williams (1994) 23 Cal.App.4th 238, 246; Cal. Rules of Court, rule 3.1179(a).)
“A receiver may be appointed, in the manner provided by this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver.” (Code Civ. Proc. § 564(a).)
Code of Civil Procedure section 564(b) provides, in relevant part: “A receiver may be appointed by the court in which an action or proceeding is pending, or by a judge of that court, in the following cases: (1) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to the creditor's claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds of the property or fund, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured. (2) In an action by a secured lender for the foreclosure of a deed of trust or mortgage and sale of property upon which there is a lien under a deed of trust or mortgage, where it appears that the property is in danger of being lost, removed, or materially injured, or that the condition of the deed of trust or mortgage has not been performed, and that the property is probably insufficient to discharge the deed of trust or mortgage debt . . . . [¶¶.] (9) In all other cases where necessary to preserve the property or rights of any party. [¶.] (11) In an action by a secured lender for specific performance of an assignment of rents provision in a deed of trust, mortgage, or separate assignment document.
The appointment may be continued after entry of a judgment for specific performance if appropriate to protect, operate, or maintain real property encumbered by a deed of trust or mortgage or to collect rents therefrom while a pending nonjudicial foreclosure under power of sale in a deed of trust or mortgage is being completed.” (Code Civ. Proc., § 564(b)(1), (2), (9), (11).)
For purposes of this section, “ ‘Borrower’ means the trustor under a deed of trust, . . ., where the deed of trust or mortgage encumbers real property security and secures the performance of the trustor or mortgagor under a loan, extension of credit, guaranty, or other obligation.” (Code Civ. Proc., § 564(e)(1).) “ ‘Secured lender’ means the beneficiary under a deed of trust against the real property security, or the mortgagee under a mortgage against the real property security, and any successor in interest of the beneficiary or mortgagee to the deed of trust or mortgage.” (Code Civ. Proc., § 564(e)(5).)
“[S]ection 564 of the Code of Civil Procedure authorizes the appointment of a receiver on the application of the plaintiff or of any party whose right or interest in the property or funds is probable and where it is shown that the property or fund is in danger of being lost, removed or materially injured, and also in all cases where receivers have heretofore been appointed by courts of equity.” (Snidow v. Hill (1948) 84 Cal.App.2d 702, 704.)
“[T]rial courts enjoy a large measure of discretion, albeit not an entirely uncontrolled one, in deciding when to exercise their authority to appoint a receiver.” (Medipro Medical Staffing LLC v. Certified Nursing Registry, Inc. (2021) 60 Cal.App.5th 622, 627, internal quotes omitted.) “Because the appointment of a receiver transfers property—or in this case, a business—out of the hands of its owners and into the hands of a receiver, the appointment of a receiver is a very drastic, harsh, and costly remedy that is to be exercised sparingly with caution.” (Id. at p. 628, internal quotes & citations omitted.)
Thus, “[d]ue to the extraordinary nature of this remedy and the special costs it imposes, courts are strongly discouraged—although not strictly prohibited—from appointing a receiver unless the more intrusive oversight of a receiver is a necessity because other, less intrusive remedies are either inadequate or unavailable.” (Ibid., internal quotes omitted.)
The moving papers must establish one of the statutory grounds for appointment of a receiver by the preponderance of the evidence. (Miller v. Oliver (1917) 174 Cal. 407, 410; Moore v. Oberg (1943) 61 Cal.App.2d 216, 220 [preponderance of the evidence standard].) “[B]ecause of the drastic character of the remedy, the discretion is not an entirely uncontrolled one but must exercised with due regard for the facts in a particular case . . . . Ordinarily, if there is any other remedy, less severe in its results, which will adequately protect the rights of the parties, a court should not take property out of the hands of its owners. [Citations.]” (Golden State Glass Corp. v. Superior Court (1939) 13 Cal.2d 384, 393; Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869, 872.)
A court has jurisdiction to appoint a receiver under Section 564 where a creditor seeks “to specifically enforce a provision of the mortgage or deed of trust assigning the rents and profits from the security to the creditor upon default, or specifically providing for the appointment of a receiver to take possession of the security and collect the rents and profits therefrom.” (Turner v. Superior Court (1977) 72 Cal.App.3d 804, 811; see Barclays Bank of California v. Superior Court (1977) 69 Cal.App.3d 593, 599-602 [court may appoint receiver where a trust deed provides that upon default the beneficiary shall be entitled to the appointment of a receiver].) A court may appoint a receiver under Section 564 to enforce specific performance of the terms and conditions of a mortgage. (Mines v. Superior Court (1932) 216 Cal. 776, 779.)
