United States of America v. Real Property Located At 331 N Milpas et al

Filing 24

CONSENT JUDGMENT OF FORFEITURE AS TO CLAIMANT FIRST CALIFORNIA BANK ONLY by Judge John F. Walter. (kbr)

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ANDRÉ BIROTTE JR.
United States Attorney
ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
STEVEN R. WELK
Assistant United States Attorney
Chief, Asset Forfeiture Section
P. GREG PARHAM
Assistant United States Attorney
California Bar Number 140310
Federal Courthouse, 14th Floor
312 North Spring Street
Los Angeles, California 90012
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
United States of America
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
REAL PROPERTY LOCATED AT 331 N. )
)
MILPAS, SANTA BARBARA, CA
(MATILIJA),
)
)
)
Defendant.
)
_______________________________ )
)
MATILIJA INVESTMENT PROPERTY
LLC AND FIRST CALIFORNIA BANK, )
)
)
Claimants.
)
)

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CV 12-03791 JFW(PLAx)
CONSENT JUDGMENT OF FORFEITURE
AS TO CLAIMANT FIRST CALIFORNIA
BANK ONLY
[This consent judgment is not
case-dispositive and only
resolves the claim of one
claimant in this action.]

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This action was filed on May 2, 2012.
published in accordance with law.

Notice was given and

Claimant and titleholder

Matilija Investment Property LLC (“Matilija”) filed a claim on
May 25, 2012 (Court docket # 5) and by order of the court was
provided an extension to file its responsive pleading to the
complaint on or before February 11, 2013 (Court docket # 21).
Claimant and lien holder First California Bank (“FCB”) filed a
claim on January 9, 2013.

FCB holds a security interest in the

defendant property pursuant to a deed of trust to secure an
indebtedness by Matilija, in the original amount of
$1,527,500.00, recorded on June 15, 2005 in the Santa Barbara
County Recorder’s Office as instrument no. 2005-0055870, in
favor of FCB (the “Deed of Trust”).

No other claims or answers

have been filed, and the time for filing claims and answers has
expired.

Plaintiff United States of America (“the government”)

and FCB have reached an agreement that, without further
litigation and without an admission of any wrongdoing, is
dispositive of the government’s claims against FCB’s interest in
this action, and hereby request that the Court enter this
Consent Judgment of Forfeiture.
WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:
1.

As used throughout, the following terms shall have the

following meaning:

(a) “defendant property” shall mean the

defendant real property located at 331 N. Milpas, Santa Barbara,
California; and (b) “illegal purpose” shall mean any purpose
that furthers or facilitates the distribution or sale of
marijuana in violation of federal law, including, but not
limited to, renting space to a person or entity that sells or
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distributes marijuana or the renting of space to or permitting
the continued tenancy of any person or entity that sells,
distributes or facilitates the sale or distribution of
marijuana.
2.

This Court has jurisdiction over the parties to this

judgment and the subject matter of this action.
3.

On or about May 2, 2012, the government filed a

Complaint for Forfeiture pursuant to 21 U.S.C. § 881(a)(7)
against the defendant property.
4.
property.
5.
with law.

Matilija and FCB filed a claim to the defendant
No other claimant has appeared in this action.
Notice of this action has been given in accordance
No appearances having been made in this action by any

person other than Matilija and FCB, the Court deems that all
other potential claimants admit the allegations of the Complaint
to be true.

The Complaint states a valid claim for relief

pursuant to 21 U.S.C. § 881(a)(7).
6.

FCB shall retain its security interest in the defendant

property and in consideration thereof FCB agrees to abide by the
terms of this Agreement.

If FCB becomes the owner of the

defendant property, whether as a result of foreclosure of the
Deed of Trust or otherwise, FCB shall lawfully use and occupy
the defendant property in accordance with the restrictions
imposed by paragraph 7 below.

If FCB fails to comply with any

of the terms of paragraph 7, FCB’s interest in the defendant
property shall be forfeited to the government pursuant to
paragraph 8 below.
///
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7.

In the event FCB becomes the owner of the defendant

property, during the time it owns the defendant property, FCB:
a.

shall not use or occupy the defendant property

for any illegal purpose (as defined above), nor shall it
knowingly allow the defendant property to be used or occupied
for, or involved in, any illegal purpose.
b.

shall take reasonable precautions to prevent any

destruction to or diminution in value of the defendant property
and any fixtures thereto resulting from any illegal purpose.
c.

shall not knowingly rent, lease or otherwise

allow the use or occupancy of the defendant property to (i) any
former tenant who used or occupied the defendant property for
any illegal purpose; or (ii) any person FCB has reason to
believe may use or occupy the defendant property for any illegal
purpose.
d.

shall take reasonable steps to prevent the

defendant property from being listed in any advertisement,
publication, directory or internet site which advertises or
indicates that marijuana is available at the location of the
defendant property.
8.

In the event that FCB fails to comply with any of the

terms of paragraph 7 of this Consent Judgment during the four
(4) year period following the entry of this judgment, the
entirety of FCB’s interest in the defendant property shall be
ordered condemned and forfeited to the United States, subject to
the “notice” and “cure” provisions set forth below.

