Judge: John J. Kralik, Case: 24NNCV001213, Date: 2024-12-13 Tentative Ruling
Case Number: 24NNCV001213 Hearing Date: December 13, 2024 Dept: NCB
North
Central District
|
MICHELLE HU, et al., Plaintiffs, v. THE EVERGREEN ADVANTAGE,
LLC, Defendant. |
Case No.: 24NNCV01213 Hearing Date: December 13, 2024 [TENTATIVE]
order RE: motion to CONSOLIDATE |
BACKGROUND
A.
Allegations
Plaintiffs Michelle Hu (“Hu”), Los
Angeles City Plaza, LP (“LACP”), and LA Valley Garden Plaza LP (“LAVGP”) (collectively,
“Plaintiffs”) allege that they are the current or prior owners of the
properties located at 1598 Long Beach Boulevard, Long Beach, CA 90813 (“Long
Beach Property”), 9933 Valley Boulevard, El Monte, California 91731 (“El Monte
Property”), and 1125 S. 1st Avenue, Arcadia, California 91006
(“Arcadia Property”). Plaintiffs allege that the Arcadia Property is Hu’s
principal residence.
Plaintiffs allege that on November 11,
2021, Plaintiffs and Defendant The Evergreen Advantage, LLC (“Evergreen”)
entered into a secured mortgage transaction (construction loan) for
$17,500,000, which carried a 9% per annum interest rate and contained a
maturity date of December 1, 2022, secured by the three properties stated above. Plaintiffs allege that Evergreen is the
lender under the Promissory Note Secured by Deed of Trust dated November 11,
2021 (“Note”), secured by the certain Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing dated November 11, 2021 and recorded on
November 29, 2021; and that Evergreen is the beneficiary under the DOT. On November 8, 2022, Plaintiffs and Evergreen
entered into a Modification and Extension Agreement (“Extension Agreement”),
which had a principal balance of $11,080,000, 10.5% per annum interest rate,
required interest payments of $96,950 per month beginning January 1, 2023, and
extended the maturity date to June 1, 2023.
Plaintiffs allege they were ultimately unable
to make the payment beginning June 2023.
On July 3, 2023, Evergreen caused a Notice of Default (“NOD”) to be
recorded against each property, for an estimated default of
$11,359,476.46. On March 1, 2024,
Evergreen caused a Notice of Trustee’s Sale (“NOTS”) to be recorded for the
properties, pursuant to which it sought $13,949,223.81 (estimated) through the
foreclosure of the properties. Plaintiffs
allege that Evergreen caused the properties to be sold at foreclosure
sale.
The complaint, filed April 24, 2024, alleges
causes of action for: (1) violation of California Usury Law; (2) recovery of
usury interest; (3) declaratory relief; (4) violation of Civil Code, §
2924(c)-(d); and (5) unfair business practices – violation of Business &
Professions Code, § 17200 et seq.
B.
Cross-Complaint
On September 6, 2024, Evergreen filed a
cross-complaint against Hu, LACP, LAVGP, and Zhong Fang for: (1) breach of
contract; (2) fraud – intentional misrepresentation; (3) declaratory relief;
(4) violation of Civil Code, § 1950.5; and (5) breach of contract.
C.
Motion on Calendar
On October 2, 2024, Plaintiffs filed the
motion to consolidate and alternately, motion to stay.
On December 2, 2024, Defendant filed an
opposition brief.
On December 6, 2024, Plaintiffs filed a
reply brief.