Although the Bank cites to Code of Civil Procedure section 564(b)(1), (2), (9), and (11), the Bank appears to primarily rely upon Section 564(b)(11).
The evidence submitted by the Bank provides the following facts. On November 19, 2019, Iridium, by and through Rogerson, as Manager of Iridium, executed a Loan Agreement for the purpose of the Bank making a loan to Iridium in the sum of $11,895,000.00 (the “Loan”). (Declaration of David Scheiber (“Scheiber Decl.”), ¶ 4, Ex. 1.) Iridium, by and through Rogerson, made, executed and delivered to the Bank its Promissory Note dated November 19, 2019, in the principal amount of $11,895,000 (the “Note”). (Id., ¶ 5, Ex. 2.)
Through a Payment Deferral Agreement Summary and Payment Deferral Agreement, each dated May 26, 2020, certain payments under the Note were deferred (the “2020 Deferral Agreement”). (Id., ¶ 6, Ex. 3.) The maturity date of the Note was extended to May 18, 2025, through a Loan Extension Agreement and Modification of Note dated December 30, 2024 (the “2024 Extension Agreement”), and an Extension Agreement and Amendment to Loan Documents dated March 5, 2025 (the “March 2025 Extension Agreement”). (Id., ¶ 7, Exs. 4-5.)
The maturity date of the Note was extended from May 18, 2025, to January 15, 2026, through a Second Extension Agreement and Amendment to Loan Documents dated November 6, 2025 (the “November 2025 Extension Agreement”). (Id., ¶ 8, Ex. 6.)
As security for the Loan, Iridium, by an through Rogerson, executed and delivered to the Bank a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated November 19, 2019, naming Borrower as “Trustor” and the Bank as “Beneficiary” or “Lender,” to the Property, recorded on November 26, 2019, in the Official Records of the County of Orange as Instrument No. 2019000494308 (the “Deed of Trust”). (Id., ¶ 9, Ex. 7.)
As an additional security for the Loan, Iridium, by and through Rogerson, executed and delivered to the Bank an Absolute Assignment of Rents, Lease Guaranties, Rents, Issues and Profits, dated November 19, 2019, naming Borrower as “Assignor” and the Bank as “Assignee,” recorded on November 26, 2019 in the Official Records of the County of Orange as Instrument No. 2019000494309 (the “Assignment of Rents”). (Id., ¶ 10, Ex. 8.)
The Loan Agreement, Note, 2020 Deferral Agreement, 2024 Extension Agreement, March 2025 Extension Agreement, November 2025 Extension Agreement, Deed of Trust, and Assignment of Rents are collectively referred to as the “Loan Documents”.
In connection with the Loan Documents, both Rogerson and the Michael J. Rogerson Trust Dated May 7, 2011, as Amended (“Trust”) (collectively, the “Guarantors”) each executed a Commercial Guaranty (“Guaranties”) of all “Credit” of Borrower at any time due and payable to the Bank. (Scheiber Decl., ¶¶ 12-13, Exs. 9-10.)
The Bank has performed all terms and conditions under Loan Documents it was required to perform, including without limitation advancing no less than $11,895,000.00 to Borrower, unless excused by either the Borrower or the Guarantors’ conduct. The Bank has performed all terms and conditions under the Guarantees it was required to perform, if any, unless excused by either the Borrower or the Guarantors’ conduct. (Scheiber Decl., ¶ 14.)
Iridium defaulted under the terms of the loan documents by failing to pay all sums due to the Bank on the January 15, 2026 maturity date. (Scheiber Decl., ¶ 17.)
As result of the default on the Note and Guaranties, as of April 9, 2026, the Bank is owed the sum of $11,411.964.99 consisting of the principal sum of $10,800,524.25 plus contractual interest in the sum of $122,405.95 and default interest of $489,034.79 (from May 18, 2025 to April 9, 2026). (Scheiber Decl., ¶ 20.) Section 1.11 of the Deed of Trust states, in part:
1.11 Assignment And Collection of Rents. (a) Trustor hereby assigns absolutely to Lender the rents of the Property, with a revocable license to collect such rents as they become due and payable, prior to any default by Trustor under section 2 of this Deed of Trust, being retained by Trustor. (b) Upon any default by Trustor under section 2 of this Deed of Trust, such license will, automatically, be deemed revoked without the necessity for any act or notice by Lender, and Lender, in person, by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of and manage the Property and may collect the rents of the Property, and, after so taking possession, shall be entitled to collect any rents that are past due ....
