The Anatomy of Public Corruption

Showing posts with label Benny Chetcuti Jr.. Show all posts
Showing posts with label Benny Chetcuti Jr.. Show all posts

GIUSTI v. BKCM ENTERPRISES, INC.

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GIUSTI v. BKCM ENTERPRISES, INC.

No. A140759.

MARCIA GIUSTI, Plaintiff and Appellant, v. BKCM ENTERPRISES, INC., et al., Defendants and Respondents.
Court of Appeals of California, First District, Division Five.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115
Plaintiff Marcia Giusti (plaintiff) sued numerous individuals and related corporations, claiming they conspired to operate a Ponzi scheme to borrow money with the false promise the loans were secured by deeds of trust.1 The trial court granted defendants' motion for summary judgment, denied Giusti's reconsideration motion, and entered judgment for defendants.
Plaintiff appeals. She contends the court erred by: (1) excluding her timely-filed opposition evidence as inadmissible hearsay; (2) excluding opposition evidence she filed after the statutory deadline in Code of Civil Procedure section 437c, subdivision (b)(2); (3) granting summary judgment for defendants; and (4) denying her motion for reconsideration.
We deny defendants' motion to dismiss the appeal as untimely. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a real estate agent. From 2007 to 2009, she made at least eight loans totaling almost $1.4 million to Benny Chetcuti, Jr. and his company, Chetcuti & Associates (collectively, Chetcuti). These loans were secured by Bay Area real property. Certain defendants also loaned money to Chetcuti and held liens on the same real property. Plaintiff's lawsuit concerns two loans totaling $615,000 described below.

99 Cedro Avenue

In April 2007, defendants LHJS Investments, LLC and Magnate Fund #2 LLC (M2) loaned Chetcuti $1.5 million to buy real property at 99 Cedro Avenue in San Francisco (99 Cedro). The loan on 99 Cedro was secured by first and second deeds of trust. In August 2007, plaintiff loaned Chetcuti $350,000. A deed of trust on 99 Cedro secured plaintiff's loan. In 2008, Magnate Fund #3 LLC (M3) loaned Chetcuti an additional $425,000 to complete construction on 99 Cedro. Plaintiff reconveyed the deed of trust on 99 Cedro to a third party. 99 Cedro was sold in June 2008 and plaintiff received $134,250 in interest and principal on the loan secured by that property.

20 Parkridge Drive

In November 2007, M2 loaned Chetcuti $670,000, secured by a deed of trust on a multi-unit building at 20 Parkridge Drive in San Francisco (20 Parkridge). A few weeks later, plaintiff loaned Chetcuti $265,000, also secured by a deed of trust on the same property. M2 eventually foreclosed on the property when Chetcuti did not repay the loan. Plaintiff received $160,400 in principal, interest, and penalties on the loan secured by 20 Parkridge.

The Operative Complaint

Plaintiff sued defendants for the "two loans . . . outstanding" on 99 Cedro and 20 Parkridge. The operative second amended complaint alleged claims for conspiracy, intentional infliction of emotional distress, and declaratory relief. Plaintiff alleged Chetcuti and John Simonse operated a Ponzi scheme to borrow money — usually in the form of short term loans — by promising "high (and mostly usurious) returns." According to plaintiff, Chetcuti signed promissory notes and issued "deeds of trust to his properties" to secure the loans. Before recording the lenders' deeds of trust, however, Chetcuti issued and recorded deeds of trust in favor of Simonse and related entities on unfunded sham loans "that would totally encumber the property. . . . Simonse and his other entities would then foreclose on the properties, leaving the victims without any security for their loans," and "Simonse and his entities would have free and clear title to the properties, without actually making any loans." When "Chetcuti could not find enough investors to pay for various other loans, the scheme collapsed, leaving his victims with unpaid promissory notes with no security for their loans." According to the operative complaint, Chetcuti defrauded at least 114 victims, who suffered an aggregate loss of $28 million.
As relevant here, the operative complaint alleged: (1) plaintiff's loans were not repaid; (2) Chetcuti made "false representations" he would repay the loans; (3) Chetcuti tricked plaintiff into signing the reconveyance for the deed of trust on 99 Cedro and lied when he promised to deliver the reconveyance to the title company; (4) Chetcuti lied about the encumbrances on, and the value of, 20 Parkridge, and he falsely represented plaintiff would hold the second deed of trust on that property; (5) Simonse created a shell company and M2 transferred title to 20 Parkridge to the shell company without consideration; (6) defendants "aided and abetted" in Chetcuti's "false representations" by "making bogus `loans'" to Chetcuti "when the `loans' were not really funded, to secure superior liens[;]" and (7) plaintiff was damaged and suffered emotional distress as a result of defendants' conduct.

