Judge: Cynthia A Freeland, Case: 37-2023-00028038-CU-NP-NC, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 31, 2023

09/01/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2023-00028038-CU-NP-NC CAMILLE AKIN ADMINISTRATOR OF ESTATE OF ROBERT CONRAD CLEVELAND AND ADMINISTRATOR OF ESTATE OF LAVONNE AVA CLEVELAND VS CANO CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/07/2023

Plaintiff Camille Akin Administrator of Estate of Robert Conrad Cleveland and Administrator of Estate of LaVonne Ava Cleveland ('Plaintiff')'s motion for a preliminary injunction is granted.

Plaintiff's requests for judicial notice ('RJN') are granted.

Factual Background and Procedural History This action concerns ownership and possession of the real property located at 1045 La Rueda Drive, Vista, CA 92084 (the 'Property'). On July 15, 1971, William Bryant and Anna Clair Bryant executed a Grant Deed transferring ownership of the Property to Robert C. Cleveland ('Mr. Cleveland') and LaVonne A. Cleveland ('Mrs. Cleveland') as joint tenants. See Plaintiff's RJN, Ex. 48. On September 8, 2003, the Clevelands recorded a Grant Deed transferring ownership of the Property to Robert Conrad Cleveland and LaVonne Ava Cleveland as trustees of the Robert Cleveland and LaVonne Ava Cleveland Revocable Trust dated July 12, 2003 (the 'Cleveland Trust'). Ibid., Ex. 1. To date, however, no party has been able to locate or produce a copy of the Cleveland Trust. See Akin Decl., ¶ 11.

Mrs. and Mr. Cleveland passed away on February 29, 2016 and December 7, 2017, respectively. Ibid., ¶ 4. On July 20, 2018, the Clevelands' son, Michael Cleveland ('Michael'), filed a Petition for Letters of Administration of the Estate of LaVonne Ava Cleveland with Authorization to Administer Under the Independent Administration Estates Act (San Diego County Superior Court Case No.

37-2018-00037141-PR-LA-CTL) (the 'LaVonne Probate Action'). See Plaintiff's RJN., Ex. 2. Michael passed away on November 26, 2018. See Akin Decl., ¶ 6. On February 14, 2019, Plaintiff filed in the LaVonne Probate Action a Petition for Letters of Successor Administration of the Estate of LaVonne Ava Cleveland to succeed Michael as the administrator of Mrs. Cleveland's estate. See Plaintiff's RJN, Ex. 3.

Letters of Administration as Successor Administrator of the Estate of LaVonne Ava Cleveland to act with limited authority were issued on April 29, 2019. Ibid., Ex. 4. On March 18, 2019, Plaintiff filed a Petition for Letter of Administration of the Estate of Robert Conrad Cleveland to Administer Under the Independent Administration of Estates Act (San Diego County Superior Court Case No.

37-2019-00014219-PR-LA-CTL) (the 'Robert Probate Action'). Ibid., Ex. 5. On May 6, 2019, the court issued Plaintiff's Letter of Administration of the Estate of Robert Conrad Cleveland, granting Plaintiff full authority under the Independent Administration of Estates Act. Ibid., Exs. 6-7. On August 22, 2019, Plaintiff filed separate Petitions to Determine Title to Real Property in the Robert and LaVonne Probate Actions. See Plaintiff's RJN, Exs. 8, 11. On October 29, 2019, the court granted both Petitions, finding in relevant part that Robert and LaVonne each own an undivided 50% interest in the Property. Ibid., Exs. 9, 12. On November 18, 2019, Plaintiff recorded the Orders Approving the Petitions to Determine Title to Calendar No.: Event ID:  TENTATIVE RULINGS

3001876 CASE NUMBER: CASE TITLE:  CAMILLE AKIN ADMINISTRATOR OF ESTATE OF ROBERT CONRAD  37-2023-00028038-CU-NP-NC Real Property. Ibid., Exs. 10, 13. Plaintiff is authorized to act as the administrator of the Clevelands' respective estates. See Akin Decl., ¶ 19.

Defendant Deanna Johnson and the Clevelands' other son, Robert Gary Cleveland ('Robert'), occupied the Property since at least 2012, with Ms. Johnson serving as Robert's caregiver. See Akin Decl., ¶ 9.