LEGAL
STANDARD
When actions
involving a common question of law or fact are pending before the court, it may
order a joint hearing or trial of any or all the matters at issue in the
actions or the actions consolidated to avoid unnecessary costs or delay. (Code
Civ. Proc. § 1048,¿subd. (a).)¿ The purpose of consolidation is to enhance
trial court efficiency by avoiding unnecessary duplication of evidence and the
danger of inconsistent adjudications. (See Todd-Stenberg v.¿Dalkon¿Shield
Claimants Trust¿(1996) 48 Cal.App.4th 976, 978-979.)¿
A
motion to consolidate also has procedural requirements. One, the notice must¿(1)
include a list of all named parties in each case, the names of those who have
appeared, and the names of their respective attorneys of record; (2) include
the captions of all the cases sought to be consolidated; and (3) be filed in
each case sought to be consolidated.¿ (Cal. Rules of¿Court, rule
3.350(a)(1).)¿¿Two, the cases must have been related into a single department
or had already been assigned to that department. (Super. Ct. L.A. County, Local
Rules, rule¿3.3(g)(1).)¿
DISCUSSION
Plaintiffs move to
consolidate the unlawful detainer action in Los Angeles Superior Court, Case
No. 24PDUD02189 with case number 24STCV19566.
The notice has
several procedural defects. First, a notice of related case was filed in the instant
case by Plaintiffs on August 7, 2024, but there is no court order in the record
of either case deeming the cases related. Two, Plaintiffs did not file the notice
in case number 24PDUD02189. Third, the notice does not include the captions of
all the cases to be consolidated. Fourth, Plaintiffs did not file a proof of
service for the instant motion. (Cal. Rules of Court, rule 3.350(a)(2).) On
these grounds alone, the cases cannot be consolidated.
Plaintiffs move to
consolidate on the grounds that they challenged the propriety of the
foreclosure sale, and the claim in the unlawful detainer action is based on
that Evergreen Advantage has a right to evict Plaintiffs following the
foreclosure sale. Thus, who holds title in the subject property is a common
question of law and fact in both actions. Plaintiffs also argue that not
consolidating the actions will violate due process and cause her to lose her
home. Plaintiffs further argue that because of the limited discovery allowed in
unlawful detainer actions, there is the risk of inconsistent judgments. Alternately,
Plaintiffs request a stay of the action.
In opposition,
Evergreen argues that Plaintiffs do not allege any complex issues of title in
either action. Evergreen further argues that they are not complex because
Plaintiffs’ arguments lack statutory support and do not undermine Defendants’
evidence of ownership of the property and duly perfected foreclosure sale. In
addition, forcing Evergreen to wait to evict would deprive it of its statutory
right to a speedy remedy in an unlawful detainer action. If the Court grants a
stay, Evergreen requests that the Court order Plaintiff to post a bond.
In reply,
Plaintiff argue that there are complex issues of title about the following: the
amounts charged on the loan, what the loan terms allow, what the law authorizes,
and what representations Evergreen made.
The Court will not
consolidate the cases because at this stage, it cannot make a finding that the
case is complex. A judge may consolidate an unlawful detainer proceeding with a
simultaneously pending action in which title to the property is at issue, when
a resident's successful claim of title in the latter action would defeat the purported
record owner's right to possession in the unlawful detainer proceeding. (Martin-Bragg
vs. Moore (2013) 219 Cal.App.4th 367, 385.) When an unlawful
detainer proceeding and an unlimited action concerning title to the property
are simultaneously pending, the judge presiding over the unlimited action may stay
the unlawful detainer proceeding until the issue of title is resolved in the
unlimited action, or the judge may consolidate the actions and treat
the entire case as an ordinary civil action, not as a summary proceeding. (Id.,
at 387.) What the judge may not do
is to try complex issues of title using the summary procedure for determining
the landlord's right to possession in a straightforward unlawful detainer
proceeding. (Id., at 385.) In Martin-Bragg vs. Moore, supra,
219 Cal.App.4th 367 at pg. 385, the Court found the case complex based on
evidence presented at the trial of the case. In contrast, here, the Court cannot
make this finding because not enough evidence has been presented.