Motion for Summary Judgment, Opposition, and Reply

Defendants moved for summary judgment. They argued: (1) plaintiff "lost her secured interests due to the allegedly fraudulent misrepresentations of Chetcuti" and her "proper remedy was to sue" him; (2) defendants had no involvement in, or knowledge of, plaintiff's loans to Chetcuti; (3) there was no evidence of a conspiracy or any fraudulent conduct by defendants; and (4) there was no evidence of outrageous conduct, nor evidence plaintiff suffered severe emotional distress. The court set a February 2013 hearing date.
In January 2013, plaintiff moved to continue the summary judgment hearing to allow her to depose Simonse. The court granted the motion and continued the hearing to April 4, 2013. Plaintiff deposed Simonse on three days in January and February 2013. Plaintiff filed her opposition to the summary judgment motion on March 21, 2013.2 Relying on the allegations in the operative complaint, plaintiff argued defendants conspired with Chetcuti to "have [p]laintiff's lien [on 99 Cedro] out of the way" and that defendants did "not fully fund[ ]" the loan on 20 Parkridge. Plaintiff also argued there were triable issues of material fact regarding her declaratory and emotional distress claims. In a supporting declaration, plaintiff described how Chetcuti defrauded her and averred defendants "entered into an agreement, through . . . Simonse, to cause injury to a class of individuals in which [she] belong[ed], as creditors of . . . Chetcuti." Plaintiff also described the emotional and physical distress she suffered from defendants'"outrageous acts[.]" Her declaration attached 20 documents. Plaintiff's attorney, Crisostomo Ibarra, submitted a supporting declaration attaching 49 documents.
In reply, defendants argued there was "not one scintilla of admissible evidence in the reams of paper submitted of any wrongdoing by . . . [d]efendants." Defendants claimed plaintiff was confusing the allegations in the operative complaint with "requisite facts. She confuses hearsay statements, allegations and unauthenticated documents with required admissible evidence." Defendants also argued: (1) they had no knowledge of the loans plaintiff made to Chetcuti; (2) they did not conspire or agree with Chetcuti to harm plaintiff; and (3) plaintiff's emotional distress and alter ego claims failed. Defendants also objected to plaintiff's evidence on numerous grounds, contending all of the documents attached to plaintiff and Ibarra's declarations lacked authentication and that plaintiff's declaration contained inadmissible hearsay.

The Hearing is Continued and Plaintiff Submits Additional Evidence

On April 4, 2013, the court continued the summary judgment hearing on its own motion and asked the parties to agree on a new hearing date. The parties agreed on May 8, 2013. On May 6, 2013 — two days before the hearing — plaintiff filed three additional declarations in support of her opposition to the summary judgment motion. These declarations attached hundreds of pages of documents.
Defendants objected to the "late-filed declarations[,]" claiming plaintiff's opposition and supporting documents were due on March 21, 2013 — 14 days before the April 4, 2013 hearing date. Defendants urged the court to disregard the documents pursuant to Code of Civil Procedure section 437c, subdivision (b)(2).3 On May 8, 2013, plaintiff moved to continue the summary judgment hearing again, to allow her to obtain additional documents from defendants and additional deposition testimony from Simonse. The court continued the hearing to May 17, 2013.
On May 9 and 10, 2013, Ibarra filed two additional declarations — attaching a total of 50 documents — in support of plaintiff's opposition to the summary judgment motion. Defendants objected, claiming the declarations were "untimely" and filed "in bad faith" because the deadline to submit evidence in opposition to the motion was March 21, 2013. At plaintiff's request, the court continued the summary judgment hearing two additional times, and finally held a hearing on the motion in July 2013.

The Court Grants Defendants' Summary Judgment Motion

The court granted summary judgment for defendants and sustained defendants' objections to: (1) evidence plaintiff submitted on March 21, 2013 "as being hearsay[;]" (2) evidence plaintiff submitted after March 21, 2013 as "containing inadmissible hearsay and . . . unauthenticated exhibits[;]" and (3) evidence plaintiff submitted after March 21, 2013 as "filed after the statutory time" set forth in section 437c, subdivision (b)(2), except Ibarra's May 9, 2013 declaration, which was identical to the one he filed on March 21, 2013. The court explained that an order continuing a summary judgment hearing does not permit the opposing party to file an "entire new round" of pleadings and documents. Finally, the court determined defendants established there were no triable issues of material fact on the causes of action in the operative complaint.

Plaintiff's Motion for Reconsideration and Judgment for Defendants

Plaintiff moved for reconsideration "on the ground of new and different facts than those considered by the [c]ourt" pursuant to section 1008, subdivision (a) and offered four supporting declarations. In opposition, defendants argued the evidence was not "new or different" as required by section 1008, subdivision (a) and objected to the evidence as "irrelevant, inadmissible and unauthenticated." Following a hearing, the court denied the motion, concluding plaintiff "did not bring to light any `new' facts which could not have been discovered earlier with reasonable diligence." The court entered judgment for defendants.

DISCUSSION

I.

