Judge: David B. Gelfound, Case: 21CHCV00042, Date: 2024-05-07 Tentative Ruling

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Case Number: 21CHCV00042    Hearing Date: May 7, 2024    Dept: F49

Dept. F49 

Date: 5/7/24

Case Name: Alma D. Rivera

v. Barbara Nania, et al.

Case # 21CHCV00042

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT

Motion filed: 1/11/24

MOVING PARTY: Defendants Brett A. Berman and The Berman Law Group, APC (the “Moving Defendants”) 

RESPONDING PARTY: Plaintiff Alma D. Rivera (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order granting the moving Defendants’ Motion for Summary Judgment.

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

This case arises from Plaintiff’s alleged damages caused by Defendants’ failure to withdraw the Lis Pendens recorded against Plaintiff’s property on May 19, 2014.

On or about June 8, 2009, Plaintiff purchased 19120 Ballinger Street, Northridge, California 91324 (the “Subject Property”) and became the sole owner in fee. (Compl, ¶ 9, Undisputed Material Facts (“UMF”), No. 1.) Subsequently, Plaintiff married Henrik Johansen (“Johansen”) on or about October 2, 2013. (Compl., ¶ 9, UMF, No. 2.)

On or about May 16, 2014, Defendant Barbara Nania’s (“Nania”) counsel filed a civil action (the “Civil Action”) against Plaintiff and others, alleging a Quiet Title claim for the Subject Project and other causes of action. (Compl., ¶ 10, UMF, No. 4.) Nania alleged that Plaintiff purchased the Subject Property with Nania’s community funds with Johansen during their prior marriage. (Ibid.) Subsequently, the Notice of Pendency of Action (Lis Pendens) was recorded against the Subject Property on May 22, 2014 (the “2014 Lis Pendens”). (Rinka Decl., Ex. “B.”)

On or about March 27, 2015, the Civil Action was dismissed. (Compl., ¶¶ 16-18, UMF, No. 9.) However, the 2014 Lis Pendens remained on the Subject Property. (Compl., ¶ 18, UMF, No. 10.)

On April 29, 2019, Plaintiff was joined in another family action by Nania, entitled Henrik Johansen v. Barbara Nania, LASC Case No. BD484837 (the “Family Action”).

On December 24, 2020, Plaintiff filed a Motion to Expunge Two Lis Pendens, including the 2014 Lis Pendens and a 2019 Lis Pendens (the “Motion to Expunge Lis Pendens”). (UMF, No. 15.) Subsequently, on March 15, 2021, Judge Lynn H. Scaduto (“Judge Scaduto”), presiding over the Family Action, ruled on the Motion to Expunge Lis Pendens, without a hearing, holding that Nania acted with substantial justification and that the circumstances presented in the Family Action makes the imposition of sanctions, fees, or costs unjust. (Rinka Decl., Ex. “G,” 3/15/21 Notice of Ruling on the Motion to Expunge Two Lis Pendens, UMF, No. 17.)

On January 20, 2021, Plaintiff initiated the present action against Defendant Nania, Andrew M. Rosenfeld, the Moving Defendants, and Does 1-10, for Disparagement of Title.

On March 24, 2021, Plaintiff filed her Request for Dismissal, dismissing with prejudice Defendant Andrew M. Rosenfeld.

On March 26, 2021, the Moving Defendants, also serving as Nania’s counsel in the Family Action, submitted a Notice of Withdrawal of the 2014 Lis Pendens. (Rinka Decl., Ex. “H.”)

On September 14, 2021, Nania and the Moving Defendants filed their Answer to the Complaint.

On June 8, 2022, Plaintiff filed an Amendment to Complaint, substituting Defendant Jason J. Allison (“Allison”) for Doe 1. Subsequently, Allison filed an Answer on October 17, 2022.

 On January 11, 2024, the Moving Defendants filed the instant Motion for Summary Judgment. Subsequently, Plaintiff filed her Opposition on March 21, 2024, and the Moving Defendant replied on April 24, 2024.

ANALYSIS

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The 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 a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff's] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue.”' (Citation.)" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) 

A.    Doctrine of Res Judicata

The doctrine of res judicata precludes parties, or their privies, from relitigating a cause of action determined with finality in a prior proceeding.  (E.g., Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1413-14; Wright v. Ripley (1998) 65 Cal.App.4th 1189, 1193.) “Res judicata bars the relitigation not only of claims that were conclusively determined in the first action, but also matter that was within the scope of the action, related to the subject matter, and relevant to the issues so that it could have been raised” and includes ‘matters which were raised or could have been raised, on matters litigated or litigable.’” Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1674-1675; accord Mark v. Spencer (2008) 166 Cal.App.4th 219, 229 [bars claims that parties had fair opportunities to litigate].)

