Lowry v. Hope and Trust Trading CA4/2

Filed 10/23/26 Lowry v. Hope and Trust Trading CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO KARL LOWRY, E086596 Plaintiff, Cross-defendant and Respondent, (Super.Ct.No. CVSW2207261) v. OPINION HOPE AND TRUST TRADING, INC. et al., Defendants, Cross-complainants and Respondents; NEWREZ, LLC, E086740 Cross-defendant and Respondent; (Super.Ct.No. CVSW2207261) SAMMY CILING et al., Cross-defendants and Appellants; ULTIM8 EQUITIES, LLC, Movant and Appellant. 1  APPEAL from the Superior Court of Riverside County. Frederick P. Horn (retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Raquel A. Marquez, Judges. Affirmed in part, reversed in part. No appearance for Plaintiff, Cross-defendant and Respondent Karl Lowry. Debbie Sutz for Defendants, Cross-complainants and Respondents Hope and Trust Trading, Inc., and Seyedjalil Firoozabadi. No appearance for Cross-defendant and Respondent Newrez, LLC. Alvarenga Law and Dania M. Baker for Movant and Appellant Ultima8 Equities, LLC. Corey Parker; Sean Perdomo for cross-defendants and appellants Sammy Ciling, Anke Ciling and Tekfur, LLC. Plaintiff, cross-defendant and respondent Karl Lowry (Lowry) sued defendants, cross-complainants and respondents Hope and Trust Trading, Inc., Seyedjalil Firoozabadi (Firoozabadi), cross-defendant and appellant Anke Ciling (Wife), and others for, among other things, a declaration that Lowry’s deeds of trust on Wife’s real property took priority over a judgment lien on the same property recorded by Hope and Trust Trading, Inc. and Firoozabadi (collectively, Trading). In a first amended cross-complaint against Lowry, Wife, Sammy Ciling (Husband), Tekfur LLC (Tekfur), and others, Trading alleged that several deeds of trust executed by Wife were fraudulent and requested that the deeds of trust be declared void and that punitive damages be awarded. Movant and appellant Ultim8 Equities, LLC (Ultim8) applied ex parte for leave to intervene in the case on the basis that it was assigned the beneficial interest in the deeds 2 of trust at issue in the case. The trial court denied Ultim8’s ex parte application. In Court of Appeal case No. E086596, Ultim8 contends the trial court erred because Ultim8 is the beneficiary of the deeds of trust at issue in the case and therefore would be directly impacted by the judgment. Trading contends the appeal is moot because judgment has been entered in the case.1 Trading also requests an award of attorney’s fees as a sanction for Ultim8’s allegedly frivolous appeal. In case No. E086596, we affirm. While Ultim8’s appeal was pending, the trial court entered (1) a stipulated judgment involving Lowry and Trading on the complaint and first amended cross- complaint, and (2) a default judgment against Husband, Wife, and Tekfur on Trading’s first amended cross-complaint. In Court of Appeal case No. E086740, Husband, Wife, and Tekfur assert the trial court’s default judgment is erroneous. We reverse the default judgment in case No. E086740. FACTS A. REAL PROPERTY AND UNDERLYING LOS ANGELES COUNTY LITIGATION Wife owned real property in Temecula (the Property). In 2019, Lowry allegedly lent Wife $450,000, and the Property secured the loan. That deed of trust constituted the third deed of trust secured by the Property (the third deed of trust). In Los Angeles County Superior Court (the LA Court), Trading sued Wife, Husband, and others for breach of contract and fraud. The contract pertained to 1 Trading’s request for judicial notice, filed on September 12, 2025, is granted. 3 Trading’s purchase of shares of California Medical Imaging Corp. On April 12, 2021, Lowry recorded the third deed of trust. On April 13, 2021, the LA Court entered judgment against Wife, Husband, and others, jointly and severally, in the total amount of $2,640,584.84. On April 30, 2021, Trading recorded the $2,640,584.84 abstract of judgment in Riverside County, creating a judgment lien against the Property. Lowry purchased the $175,000 second deed of trust that was held against the Property and recorded that assignment in August 2022 (the second deed of trust). B. CANCELLATION OF THE DEEDS OF TRUST In October 2022, in the LA Court, Trading sought cancellation of the third deed of trust. Trading asserted that Lowry never lent Wife $450,000 and that Wife and Lowry conspired to execute and record the third deed of trust in order to conceal Wife’s equity in the Property, thereby obstructing Trading’s effort to collect on its judgment. On October 14, 2022, the LA court canceled and expunged both the third deed of trust and the second deed of trust (collectively, Both Deeds of Trust) forthwith. On November 14, 2022, in the Riverside County trial court (the trial court), Lowry sued Trading and others seeking reinstatement of Both Deeds of Trust and a declaration that Both Deeds of Trust have priority over Trading’s judgment lien. Lowry recorded a lis pendens against the Property. (Code Civ. Proc., § 761.010.)2 In December 2022, the 2 All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated. 4 LA