Plaintiff Has Not Established the Court Erred by Excluding Her Timely-Filed Opposition Evidence

As stated above, defendants objected to much of plaintiff's timely-filed evidence offered in opposition to the summary judgment motion as "inadmissible" hearsay (Evid. Code, § 1200) and "containing unauthenticated exhibits" (Evid. Code, § 1400). The court sustained defendants' hearsay objections. On appeal, plaintiff claims the court erred by excluding "various" — but unspecified — "items of evidence[.]"
Plaintiff's argument fails because she does not provide "any examples of specific objections that the trial court sustained that were erroneous or unreasonable[,]" nor discuss her argument "in the context of any specific exhibit or exhibits." (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852, 854 (Serri).) Instead, she cites to almost 100 pages of the clerk's transcript and states — in conclusory fashion — the court erred by sustaining defendants' objections to her timely-filed opposition evidence. "`[A]n appellate court cannot be expected to search through a voluminous record to discover evidence on a point raised by appellant when [her] brief makes no reference to the pages where the evidence on the point can be found in the record.'" (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1458.) For these reasons, we reject plaintiff's challenge to the court's evidentiary rulings excluding her timely-filed opposition evidence. (Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1370 [declining to review challenge to evidentiary ruling where plaintiffs "fail[ed] to identify any evidence that was allegedly improperly admitted"].)
Nor are we persuaded by plaintiff's claim that the court erred by sustaining defendants' objections because defendants produced many of the documents during discovery. Plaintiff cites no authority supporting this contention. At least one court has rejected an identical argument, explaining: "`[n]ot every document that comes out of an opposing party's files is automatically admissible against even that party,' . . . [¶] Documents obtained in discovery in response to a request for production of documents may be used to support or oppose a motion for summary judgment, but must be presented in admissible form. This means the evidence must be (1) properly identified and authenticated, (2) admissible under the secondary evidence rule, (3) nonhearsay or admissible under some exception to the hearsay rule, and (4) a complete record, not selected portions of the document. [Citation.] Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other `evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.' [Citations.]" (Serri, supra, 226 Cal.App.4th at pp. 854-855.)
We also reject plaintiff's claim — premised on Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 250 (Nazir) — that the court erred by issuing a "blanket ruling" excluding most of timely-filed opposition evidence. In Nazir, the trial court sustained all but one of defendants' 764 objections to evidence plaintiff offered in opposition to summary judgment. A division of this court held "`a trial court presented with timely evidentiary objections in proper form must expressly rule on individual objections[,]'" and determined the court's order sustaining all but one objection was an abuse of discretion. (Id. at p. 255, quoting Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.) As the Nazir court explained, "there is no way that the trial court could properly have sustained 763 objections `"`guided and controlled . . . by fixed legal principles''" because: (1) "[s]ome of the sustained objections did not even assert any basis for the objection[;]" (2) some of the "sustained objections were to plaintiff's testimony about his dates of employment, his religion, his skin color, and his national origin[;]" (3) many of the objections failed to quote the challenged evidence in violation of California Rules of Court, rule 3.1354; and (4) twenty-seven "of the sustained objections were to plaintiff's brief, not his evidence." (Nazir, supra, 178 Cal.App.4th at pp. 255-256.)
We have no quarrel with the general rule that "`a trial court presented with timely evidentiary objections in proper form must expressly rule on individual objections[,]" but conclude Nazir is distinguishable. (Nazir, supra, 178 Cal.App.4th at p. 255.) Here and in contrast to Nazir, defendants submitted 80 objections — not 764 — and in the form delineated in California Rules of Court, rule 3.1354. Unlike Nazir, where the court made a broad, generalized ruling sustaining hundreds of objections, the court here expressly ruled on specific evidentiary objections by sustaining defendants' hearsay objections. Nothing more was required. (Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 512, fn. 15 [rejecting argument that trial court erred by failing to explain its evidentiary rulings].) Plaintiff's reliance on Nazir does not assist her and she has failed to demonstrate the court abused its discretion by sustaining defendants' hearsay objections to her timely-filed opposition evidence.

II.

The Court Did Not Err by Refusing to Consider Opposition Evidence Filed After the Statutory Deadline

