Judge: David J. Cowan, Case: 22STUD00039, Date: 2023-02-23 Tentative Ruling
Case Number: 22STUD00039 Hearing Date: February 23, 2023 Dept: 200
LOS ANGELES SUPERIOR COURT – WEST DISTRICT
BEVERLY HILLS COURTHOUSE – DEPT. 200
JUDGE DAVID J. COWAN
TENTATIVE RULING ON MOTIONS FOR SUMMARY JUDGMENT AND FOR STAY
Mark A. Rotenberg v. Joyce Steinberg Fickett, Case No. 22STUD00039 (related to Case Nos. 19STPB02719 and 19STCV21680)
Plaintiff’s Motion for Summary Judgment
Defendant’s Motion for Stay
Hearing Date: February 23, 2023
1. BACKGROUND
The dispute here is between Mark A. Rotenberg (hereinafter referred to as “Mark”) and Joyce Steinberg Fickett (“Joyce”).1 Mark and Steven P. Rotenberg (“Steven”) are children of Norman Philip Rotenberg (“Decedent”) and Mary Louise Rotenberg. Joyce was Decedent’s domestic partner until Decedent’s death on October 6, 2018.
On January 5, 2022, Mark filed the above-referenced unlawful detainer complaint (the “UD Complaint”) against Joyce relating to residential real property located at 2227 Summitridge Drive, Los Angeles, California 90210 (“the Property”).
On January 22, 2022, Joyce filed a demurrer to the UD Complaint. The Court overruled the demurrer on April 18, 2022. On April 25, 2022, Joyce served her Answer to the UD Complaint.
On May 13, 2022, Mark filed a motion for summary judgment. On June 22, 2022, the Court, by Judge Ana Maria Luna, denied the motion for summary judgment.
On January 20, 2023, Mark filed this further motion for summary judgment. On February 16, 2023, Mark filed a Supplement to the Motion. On February 21, 202, Joyce filed opposition papers.
On February 14, 2023, Joyce filed a motion for stay of the UD complaint pending determination of the above-referenced related Probate petition and Civil action. On February 21, 2023, mark Filed opposition papers.
The UD complaint is scheduled for trial on March 2, 2023 and the above-referenced Probate petition and Civil action are scheduled for trial on July 10, 2023.
2. THE SUMMARY JUDGMENT MOTION
MOTION ARGUMENT:
1. Joyce was served notice that the tenancy would end at least 60 days after notice was served on November 4, 2021 yet remains in possession for the Property.
2. Joyce’s three affirmative defenses are without merit:
a. Joyce fails to identify the COVID-19 restriction that would invalidate the notice of termination.
b. There is no legal support that the notice to terminate must be signed by both trustees.
c. Any claims that Joyce should have inherited the Property are not appropriate for a UD action.
3. Pursuant to the Supplement, that the County Resolution does not protect Joyce as she is not a tenant.
OPPOSITION ARGUMENT:
1. A Notice to Quit served while the COVID-19 ordinance was in effect is not valid.
2. The relief sought by Mark is barred by the County of Los Angeles COVID ordinance.
3. The UD action should not be used to determine right to possession where more complex issues exist.
4. Triable issues of fact exist as to Joyce’s right to remain in possession of the Property.
5. Other procedural issues exist.
Evidentiary Objections filed by Joyce
The Court has ruled on the objections and filed herewith its rulings on the form provided.
The Court grants the parties’ requests for judicial notice.
Mark concurrently filed a request for judicial notice with this motion. The request is for following two exhibits that were previously filed with the Court: The Court’s judgment on August 4, 2021 in LASC Case No. 16STPB04520 and the UD complaint filed in the present proceeding. In addition, Joyce filed a request for judicial notice for the Resolution of the Board of Supervisors of the County of Los Angeles (“the Board”) Further Amending and Restating the Court of Los Angeles Covid-19 Tenant Protections Resolution.
Pursuant to California Evidence Code Section 452, the court may take judicial notice of court records. (Evid. Code, § 452.) In addition, the court may take judicial notice of the decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution. (Evid. Code, § 451(a).) Therefore, the requests for judicial notice are granted. However, the truth of the matter asserted in such documents is not subject to judicial notice. (Arce v. Kaiser Found. Health Inc. (2010) 181 Cal. App. 4th 471, 482.)
DISCUSSION
Through the present motion, Mark moves for summary judgment or, in the alterative, for summary adjudication of issues as set forth in the Complaint on the following grounds: Mark is the lawful owner of the Property; Mark has met all necessary elements to obtain a judgment for possession for the Property; and Defendant has no relevant defenses. (Mot., 2:2-6.)
