Preview
1 ADAM R. SALVAS (SBN 191379)
Fidelity National Law Group
2 The Law Division of Fidelity National Title Group, Inc.
1550 Parkside Drive, Suite 300
3 Walnut Creek, CA 94596
Telephone: (925) 817-3719 11/22/2022
4 Facsimile: (925) 930-9588
adam.salvas@fnf.com
5
Attorneys for Plaintiff,
6 LAWYERS TITLE COMPANY
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN MATEO
10
11
LAWYERS TITLE COMPANY, Case No.: 22CIV03316
12
Plaintiff, MEMORANDUM OF POINTS AND
13 AUTHORITIES IN SUPPORT OF MOTION
vs. TO DISCHARGE & DISMISS
14 STAKEHOLDER PURSUANT TO CODE CIV.
DAVID MAR and SAMANTHA MAR, as PROC. §§ 386(b); 386.5
15 Trustees of the David Mar and Samantha Mar
Revocable Living Trust dated 06/13/2016; [Filed concurrently with: Notice & Motion;
16 STEPHEN J. GOROG; and DOES 1 through 50, Request for Judicial Notice; Declaration of Adam
inclusive, R. Salvas; [Proposed] Order]
17
Defendants. Date: January 25, 2023
18 Time: 2:00 p.m.
Dept.: 2
19
20
21 Plaintiff LAWYERS TITLE COMPANY (“LTC”) hereby submits the following memorandum
22 of points and authorities in support of its motion to the Court for an Order discharging LTC from
23 liability and dismissing LTC from the action as follows:
24 I. INTRODUCTION
25 Plaintiff Lawyers Title Company (“LTC”) was the escrow agent in a proposed real estate
26 transaction between Defendants David and Samantha Mar, as trustees of the David and Samantha Mar
27 Revocable Living Trust dated June 13, 2016 (the “Mar Defendants”) and Stephen Gorog (“Gorog”).
28 As part of the proposed sale, Gorog made an “earnest money deposit” of $24,000 (“Disputed Funds”)
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MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder
1 with Plaintiff LTC to be held in escrow.
2 After the proposed sale fell through, LTC requested that defendants provide it with mutually
3 agreed instructions regarding the disbursement of the Disputed Funds. Defendant Gorog responded by
4 requesting $19,000 be returned to him and $5,000 to the Mar Defendants. LTC did not receive any
5 response to its request from the Mar Defendants.
6 LTC requested a second time that all the defendants provide it with mutually agreed instructions
7 regarding the disbursement of the Disputed Funds. LTC did not receive a reply from any of the
8 defendants to its second request.
9 Without written agreement of all the defendants regarding the distribution of the funds, LTC
10 was required to file a Complaint-in-Interpleader and present the disputed funds to the Court Clerk until
11 the issue can be resolved between the defendants.
12 As such, LTC now brings this Motion and requests the Court issue an order discharging it from
13 liability regarding the Disputed Funds as to all parties and dismissing LTC from the action.
14 II. STATEMENT OF FACTS
15 On or around September 2021, Defendant Gorog agreed to purchase property located at 941
16 Ridgeview Court #B, South San Francisco, CA 94080. The Mar Defendants were the sellers of the
17 property. [Declaration of Adam R. Salvas (“Salvas Decl.”), ¶ 2] As part of the transaction, Gorog
18 deposited $24,000 (the “Disputed Funds”) with LTC as an earnest money deposit to be held in escrow.
19 [Id.]
20 The parties decided not to complete the sale. On or around May 24, 2022, LTC requested that
21 Defendant Gorog and the Mar Defendants provide it with mutually agreed instructions regarding the
22 disbursement of the Disputed Funds. [Id., ¶ 4, Exhs. A & B] Defendant Gorog responded by requesting
23 $19,000 be returned to him and $5,000 to the Mar Defendants. [Id., ¶ 5, Exh. C] LTC did not receive
24 any response to its request from the Mars Defendants. [Id.]
25 On or around June 27, 2022, LTC again requested that Defendant Gorog and the Mar
26 Defendants provide it with mutually agreed instructions regarding the disbursement of the Disputed
27 Funds. [Id., ¶ 6, Exhs. D&E] LTC did not receive any response to its June 27, 2022 letters from either
28 Defendant Gorog or the Mar Defendants. [Id.]
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MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder
1 As there are no mutually agreed signed escrow instructions indicating the appropriate release of
2 the Disputed Funds, LTC is unable to determine who should receive the funds.