As stated above, the court sustained defendants' objections to the majority of the evidence plaintiff submitted after March 21, 2013, concluding it was untimely under section 437c, subdivision (b)(2) and explaining an order continuing a summary judgment hearing does not permit the opposing party to file an "entire new round" of pleadings and supporting evidence. Plaintiff contends the court erred by excluding evidence she filed after March 21, 2013.
Section 437c requires a party seeking summary judgment to file the motion and supporting papers 75 days before the hearing. (§ 437c, subd. (a).) An opposition to the motion must be filed "not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (§ 437c, subd. (b)(2).) "[S]ection 437c, subdivision (b) . . . forbids the filing of any opposition papers less than 14 days prior to the scheduled hearing, and the case law has been strict in requiring good cause to be shown before late filed papers will be accepted." (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624-625 (Hobson), disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031.) We review the court's decision to disregard evidence plaintiff filed after March 21, 2013 for abuse of discretion. (Hobson, supra, 73 Cal.App.4th at p. 625; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 10.218.5, p. 10-96 ["A court has discretion to refuse to consider papers . . . filed beyond the deadline without a prior court order finding good cause for late submission"].)
Plaintiff claims the March 21, 2013 cut-off date was "arbitrary" and the exclusion of evidence she submitted after that date was "not in the furtherance of justice." This argument fails for several reasons. First, it is unsupported by authority. When an appellant asserts a point "but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]" (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) Second, the March 21, 2013 cut-off date was not arbitrary. "The requirement that opposing papers be filed a reasonable time in advance of the hearing helps to ensure that the court and the parties will be familiar with the facts and the issues so that meaningful argument can take place and an informed decision rendered at the earliest convenient time." (Shadle v. City of Corona (1979) 96 Cal.App.3d 173, 178-179.) The statutory deadline also prevents a party opposing a summary judgment motion from filing voluminous opposition documents well after the moving party files its reply memorandum, effectively denying the moving party an opportunity to reply.
Plaintiff has failed to establish the court abused its discretion by excluding opposition evidence she filed after March 21, 2013. (Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582, 596 ["trial court properly disregarded" motion as "untimely" under section 437c, subd. (b)(2)]; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [refusal to consider "plaintiff's `surrebuttal' brief" in opposition to summary judgment was not an abuse of discretion]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255 [attorney's declaration untimely under section 437c, subd. (b)(2)].)

III.

Plaintiff Has Not Demonstrated the Court Erred by Granting Summary Judgment for Defendants

Next, plaintiff claims the court erred by granting summary judgment for defendants because "there was sufficient evidence in the trial court to find collusion/conspiracy" between defendants and Chetcuti. We are not persuaded for several reasons. First, plaintiff concedes the court's evidentiary rulings "mean that [her] evidence was virtually non-existent[.]" She also concedes defendants denied being "engaged in a scheme that resulted in damage to [her]." Second, plaintiff does not identify what "evidence" creates a triable issue of fact on any of her claims. "Rather than scour the record unguided," we conclude plaintiff has waived this argument by failing to support it with "accurate citation to the record." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) Third, plaintiff's argument consists entirely of boilerplate recitation of summary judgment principles of which we are well aware. Plaintiff "must supply the reviewing court with some cogent argument supported by legal analysis. . . . [W]e . . . disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions [she] wants us to adopt. [Citations.]" (Id. at p. 287.)

IV.

Plaintiff's Argument Regarding Her Reconsideration Motion Fails

Plaintiff's final claim is the court erred by denying her motion for reconsideration because she "brought new evidence to shed light on her conspiracy claims." We decline to consider this claim — consisting of two sentences — because it is unsupported by reasoned argument and citations to authority. (City of Huntington Beach v. Public Utilities Com. (2013) 214 Cal.App.4th 566, 589.) "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]" (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Simply stating the court erred does not make it so. Plaintiff does not explain how the evidence was new, why it could not have been discovered earlier with reasonable diligence, and why it was admissible and relevant. (New York Times Co v. Superior Court (2005) 135 Cal.App.4th 206, 212.) We summarily reject plaintiff's two-sentence argument regarding her reconsideration motion because she failed to "develop it in any meaningful way." (Giorgianni v. Crowley (2011) 197 Cal.App.4th 1462, 1483.)

DISPOSITION

The judgment is affirmed. Defendants shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
Simons, J. and Needham, J., concurs.

FootNotes


1. As relevant here, defendants are John Simonse, Magnate Fund #1 LLC, Magnate Fund #2 LLC, Magnate Fund #3 LLC, JWS Capital Management, Inc., LHJS Investments LLC, 27th Street Associates LLC, South Van Ness Street Associates LLC, 20 Parkridge LLC, and 55 Woodward LLC (collectively, defendants). Various parties in the trial court are not parties to this appeal are mentioned only where necessary.
2. She also sought a continuance to allow her to "finish[ ] taking Simonse's deposition."
3. Unless noted, all further statutory references are to the Code of Civil Procedure. Section 437c, subdivision (b)(2) requires a party's opposition to a motion for summary judgment to be filed "not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise."

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Investor Fraud Summit

Investor Fraud  










Co-Conspirators

Cnetscandal.blogspot.com

The Investor Dragons

I've been researching for three years as my story is Hydra the Seven Headed Dragon.  The heads get lopped off and there is another tangent of this messy story.  

Federal Level Changes 
Investor Fraud Summit Arms Consumers with Information to Protect Retirement Funds and Life Savings



Bar K Investors 
Benny Chetcuti Jr. 

My ex lived next door to Chetcuti for ten years and that means she knew Butler we were married.  It also means she's well aware of that they tried to kill me via arson, beating and accidents.  One mistake was the 2005 accident nearly killed her own sons.  