(Ex. 7 to Scheiber Decl., Deed of Trust, at p. 12, § 1.11.)
Under the Deed of Trust, Iridium, is the Trustor, and the Bank is the Beneficiary (Ex. 7 to Scheiber Decl., Deed of Trust, at p. 1.) As the Beneficiary under the Deed of Trust, the Bank is a secured lender within the meaning of Code of Civil Procedure section 564(b)(11). In addition, Plaintiff’s Verified Complaint asserts a cause of action for specific performance for appointment of receiver and injunctive relief in aid of receiver (fourth cause of action).
Based on the foregoing, the Bank has demonstrated statutory grounds for appointment of a receiver by the preponderance of the evidence pursuant to Code of Civil Procedure section 564(b)(11).
The Bank has also demonstrated the necessity for the appointment of the receiver, and that there is no less severe remedy which will adequately protect the rights of the Bank.
The Bank submits evidence that in connection with the execution of the Loan Documents, Iridium provided to the Bank a copy of the rent roll for the Property as well as the leases for the Property; that the rent roll for the Property shows two tenants, Rogerson Aircraft with monthly rent is $44,805.00 and Rogerson Capital with a monthly rent is $113,935.00 for total monthly rent for the Property of $158,740.00; that the leases are signed by Rogerson as the managing partner of Iridium and Rogerson as the CEO of Rogerson Capital and the CEO of Rogerson Aircraft Equipment Group; that Rogerson’s Statement of Financial Condition which was provided in connection with the execution of the Loan Documents states that Rogerson is the owner and Chief Executive Officer of Rogerson Aircraft Equipment Group; and that Rogerson is a 100% owner of both Rogerson Aircraft Equipment Group and Rogerson Capital as well as that Rogerson is the 100% owner of Iridium. (Scheiber Decl., ¶¶ 23-24.)
The Bank provides that on April 8, 2026, the Bank made Demands to Pay Rent to Secured Lender Cathay Bank pursuant to Civil Code section 2938 to Rogerson Capital and Rogerson Aircraft Equipment Group, demanding that all rents otherwise due to the Borrower be turned over to the Bank; and that counsel for Rogerson Aircraft, James C. Bastian, advised that the tenants did not have sufficient operating capital to pay the rent and that rent is currently unpaid. (Scheiber Decl., ¶¶ 25-26; Declaration of Hal D.
Goldflam, ¶¶ 6-7, Ex. 2.) A subsequent email to Rogerson and Mr. Bastian on May 6, 2026, demanding that the rents were due from the Property pursuant to the leases, that they be turned over to the Bank, and inquiring as to the status elicited no response and no rents from the Property were turned over to the Bank. (Scheiber Decl., ¶ 27, Ex. 18; Declaration of Hal D. Goldflam, ¶ 8.)
In light of the common ownership of Rogerson Capital and Rogerson Aircraft Equipment Group to Iridium and Rogerson, the apparent inability of these tenants to pay rent, and the failure to comply with the Bank’s demand to turnover the rents from the Property, it appears that less severe attempts were not successful, and the appointment or a receiver is necessary to “enter upon, take possession of and manage the Property and [] [to] collect the rents of the Property,” as permitted under the Deed of Trust, as well as to collect any rents that are past due. Without the appointment of a receiver, past and future rents from the Property appear to be in danger of being lost and/or not paid to Plaintiff.
Based on the foregoing, the Court GRANTS the OSC re: appointment of receiver.
California Rules of Court, rule 3.1177 states: “At the hearing of an application for appointment of a receiver on notice or at the hearing for confirmation of an ex parte appointment, each party appearing may, at the time of the hearing, suggest in writing one or more persons for appointment or substitution as receiver, stating the reasons. A party's suggestion is without prejudice to its objection to the appointment or confirmation of a receiver.”