court vacated its order cancelling and expunging Both Deeds of Trust due to Lowry claiming lack of notice of the expungement proceedings. C. ORIGINAL CROSS-COMPLAINT, HOMESTEAD EXEMPTION, AND ASSIGNMENT In January 2023, Trading cross-complained against Lowry, Husband, Wife, and others. Trading alleged that Lowry and Wife conspired to conceal Wife’s equity in the Property by falsely executing the third deed of trust. Trading also alleged that the second deed of trust was fraudulent because it was created to avoid creditors. Trading sought compensatory damages, punitive damages, and cancellation of the third deed of trust. Also in January 2023, the LA court granted Wife a homestead exemption on the Property. In June 2023, Lowry assigned Both Deeds of Trust to Blue Vibe, LLC (Blue Vibe). D. FIRST AMENDED CROSS-COMPLAINT In March 2024, Trading filed a first amended cross-complaint against Lowry, Husband, Wife, Tekfur, and others. The amended cross-complaint concerned three parcels of property: (1) the Property, (2) approximately 20 acres of agricultural land, at Assessor’s Parcel Number 933-110-049 (Land-049), and (3) another approximately 20 acres of agricultural land, at Assessor’s Parcel Number 933-080-011 (Land-011). Trading alleged that in 1999, Land-049 and Land-011 (collectively, the Land Properties) were deeded by Husband and Wife to a shell corporation to defraud creditors. Trading alleged that the Land Properties were repeatedly conveyed to shell corporations over the years to avoid creditors. 5  Trading asserted, “Cross-Defendants forged a promissory note for $500,000 allegedly executed by [Wife] on February 28, 2019, falsely reflecting that Lowery [sic] lent [Wife] the sum of $450,000. Further, pursuant to this conspiracy, these Cross- Defendants prepared three separate trust deeds executed by [Wife] on March 24, 2021, and on April 12, 2021[,] recorded those three deeds against the [Property] and the Land Properties in order to falsely encumber these properties, and reduce, and hopefully eliminate, any equity in these properties available for enforcement of the LA Judgment.” Trading also alleged, “Lowry received the aforesaid security interests and Tekfur LLC received title to the aforesaid Land Properties.” Trading asserted that Tekfur was “an empty shell” that was formed “for the sole purpose of defrauding [Trading].” Trading sought a declaration that the third deed of trust was void, a declaration that the two deeds of trust secured by the Land Properties were void, general damages, and punitive damages. Tekfur defaulted on Trading’s first amended cross-complaint in June 2024. Husband and Wife defaulted on Trading’s first amended cross-complaint in September 2024. During a mandatory settlement conference on June 20, 2025, Trading and Lowry reached a settlement on Trading’s first amended cross-complaint. E. CONTRACT BETWEEN BLUE VIBE AND ULTIM8 On July 16, 2025, in a written contract, Blue Vibe agreed to purchase, from Ultim8, a 2.5 percent interest in Watchtower Group, LLC. As payment, Blue Vibe agreed to give Ultim8 $100,000 in cash and $650,000 in security interests. Blue Vibe agreed to “execute for the benefit of [Ultim8] . . . deeds of trust/mortgages (the ‘Security 6 Documents’) on the following Propert[ies] and as further described in the Security Documents: “Property Address 1: [Land-011] Value: $150,000 (one of three properties pledged together for $450,000) “Property Address 2: [Land-049] Value: $150,000 (one of three properties pledged together for $450,000) “Property Address 3: [The Property], Temecula, CA 92590 Value: $350,000 (one of three properties pledged together for $450,000, and second lien pledged at $200,000).” The second lien on the Property is the second deed of trust. F. EX PARTE APPLICATION FOR LEAVE TO INTERVENE On July 17, 2025, Ultim8 applied ex parte for leave to intervene in the case. Ultim8 asserted it “should be joined under the rules of compulsory joinder as a necessary party since it has an interest in the transaction and facts raised in this action.”3 In a declaration, Ultim8’s Chief Executive Officer declared that “Blue Vibe, LLC gave Ultim8 an interest in several properties one of which is the [P]roperty .... Blue Vibe, LLC agreed to execute a Deed of Trust on this for a pledge total of Six Hundred and Fifty Thousand Dollars ($650,000), including the two other [Land] properties.” 