Link to PG&E, CNET Cops and Walnut Creek  

The Torres Clan 
The woman with the Tattoo's walked right past me about 18 months ago.  The Tat's were a dead giveaway - through the Soccer Moms Confidential segment I was able to link to Butler.  He was in my house in 2004 days after the assault with Collins, he's dead was killed here in 2011. 

Then then link to Butler and my accidents became evident as the litigation unfolded.  A court battle is going on between the county and several lawsuits.  This is another point where my story could emerge.  

For months I searched images when via several pictures of the Walnut Creek Explosions and tiring forensic accounting, records searches which ended up being tied my failed cabinet shop in Summer 2004 linked the arson cases to the cops and the agencies investigative failures.   

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Walnut Creek Real Estate Investor Indicted For Fraud

Benny Chetcuti Jr. Walnut Creek Real Estate Investor Indicted For Fraud
By Pete Bennett CNET Scandal Date: March 3rd, 2014




Posted: Summer 2012 Pete Bennett 
Lost In Walut Creek, CA 94596 
P: (925)-399-1082 
Email:pcbennett@outlook.com


TrackingNumber:PCB0002


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CBS 48 Hours - Soccer Moms Confidential @JudicialCenter @NorCal_Record @

Quick Facts

Chris Butler was in Pete Bennett's house in 2004

 Chris Butler Commander Wielsch Louis Lombardi Stephen Tanabe Mary Nolan
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Contra Costa Hate Crimes Network

Really?

After being beaten down many times in the legal system a pattern emerged.  My first incident was at the end of Santa Monica Drive Pleasant Hill CA where two separate murders occurred in 1979 or 1980.  These occurred less than 500 feet from my property.

One Black, One White and Two Arsons

Yes Enough Cases For Federal Civil Rights Investigations

In 1986 there were two well publicized lynchings of blacks near the Lafayette and Concord CA BART Stations.  Up at Newhall Park there was another Lynching but one that barely made the news was at Paso Nogal park.  In 2009 Timothy Mitchell was shot dead by CNET Commander Norman Wielsch in a case of alleged mistaken identity which was about two after Pittsburg Detective Ray Giacomelli was killed by Earl Foster but few know that Giacomelli killed Bernard Bynum in 1982.  I know because Tiny and his brother worked for me and their cousin is Supervisor Federal Glover.

Hate Crimes

There is a long history of murders in the East County that have gone unsolved with an occasional push via the press but an unusual incident was Eiko Sugihara who was found burned to death in her car down the road from the other Hunsacker Road infamous murder case involving Pamela Vitale wife of CNN Attorney Daniel Horowitz.   There are gay transgenders jumping from BART structures and DAnville moms from St. Isadore Church in Danville rolling down ravines in Mt. Diablo that independently appear benign but take a close look at persons on this Letter To Senator Feinstein where I've detailed a group of deaths that based on extensive personal knowledge and research lead to CNET.

 
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Benny Chetcuti Jr. Walnut Creek Real Estate Investor Indicted For Fraud
By Pete Bennett CNET Scandal Date: March 3rd, 2014


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CalPERS Ethics Helpline

Benny Chetcuti Jr. Walnut Creek Real Estate Investor Indicted For Fraud


By Pete Bennett CNET Scandal

Date: March 3rd, 2014

FREMONT -

 

CalPERS Ethics Helpline

At CalPERS, we strive to foster a work environment based on quality, respect, integrity, openness, accountability and balance. As part of our continued efforts to ensure our workplace meets these professional standards, we encourage you to use the CalPERS Ethics Helpline to confidentially report allegations of unethical conduct, improper business activity or retirement benefits abuse.

Make a Report

EthicsPoint, Inc. is our independent third-party host for the CalPERS Ethics Helpline. You can:
  • Call them toll-free at (866) 513-4216 or TTY at (866) 294-9572
  • Report Online from their safe and secure website.
 

Additional Resources

Gift Policy (PDF, 11 KB)
CalPERS Form 700 Travel Transparency Policy (PDF, 14 KB)
FAQs – CalPERS Ethics Helpline
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CHAPTER 10. PRIVATE PARKING LOTS

Benny Chetcuti Jr. Walnut Creek Real Estate Investor Indicted For Fraud
By Pete Bennett CNET Scandal Date: March 3rd, 2014


6-10.01 Definitions.

a. "Business hours" mean the period from one hour before a business is open for customers until the business’ closing time for customers. For parking spaces designated for users of automated teller machines, or for employee, tenant or other non-customer reserved parking, "business hours" shall mean 24 hours a day.
b. "Mail-in parking fee" or "mail-in parking charge" means a charge for parking in an offstreet parking lot affixed to a vehicle whose driver is not authorized by signs to park in the offstreet parking lot for no fee.
c. "Notice of a parking charge" means a written document affixed to a vehicle which notifies the vehicle driver of a mail-in parking fee that is due as a result of unauthorized parking in an offstreet parking lot.
d. "Offstreet parking lot" means privately owned property that is generally held open to the public, or a discernible portion thereof, for the parking of vehicles at no fee.
e. "Person" shall mean any natural person, firm, company, corporation, partnership, or association.
f. "Private parking operator" means any person who owns or controls, or person who acts on behalf of or at the behest of a person who owns or controls, an offstreet parking lot. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02 and by 1§, Ord. 2010, eff. 3/20/03)

6-10.02 Compliance with This Chapter.

