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

Filing 27

CONSENT JUDGMENT OF FORFEITURE AS TO CLAIMANT MATILIJA INVESTMENT PROPERTY LLC by Judge John F. Walter. Matilija shall pay the sum of $20,000.00 to the government not later than 30 days following entry of this consent judgment by the Court. The parties shall each bear their own costs and attorneys' fees in this action. ( MD JS-6. Case Terminated ). (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]

JS-6

Attorneys for Plaintiff
United States of America

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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

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CV 12-03791 JFW(PLAx)
CONSENT JUDGMENT OF FORFEITURE
AS TO CLAIMANT MATILIJA
INVESTMENT PROPERTY LLC
[This consent judgment is
case-dispositive and resolves
all claims in this action.]

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This action was filed on May 2, 2012.

Notice was given and

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published in accordance with law.

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Matilija Investment Property LLC (“Matilija”) filed a claim on

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May 25, 2012 (Court Docket Number (“DN”) 5), and was granted an

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extension to file its responsive pleading to the complaint to on

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or before February 11, 2013 (DN 21).

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First California Bank (“FCB”) filed a claim on January 9, 2013

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(DN 22).

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property pursuant to a deed of trust to secure an indebtedness

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by Matilija, in the original amount of $1,527,500.00, recorded

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on June 15, 2005 in the Santa Barbara County Recorder’s Office

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as instrument no. 2005-0055870, in favor of FCB (the “Deed of

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Trust”).

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judgment as to the interests of FCB only (DN 24).

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claims or answers have been filed, and the time for filing

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claims and answers has expired.

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America (“the government”) and Matilija have reached an

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agreement that, without further litigation and without an

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admission of any wrongdoing, is dispositive of the government’s

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claims against Matilija’s interest in this action, and hereby

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request that the Court enter this Consent Judgment of

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Forfeiture.

Claimant and titleholder

Claimant and lien holder

FCB holds a security interest in the defendant

On January 16, 2013 the court entered a consent
No other

Plaintiff United States of

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WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:

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1.

As used throughout, the following terms shall have the

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following meaning:

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defendant real property located at 331 N. Milpas, Santa Barbara,

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California; and (b) “illegal purpose” shall mean any purpose

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that furthers or facilitates the distribution or sale of

(a) “defendant property” shall mean the

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marijuana in violation of federal law, including, but not

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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

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the continued tenancy of any person or entity that sells,

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distributes or facilitates the sale or distribution of

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marijuana.

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2.

This Court has jurisdiction over the parties to this

judgment and the subject matter of this action.

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3.

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

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Complaint for Forfeiture pursuant to 21 U.S.C. § 881(a)(7)

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against the defendant property.

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property.

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5.

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

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with law.

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person other than Matilija and FCB, the Court deems that all

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other potential claimants admit the allegations of the Complaint

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to be true.

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pursuant to 21 U.S.C. § 881(a)(7).

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6.

No appearances having been made in this action by any

The Complaint states a valid claim for relief

Matilija shall retain possession of and title to the

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defendant property and in consideration thereof Matilija agrees

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to abide by the terms of this Agreement.

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lawfully use and occupy the defendant property in accordance

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with the restrictions imposed by paragraph 7 below.

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fails to comply with any of the terms of paragraph 7, Matilija’s

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interest in the defendant property shall be forfeited to the

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government pursuant to paragraph 8 below.

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Matilija shall

If Matilija

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During the time it owns the defendant property,

Matilija:

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a.

shall not use or occupy the defendant property

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for any illegal purpose (as defined above), nor shall it

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knowingly allow the defendant property to be used or occupied

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for, or involved in, any illegal purpose.

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b.

shall take reasonable precautions to prevent any

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destruction to or diminution in value of the defendant property

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and any fixtures thereto resulting from any illegal purpose.

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c.

shall not knowingly rent, lease or otherwise

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allow the use or occupancy of the defendant property to (i) any

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former tenant who used or occupied the defendant property for

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any illegal purpose; or (ii) any person Matilija has reason to

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believe may use or occupy the defendant property for any illegal

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purpose.

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d.

shall take reasonable steps to prevent the

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defendant property from being listed in any advertisement,

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publication, directory or internet site which advertises or

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indicates that marijuana is available at the location of the

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defendant property.

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8.