The Court also
denies the stay because the separate civil action about the loan and its terms
is beyond the phase of title that can be litigated in an unlawful detainer
action. (Old Nat’l Fin. Services, Inc. vs. Seibert (1987) 194 Cal.App.3d
460, 465.) In unlawful detainer proceedings, only claims bearing directly upon
the right to possession are involved. (Ibid.) But where title is
acquired through proceedings described in Code of Civil Procedure section
1161a, courts must make a limited inquiry into the basis of the plaintiff's
title. (Ibid.) Further, where the plaintiff in the unlawful detainer
action is the purchaser at a trustee's sale, he or she “need only prove a sale
in compliance with the statute and deed of trust, followed by purchase at such
sale, and the defendant may raise objections only on that phase of the issue of
title. (Ibid.) Matters affecting the validity of the trust deed
or primary obligation itself, or other basic defects in the plaintiff's title,
are neither properly raised in this summary proceeding for possession, nor are
they concluded by the judgment. (Ibid.) Here, title was acquired through
proceedings described in Code of Civil Procedure section 1161a, which makes the
summary remedy of unlawful detainer available against persons holding over
after the property has been sold under a power of sale in a deed of trust. And
here, Plaintiffs’ causes of action are largely based on loan terms.
Thus, the Court
denies the motion.
CONCLUSION AND ORDER
Plaintiffs’ motion to consolidate and in the alternative, stay the action
is denied. Plaintiffs shall provide notice of this
order.
DATED: December 13, 2024 ___________________________
John
Kralik
Judge
of the Superior Court
North
Central District
|
MICHELLE HU, et al., Plaintiffs, v.
THE EVERGREEN ADVANTAGE,
LLC, Defendant.
|
Case No.: 24NNCV01213
Hearing Date: December 13, 2024 [TENTATIVE] order RE: motion to expunge notice of pendency of
action |
BACKGROUND
A.
Allegations
Plaintiffs Michelle Hu (“Hu”), Los
Angeles City Plaza, LP (“LACP”), and LA Valley Garden Plaza LP (“LAVGP”) (collectively,
“Plaintiffs”) allege that they are the current or prior owners of the
properties located at 1598 Long Beach Boulevard, Long Beach, CA 90813 (“Long
Beach Property”), 9933 Valley Boulevard, El Monte, California 91731 (“El Monte
Property”), and 1125 S. 1st Avenue, Arcadia, California 91006
(“Arcadia Property”). Plaintiffs allege that the Arcadia Property is Hu’s
principal residence.
Plaintiffs allege that on November 11,
2021, Plaintiffs and Defendant The Evergreen Advantage, LLC (“Evergreen”)
entered into a secured mortgage transaction (construction loan) for
$17,500,000, which carried a 9% per annum interest rate and contained a
maturity date of December 1, 2022, secured by the three properties. Plaintiffs allege that Evergreen is the
lender under the Promissory Note Secured by Deed of Trust dated November 11,
2021 (“Note”), secured by the certain Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing dated November 11, 2021 and recorded on
November 29, 2021; and that Evergreen is the beneficiary under the DOT. On November 8, 2022, Plaintiffs and Evergreen
entered into a Modification and Extension Agreement (“Extension Agreement”),
which had a principal balance of $11,080,000, 10.5% per annum interest rate,
required interest payments of $96,950 per month beginning January 1, 2023, and
extended the maturity date to June 1, 2023.
Plaintiffs allege they were ultimately unable
to make the payment beginning June 2023.
On July 3, 2023, Evergreen caused a Notice of Default (“NOD”) to be
recorded against each property, for an estimated default of
$11,359,476.46. On March 1, 2024,
Evergreen caused a Notice of Trustee’s Sale (“NOTS”) to be recorded for the
properties, pursuant to which it sought $13,949,223.81 (estimated) through the
foreclosure of the properties. Plaintiffs
allege that Evergreen caused the properties to be sold at foreclosure
sale.