It shall be unlawful, and an unfair business practice within the meaning of Business and Professions Code Section 17200 for any person in an offstreet parking lot to charge a mail-in parking fee, or to issue or cause to be issued a notice of parking charge that is not in compliance with this chapter. Any notice of parking charge that is not in compliance with this chapter shall be invalid. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02 and by §1, Ord. 2010, eff. 3/20/03).

6-10.03 Mail-in Fees, Issuance of Notices of Parking Charges.

a. During normal business hours a private parking operator may charge a mail-in parking fee to owners of vehicles parked in the lot without authorization.
b. Where an offstreet parking lot of a closed business is in actual use for valet parking by an off-site business which is open for business and while valet parking is occurring additional signs are posted prohibiting all public parking a private parking operator may charge a mail-in parking fee to owners of vehicles parked in the lot without authorization.
c. Where an offstreet parking lot of a closed business utilizes a lock-box or other device requiring payment before parking, a private parking operator may charge a mail-in parking fee to owners of vehicles parked in the lot without authorization.
d. Except as provided in subsection (b) and (c), no mail-in parking fee shall be charged by a private parking operator outside of normal business hours for parking spaces designated for customer parking only during business hours. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02 and by §1, Ord. 2010, eff. 3/20/03)

6-10.04 Amount of Fee.

No mail-in parking fee charged pursuant to this chapter shall exceed the initial amount of bail for violation of Municipal Code Section 4-6.301 (signed private parking) which currently is $20. No late charge or other fee shall be imposed unless expressly authorized by a resolution of the City Council. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00 §1, Ord. 2004, eff. 11/14/02 and by §1, Ord. 2010, eff. 3/20/03)

6-10.05 Additional Requirements-Signs

In addition to meeting the requirements of section 6-10.03 signs shall be posted as required by this section.
a. No mail-in parking fee shall be charged and no notice of parking charge shall be issued unless there are in place signs substantially in the form required by this chapter.
b. Signs shall contain a statement that the parking is restricted. For example:
"Parking for XXX Customers Only"
"Free Parking for XXX Customers Only"
"This Space Reserved for XXX"
"Parking for Tenants Only"
"Pay at Lock-box when Store Closed"
"Parking Lot Closed-Valet Parking Only"
c. Signs shall contain a statement with the fee for unauthorized parking. For example:
"All Unauthorized Parking $20"
" Immediate $20 Fee for Unauthorized Parking"
d. Signs shall contain a statement with the hours the parking restrictions are in force during which a mail-in parking fee may be charged. For example:
"$20 Fee Enforced During All Business Hours"
"Reserved Parking Restrictions Enforced 24 Hours A Day"
"Pay at Lock-box when Store Closed"
e. Signs must be posted at each entrance and exit to the lot, and must be visible from each restricted parking space. Where different restrictions apply to parking spaces with common entrances and exits, the restrictions applicable to each space shall be clearly delineated. The sign at each entrance shall include text or a symbol, to the approval of the Community Development Director, indicating that the offstreet parking lot has been certified by the City to allow private enforcement of parking controls within the lot.
f. The Community Development Director is hereby authorized to establish uniform sign sizes, colors, sizes of lettering, and other information that may be required on all signs in order to be in compliance with this section. If the Director establishes such criteria, all signs required by this chapter shall be brought into compliance within 60 days. The Director may authorize signs that vary from subsections (b) through (d), and such signs shall be deemed to be in compliance with this section.
g. Signs which indicate that a customer may park for no fee shall indicate whether the authorized parking is only for the time the customer is on the premises or whether it is for a limited duration of time. In the absence of such designation, a customer shall not be charged a mail-in parking fee.
h. Nothing in this chapter shall be construed to modify the requirements Municipal Code Section 4-6.301 imposes on persons who seek to have the vehicles towed or have the City of Walnut Creek issue citations. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00; §1, Ord. 2004, eff. 11/14/02 and by §1, Ord. 2010, eff. 3/20/03)

6-10.06 Notice of Parking Charges.