As an initial matter, the Court notes that this is the second motion for summary judgment filed by Mark in this UD action. Under the Court’s June 22, 2022 ruling on the first motion for summary judgment, the Court denied the motion on the grounds that Mark had not met his burden of proof by demonstrating that no triable issues of material fact exist. (See 06/22/2022 Ruling.) In particular, the Court held that Joyce was entitled to protection under the County of Los Angeles’s COVID-19 Tenant Protection Resolution (the “Resolution”) as the Resolution is applicable to no-fault termination of tenancies. (See 06/22/2022 Ruling.) Under section VI (Eviction Protections), subdivision A(2), “[a] Tenant may assert an affirmative defense to an unlawful detainer action where grounds for terminating the tenancy or occupancy is not based on any alleged fault by the Tenant.” (COVID-19 Tenant Protection Resolution.) Further, Judge Luna specifically addressed the point Mark made in his Supplement; namely, that the Resolution does not apply to Joyce where she was not a “tenant” given that the Resolution protects only tenants. The minute order indicates however that Mark had not met his burden of proving that the Resolution does not apply to Joyce as a holdover tenant even if not one under a rental agreement with an obligation to pay rent. As a result, the Court denied the motion based on Joyce’s affirmative defense.
At the time that Mark filed this further motion for summary judgment on January 20, 2023, the Resolution was scheduled to expire on January 31, 2023. Mark asserted in his motion that the Resolution does not provide a defense because the County COVID-19 restrictions have expired. (See Mot., 4:14-15.) The expiration of the Resolution would directly affect Joyce’s affirmative defense raised in her answer to the Complaint.
However, on January 24, 2023, the Board elected to further amend and restate the County of Los Angeles’s COVID-19 Tenant Protection. (By contrast, according to Mark, the COVID moratorium of the City of Los Angeles (which would also cover the Property) did expire on January 31, 2023). Relevant to the subject motion, relief under the Resolution is extended to March 31, 2023 for residential tenants which includes relief under section VI (Eviction Protections), subdivision A(2). Therefore, Joyce’s affirmative defense raised in her answer that Mark’s demand for possession violates the Resolution is still relevant and applicable.
In view of the Board’s recent decision to extend relief under the Resolution for residential tenants, Joyce is entitled to the same protection under the Resolution and may not be evicted on the grounds of no-fault termination of tenancy or occupancy to the extent that relief under the Resolution is applicable.
Moreover, as Mark himself argues, this bench officer is bound by the decision of the bench officer previously assigned to this case on an identical issue: Where Judge Luna impliedly ruled already that Joyce is a “holdover tenant” entitled to protection under the Resolution, even if she did not have to pay rent under a lease, unless Mark can establish that the Resolution is inapplicable, this Court is not free to revisit at least that limited issue of which party has the burden. Mark has again not provided any evidence on this motion that the Resolution does not apply to Joyce. The inference from reading Judge Luna’s prior order is that she believed the Resolution did apply to Joyce as a holdover tenant. Otherwise, she would have granted the motion then.
Furthermore, assuming the Resolution does apply, Mark still would have needed to put on evidence that Joyce would not have been able to provide a “self-certification of inability to pay rent.” Her alleged failure to do so was not a fact that the motion was based upon that Joyce would have then needed to dispute to effectively oppose the motion. Therefore, again the burden therefore did not shift to her.
As a result, the Court finds that Mark has not satisfied his burden of proof for the purposes of a motion for summary judgement by showing that no triable issues of material facts exist.2
Accordingly, the Court denies the summary judgment motion.3
4. THE MOTION FOR STAY
MOTION ARGUMENT:
The Court has the power to grant a stay, and the UD action should not be used to determine right to possession where more complex issues exist.
The Court has equitable jurisdiction to issue an injunction.
Judge Luna’s decision to adjudicate ownership does not resolve the issue.
Two trials would be a waste of judicial resources and would place a significant burden on Joyce.
No bond should be required as a prerequisite for relief.
If rent payment or a bond are required, the amount should be minimal.
OPPOSITION ARGUMENT:
Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367 is distinguishable.
The statute of frauds precludes the alleged life estate.
The exceptions to the statute of frauds do not provide the alleged life estate.
There are only a few issues to be tried in this UD action.
If the Court grants this motion or continues the trial date, the Court should order Defendant to pay the amount of damage Mark would suffer.
Mark’s Evidentiary Objections filed February 21, 2023(4)
Objections to Declaration of Wendy Hartman
Evidentiary Objection No. 1 is OVERRULED. The declaration overall does not contain hearsay or parol evidence rule violations. In addition, the probative value of Ms. Hartman’s declaration is not substantially outweighed by the probability of undue prejudice.
Objections to Declaration of Gary Gold
Evidentiary Objection No. 2 is OVERRULED. The declaration does not lack foundation.