The complaint, filed April 24, 2024, alleges
causes of action for: (1) violation of California Usury Law; (2) recovery of
usury interest; (3) declaratory relief; (4) violation of Civil Code, §
2924(c)-(d); and (5) unfair business practices – violation of Business &
Professions Code, § 17200 et seq.
B.
Cross-Complaint
On September 6, 2024, Evergreen filed a
cross-complaint against Hu, LACP, LAVGP, and Zhong Fang for: (1) breach of
contract; (2) fraud – intentional misrepresentation; (3) declaratory relief;
(4) violation of Civil Code, § 1950.5; and (5) breach of contract.
C.
Motion on Calendar
On August 7, 2024, Evergreen filed a
motion to expunge the notice of pendency of action and for attorney’s fees in
the amount of $4,135.00.
On September 30, 2024, Plaintiffs filed an
opposition brief.
On October 3, 2024, Evergreen filed a
reply brief.
On October 11, 2024, the Court continued
the hearing, pending consolidation of the instant case with case number
24STCV19566. The same day, the Court ordered the cases consolidated.
LEGAL
STANDARD
Under Code of Civil Procedure section 405.30,
at any time after a notice of pendency of action has been recorded, any party
with an interest in the real property may apply to the Court to expunge the
notice. A lis pendens may be expunged either under: (a) Code of Civil Procedure
section 405.31 if the pleadings do not contain a real property claim or (b) Code
of Civil Procedure section 405.32 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.
The party claiming the lis pendens has the burden of proof under
sections 405.31 and 405.32. (Code Civ. Proc., § 405.30.)
Thus, the plaintiff has the burden of
demonstrating that the pleadings contain a real property claim and that the
probable validity of their real property claim can be established by a
preponderance of the evidence. "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.)
REQUESTS FOR JUDICIAL NOTICE
In its moving
papers, Evergreen requests judicial notice of Exhibit A, the license
information of Secured Capital Lending, Inc. from the records of the Department
of Real Estate. The request is granted. (Evid. Code, § 452(c), (g); Arroyo
vs. Plosay (2014) 225 Cal.App.4th 279, 296.)
In their
opposing papers, Plaintiffs
request judicial notice of the following: (A) the promissory note; (B) the deed of trust, assignment of rents,
security agreement, and fixture filing; (C) modification and extension
agreement; (D) notice of default and election to sell, recorded on July 3,
2023; (E) notice of trustee’s sale, recorded on March 1, 2024; (F) trustee’s
deed upon sale, recorded on April 19, 2024, for the El Monte property; (G)
trustee’s deed upon sale, recorded on April 19, 2024, for the Arcadia property;
(H) trustee’s deed upon sale, recorded on April 19, 2024, for the Long Beach
property, Unit 102; (I) trustee’s deed upon sale, recorded on April 19, 2024,
for the Long Beach property, Unit 103; (J) trustee’s deed upon sale, recorded
on April 19, 2024, for the Long Beach property, Unit 104; (K) trustee’s deed
upon sale, recorded on April 19, 2024, for the Long Beach property, Unit 105;
(L) trustee’s deed upon sale, recorded on April 19, 2024, for the Long Beach
property, Unit 201; (M) trustee’s deed upon sale, recorded on April 19, 2024,
for the Long Beach property, Unit 202; (N) trustee’s deed upon sale, recorded
on April 19, 2024, for the Long Beach property, Unit 203, for the Long Beach
property; (O) trustee’s deed upon sale, recorded on April 19, 2024, for the
Long Beach property, Unit 206; (P) trustee’s deed upon sale, recorded on April
19, 2024, for the Long Beach property, Unit 208; (Q) trustee’s deed upon sale,
recorded on April 19, 2024, for the Long Beach property, Unit 210; (R)
trustee’s deed upon sale, recorded on April 19, 2024, for the Long Beach
property, Unit 302; (S) trustee’s deed upon sale, recorded on April 19, 2024,
