Judge Bruce G. Iwasaki, Case BC652405 2022-07-26 Tentative Ruling

Moving Party: Defendant/Cross-complainant Community Rebuild Partners; Community Rebuild Asset Holdings; and Greg Hebner

Tentative Ruling: The Motion for Summary Judgment is granted, and Cross-complainant Community is awarded possession of the Property and $221,200.39 in damages.

The Court sets an Order to Show Cause re: Entry of Judgment for _______ at 8:30 AM in Department 58.

The owners of a property in Sherman Oaks, California sued the tenants for unlawful detainer in a different department of this court. The tenants then sued the owners in this department for contractual fraud. This Court ordered the parties to arbitration, wherein the owners filed a cross-complaint against the tenants for ejectment. In October 2021, this Court dismissed the tenants’ complaint due to their litigation misconduct. The property owners now seek summary judgment or adjudication on its cross-complaint as to the unpaid rent owed by the tenants.

The precursor to this case began when Community Rebuild Partners and Community Rebuild Asset Holdings (Community) initially filed an unlawful detainer action against Sam and Lieba Chanin (Lieba) in Case No. LC105136 on January 23, 2017. In response, the Chanins sued in this Court on March 1, 2017, alleging twenty causes of action, which included fraud, negligence, breach of fiduciary duty, trespass, and invasion of privacy.

The basis for the lawsuit centers on the “Residential Purchase Agreement,” which the parties entered into on May 18, 2016, and in which the Chanins agreed to purchase the Property. As part of the agreement, the Chanins would first lease the Property under an “Interim Occupancy Agreement” pending the close of escrow, six months later in December 2016. The Chanins failed to pay the purchase price but continued living on the Property.

After the Chanins filed suit in this Department, this Court ordered all parties to arbitration. Community filed a Cross-complaint in the arbitration on November 30, 2017. In August 2018, the Arbitrator granted a preliminary injunction that ordered the Chanins to deposit into escrow the amount equal to the reasonable rental value (determined to be $7,000.00 per month) from January 1, 2017, to the present. This Court confirmed that Order on June 20, 2019, and the Chanins made incremental payments of $167,299.61.

On September 24, 2019, the Court in the unlawful detainer action granted summary judgment in favor of Community, finding it entitled to possession of the Property.

On October 28, 2021, this Court dismissed the Chanins’ Complaint with prejudice as a terminating sanction. However, the case remained open because of Community’s Cross-complaint.

Community now moves for summary judgment or adjudication as to rental damages on its Cross-complaint filed in arbitration against Defendant Lieba for the ejectment cause of action. Community attached the Cross-Complaint as part of a “Notice of Ruling” on March 1, 2022. It contends that all causes of action have already been ruled on and the only remaining issue is damages, which is now certain and ascertainable. The Chanins failed to submit any opposition to the motion.

Community requests that the Court take judicial notice of three documents. The request is granted as to the two court documents: an unlawful detainer judgment in Case No. LC105136, and this Court’s Order Confirming Arbitrator’s Order Granting Preliminary Injunction. (Evid. Code § 452, subd. (d).) The request is denied as to the arbitrator’s ruling.

“A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving party has the initial burden to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) Here, the Chanins submitted no evidence raising an issue of fact.

In the unlawful detainer judgement, the parties “stipulated that the issue of damages is reserved for determination in the pending civil action, without prejudice to either parties’ rights with respect to such damages and/or offsets.” (Cohen Decl., ¶ 9, Ex. 11, p. 7.)

Plaintiffs move for summary judgment of rental damages on its Cross-complaint, which alleged causes of action for ejectment and injunctive relief.

In its injunctive relief claim, Community requested that the Chanins “post the past due and accruing monthly rent into an escrow account.” Because Community now seeks a judgment on the total amount of rent owed, this claim is moot.

Community also acknowledged that the possessory aspect of the ejectment claim is moot because the Chanins have abandoned the Property and the unlawful detainer judgment awarded it possession. (Motion, p. 5:7-10.) However, the Cross-complaint pled for unpaid rental damages under the ejectment claim for $18,000.00 per month. (Notice of Ruling, Ex. 1, ¶ 1.) Therefore, the Court evaluates the motion under the ejectment cause of action.

A landlord who seeks to remove a tenant may bring the common law action of ejectment. The claim requires plaintiff’s allegations of “ownership disclosing a right to possession, the defendant’s possession and the withholding thereof from the plaintiff.” (Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 675 superseded by statute on other grounds as stated in WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) The complaint may also seek damages for value of rents and profits. (Nathan v. Dierssen (1913) 164 Cal. 607, 611; McCaffrey v. Wiley (1951) 103 Cal.App.2d 621, 623.)

Here, the Chanins had legal possession of the Property up until December 2016, when the lease expired under the Interim Occupancy Agreement. (Cohen Decl., at ¶ 7, Ex. 2.) Community was then entitled to possession pursuant to the unlawful detainer judgment. (Id. at ¶ 9, Ex. 11.)

Community also provides evidence that Defendant Lieba had possession of the Property between January 1, 2017, and August 15, 2021. (Cohen Decl., ¶ 12(a), Ex. 3, p. 53:8-11; Exs. 10, 14.) The January 1, 2017 date is supported by the Arbitrator’s finding in the Preliminary Injunction requiring the Chanins to deposit past due rent into an escrow account. (Cohen Dec., ¶ 15, Ex. 8, p. 22:9-10.) The Chanins’ counsel confirmed via e-mail that his clients left the Property on August 15, 2021. (Cohen Decl., Exs. 10, 14.) Plaintiff Chanin does not dispute the authenticity of the e-mails, nor has she filed any opposition.

A cross-complainant must also establish that the amount of damages are free from factual disputes to summarily decide the cause of action in its favor. (See Code Civ. Proc., § 437c, subd. (p)(1); Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106, 1110; Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243 [“summary judgment or adjudication improper where amount of damages raises factual issue”].)

The Arbitrator made findings in the Preliminary Injunction that $7,000.00 per month is the reasonable rental value of the Property, which was admitted by the Chanins. (Cohen Dec., ¶ 15, Ex. 8, p. 22:9-10; Ex. 5, Shmuel Chanin Depo., at pp. 62:14 to 63:21, Lieba Chanin Depo., at pp. 25:18 to 27:15; Ex. 13.) Thus, the total amount of damages is $7,000.00 multiplied by 55.5 months, or $388,500.00. (Ibid.) Community further submits the declaration of its counsel, Baruch Cohen, who averred that the Chanins made incremental payments totaling $167,299.61 between August 27, 2019, through July 5, 2021. (Cohen Decl., ¶ 17.) Therefore, the remaining outstanding balance is $221,200.39.

Accordingly, the undisputed facts show that Community is the owner of the Property and the Chanins were holdover tenants after January 1, 2017, when the Interim Occupancy Agreement expired. (See generally Statement of Undisputed Material Facts, 3-8.)

Community has met its initial burden for damages under the ejectment claim and the burden shifts to Plaintiff Lieba Chanin. Because she has failed to submit any opposition, she has failed to meet that burden despite receiving notice and previously filing an Answer to the Cross-complaint in the Arbitration. (Notice of Ruling, Ex. 2.)

The Court grants summary judgment in favor of Community for possession of the Property and $221,200.39 for holdover damages between January 1, 2017, and August 15, 2021.

The Court sets an Order to Show Cause re: Entry of Judgment for _______ at 8:30 AM in Department 58.