Plaintiff provides that Plaintiff nominates Brian Weiss to serve as the Receiver. A Declaration of Brian Weiss (“Weiss”) has been filed which provides that Weiss is a California licensed CPA and partner with Force Ten Advisors, LLC (“Force 10”), that Weiss focuses on representing and restructuring businesses in and out of bankruptcy court, serving in various capacities, including financial advisor to debtors and creditors, chief restructuring officer, plan/liquidating trustee, and expert witness, that Weiss has served as a court-appointed receiver and in other similar fiduciary capacities including Liquidation Trustee and Transaction Manager, that Force 10 has served as a receiver and liquidation trustee in business and real property, that both Weiss and Force 10 are familiar with the Property, that Weiss intends to retain J.
Fanelli Properties, LLC as the property management company for the Property, that Weiss intends to file an application to retain the law firm of Raines, Feldman, Littrell LLP to assist Weiss with the administration of the receivership, and the Weiss has no contract, agreement, or arrangement with Plaintiff regarding the fees of the receivership, the vendors that will be hired, the nature and extent of the capital expenditures to be made, and any compensation or commission on the sale of the Property. (See ROA 56, Declaration of Brian Weiss, ¶¶ 2-8.)
Given the lack of objection or opposition, the Court is inclined to appoint Brian Weiss. However, the Court will hear from Defendants at the hearing as to the appointment of Brian Weiss.
In addition, California Rules of Court, rule 3.1178 states: “At the hearing of an application for appointment of a receiver on notice or ex parte, the applicant must, and other parties may, propose and state the reasons for the specific amounts of the undertakings required from (1) the applicant by Code of Civil Procedure section 529, (2) the applicant by Code of Civil Procedure section 566(b), and (3) the receiver by Code of Civil Procedure section 567(b), for any injunction that is ordered in or with the order appointing a receiver.”
Code of Civil Procedure section 567 states: “Before entering upon the duties of a receiver: (a) The receiver must be sworn to perform the duties faithfully. (b) The receiver shall give an undertaking to the State of California, in such sum as the court or judge may direct, to the effect that the receiver will faithfully discharge the duties of receiver in the action and obey the orders of the court therein. The receiver shall be allowed the cost of the undertaking. (Code Civ. Proc. § 567.) “The premium the receiver pays for the undertaking is a cost of the receivership for which the receiver is reimbursed out of the assets on discharge. See CCP § 567(b).” (Cal. Judges Benchbook: Civ. Proceedings-Before Trial § 14.161.)
Plaintiff has not addressed any undertaking. The Court will hear from Plaintiff and Defendants as to any required undertaking as set forth in California Rules of Court, rule 3.1178.
Moving party to give notice.
11. 30-2023-01356430 1. Case Management Conference 2. Motion for Summary Judgment and/or Adjudication Orellana vs. JW Marriott Anaheim Resort Defendant W.E. O’Neil Construction Co. of California moves for summary judgment or adjudication as to Plaintiff’s first cause of action for general negligence and second cause of action for premise liability.
Defendant W.E. O’Neil Construction Co. of California moves for summary judgment or adjudication as to Plaintiff’s first cause of action for general negligence and second cause of action for premise liability.
1. FIRST CAUSE OF ACTION FOR NEGLIGENCE
The “elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Gonzalez v. Interstate Cleaning Corp. (2024) 106 Cal.App.5th 1026, 1034, as modified (Nov. 21, 2024).)
“[W]hen a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed.” (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969, as modified (Nov. 14, 2012) [citing Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 712, 82 Cal.Rptr.3d 882 [Jones], disapproved on another ground in Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7, 113 Cal.Rptr.3d 327, 235 P.3d 988; Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466–1471, 55 Cal.Rptr.2d 415 [Sanchez].) This is referred to as the completed work doctrine. “The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner’s acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. [Citation.]” (Ibid.)
Stated another way, “when the owner has accepted a structure from the contractor, the owner’s failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable.” (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969, as modified (Nov. 14, 2012).)
“The doctrine applies to patent defects, but not latent defects.” (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969, as modified (Nov. 14, 2012).) “If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.” (Ibid.)
Whether a cause of action based on a construction defect is time barred depends on whether the defect is patent or latent. A patent defect is one that is “apparent by reasonable inspection” (Code Civ. Proc., § 337.1, subd. (e)), while a latent defect is one that “is not apparent by reasonable inspection” (Code Civ. Proc., § 337.15, subd. (b)). “ ‘The test to