3 On August 12, 2022, LTC filed a Complaint-in-Interpleader and tendered to the Court the
4 Disputed Funds in the amount of $24,000.00. [Request to Take Judicial Notice (“RJN”), Exh. 1] At
5 the time the Complaint-in-Interpleader was filed, LTC deposited the Disputed Funds with the clerk of
6 the court as authorized by Code of Civil Procedure § 386(c), and now seeks a complete discharge and
7 release from liability with respect to the death benefit proceeds.
8 III. PROCEDURAL POSTURE
9 On August 12, 2022, LTC field a Complaint-in-Interpleader and named as defendants David
10 and Samantha Mar as trustees of the David Mar and Samantha Mar Revocable Living Trust dated June
11 13, 2016, and Stephen J. Gorog. [RJN, Exh. 1] LTC requested in the Complaint, amount other things,
12 that it be discharged from liability pertaining to the Disputed Funds and as to all the Defendants, and be
13 dismissed from this action with prejudice. [Id., ¶ 5] Concurrently with the filing of the Complaint, LTC
14 deposited the Disputed Funds with the Court [RJN, Exh. 2]
15 LTC served Samantha Mar with the Complaint-in-Interpleader and Summons on September 1,
16 2022. [Salvas Decl., ¶ 9] On September 22, 2022, LTC served David Mar. [Id.] LTC requested default
17 be entered against Defendants Samantha Mar and David Mar on November 15, 2022. [Id., ¶ H]
18 LTC served defendant Gorog on September 20, 2022. [Id., ¶ 10, Exh. I] On September 28,
19 2022, Mr. Gorog filed an answer. [Id., Exh. J]
20 IV. LEGAL DISCUSSION
21 A. LTC Requests It Be Discharged From all Liability Pertaining To The Disputed Funds And
22 As To All Parties in this Action.
23 LTC is an escrow company with no claim to the Disputed Funds. Code of Civil Procedure §
24 386 provides:
25 (b) Any person, firm, corporation, association or other entity against whom
double or multiple claims are made, or may be made, by two or more persons
26 which are such that they may give rise to double or multiple liability, may bring
an action the claimants to compel them to interplead and litigate their several
27 claims.
28 “When a person may be subject to conflicting claims for money or property, the person may
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MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder
1 bring an interpleader action to compel the claimants to litigate their claims among themselves.” City of
2 Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122. A typical situation permitting interpleader
3 includes an escrow holder holding earnest money deposit funds as part of a potential real estate
4 transaction when there is a dispute as to the funds after the transaction fails to close.
5 When a person brings an interpleader action, a two-step procedure is generally
followed. First, it is determined whether the plaintiff may bring the suit and force
6 the claimants to interplead. Second, if it is so determined, then the court will
discharge the plaintiff from liability and “the action may proceed for the
7 determination of the rights of the various claimants to the property which is then
in the custody of the court.” City of Morgan Hill v. Brown, supra, 71 Cal.App.4th
8 at 1126-1127.
9 This matter is appropriate for an order of discharge because this Court can resolve the claims
10 between defendants without LTC as a party, and the requirements of Code Civil Procedure section 386
11 have been met. “The true test of suitability for interpleader is the stakeholder's disavowal of interest in
12 the property sought to be interpleaded, coupled with the perceived ability of the court to resolve the
13 entire controversy as to entitlement to that property without need for the stakeholder to be a party to the
14 suit. If the relations of the parties are such that the court's decision would determine the responsibility
15 of the [interpleader plaintiff], he is for the purposes and within the scope of the code section authorizing
16 interpleader a mere stake-holder.” Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th
17 477, 486-487. If the proof is sufficient that the moving party has no interest in the property at issue, or
18 it is admitted by failure to object or by stipulation, the court may make an interlocutory order and direct
19 the stakeholder to deposit the amount or deliver the property to the Court and require the claimants to
20 litigate their claims among themselves. Lincoln National Life Insurance Co. (1974) 41 Cal.App.3d 16,
21 19–20.
22 LTC, as an escrow agent, is required to distribute the Disputed Funds according to mutually
23 agreed upon written escrow instructions indicating the appropriate release of the Deposit Funds. Here,
24 because LTC does not have clear direction or the agreement of the Defendants, LTC cannot distribute
25 the Disputed Funds. LTC having no interest in the Disputed Funds, is required to interplead them to the
26 court and request dismissal from this action.