On March 14, 2022, Plaintiff caused a 60-Day Notice of Termination to be served upon Robert, Ms.

Johnson, and all unknown tenants/occupants in possession of the Property. See Plaintiff's RJN, Exs.

14-15. On May 13, 2022, Robert recorded a California General Durable Power of Attorney appointing Ms. Johnson as his agent to, inter alia, manage Robert's real property. Ibid., Exs. 16-17.

On June 9, 2022, Plaintiff filed an Unlawful Detainer Complaint against Robert and Ms. Johnson to recover possession of the Property (San Diego County Superior Court Case No.

37-2022-00022300-CL-UD-CTL) (the 'UD Action'). Ibid., Exs. 18-21. On June 21, 2022, Ms. Johnson filed an Answer in the UD Action. Ibid., Ex. 22. Neither Robert nor any unknown occupants filed an Answer in the UD Action, and the court entered their defaults on August 11, 2022. Ibid., Ex. 23. On October 27, 2022, Plaintiff and Ms. Johnson represented to the court that they had reached an agreement to settle the UD Action; however, Ms. Johnson subsequently declined to sign the requisite Stipulation. Ibid., Ex. 24; Akin Decl., ¶ 29. A trial was held in the UD Action on December 1, 2022. See Plaintiff's RJN, Ex. 25. Following the parties' presentation of evidence, the court awarded possession of the Property to Plaintiff. Ibid. On March 29, 2023, the court entered a Judgment for Possession in Plaintiff's favor and against Robert, Ms. Johnson, and all occupants of the premises, including tenants, subtenants, and any named claimants. Ibid., Ex. 26. Robert and Ms. Johnson were served with a Notice of Entry of Judgment or Order on April 8, 2023. Ibid., Ex. 27. Neither Robert nor Ms. Johnson appealed the Judgment for Possession or requested a stay of the lockout. See Akin Decl., ¶¶ 32-33.

On April, 5, 2023, the court issued a Writ of Possession. See Plaintiff's RJN, Ex. 28. On April 20, 2023, the San Diego County Sheriff's Department posted a Notice of Eviction indicating that the Sheriff would be at the Property to restore possession to Plaintiff on April 25, 2023. Ibid., Ex. 29. On April 24, 2023 – the day before the scheduled restoration date – Robert, through Ms. Johnson, recorded a Quitclaim Deed under which Robert, as 'Trustee of the Robert Conrad Cleveland and LaVonne Ava Cleveland Revocable Trust Dated July 22, 2003,' transferred the Property to Defendant F. Tyson Cano for the sum of $510,000.00. Ibid., Ex. 30. On May 8, 2023, the Sheriff conducted an eviction/lockout at the Property and restored possession of the Property to Plaintiff. Ibid., Ex. 31. To date, however, Ms. Johnson and Mr. Cano have repeatedly returned to the Property, with Mr. Cano claiming that he owns the Property and using the Property to store and sell automobiles despite receiving Compliance Notices from the County of San Diego. Ibid., Ex. 32; Smith Decl., ¶¶ 5-13. Ms. Johnson and Mr. Cano have repeatedly cut

chain link fences and/or changed locks to regain possession of the Property. On May 11, 2023, Plaintiff, in response to the Quitclaim Deed recorded in Mr. Cano's favor, filed separate Petitions to Determine Title to Real Property in the Robert and LaVonne Probate Actions. Ibid., Exs. 44-45.

Legal Analysis The court may grant a preliminary injunction 'at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor . . . .' Cal. Code Civ. P. § 527(a). In deciding whether to issue a preliminary injunction, the court must weigh two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits; and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief. See White v. Davis (2003) 30 Cal. 4th 528, 554. 'The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. [Citation.]' Butt v. State of Cal. (1992) 4 Cal. 4th 668, 678. However, '[a] trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim' Ibid. See also Right Site Coalition v. Los Angeles Unified Sch. Dist. (2008) 160 Cal. App. 4th 336, 342 ('The presence or absence of these interrelated factors is usually a matter of degree, and if the party seeking the injunction can make a sufficiently Calendar No.: Event ID:  TENTATIVE RULINGS

3001876 CASE NUMBER: CASE TITLE:  CAMILLE AKIN ADMINISTRATOR OF ESTATE OF ROBERT CONRAD  37-2023-00028038-CU-NP-NC strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party's inability to show that the balance of harms tips in his favor. [Citation.]'); SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal. App. 4th 272, 280 (a motion for a preliminary injunction must be denied if there is no reasonable likelihood the moving party will prevail on the merits of his or her claim). The plaintiff bears the burden of establishing all elements necessary to support issuance of a preliminary injunction. See O'Connell v. Super. Ct. (2006) 141 Cal. App. 4th 1452, 1481.