In the event that Matilija fails to comply with any of

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the terms of paragraph 7 of this Consent Judgment during the

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four (4) year period following the entry of this judgment, the

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entirety of Matilija’s interest in the defendant property shall

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be ordered condemned and forfeited to the United States, subject

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to the “notice” and “cure” provisions set forth below.

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as otherwise provided in the consent judgment entered concerning

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FCB (DN 24), in the event of forfeiture, the Santa Barbara
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Except

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County Recorder shall index this Judgment in the grantor index

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under the name of the Matilija Investment Property LLC and in

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the grantee index in the name of the United States of America.

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If the government believes that Matilija has failed to comply

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with any provision of paragraph 7, it shall provide written

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notice of such failure to Matilija (as well as its respective

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undersigned counsel), describing the provision believed to have

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been violated.

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receipt of such notice to cure the violation, or in the event of

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a failure to comply that cannot be cured within the fifteen day

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period, initiate within that period steps sufficient to cure the

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failure in a reasonable period (e.g., initiation of an unlawful

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detainer action), and thereafter continue and complete all

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reasonable and necessary steps to produce compliance as soon as

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reasonably practicable.

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are not taken, as required above, the government shall file a

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Notice of Non-Compliance and Forfeiture with the Court, setting

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out the violation and the failure of Matilija to timely cure the

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violation.

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filing of the Notice to seek relief from forfeiture, wherein the

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moving party may argue, among other things, it is an “innocent

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owner” pursuant to 18 U.S.C. § 983(d).

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filed, the government shall take no further action until the

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motion has been determined.

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the defendant property shall be forfeited to the United States

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on the sixteenth (16th) day after the filing of the Notice of

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Non-Compliance and Forfeiture, unless the Court orders

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otherwise.

Matilija shall have fifteen (15) days from its

If such actions to cure the violation

Matilija shall have fifteen (15) court days from the

If such a motion is

If no such motion is timely filed,

Upon forfeiture under the terms of this paragraph,
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the government shall have the right to take possession of the

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defendant property upon the filing of the above-referenced

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Notice without further order of the Court, and the United States

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Marshals Service, or its representatives, shall, without further

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order of the Court, proceed to take physical possession of the

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defendant property and its fixtures and may evict any and all

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persons, pets, livestock, and personal property from the

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defendant property as it deems necessary or appropriate.

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"filed"-stamped copy of this Consent Judgment accompanied by a

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"filed"-stamped copy of a Notice of Noncompliance and Forfeiture

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and/or order of the Court, shall be sufficient to establish the

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forfeiture of the defendant property.

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defendant property is forfeited to the government, Matilija

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agrees that the United States Marshals Service may proceed to

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sell the defendant property.

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Marshals Service, or its representatives, shall promptly proceed

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to dispose of the defendant property and to distribute any

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proceeds from the sale in accordance with the law and, to the

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extent applicable, the terms of the FCB consent judgment.

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In the event that the

Thereafter, the United States

Upon the filing of this Consent Judgment, the United

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States Marshals Service, or its representatives, shall be

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allowed to enter the defendant property for purposes of

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inspection and inventory.

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Matilija at a reasonable time to be agreed upon by the parties.

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Absent such agreement, the government may apply to the Court for

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a writ of entry for purposes of protecting the government's

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interests in the defendant property, in connection with which

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Matilija may request a hearing.

Such entry shall be permitted by

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10.

This consent judgment shall only be recorded in

accordance with the provisions of paragraph 8 above.
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In consideration of the government’s agreement not to

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pursue Matilija’s interest in the defendant property, Matilija

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shall pay the sum of $20,000.00 to the government not later than

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30 days following entry of this consent judgment by the Court.

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Such payment shall be made in the form of a cashier’s check made

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payable to the United States Marshals Service, and shall be

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delivered to Assistant United States Attorney P. Greg Parham,

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312 N. Spring Street, 14th Floor, Los Angeles, California 90012.

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Said sum is hereby ordered forfeited to the United States of

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America and no other right, title or interest shall exist

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therein.

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dispose of the funds in accordance with law.

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12.

The United States Marshals Service is ordered to

In consideration of Matilija’s agreement to forfeit

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the above-described funds, the government agrees to forego its

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attempts to forfeit Matilija’s interest in the defendant

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property in connection with any conduct committed up to and

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including the date of the filing of this proposed consent

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judgment except as otherwise provided herein.

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agrees that if payment is made as provided in paragraph 11, it

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shall execute and record a Withdrawal of Lis Pendens with the

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County Recorder of Santa Barbara County within ten days of such

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payment.