Objections to Exhibits M and N of Declaration of Norman Levine
Evidentiary Objection No. 3 is OVERRULED. There is not a parol evidence rule violation and the probative value of the declaration is not substantially outweighed by the probability of undue prejudice. In addition, Mark does not specify which statements contain hearsay or double hearsay.
Objections to Joyce’s Declaration
Evidentiary Objection No. 4 is OVERRULED. Joyce’s declaration is relevant to the subject motion, and its probative value is not substantially outweighed by the probability of undue prejudice. Further, it is not apparent that there is a parol evidence rule violation.
DISCUSSION
As an initial matter, the Court acknowledges that this UD complaint and the civil case (LASC Case No. 19STCV21680) were deemed related to the probate case (LASC Case No. 22STPB00218) through an order issued February 8, 2022. In addition, the civil case (LASC Case No. 19STCV21680) was previously deemed related to an additional probate case (LASC Case No. 19STP02719). (See 02/08/22 Order.)
Also significant, however, on August 4, 2021, the Court (Judge Luna) entered judgment on Mark’s petition under Probate Code sec. 850 and under Heggsted in Case No. 16STPB04520; finding Mark, as trustee of the 1998 Trust, is the owner of the Property that is the subject of this UD complaint.
Further, on October 11, 2022, Judge Luna entered judgment in Case No. 22STPB00218 denying Joyce’s petition for an order reflecting the changes to the 1998 Trust by reason of Decedent’s wife passing in 2009 and the subsequent execution of a 2014 Trust by Decedent changing the beneficiaries and trustee. The foregoing judgment was due to the Court having sustained without leave to amend a demurrer to the petition by order filed April 18, 2022.
Notwithstanding the foregoing orders in favor of Mark, Joyce’s petition in Case No. 19STPB02719 on a different issue not yet heard remains pending; to probate a will that revokes all trusts and conveys her a life estate in the Property. As indicated above, this issue will be tried in July. (At the same time, the Court will hear Mark’s action for elder abuse against Joyce that seeks to set aside that will.) If Joyce were to prevail on this remaining petition, it may mean Mark is not one of the owners of the Property and would not have been able to evict her. Hence, the Court rejects Mark’s argument that Martin-Bragg, supra, is distinguishable. Pursuant to the principles set forth in Martin-Bragg v. Moore, equally applicable here, consistent with this Court’s earlier order relating these cases for similar reasons, the Court finds Joyce’s right to possession of the Property cannot be determined without first addressing the issues raised in Joyce’s pending Probate petition.
While the issues in the UD case are fewer than those in the Probate petition, as Mark argues, Mark’s prevailing in the UD action would as a practical matter foreclose Joyce having the opportunity to assert her life estate claim by removing her from the Property in the interim; thereby putting the equities in her favor; particularly given her age and poor health. As discussed below, Mark can be otherwise compensated for the relatively short time he will be delayed in loss of possession through the trial date in July. The Court may grant equitable relief “[w]here the restraint is necessary to prevent a multiplicity of judicial proceedings” or to avoid irreparable injury or unconscionable relative hardship. (Code Civ. Proc., § 526(a); see also Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, 146.)
Accordingly, the Court grants the motion for stay.5 The Court vacates the March 2 trial date and schedules a new trial date for the UD complaint concurrent with the trial of the Probate petition on July 10, 2023; trial on the UD complaint proceeding on completion of the trial of the Probate petition.
This stay is contingent on Joyce, starting March 1, 2023 until further order of court, (1) making payments to be deposited with the Court in the amount of $1,406.33 per month on the first day of each month and (2) continuing to make the monthly payments on the Property directly to whom she had been making payments.6 CCP sec. 1170.5.
1) In the interest of avoiding undue confusion, and without intending any disrespect, the Court shall respectfully refer to the parties by their first names as several parties share the same surname.
2) The Court does not reach the issues Joyce raises in opposition to the motion that the notice Mark served will never be valid as it was served prematurely.
3) In view of making the above factual finding, the Court also does not reach the other issues Mark argued.
4) Mark did not provide objections to specific references. For example, he objects to Mr. Gold’s declaration generally as opposed to specific portions. For sake of clarity, the Court numbered the evidentiary objections and considers each of the provided rationale when issuing its ruling.
5) In view of the finding related to the propriety of staying the UD complaint pending determination of the remaining Probate petition, the Court does not however reach issues as to the validity of Joyce’s petition or more specifically, whether it may be barred due to the statute of frauds, or generally make any finding that she has a probability of prevailing as would be necessary to issue a preliminary injunction.
6) This amount was calculated as follows: $10,000 (fair rental value of the Property minus $8,593.67 (Joyce’s monthly payments on the Property as set out in the motion). As between Mark and Mr. Gold, as to what rental value to attribute to the Property, the Court does not know what expertise Mark would have on this issue. Mr. Gold appears to have the necessary experience to make this assessment. This payment will not be deemed rent.