Res judicata applies “to all legal theories, proofs, and demands for relief that might have been presented in the first matter, provided both suits assert the same cause of action.”  (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 541 (Ferraro) n. 21 [citing Mycogen Corp. v. Monsanto (2002) 28 Cal.4th 888, 897]; Burdett v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1687.) Res judicata applies as a bar to splitting a cause of action for partial, later litigation, or relitigation of the same cause of action based on another legal theory or associated with different relief, that could have been sought in the prior action. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10; Hamilton v. Asbestos Corp., Ltd.  (2000) 22 Cal.4th 1127, 1146.)

Res judicata precludes the relitigation of a cause of action only if (1) the decision in the prior proceeding is final and on the merits; (2) the present action is on the same cause of action as the prior proceeding; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974.) Res judicata bars the litigation not only of issues that were actually litigated in the prior proceeding, but also issues that could have been litigated in that proceeding. (Id. at p. 975.) (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82-83; Levy v. Cohen (1977) 19 Cal.3d 165, 171.)

“The burden of establishing preclusion by prior adjudication (res judicata) rests squarely on the party asserting it.” (Ferraro, supra, 161 Cal.App.4th at p. 529.) The defense of res judicata “presents a question of law for the determination of the trial court.”  (Rohrbasser v. Lederer (1986) 179 Cal. App. 3d 290, 296.)

1)      The Same Issue Was Ruled on the Merits in the Prior Proceedings and Was Final.

Here, the Moving Defendants argue that the present case involves the same issue previously addressed in the Motion to Expunge during the early Family Action. Specifically, they note that in both proceedings, Plaintiff has contested the justification for maintaining the 2014 Lis Pendens. Additionally, the Moving Defendants highlight that in both proceedings, Plaintiff seeks the same relief for attorney fees and costs relating to the expungement of the Lis Pendens. (Mot., at p. 7.)

In her response, Plaintiff argues that the basis of the current Complaint is distinct from the earlier proceeding. She argues that it focuses on proving the damages she suffered due to the unlawful 2014 Lis Pendens, whereas the previous Motion to Expunge aimed solely at expunging it. (Opp’n., at p. 5.) Furthermore, Plaintiff asserts that despite Judge Scaduto’s order to deny her request for attorneys’ fees and costs, not all issues raised in the current case were resolved in that proceeding.

As further analyzed below, the Court agrees with Plaintiff’s argument and finds merit in her position, distinguishing the issues presented in the two proceedings.

i)                   Cause of Action – Disparagement of Title (Slander of Title)

Slander of title is a tort claim brought for disparagement of title to either real or personal property, which affects its vendibility or salability. (M.F. Farming, Co. v. Couch Distributing Co. (2012) 207 Cal.App.4th 180, 199 (“‘If the matter is reasonably understood to cast doubt upon the existence or extent of another’s interest in land, it is disparaging to the latter’s title where it is so understood by the recipient….’”); Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051; see Chao Fu, Inc. v. Wen Ching Chen (2012) 206 Cal.App.4th 48, 58 [although slander of title does not seek transfer of an interest in property, it may be prosecuted only by someone with an interest in  property]; see CACI 1730.) 

            The elements of a cause of action for slander of title are: (1) publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss. (Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 612.)

            In the Complaint, Plaintiff seeks the following relief: general and special damages according to proof at the time of trial; punitive damages according to proof at the time of trial; damages caused to Plaintiff for inconvenience and time suffered by Plaintiff in removing this cloud on title according to proof at the time of trial; attorney’s fees and cost according to proof at the time of trial; other costs of suit incurred herein; and other and further relief as the court may deem just and proper. (Compl., at p. 5.)

ii)                 Motion to Expunge Lis Pendens

A Lis Pendens may be expunged either (i) if the pleadings do not contain a real property claim, or (ii) if the court finds that the party claiming the Lis Pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.)

“The burden is upon the recording party to demonstrate by a preponderance of the evidence that the action was commenced and prosecuted for a proper purpose and in good faith.” (McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 298.) “Probable validity” exists when “it is more likely than not that the claimant will obtain a judgment on the claim.” (Code Civ. Proc., § 405.3.)                           

            Furthermore, Code of Civil Procedure section 405.38 provides that “the court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.” (Underlines added.)