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13.

The government

Should Matilija fail to make the payment required

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herein within 30 days following entry of this consent judgment,

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the government shall acquire a lien against the defendant real

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property in the sum of $20,000.00.
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The government’s lien shall

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include a right of sale, allowing the government to take

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possession of and sell the defendant property at any time after

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fifteen days after entry of this consent judgment, unless the

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parties agree otherwise in writing.

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written notice to Matilija by letter directed to its attorney,

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Darin Marx, thirty (30) days before the government intends to

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enforce its right of sale of the property.

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that thirty day period, any occupants or personal property shall

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be removed from the property.

The government shall give

At the conclusion of

The United States Marshals

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Service is hereby authorized to remove any occupants and/or

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personal property remaining on the defendant property thirty

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days after the giving of written notice without further order of

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this Court.

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sell the property.

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follows, to the extent proceeds are available:

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a.

The United States Marshal Service shall thereafter
The proceeds of sale shall be applied as

First, to the costs incurred by the United States

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Marshals Service in taking possession of and

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selling the defendant property;

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b.

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consent judgment;

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c.

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Third, to the payment due under the terms of this
judgment.

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Second, to FCB, according to the terms of the FCB

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Fourth, to Matilija.

The obligations of Matilija pursuant to this consent

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judgment, other than the payment by Matilija set forth in

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paragraph 11, shall terminate and be of no further effect upon

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the sale or other transfer of ownership of the defendant

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property to a third party (including the United States Marshals
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Service), or of the surrender by Matilija of its entire interest

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in the property.

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terminate and be of no further effect in the event that the

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defendant property is forfeited to the government.

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Additionally, these obligations shall

Except as otherwise set forth in this Consent Judgment

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and in particular paragraph 8 above, Matilija has released the

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United States of America, its agencies, agents, and officers,

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including without limitation employees and other representatives

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of the Drug Enforcement Administration, from any and all claims,

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defenses, actions, or liabilities arising out of or related to

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this action against the defendant real property, including,

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without limitation, any and all claims for attorneys' fees,

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costs, or interest which may be asserted by or on its behalf.

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The parties shall each bear their own costs and

attorneys' fees in this action.
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The Court shall retain jurisdiction over this matter

to enforce the provisions of this Consent Judgment.
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The Court finds that there was reasonable cause for

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the initiation of this action, and this Consent Judgment shall

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be construed as a certificate of reasonable cause pursuant to 28

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U.S.C. § 2465.

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19.

All notices and other communications provided for in

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this Consent Judgment shall be in writing and shall be effective

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when given on the earliest of the following dates:

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date when actually delivered if delivered in person to the

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recipient; (ii)

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such notice with a reputable independent nationally-recognized

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overnight courier service addressed to the recipient as set

(i)

the

on the first (1st) business day after depositing

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on the third (3rd) day after depositing

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forth below; or (iii)

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such notice in a sealed envelope in the United States mail,

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postage prepaid, by registered or certified mail, return receipt

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requested, addressed to, except as otherwise provided in this

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Consent Judgment, the recipient at the address set forth below:

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To the Government:

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Asset Forfeiture Section, 312 N. Spring Street, 14th Floor, Los

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Angeles, CA 90012.

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To Matilija:

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

Darin Marx, 300 Esplanade Drive, Suite 850,

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Oxnard, CA 93036.

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to have been given as of the date of delivery (whether accepted

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or refused) established by the U.S. Post Office return receipt

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or the overnight courier’s proof of delivery, as the case may

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be.

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20.

Any notice so given by mail shall be deemed

In the event of the enactment of any federal law that

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renders legal the conduct described in Paragraph 1(b), and the

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effective date of such law pre-dates the expiration of the time

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period set out in paragraph 8, this Consent Judgment shall

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terminate immediately without any further action by any party or

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the court on the effective date of such law.

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Dated: February 15, 2013

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THE HONORABLE JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

[Signatures of the parties to this agreement follow on the next
page.]

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Approved as to form and content:
DATED: February 6, 2013

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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

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/s/ P. Greg Parham
P. GREG PARHAM
Assistant United States Attorney

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Attorneys for Plaintiff
United States of America

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DATED: February 5, 2013
/s/ Darin Marx
DARIN MARX
Attorney for Claimant
MATILIJA INVESTMENT PROPERTY LLC

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DATED: February 5, 2013
By:
/s/
MATILIJA INVESTMENT PROPERTY LLC
Claimant

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