for the Long Beach property, Unit 303; (T) trustee’s deed upon sale, recorded
on April 19, 2024, for the Long Beach property, Unit 305; (U) trustee’s deed
upon sale, recorded on April 19, 2024, for the Long Beach property, Unit 306;
(V) trustee’s deed upon sale, recorded on April 19, 2024, for the Long Beach
property, Unit 307; (W) trustee’s deed upon sale, recorded on April 19, 2024,
for the Long Beach property, Unit 308; (X) trustee’s deed upon sale, recorded
on April 19, 2024, for the Long Beach property, Unit 309; (Y) trustee’s deed
upon sale, recorded on April 19, 2024, for the Long Beach property, Unit 310;
(Z) trustee’s deed upon sale, recorded on April 19, 2024, for the Long Beach
property, Unit 314; (AA) trustee’s deed upon sale, recorded on April 19, 2024,
for the Long Beach property, Unit 410; (BB) trustee’s deed upon sale, recorded
on April 19, 2024, for the Long Beach property, Unit 402; (CC) trustee’s deed
upon sale, recorded on April 19, 2024, for the Long Beach property, Unit 403;
(DD) trustee’s deed upon sale, recorded on April 19, 2024, for the Long Beach
property, Unit 407; (EE) trustee’s deed upon sale, recorded on April 19, 2024,
for the Long Beach property, Unit 408; and (FF) trustee’s deed upon sale,
recorded on April 19, 2024, for the Long Beach property, Unit 414.
The Court grants
the requests. First, courts take judicial notice of facts in legal, operative
documents, where the complainant alleges no facts inferring a contrary
conclusion, or where the existence and effect is not the subject of a
reasonable dispute. (Intengan v. Bac Home Loans Servicing LP (2013) 214
Cal.App.4th 1047, 1054.) Second, a court may take judicial notice of
the fact of a document's recordation, the date the document was recorded and
executed, the parties to the transaction reflected in a recorded document, and
the document's legally operative language, assuming there is no genuine dispute
regarding the document's authenticity. (Fontenot v. Wells Fargo Bank, N.A.
(2011) 198 Cal. App. 4th 256, 265.) From this, the court may deduce and
rely upon the legal effect of the recorded document, when that effect is clear
from its face. (Ibid.)
In its reply papers, Evergreen
requests judicial notice of the declaration in support of the opposition to the
application for temporary restraining order filed in the instant action. A
court may take judicial notice of the contents of its own records. (Dwan v.
Dixon (1963) 216 Cal.App.2d 260, 265.) The request is granted.
DISCUSSION
Evergreen moves to
expunge the Notice of Pendency of Action recorded by Hu dba LACP and LAVGP on
May 10, 2024, as Instrument No. 20240311230, which is about the Arcadia
property. Evergreen argues that Plaintiffs do not have a viable pending cause
of action affecting title to the real property.
1.
Real Property Claim
According
to Code of Civil Procedure section 405.31, a lis pendens may be expunged if the
pleadings do not contain a real property claim.
In adjudicating
this matter, the court must engage in a demurrer-like analysis. (Kirkeby
v. Super. Ct. (2004) 33 Cal.4th 642, 647–648.) “‘Rather than
analyzing whether the pleading states any claim at all, as on a general
demurrer, the court must undertake the more limited analysis of whether the
pleading states a real property claim.’ [Citation.] Review ‘involves only a
review of the adequacy of the pleading and normally should not involve evidence
from either side, other than possibly that which may be judicially noticed as
on a demurrer.’ [Citation.] Therefore, review of an expungement order
under section 405.31 is limited to whether a real property claim has
been properly pled by the claimant. [Citation.]” (Id. at p. 648.)
Neither
party disputes that the action involves a real property claim. The parties
dispute whether Plaintiffs can establish their burden regarding the probable
validity of their claims.