In the

event of forfeiture, the Santa Barbara County Recorder shall
index this Judgment in the grantor index under the name of the
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First California Bank and in the grantee index in the name of
the United States of America.

If the government believes that

FCB has failed to comply with any provision of paragraph 7, it
shall provide written notice of such failure to FCB (as well as
its respective undersigned counsel), describing the provision
believed to have been violated.

FCB shall have fifteen (15)

days from its receipt of such notice to cure the violation, or
in the event of a failure to comply that cannot be cured within
the fifteen day period, initiate within that period steps
sufficient to cure the failure in a reasonable period (e.g.,
initiation of an unlawful detainer action or a default on the
Deed of Trust), and thereafter continue and complete all
reasonable and necessary steps to produce compliance as soon as
reasonably practicable.

If such actions to cure the violation

are not taken, as required above, the government shall file a
Notice of Non-Compliance and Forfeiture with the Court, setting
out the violation and the failure of FCB to timely cure the
violation.

FCB shall have fifteen (15) court days from the

filing of the Notice to seek relief from forfeiture, wherein the
moving party may argue, among other things, it is an “innocent
owner” pursuant to 18 U.S.C. § 983(d).

If such a motion is

filed, the government shall take no further action until the
motion has been determined.

If no such motion is timely filed,

the defendant property shall be forfeited to the United States
on the sixteenth (16th) day after the filing of the Notice of
Non-Compliance and Forfeiture, unless the Court orders
otherwise.

Upon forfeiture under the terms of this paragraph,

the government shall have the right to take possession of the
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defendant property upon the filing of the above-referenced
Notice without further order of the Court, and the United States
Marshals Service, or its representatives, shall, without further
order of the Court, proceed to take physical possession of the
defendant property and its fixtures and may evict any and all
persons, pets, livestock, and personal property from the
defendant property as it deems necessary or appropriate.

A

"filed"-stamped copy of this Consent Judgment accompanied by a
"filed"-stamped copy of a Notice of Noncompliance and Forfeiture
and/or order of the Court, shall be sufficient to establish the
forfeiture of the defendant property.

In the event that the

defendant property is forfeited to the government, FCB agrees
that the United States Marshals Service may proceed to sell the
defendant property.

Thereafter, the United States Marshals

Service, or its representatives, shall promptly proceed to
dispose of the defendant property and to distribute any proceeds
from the sale in accordance with the law.
9.

In the event FCB becomes the owner of the defendant

property, or with the consent of the current owner of the
defendant property, or upon court order despite a lack of such
consent from the current owner, the United States Marshals
Service, or its representatives, shall be allowed to enter the
defendant property for purposes of inspection and inventory.
Such entry shall be permitted by FCB at a reasonable time to be
agreed upon by the parties in writing.

Absent such agreement,

the government may apply to the Court for a writ of entry, in
connection with which FCB may request a hearing, for purposes of
protecting the government's interests in the defendant property.
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10.

This consent judgment shall only be recorded in

accordance with the provisions of paragraph 8 above.
11.

The obligations of FCB pursuant to this consent

judgment shall terminate and be of no further effect upon the
sale or other transfer of ownership of the defendant property to
a third party (including the United States Marshals Service), or
of the surrender by FCB of its entire interest in the property.
Additionally, these obligations shall terminate and be of no
further effect in the event that the defendant property is
forfeited to the government.
12.

Except as otherwise set forth in this Consent Judgment

and in particular paragraph 8 above, FCB has released the United
States of America, its agencies, agents, and officers, including
without limitation employees and other representatives of the
Drug Enforcement Administration, from any and all claims,
defenses, actions, or liabilities arising out of or related to
this action against the defendant real property, including,
without limitation, any and all claims for attorneys' fees,
costs, or interest which may be asserted by or on its behalf.
13.

The parties shall each bear their own costs and

attorneys' fees in this action.
14.

The Court shall retain jurisdiction over this matter

to enforce the provisions of this Consent Judgment.
15.

The Court finds that there was reasonable cause for

the initiation of this action, and this Consent Judgment shall
be construed as a certificate of reasonable cause pursuant to 28
U.S.C. § 2465.
///
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16.

All notices and other communications provided for in

this Consent Judgment shall be in writing and shall be effective
when given on the earliest of the following dates:

(i)

the

date when actually delivered if delivered in person to the
recipient; (ii)

on the first (1st) business day after depositing

such notice with a reputable independent nationally-recognized
overnight courier service addressed to the recipient as set
forth below; or (iii)

on the third (3rd) day after depositing

such notice in a sealed envelope in the United States mail,
postage prepaid, by registered or certified mail, return receipt
requested, addressed to, except as otherwise provided in this
Consent Judgment, the recipient at the address set forth below:
To the Government:

P. Greg Parham, Assistant U.S. Attorney,

Asset Forfeiture Section, 312 N. Spring Street, 14th Floor, Los
Angeles, CA 90012.
To FCB:

Richard A. Shaffer, 21700 Oxnard Street, Suite 430,

Woodland Hills, CA 91367, [e-mail].

Any notice so given

by mail shall be deemed to have been given as of the date of
delivery (whether accepted or refused) established by the U.S.
Post Office return receipt or the overnight courier’s proof of
delivery, as the case may be.

Dated: January 16, 2013

_
THE HONORABLE JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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