a. No person shall place on any vehicle a notice of a parking charge which does not contain at the top of the notice in at least 12 point print the words "INVOICE" followed by "PARKING FEE IMPOSED BY XXX," inserting the name and street address of the business whose customers are designated to use the customer only parking during normal business hours.
b. No person shall place on any vehicle a notice of a parking charge which does not contain in at least 10 point print the listed Walnut Creek telephone number of the business whose customers are designated to use the customer only parking.
c. Where the reserved parking space is for someone other than a customer, the information required by subsection (a) and (b) shall be replaced with the corresponding information of the person who owns or controls the reserved parking space.
d. Every notice of parking charge shall end with the legend "This parking charge notice is not issued by the City of Walnut Creek." This provision shall be in a least 12 point print.
e. No notice of parking charge shall display any feature that resembles a City of Walnut Creek parking citation. The notice of parking charge shall be a color distinctive from a City parking citation. The Chief of Police shall approve the color or colors of the notice of parking charge.
f. Every notice of parking charge shall state that the business identified in subsection (a) may cancel the mail-in parking charge at any time for any reason. The categorical refusal of the business identified in subsection (a) to review a notice of parking charge upon request shall void the mail in parking fee.
g. Every notice of parking charge shall provide fair notice of the dispute resolution procedure described in §6-10.08. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02) and by (§1, Ord. 2010, eff. 3/20/03)

6-10.07 Registration of Private Parking Operators and Certification of Offstreet Parking Lots.

a. Every private parking operator who issues notices of parking charges shall register with the Community Development Director before doing business in City of Walnut Creek. In addition to the information required by this section, the Community Development Director may require such other information as may enable the Director to determine compliance with this chapter. The fee for registering and amending the registration shall be set by City Council resolution.
b. The registration shall include the name, address and telephone number of the private parking operator, the names, home and business addresses and telephone numbers of each person owning 10% or more of the business, and the Walnut Creek business license number of the business.
c. The registration shall also include a list of all offstreet parking lots where mail-in parking fees are charged, which shall be updated prior to any new lot being added or within one month of any lot being dropped, along with the name, address and telephone number of each contact person or person authorized to resolve disputes for each offstreet parking lot.
d. Every private parking operator shall maintain for at least one year a list by offstreet parking lot of the notices of parking charges issued for each offstreet parking lot. This list shall be broken down by date, and for each date shall show the time, the parking violation and the license number of the vehicle issued the notice of parking charge. Upon request, these records or copies of these records shall be furnished to the Community Development Director.
e. On and after July 1, 2003 no notice of parking charge shall be issued in an offstreet parking lot unless the signing for the offstreet parking lot has been certified as being in compliance with this chapter. The Community Development Director shall do the certification. The frequency of the certification and the charge for certification of parking lots shall be fixed by resolution of the City Council. The certification may be withdrawn or suspended by the Director following notice and opportunity for a hearing if (i) the signing for the offstreet parking lot is found to be out of compliance with this chapter, (ii) if private parking charges are found to have been issued in violation of this chapter for parking in the lot, or (iii) if the private parking lot operator engaged in any other acts or omissions constituting a violation of this chapter with relation to the offstreet parking lot.
f. Any private parking lot owner aggrieved by a decision of the Director under subsection (e) may, within five business days of receipt of the decision, appeal the decision in writing to the City Manager who shall, following a hearing affirm, reverse or modify the decision of the Director. The decision of the City Manager shall be final. Upon the final administrative determination to suspend or withdraw the certification of an offstreet parking lot, the text or symbol indicating certification of the lot shall be immediately removed. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02) and by (§1, Ord. 2010, eff. 3/20/03)

6-10.08 Dispute Resolution.