27 The purpose behind the interpleader provisions is to protect a party “threatened with double
28 vexation with respect to one liability.” Farmers New World Life Insurance Co. v Rees (2013) 219
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MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder
1 Cal.App.4th 307, 315. LTC should not be forced to continue to litigate a dispute that is solely between
2 the Defendants regarding the proper disposition of the funds. This Court can resolve the entire dispute
3 among the defendants without LTC as a party. LTC is a mere stakeholder concerning the Disputed
4 Funds and does not claim any interest in the funds except as allowed by statute. [Salvas Decl. ¶ 6]
5 LTC has already deposited the Disputed Funds with the Court. [RJN, Exh. 2] All parties have
6 been served with the Summons and Complaint for this action (and this Motion) have been given notice
7 that LTC disclaims any interest in the Disputed Funds itself and seeks a discharge from liability
8 regarding the Disputed Funds and as to all parties. LTC requests that the Court enter an order
9 discharging it from this liability pertaining to the Disputed Funds and as to all Parties in this action.
10 B. LTC Already Deposited The Disputed Funds With the Court
11 Code of Civil Procedure §386(c) provides in pertinent part, that, “[a]ny amount which a
12 plaintiff…admits to be payable may be deposited by him with the clerk of the court at the time of the
13 filing of the complaint…in interpleader without first obtaining an order to the court therefor.” See also,
14 Wells Fargo Bank v. Zinnel (2004) 125 Cal.App.4th 393, 403.
15 LTC already deposited with the Court the $24,000 that constitutes the Disputed Funds. [RJN,
16 Exh. 2]
17 V. CONCLUSION
18 LTC respectfully request that the Court enter an Order discharging it from any liability
19 associated with the Disputed Funds and the other parties to this action and dismissing LTC with
20 prejudice from this action.
21
Dated: November 21, 2022 FIDELITY NATIONAL LAW GROUP
22 THE LAW DIVISION OF FIDELITY NATIONAL TITLE GROUP, INC.
23
________________________________________
24 ADAM R. SALVAS
25 ATTORNEYS FOR PLAINTIFF
LAWYERS TITLE COMPANY
26
27
28
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MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder
Preview
1 ADAM R. SALVAS (SBN 191379) Fidelity National Law Group 2 The Law Division of Fidelity National Title Group, Inc. 1550 Parkside Drive, Suite 300 3 Walnut Creek, CA 94596 Telephone: (925) 817-3719 11/22/2022 4 Facsimile: (925) 930-9588 adam.salvas@fnf.com 5 Attorneys for Plaintiff, 6 LAWYERS TITLE COMPANY 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO 10 11 LAWYERS TITLE COMPANY, Case No.: 22CIV03316 12 Plaintiff, MEMORANDUM OF POINTS AND 13 AUTHORITIES IN SUPPORT OF MOTION vs. TO DISCHARGE & DISMISS 14 STAKEHOLDER PURSUANT TO CODE CIV. DAVID MAR and SAMANTHA MAR, as PROC. §§ 386(b); 386.5 15 Trustees of the David Mar and Samantha Mar Revocable Living Trust dated 06/13/2016; [Filed concurrently with: Notice & Motion; 16 STEPHEN J. GOROG; and DOES 1 through 50, Request for Judicial Notice; Declaration of Adam inclusive, R. Salvas; [Proposed] Order] 17 Defendants. Date: January 25, 2023 18 Time: 2:00 p.m. Dept.: 2 19 20 21 Plaintiff LAWYERS TITLE COMPANY (“LTC”) hereby submits the following memorandum 22 of points and authorities in support of its motion to the Court for an Order discharging LTC from 23 liability and dismissing LTC from the action as follows: 24 I. INTRODUCTION 25 Plaintiff Lawyers Title Company (“LTC”) was the escrow agent in a proposed real estate 26 transaction between Defendants David and Samantha Mar, as trustees of the David and Samantha Mar 27 Revocable Living Trust dated June 13, 2016 (the “Mar Defendants”) and Stephen Gorog (“Gorog”). 28 As part of the proposed sale, Gorog made an “earnest money deposit” of $24,000 (“Disputed Funds”) 1 MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder 1 with Plaintiff LTC to be held in escrow. 2 After the proposed sale fell through, LTC requested that defendants provide it with mutually 3 agreed instructions regarding the disbursement of the Disputed Funds. Defendant Gorog responded by 4 requesting $19,000 be returned to him and $5,000 to the Mar Defendants. LTC did not receive any 5 response to its request from the Mar Defendants. 6 LTC requested a second time that all the defendants provide it with mutually agreed instructions 7 regarding the disbursement of the Disputed Funds. LTC did not receive a reply from any of the 8 defendants to its second request. 