3 In Ultim8’s application, it indiscriminately mixed terminology for joinder (§ 389) and mandatory intervention (§ 387, subd. (d)(1)). Mandatory intervention and compulsory joinder of an indispensable party “are virtually identical.” (Carlsbad Police Officers Assn. v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148.) In the trial court, the application was treated as one seeking leave to intervene. We will also treat it as such. 7  In opposing the motion, Trading asserted that Blue Vibe is run by Husband’s son. Based upon that alleged fact, Trading asserted the transaction between Blue Vibe and Ultim8 was fraudulent. On July 18, 2025, the trial court, with the Honorable Frederick Paul Horn (Judge Horn) presiding, held a hearing on Ultim8’s ex parte application. The minute order reflects that Ultim8 presented argument during the hearing, but neither a reporter’s transcript nor a settled statement is included in the record on appeal. Judge Horn denied the ex parte application. The jury trial in the matter was set to start that same day, but Judge Horn continued it until August 1, 2025, as Trading and Lowry were pursuing settlement discussions. In Court of Appeal case No. E086596, Ultim8 is appealing from Judge Horn’s denial of Ultim8’s ex parte application for leave to intervene. Ultim8’s notice of appeal was filed in the trial court on July 23, 2025. On July 30, 2025, in the trial court, Lowry filed a notice of settlement of the entire case. That same day, Trading filed a notice of settlement of the first amended cross- complaint and moved to dismiss the first amended cross-complaint. On August 12, 2025, a judgment by stipulation, signed by the Honorable Raquel Marquez (Judge Marquez), was filed in the case. The stipulated judgment reflected that Lowry and Trading reached settlements on the complaint and first amended cross-complaint. In particular, both Deeds of Trust on the Property were paid in full and extinguished. Also on August 12, 2025, the trial court, with Judge Marquez presiding, entered a default judgment against the defaulted cross-defendants. The default judgment reads, 8 “The Court is mindful of the ex parte application for leave to intervene filed in this action on July 18 [sic], 2025 by non-party Ultim8 ..., which was denied [by Judge Horn], and also the filing of [Ultim8’s] subsequent appeal of that denial. The Court finds that the proposed intervener claimed an interest in the four trust deeds that were a subject of this action by virtue of a purported assignment of those trust deeds allegedly executed by Plaintiff Lowry on June 30, 2023, not recorded until July 14, 2025.[4] The Court finds that Plaintiff Lowry recorded and filed a lis pendens relating to this action in Riverside County on or about November 10, 2022. The Court finds that both the Stipulated Judgment and this Default Judgment relate back to the recording of the lis pendens in accordance with CCP §405.24[5], and therefore supersede[] and negate[] any interest in the four trust deeds claimed by the proposed intervener. Further this Court finds that this action has not been stayed by any court order. On that basis, this Court makes a specific finding that the claims of Ultim8 ... are without merit, and that there is no other legal impediment to this Court’s entry of this Judgment in this action.” In the default judgment, Judge Marquez (1) declared void Wife’s homestead exemption on the Property, which was granted by the LA Court; (2) awarded Firoozabadi 4 The June 30, 2023, assignments of deed of trust were made by Lowry in favor of Blue Vibe. 5 The statute provides, “From the time of recording the notice of pendency of action, a purchaser, encumbrancer, or other transferee of the real property described in the notice shall be deemed to have constructive notice of the pendency of the noticed action as it relates to the real property and only of its pendency against parties not fictitiously named. The rights and interest of the claimant in the property, as ultimately determined in the pending noticed action, shall relate back to the date of the recording of the notice.” (§ 405.24.) 9 the titles to the Land Properties including any crops on the Land Properties; and (3) ordered Firoozabadi to enter a $950,000 payment credit on the judgment from the LA Court in consideration for receiving the titles to the Land Properties. In Court of Appeal case No. E086740, Husband, Wife, and Tekfur are appealing from the default judgment entered by Judge Marquez. DISCUSSION I CASE NO. E086596 We begin with the appeal involving Judge Horn’s denial of Ultim8’s ex parte application for leave to intervene. A. EX PARTE APPLICATION TO INTERVENE Ultim8 contends the trial court erred by denying its ex parte application for leave to intervene because “Blue Vibe, LLC ... assigned its liens to Ultim8, [therefore] Ultim8 is directly impacted by whatever decision is made in the lower court.” Ultim8’s contention is based upon mandatory, rather than permissive, intervention. Ultim8 contends we should apply the de novo standard of review. Trading asserts that the standard of review is abuse of discretion. (See Siena Court Homeowners Assn. v. Green Valley Corp, supra, 164 Cal.App.4th at p. 1425 [same dispute about the standard of review].) We need not resolve the standard of review dispute because, under either standard, Judge Horn did not err. The statute pertaining to intervention provides, “The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the 10 following conditions is satisfied: [¶] ... [¶] The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.” (§ 387, subd. (d)(1)(B).) “The burden rests upon the one seeking to intervene to show … a proper case for intervention.” (People v. Brophy (1942) 49 Cal.App.2d 15, 