a. Every private property operator issuing notices of parking charges shall establish a written dispute resolution policy for contested parking charges that shall comply with this section. A copy of the current policy shall be filed with the Community Development Director. Every such policy shall contain the provision that allows the retailer, business or property owners who has issued the notice of parking charge, or authorized notices to be issued, to cancel the notice and parking charge at any time for any reason.
b. For a period of 21 calendar days from the issuance of a notice of parking charge or 14 calendar days from the mailing of a notice of delinquent parking charge, a person may request an initial review of the notice by the private parking operator. The request may be made by telephone, in writing, or in person. There shall be no charge for this review. If, following the initial review, the private parking operator is satisfied that the unauthorized parking did not occur, that the registered owner was not responsible for the charge, or that extenuating circumstances make dismissal of the charge appropriate in the interest of justice, the private parking operator shall cancel the notice of parking charge or notice of delinquent parking charge. The private parking operator shall mail the results of the initial review to the person contesting the notice.
c. If the person is dissatisfied with the results of the initial review, the person may request an administrative hearing of the charge no later than 21 calendar days following the mailing of the results of the private parking operator’s initial review. The request may be made by telephone, in writing, or in person. The person requesting an administrative hearing shall deposit the amount of the parking charge with the private parking operator. The private parking operator shall provide a written procedure to allow a person to request an administrative hearing without payment of the parking charge upon satisfactory proof of an inability to pay the amount due. Notice of this procedure shall be provided to all persons requesting an administrative hearing. An administrative hearing shall be held within 90 calendar days following the receipt of a request for an administrative hearing, excluding time tolled pursuant to this section. The person requesting the hearing may request one continuance, not to exceed 21 calendar days.
d. The administrative hearing process shall include the following:
(1) The person requesting a hearing shall have the choice of a hearing by mail or in person. An in-person hearing shall be conducted within the City of Walnut Creek.
(2) If the person requesting a hearing is a minor, that person shall be permitted to appear at a hearing or admit responsibility for the parking charge without the necessity of the appointment of a guardian. The private parking operator may proceed against the minor in the same manner as against an adult.
(3) The administrative hearing shall be conducted in accordance with written procedures established by the private parking operator and approved by the Community Development Director. The hearing shall provide an independent, objective, fair, and impartial review of contested parking charges.
(4) (A) The private parking operator shall contract with an independent third party that is not controlled by a private parking operator who shall provide qualified examiners to conduct the administrative hearings. Examiners shall demonstrate those qualifications, training, and objectivity necessary to conduct a fair and impartial review. An examiner shall not be employed, managed, or controlled by a person whose primary duties are as a private parking operator, parking charge processing, collection, or issuance. The examiner shall be separate and independent from the parking charge collection or processing function. An examiner’s continued employment, performance evaluation, compensation, and benefits shall not, directly or indirectly, be linked to the amount of parking charges collected by the examiner.
(B) Examiners shall have a minimum of 20 hours of training. The examiner is responsible for the costs of the training. The private parking operator may reimburse the examiner for those costs. Training may be provided through (i) an accredited college or university, (ii) a program conducted by the Commission on Peace Officer Standards and Training, (iii) American Arbitration Association or a similar established organization, or (iv) through any program approved by the Chief of Police, including a program developed and provided by, or for, the City. Training programs may include topics relevant to the administrative hearing, including, but not limited to, applicable laws and regulations, private parking operator procedures, due process, evaluation of evidence, hearing procedures, and effective oral and written communication. Upon the approval of the Chief of Police, up to 12 hours of relevant experience may be substituted for up to 12 hours of training. In addition, up to eight hours of the training requirements described in this subparagraph may be credited to an individual, at the discretion of the Chief of Police, based upon training programs or courses described in (i) to (iv), inclusive, that the individual attended within the last five years.
(5) The person who issues a notice of parking charge shall not be required to participate in an administrative hearing. The private parking operator shall not be required to produce any evidence other than the notice of parking charge or copy thereof and information received from the Department of Motor Vehicles identifying the registered owner of the vehicle. The documentation in proper form shall be prima facie evidence of the charge.
(6) The examiner’s decision following the administrative hearing may be personally delivered to the person by the examiner or sent by first-class mail.
(7) Following a determination by the examiner that a person owes the charge, the examiner may allow payment of the parking charge in installments, or a private parking operator may allow for deferred payment or allow for payments in installments, if the person provides evidence satisfactory to the examiner or the private parking operator, as the case may be, of an inability to pay the parking penalty in full. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02) and by (§, Ord. 2010, eff. 3/20/03

6-10.09 Unauthorized Business Practices.

a. No private parking operator shall utilize the Denver boot or other similar device that is attached to the vehicle and which immobilizes the vehicle.
b. No person shall report or threaten to report an unpaid notice of a parking charge to a credit bureau or a collection agency unless a small claims court or other judicial proceeding has established the debt. No person shall take any action or threaten to take any action to collect, or contact with another person who takes or threatens to take any action to collect an unpaid notice of a parking charge other than to seek establishment of the debt in a small claims court or other judicial proceeding.
c. No private parking operator shall pay any employee or independent contractor a salary or fee that is in any way based on the number of notices of private parking charges they issue.
d. Every private parking operator who collects a mail in parking charge in violation of this chapter shall refund the fee to the owner of the vehicle (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02) and by (§1, Ord. 2010, eff. 3/20/03)

6-10.10 Application to Core Area.

a. This chapter shall only apply within the Core Area of Walnut Creek as that portion of Walnut Creek is designated in the Planning Boundaries map shown in Chapter 1, Figure 2, of the Walnut Creek General Plan.
b. The City Council may by resolution designate other areas of the City of Walnut Creek where the provisions of this chapter shall be applicable. (§2, Ord. 1940, eff. 3/4/99; §1, Ord. 1971, eff. 10/19/00, §1, Ord. 2004, eff. 11/14/02 and by §1, Ord. 2010, eff. 3/20/03)

6-10.11 Penalty.

Any person who violates any provision of this chapter shall be guilty of a misdemeanor or an infraction.
a. If charged as an infraction, the penalty upon conviction of such person shall be a fine as set forth in §1-2.01 of this code.
b. If charged as a misdemeanor, the penalty upon conviction of such person shall be imprisonment in the county jail for a period not to exceed six months, or a fine not exceeding $1,000 of by both such fine and imprisonment. (§1, Ord. 2010, eff. 3/20/03)
The Walnut Creek Municipal Code is current through Ordinance 2128, passed April 1, 2014.
Disclaimer: The City Clerk's Office has the official version of the Walnut Creek Municipal Code. Users should contact the City Clerk's Office for ordinances passed subsequent to the ordinance cited above.
City Website: http://www.walnut-creek.org/
City Telephone: (925) 943-5800
Code Publishing Company 


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