            Based on the elements involved in a cause of action for Slander of Title and a Motion to Expunge Lis Pendens, it is clear to the Court that they do not address the same issues. For instance, a motion to expunge lis pendens specifically addresses the validity of lis pendens filings and does not extend to other forms of publication or legal issues. Conversely, a cause of action for slander of title requires additional elements, notably the falsity of the publication and direct pecuniary loss resulting from it.

Furthermore, although Plaintiff’s previous Motion to Expunge raised the issue of requesting attorneys’ fees, its scope is limited under the authorization of Code of Civil Procedure section 405.38 for “reasonable attorney’s fees and costs of making or opposing the motion” only. (Code Civ. Proc., § 405.38.) The language of the order further substantiates that it was rendered based on the same code section, finding that “the respondent acted with substantial justification and that the circumstances presented here ... [make] the imposition of sanctions, fees, or costs unjust.” (Rinka Decl., Ex. “G,” 3/15/21 Notice of Ruling on the Motion to Expunge Two Lis Pendens.)

            Consequently, the Court finds that the previous matter, the Motion to Expunge Lis Pendens, neither resolved all issues raised in the Complaint nor was it capable of presenting all the relief sought therein. These findings lead the Court to conclude that the Moving Defendants have not successfully established the applicability of the doctrine of Res Judicata in the current case. By failing to meet the first required condition to implicate the doctrine of Res Judicata, the Court does not need to examine the remaining two conditions.

Therefore, the Court determines that the Moving Party’s argument based on the doctrine of Res Judicata shall not prevail.

B.     Statute of Limitation

An action for slander of title to real property is subject to a three-year statute of

limitations. (Code Civ. Proc., § 338, subd. (g).) “Such a cause of action does not accrue until the plaintiff could reasonably be expected to discover its existence.” (Arthur v. Davis (1981) 126 Cal.App.3d 684.)

The Court first rejects Plaintiff’s alternative theory of continuing harm inasmuch as she remained harmed due to the allegedly invalidly recorded 2014 Lis Pendens. However, the recurring or ongoing conduct at issue in the case Plaintiff cites to support her argument bears no similarity to the Lis Pendens here. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1200-1201 [recurring imposition of fraudulent charges for copier rental.]) Nevertheless, the Court finds that there are trial issues as to when the Statute of Limitation began to accrue in the present case.

Here, the Moving Defendants argue that the statute of limitation accrued as far back as 2015, when Plaintiff demanded Defendant Nania’s counsel to remove the 2014 Lis Pendens. (Mot., at p. 10.) They also contend that Plaintiff had reasonable opportunities to discover the 2014 Lis Pendens when she received rejections from mortgage brokers going back at least 2016. (Ibid.) To support their position, the Moving Defendants proffered correspondence between Plaintiff and mortgage broker Jarrot Bell, as well as Plaintiff’s declaration previously filed with her Motion to Expunge Lis Pendens. (Rinka Decl., Ex. “C” and “D.”)

            In response, Plaintiff disputes the Moving Defendants’ assertions, claiming that she requested the Moving Defendants to remove the Lis Pendens in 2019-2022, and asked the same to Nania’s prior counsel in 2020. (Pl.’s’ Separate Statement, No. 11.) Plaintiff attests that “I was never served with the Summons and Civil Complaint in LASC Case No. BC 545476. And I was never served with the Lis Pendens associated with the case.” (Rivera Decl., ¶ 4.) She further points out that the correspondence with mortgage brokers did not occur until about 2020. (Pl.’s Separate Statement, No. 12.)

            Upon reviewing the correspondence from mortgage broker Jarrot Bell, the Court finds that it is not inconsistent with Plaintiff’s claim that the correspondence occurred in about 2020, as the letter notes that “now there are two Lis Pendens recorded on your Property,” indicating that the observation was made following the recording of the 2019 Lis Pendens.

Regarding the letter’s mention of the Lis Pendens problem “as “it was back in 2016,” the Court finds that Plaintiff’s declaration stating “[w]e learned years later, probably in 2019 or 2020 that a Lis Pendens was recorded against my property and that was the reason for the rejection. It was then that I sought an attorney to be compensated by the Defendants for all the damages that I suffered that they caused” (Rivera Decl., ¶ 6) sufficiently makes a prima facie showing of the existence of a triable material factual issue as to when she is reasonably expected to discover the 2014 Lis Pendens.

Based on the finding of the existence of triable material factual issues regarding when the Statute of Limitation began to accrue, the Motion for Summary Judgment must be DENIED on this basis.

            Accordingly, the Court DENIES the Motion for Summary Judgment.

CONCLUSION

Moving Defendants’ Motion for Summary Judgment is DENIED.

Moving party is ordered to provide notice of this order.