34; see also Olson v. Hopkins (1969) 269 Cal.App.2d 638, 644.) We review the evidence offered by Ultim8. First, Ultim8 provided a copy of a contract in which Blue Vibe agreed to give Ultim8 the deeds of trust on the Land Properties and the second deed of trust. There is no evidence of whether Blue Vibe performed those contractual obligations. Second, Ultim8 provided the declaration of its Chief Executive Officer, who declared, “Blue Vibe, LLC gave Ultim8 an interest in several properties one of which is the [P]roperty ..., which is the subject of this lawsuit. Blue Vibe, LLC agreed to execute a Deed of Trust on this for a pledge total of Six Hundred and Fifty Thousand Dollars ($650,000), including the two other [Land] properties. As a result Ultim8 now has an interest in the [P]roperty which is the subject of this litigation.” There is nothing in the declaration establishing that Blue Vibe performed its contractual obligations. The declaration does not cite to an assignment of a deed of trust from Blue Vibe to Ultim8, and we have been unable to locate such assignments in the appellant’s appendix. Ultim8 contends, “There is no question that Ultim8 has an interest in the property. This is uncontroverted and that was the case through the time the appeal was filed.” 11 Ultim8 does not support this contention with a citation to a signed stipulation reflecting that Ultim8 has an interest in the Property. There is no evidence indicating whether Blue Vibe’s contract with Ultim8 was performed, such that Ultim8 received an interest in the Property and/or the Land Properties. Because Ultim8 bore the burden of proving its interest in the Property and/or the Land Properties (People v. Brophy, supra, 49 Cal.App.2d at p. 34), and failed to do so, Judge Horn did not err under either the de novo or abuse of discretion standard of review. B. SANCTIONS Trading requests this court impose sanctions against Ultim8 for filing a frivolous appeal. (§ 907.) In particular, Trading seeks an award of attorney’s fees. Trading’s request for sanctions is comprised primarily of statements of law. Trading fails to provide a reason why Ultim8’s appeal is allegedly frivolous. Because it is unclear why Trading believes the appeal is frivolous, the request for sanctions is denied. C. MOOTNESS Trading contends Judge Marquez’s entry of the two judgments renders Ultim8’s appeal moot because this court cannot provide Ultim8 any effective relief. We have concluded that there was no error, which means Judge Horn’s order will be affirmed. We need not examine whether the appeal is moot because the appeal fails on the merits, which means we cannot provide practical relief by examining the issue of mootness. (See Woodward Park Homeowners Ass’n v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 12 888 [“A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief”].) II CASE NO. E086740 We now turn to the appeal pertaining to the default judgment. Husband, Wife, and Tekfur contend Judge Marquez erred by extinguishing Wife’s homestead exemption on the Property and by transferring the titles of the Land Properties. In case No. E086596 (the first appeal), Trading contended Judge Marquez’s entry of the default judgment rendered Ultim8’s appeal moot because the judgment caused this court to be unable to provide Ultim8 any effective relief. Trading’s argument implies that entry of the default judgment violated the automatic stay provision of section 916, subdivision (a), by rendering Ultim8’s appeal moot. Accordingly, we examine whether the default judgment is void for having violated the automatic stay provision of section 916, subdivision (a). “[T]he perfecting of an appeal stays proceedings in the trial court upon the ... order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the ... order, but the trial court may proceed upon any other matter embraced in the action and not affected by the ... order.” (§ 916, subd. (a).) “The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ ” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) “[T]he 13 automatic stay under section 916 must divest the trial court of fundamental jurisdiction over the matters embraced in or affected by the appeal [citation].” (Id. at p. 198.) Thus, “section 916 necessarily renders any subsequent trial court proceedings on matters ‘embraced’ in or ‘affected’ by the appeal void—and not merely voidable.” (Ibid.) “ ‘In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. “[W]hether a matter is ‘embraced’ in or ‘affected’ by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” [Citation.] “If so, the proceedings are stayed; if not, the proceedings are permitted.” ’ ” (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 49-50.) Ultim8 appealed from the order denying it leave to intervene. While that appeal was pending, the trial court entered a stipulated judgment and a default judgment. Wife, Husband, and Tekfur, who are the appellants in this appeal, are appealing from the default judgment. Accordingly, we examine whether the entry of the default judgment on Trading’s first amended cross-complaint embraced or affected the order denying Ultim8 leave to intervene. (§ 916, subd. (a).) We conclude that it did. Trading’s first amended cross-complaint concerned deeds of trust secured by the Property and the Land Properties. Trading asserted the deeds of trust were created against all three properties to conceal Wife’s equity. Trading sought to have the deeds of trust declared void. Ultim8 sought to intervene in order to protect its beneficial interest in those same deeds of trust. 