The court finds that Plaintiff has met her burden of establishing all elements necessary to support the issuance of a preliminary injunction as set forth below.

Plaintiff's Probability of Success on the Merits as to the First Cause of Action for Trespass 'The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.' Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5th 245, 262 (citing CACI No.

2000).

The court finds that Plaintiff has demonstrated a strong likelihood of prevailing on her trespass cause of action. To start, Ms. Johnson has not filed an opposition, which the court construes as her concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. Mr. Cano, for his part, appeared at the July 27, 2023 ex parte hearing on Plaintiff's application for a temporary restraining order ('TRO') and represented to the court that he had additional evidence to submit in support of his opposition to Plaintiff's request for injunctive relief. On that basis, the court did not issue a TRO as to Mr. Cano. See ROA No. 20. However, the court, having reviewed Mr. Cano's opposition and evidence, is not persuaded that injunctive relief should not be granted under the circumstances.

Notably, Mr. Cano has repeatedly stated that he is the 'bona fide' purchaser of the Property by way of the April 24, 2023 Quitclaim Deed from Robert to Mr. Cano. However, the evidence does not support that assertion. The evidence sets forth a clear chain of title: (1) the Bryants were the owners of the Property before July 15, 1971; (2) on July 15, 1971, the Bryants executed a Grant Deed transferring ownership of the Property to the Clevelands as joint tenants; (3) on September 8, 2003, the Clevelands recorded a Grant Deed transferring ownership of the Property to the Cleveland Trust; (4) on November 18, 2019, Plaintiff recorded the court's Orders Approving the Petitions to Determine Title to Real Property which found that the Mr. and Mrs. Cleveland each owned an undivided 50% interest in the Property; (5) Plaintiff has at all relevant times been authorized to act as the administrator of the Clevelands' respective estates; (6) on March 23, 2023, the court in the UD Action entered a Judgment for Possession in Plaintiff's favor and against Robert, Ms. Johnson, and all occupants of the premises, including tenants, subtenants, and any named claimants; and (7) possession of the Property was legally returned to Plaintiff on May 8, 2023. Moreover, Plaintiff represents that she did not transfer title to the Property to Robert. See Akin Decl., ¶ 53. That being said, evidence shows that neither Ms. Johnson nor Robert has ever held an ownership interest in the Property. Consequently, the Quitclaim Deed transferring an ownership interest in the Property from Robert to Mr. Cano constitutes an unlawful 'wild deed' under California law, i.e., a deed signed by a grantor who is unconnected to the Property. See, e.g., People ex rel. Harris v. Aguayo (2017) 11 Cal. App. 5th 1150, 1156. Simply put, when Robert, through Ms. Johnson, executed the Quitclaim Deed, he did not have any legal title to convey to Mr.

Cano. Mr. Cano provides no evidence to the contrary. Nor does he provide any evidence that he ever paid Robert and/or Ms. Johnson $510,000.00 for the purported purchase of the Property. Additionally, Mr. Cano provides no evidence that he is/was a tenant residing at the Property and, in any event, such an assertion would be immaterial to the motion's disposition because, pursuant to the Judgment for Possession and Writ of Possession issued in the UD Action, the Judgment for Possession is effective against all unnamed occupants, including tenants and subtenants, no matter when those person(s) began possession of the Property. See Cal. Code Civ. P. § 415.46, 715.020.