9 Without written agreement of all the defendants regarding the distribution of the funds, LTC 10 was required to file a Complaint-in-Interpleader and present the disputed funds to the Court Clerk until 11 the issue can be resolved between the defendants. 12 As such, LTC now brings this Motion and requests the Court issue an order discharging it from 13 liability regarding the Disputed Funds as to all parties and dismissing LTC from the action. 14 II. STATEMENT OF FACTS 15 On or around September 2021, Defendant Gorog agreed to purchase property located at 941 16 Ridgeview Court #B, South San Francisco, CA 94080. The Mar Defendants were the sellers of the 17 property. [Declaration of Adam R. Salvas (“Salvas Decl.”), ¶ 2] As part of the transaction, Gorog 18 deposited $24,000 (the “Disputed Funds”) with LTC as an earnest money deposit to be held in escrow. 19 [Id.] 20 The parties decided not to complete the sale. On or around May 24, 2022, LTC requested that 21 Defendant Gorog and the Mar Defendants provide it with mutually agreed instructions regarding the 22 disbursement of the Disputed Funds. [Id., ¶ 4, Exhs. A & B] Defendant Gorog responded by requesting 23 $19,000 be returned to him and $5,000 to the Mar Defendants. [Id., ¶ 5, Exh. C] LTC did not receive 24 any response to its request from the Mars Defendants. [Id.] 25 On or around June 27, 2022, LTC again requested that Defendant Gorog and the Mar 26 Defendants provide it with mutually agreed instructions regarding the disbursement of the Disputed 27 Funds. [Id., ¶ 6, Exhs. D&E] LTC did not receive any response to its June 27, 2022 letters from either 28 Defendant Gorog or the Mar Defendants. [Id.] 2 MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder 1 As there are no mutually agreed signed escrow instructions indicating the appropriate release of 2 the Disputed Funds, LTC is unable to determine who should receive the funds. 3 On August 12, 2022, LTC filed a Complaint-in-Interpleader and tendered to the Court the 4 Disputed Funds in the amount of $24,000.00. [Request to Take Judicial Notice (“RJN”), Exh. 1] At 5 the time the Complaint-in-Interpleader was filed, LTC deposited the Disputed Funds with the clerk of 6 the court as authorized by Code of Civil Procedure § 386(c), and now seeks a complete discharge and 7 release from liability with respect to the death benefit proceeds. 8 III. PROCEDURAL POSTURE 9 On August 12, 2022, LTC field a Complaint-in-Interpleader and named as defendants David 10 and Samantha Mar as trustees of the David Mar and Samantha Mar Revocable Living Trust dated June 11 13, 2016, and Stephen J. Gorog. [RJN, Exh. 1] LTC requested in the Complaint, amount other things, 12 that it be discharged from liability pertaining to the Disputed Funds and as to all the Defendants, and be 13 dismissed from this action with prejudice. [Id., ¶ 5] Concurrently with the filing of the Complaint, LTC 14 deposited the Disputed Funds with the Court [RJN, Exh. 2] 15 LTC served Samantha Mar with the Complaint-in-Interpleader and Summons on September 1, 16 2022. [Salvas Decl., ¶ 9] On September 22, 2022, LTC served David Mar. [Id.] LTC requested default 17 be entered against Defendants Samantha Mar and David Mar on November 15, 2022. [Id., ¶ H] 18 LTC served defendant Gorog on September 20, 2022. [Id., ¶ 10, Exh. I] On September 28, 19 2022, Mr. Gorog filed an answer. [Id., Exh. J] 20 IV. LEGAL DISCUSSION 21 A. LTC Requests It Be Discharged From all Liability Pertaining To The Disputed Funds And 22 As To All Parties in this Action. 23 LTC is an escrow company with no claim to the Disputed Funds. Code of Civil Procedure § 24 386 provides: 25 (b) Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons 26 which are such that they may give rise to double or multiple liability, may bring an action the claimants to compel them to interplead and litigate their several 27 claims. 28 “When a person may be subject to conflicting claims for money or property, the person may 3 MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder 1 bring an interpleader action to compel the claimants to litigate their claims among themselves.” City of 2 Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122. A typical situation permitting interpleader 3 includes an escrow holder holding earnest money deposit funds as part of a potential real estate 4 transaction when there is a dispute as to the funds after the transaction fails to close. 