14  Had we needed to reverse in Ultim8’s appeal and direct the trial court to proceed with Ultim8’s claims, the default judgment would have prevented that disposition from being effective because the default judgment concluded that Ultim8’s claims lacked merit and transferred the Land Properties to Firoozabadi. Because the default judgment limited our options in Ultim8’s appeal, the default judgment embraced or affected the order appealed. Thus, the default judgment is void. “When, as here, there is an appeal from a void judgment, the reviewing court’s jurisdiction is limited to reversing the trial court’s void acts.” (Griset v. Fair Political Practices Com’n (2001) 25 Cal.4th 688, 701; see also Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 200.) We do not address the merits of the contentions raised by Husband, Wife, and Tekfur because our jurisdiction is limited to reversing the void default judgment. (Adohr Milk Farms, Inc v. Love (1967) 255 Cal.App.2d 366, 371.) Our reversal of the default judgment is not an unqualified reversal permitting the entire case to start over. (See Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1237-1238 [“The effect of an unqualified reversal is to vacate the judgment and leave the case ‘at large’ for further proceedings, including retrial”].) The purpose of the automatic stay is to preserve the status quo while the appeal is pending. Thus, in reversing the trial court’s void default judgment, we return the parties to the status quo prior to the entry of the default judgment, i.e., the defaulted parties are still in default. (Young v. Tri-City Healthcare Dist., supra, 210 Cal.App.4th at pp. 51 & 53; see also Collins v. Marvel Land Co. (1970) 13 Cal.App.3d 34, 44.) 15  At oral argument in this court, Trading asserted for the first time that Ultim8’s appeal in the first case was from a non-appealable order; Trading failed to raise the issue in its respondents briefs in the first case or the instant case. In Ultim8’s appellant’s opening brief in the first case, Ultim8 asserted Judge Horn’s order denying Ultim8 leave to intervene was appealable because the order terminated Ultim8’s involvement in the case. In its respondent’s brief, Trading did not contradict Ultim8’s assertion that the order was appealable. Further, Trading did not move this court to dismiss the first case. Rather, in its respondent’s brief in the first case, Trading argued the merits of Ultim8’s appeal and asserted that the judgments issued by Judge Marquez rendered Ultim8’s appeal moot, which implies that the judgments violated the automatic stay provision of section 916, subdivision (a). At oral argument in this court, for the instant appeal, Trading reversed its position. Trading asserted that Judge Horn’s order denying Ultim8’s ex parte application for leave to intervene is not an appealable order, which means Ultim8 did not perfect the first appeal, and therefore the judgments would not have violated section 916, subdivision (a).6 Trading’s change in position on this issue is raised too late in the process to be addressed on the merits. (North Star Reinsurance Corp. v. Superior Court (1992) 10 6 “[A]n appeal is perfected when the notice of appeal is filed.” (Kroger Co. v. Workers’ Comp. Appeals Bd. (2012) 210 Cal.App.4th 952, 959; see also Blizzard Energy, Inc. v. Schaefers (2021) 71 Cal.App.5th 832, 842, fn. 4; People v. Peoro (1976) 56 Cal.App.3d 35, 39.) However, if the notice of appeal pertains to an interlocutory, non-appealable order, then the trial court retains jurisdiction. (Maxwell v. Superior Court in and for San Mateo County (1934) 1 Cal.2d 294, 297; Paderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666; Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 124.) 16 Cal.App.4th 1815, 1827 [“[I]t was too late to rely on the new theory at oral argument.”]; People v. Harris (1992) 10 Cal.App.4th 672, 686 [“It is a clearly understood principle of appellate review, so well established as to need no citation to authority, that contentions raised for the first time at oral argument are disfavored and may be rejected solely on the ground of their untimeliness”].) DISPOSITION In case No. E086596, the order is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).) In case No. E086740, the default judgment is reversed. The reversal reinstates the case to the status quo prior to the entry of the default judgment. Appellants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).) NOT TO BE PUBLISHED IN OFFICIAL REPORTS. MILLER J. We concur: McKINSTER Acting P. J. CODRINGTON J. 17