Given that Plaintiff has demonstrated her ownership or control of the Property, the remainder of the Calendar No.: Event ID:  TENTATIVE RULINGS

3001876 CASE NUMBER: CASE TITLE:  CAMILLE AKIN ADMINISTRATOR OF ESTATE OF ROBERT CONRAD  37-2023-00028038-CU-NP-NC analysis is straightforward. First, Plaintiff has shown Mr. Cano's and Ms. Johnson's intentional, reckless, and/or negligent entry onto the Property on multiple occasions. Indeed, as set forth in Mr. Smith's declaration, despite the eviction occurring on May 8, 2023, Ms. Johnson repeatedly returned to the Property – including 45 minutes after the eviction itself. See Smith Decl., ¶¶ 4-5. Despite Mr. Smith rekeying the locks and installing new chains, fencing and motion detector lights, Ms. Johnson has repeatedly returned to the Property, oftentimes cutting the chains and locks to gain entry. Ibid., ¶¶ 6-8, 12-13. Mr. Cano, for his part, despite not residing at the Property, has claimed without evidence to own the Property and is presently operating a business on the Property. He has repeatedly refused to leave the Property. Ibid., ¶¶ 9-11. Mr. Cano and Ms. Johnson engaged in the foregoing conduct despite being on notice of, inter alia¸ the Judgment for Possession, Writ of Possession, and eviction notice(s).

Second, Ms. Johnson and Mr. Cano do not have Plaintiff's permission to be on the Property as is abundantly clear from Plaintiff's efforts to: (1) determine legal ownership of the Property and distribute the Clevelands' assets to their heirs in the Robert and LaVonne Probate Actions, and (2) obtain possession of the Property from Robert and Ms. Johnson by way of the UD Action.

Finally, Mr. Cano's and Ms. Johnson's refusal to vacate the Property and/or remove the various vehicles from the Property is a substantial factor in causing Plaintiff's harm, i.e., delaying and/or interfering in Plaintiff's efforts to perform her obligations as administrator of the Clevelands' estates.

The Relative Balance of Harms The court further finds that the relative balance of harms favors the issuance of a preliminary injunction.

As set forth above, Mr. Cano's and Ms. Johnson's continued possession of the Property and refusal to abide by orders issued by the probate court and the unlawful detainer court have prevented Plaintiff from distributing the assets of the Clevelands' estates to the rightful heirs. Moreover, Mr. Cano is damaging the Property and creating a nuisance by operating an automobile repair facility on the Property (which is located in a residential neighborhood) in violation of San Diego County Ordinances. Mr. Cano and Ms.

Johnson, for their parts, will not suffer harm upon the issuance of a preliminary injunction because they will simply be divested of possession of the Property – a right to which they do not legally possess. Ms.

Johnson, by failing to oppose the motion, has not articulated any prejudice she will suffer. Nor has Mr.

Cano – indeed, even if the probate court were to issue an order that contradicts the preliminary injunction, the parties can simply return to this court for a modification of the preliminary injunction.

Undertaking California Code of Civil Procedure § 529(a) requires that an undertaking be posted upon the granting of a preliminary injunction. The purpose of the undertaking is to cover any damages to Defendants caused by the issuance of an injunction in the event that it is finally determined that Plaintiff was not entitled to injunctive relief. In setting the amount of the undertaking, the court must consider the costs of defense related to addressing the preliminary injunction and any potential pecuniary damage while the injunction is in effect. In this case, the court finds that a $1,000.00 undertaking is appropriate.

Conclusion In light of the foregoing, the court grants the motion and issues a preliminary injunction enjoining Defendants and all parties working in concert with them, including but not limited to their agents, officers, employees, successors, assigns, and representatives the commission or continuance of the following acts: (1) trespassing on the Property by breaking locks and chains, entering the Property without Plaintiff's consent, and physically preventing Plaintiff and Plaintiffs' agents from accessing the Property; (2) obstructing Plaintiff's possession, management, and/or use of the Property to distribute assets of the Clevelands' estates to the estate heirs; and Calendar No.: Event ID:  TENTATIVE RULINGS

3001876 CASE NUMBER: CASE TITLE:  CAMILLE AKIN ADMINISTRATOR OF ESTATE OF ROBERT CONRAD  37-2023-00028038-CU-NP-NC (3) continuing the use of the Property to store, repair, and/or sell automobiles in violation of San Diego County Ordinances.

Defendants shall immediately vacate the Property, return exclusive possession of the Property to Plaintiff, and remove their personal property from the Property. Defendants shall take no further actions to interfere with Plaintiff's exclusive possession, maintenance, and use of the Property.

Plaintiff shall post a $1,000.00 undertaking upon the issuance of the preliminary injunction.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 1, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 1, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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