2. Probable Validity of the Claim
Evergreen argues that Plaintiffs cannot establish the probable validity
of their claims and that this Court has already found that Plaintiffs failed to
establish the probability of success on the merits of their causes of action in
its ruling on the motion for preliminary injunction. Evergreen further argues
that the Extension Agreement on which each of Plaintiffs’ claims is based is
not subject to the usury restrictions because it falls under the exemption in
Civil Code section 1916.1, which exempts loans made by any person licensed as a
real estate broker by the State of California and secured, directly or collaterally,
in whole or in part, by liens on real property. In support, Evergreen argues
that the Extension Agreement was arranged for Plaintiffs and Evergreen by
Secured Capital, and that Secured Capital dealt directly with Hu such that
usury restrictions do not apply to the Extension Agreement at issue. (Evergreen
RJN Ex. A.)
In opposition,
Plaintiffs argue that Evergreen did not “properly” identify the amount due in
the Notice of Trustee’s Sale and then foreclosed on the El Monte and Arcadia properties
when their debt was satisfied through the sale of the twenty-five units of the
Long Beach Property. Plaintiffs apply this argument to several real property
claims Plaintiffs assert. Plaintiffs submit as evidence the declaration of
Michelle Hu, requests for judicial notice, and declaration of Jessica Galletta,
counsel for plaintiffs.
In reply,
Evergreen again argues that the Notice of Pendency of Action Defendant seeks to
expunge is based on the allegations and theories Plaintiffs assert in the
instant case, and those allegations and theories lack merit because the Court
denied Plaintiffs’ motion for injunction. In addition, Evergreen argues that
the Long Beach foreclosure did not satisfy the total debt owed it. Evergreen
argues that Plaintiffs’ conclusion incorrectly relies on a potential discounted
payoff: the parties had agreed that if Plaintiffs tendered the discounted
payoff amount by September 15, 2023, this discount would apply. (RJN, Ex. A.,
¶¶ 10-11.) Evergreen asserts that Plaintiffs did not tender the amount. (RJN,
Ex. A., ¶¶ 10-13.) Thus, Evergreen did not need to waive any amount owed to it
when it foreclosed on its security; ultimately, none of the foreclosures
satisfied Plaintiffs’ debt.
The Court agrees
with Evergreen. Plaintiffs have not submitted evidence to prove that the
balance they owed when Defendant caused a Notice of Trustee’s Sale to be
recorded on the subject properties was at most $12,562,125.44 as they claim rather
than $13,949,223.81. (Opp. Motion, pg. 4.) In a conclusory manner, Plaintiffs
state, “based on the payments made and daily interest accruing, the amount
owing should have been no more than $12,562,125.44.” (Opp. Motion, pg. 4.) Further,
in Hu’s declaration, she refers to a document that states the purported payment
calculation as of September 2023, but the document has the word “draft.” (Decl.
Hu, ¶ 6, Ex. A.) Thus, Plaintiffs have not met their burden.
Hence, the Court
denies the motion.
3.
Attorney Fees
Evergreen requests
attorney fees in the amount of $4,135.00. The court must award the prevailing
party “reasonable attorney’s fees and costs of making or opposing the motion”
unless the losing “party acted with substantial justification or other
circumstances make the imposition of attorney’s fees and costs unjust.”¿(Code
Civ. Proc., § 405.38.) Evergreen requests the amount for 4.1 hours of drafting
and revising the motion and declarations at $450.00 an hour and 4 hours of
drafting a reply and appearing at the hearing. Plaintiffs do not state why they
did not submit evidence in support of their assertions, and based on this, the
Court finds that they did not act with substantial justification. Thus, the
Court awards the attorney fees.
CONCLUSION AND ORDER
Defendant The Evergreen Advantage, LLC’s motion to expunge lis pendens is
granted. The Court awards $4,135.00 in attorney fees to Evergreen.
Defendant shall
provide notice of this order.
DATED: December 13, 2024 ___________________________
John
Kralik
Judge
of the Superior Court