5 When a person brings an interpleader action, a two-step procedure is generally followed. First, it is determined whether the plaintiff may bring the suit and force 6 the claimants to interplead. Second, if it is so determined, then the court will discharge the plaintiff from liability and “the action may proceed for the 7 determination of the rights of the various claimants to the property which is then in the custody of the court.” City of Morgan Hill v. Brown, supra, 71 Cal.App.4th 8 at 1126-1127. 9 This matter is appropriate for an order of discharge because this Court can resolve the claims 10 between defendants without LTC as a party, and the requirements of Code Civil Procedure section 386 11 have been met. “The true test of suitability for interpleader is the stakeholder's disavowal of interest in 12 the property sought to be interpleaded, coupled with the perceived ability of the court to resolve the 13 entire controversy as to entitlement to that property without need for the stakeholder to be a party to the 14 suit. If the relations of the parties are such that the court's decision would determine the responsibility 15 of the [interpleader plaintiff], he is for the purposes and within the scope of the code section authorizing 16 interpleader a mere stake-holder.” Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th 17 477, 486-487. If the proof is sufficient that the moving party has no interest in the property at issue, or 18 it is admitted by failure to object or by stipulation, the court may make an interlocutory order and direct 19 the stakeholder to deposit the amount or deliver the property to the Court and require the claimants to 20 litigate their claims among themselves. Lincoln National Life Insurance Co. (1974) 41 Cal.App.3d 16, 21 19–20. 22 LTC, as an escrow agent, is required to distribute the Disputed Funds according to mutually 23 agreed upon written escrow instructions indicating the appropriate release of the Deposit Funds. Here, 24 because LTC does not have clear direction or the agreement of the Defendants, LTC cannot distribute 25 the Disputed Funds. LTC having no interest in the Disputed Funds, is required to interplead them to the 26 court and request dismissal from this action. 27 The purpose behind the interpleader provisions is to protect a party “threatened with double 28 vexation with respect to one liability.” Farmers New World Life Insurance Co. v Rees (2013) 219 4 MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder 1 Cal.App.4th 307, 315. LTC should not be forced to continue to litigate a dispute that is solely between 2 the Defendants regarding the proper disposition of the funds. This Court can resolve the entire dispute 3 among the defendants without LTC as a party. LTC is a mere stakeholder concerning the Disputed 4 Funds and does not claim any interest in the funds except as allowed by statute. [Salvas Decl. ¶ 6] 5 LTC has already deposited the Disputed Funds with the Court. [RJN, Exh. 2] All parties have 6 been served with the Summons and Complaint for this action (and this Motion) have been given notice 7 that LTC disclaims any interest in the Disputed Funds itself and seeks a discharge from liability 8 regarding the Disputed Funds and as to all parties. LTC requests that the Court enter an order 9 discharging it from this liability pertaining to the Disputed Funds and as to all Parties in this action. 10 B. LTC Already Deposited The Disputed Funds With the Court 11 Code of Civil Procedure §386(c) provides in pertinent part, that, “[a]ny amount which a 12 plaintiff…admits to be payable may be deposited by him with the clerk of the court at the time of the 13 filing of the complaint…in interpleader without first obtaining an order to the court therefor.” See also, 14 Wells Fargo Bank v. Zinnel (2004) 125 Cal.App.4th 393, 403. 15 LTC already deposited with the Court the $24,000 that constitutes the Disputed Funds. [RJN, 16 Exh. 2] 17 V. CONCLUSION 18 LTC respectfully request that the Court enter an Order discharging it from any liability 19 associated with the Disputed Funds and the other parties to this action and dismissing LTC with 20 prejudice from this action. 21 Dated: November 21, 2022 FIDELITY NATIONAL LAW GROUP 22 THE LAW DIVISION OF FIDELITY NATIONAL TITLE GROUP, INC. 23 ________________________________________ 24 ADAM R. SALVAS 25 ATTORNEYS FOR PLAINTIFF LAWYERS TITLE COMPANY 26 27 28 5 MP&A In support of LTC’s Motion to Discharge & Dismiss Stakeholder