Judge: Margaret L. Oldendorf, Case: 21BBCV00317, Date: 2023-03-21 Tentative Ruling
Case Number: 21BBCV00317 Hearing Date: March 21, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
This consolidated action stems from
a prior unlawful detainer action. Diana Pitinyan (Pitinyan) as landlord entered
into a rental agreement with Arthur Msrian and Sunny Days Senior Living (jointly,
Msrian) for the lease of real property located at 75 Denny Avenue in Sun
Valley. There are two houses on the real property. The month-to-month lease
commenced in May 2018.
In July 2020, Msrian was unable to
make the rental payment due to the impacts of Covid-19. Pitinyan filed an
unlawful detainer action (LASC Case No. 20PDUD01210). That action resulted in a
settlement that was reduced to a written stipulation. Pursuant to the terms of
the settlement, Pitinyan agreed to dismiss the UD action if Msrian moved out
and returned the keys by February 14, 2021. Pitinyan dismissed the UD action
February 16, 2021.
Two months later, Pitinyan filed a
complaint against Msrian (LASC Case No. 21BBCV00317). This pleading alleges that Msrian
breached the lease by failing to pay monthly rent and utilities, etc. The
second cause of action for waste alleges that Msrian returned the property in a
damaged condition resulting in damages of $147,000.
In June 2022, Msrian sued Pitinyan
(LASC Case No. 22BBCV00413). In this action it is alleged that the houses on
the property contained unpermitted conversions and structures. Msrian alleges
Pitinyan did not tell him about the unpermitted alterations to the houses. He
further alleges that the property did not have an occupancy permit and was thus
in violation of Los Angeles Municipal Code §12.21. The complaint sets forth
causes of action for fraud, unlawful and unfair business practice, void
contract, retaliatory eviction, constructive trust, and unjust enrichment.
The two actions were related and
then consolidated. A copy of the stipulation settling the UD action is attached
as an exhibit to both pleadings.
Before the Court is Pitinyan’s
motion for leave to file a cross-complaint in the Msrian action. Pitinyan seeks
to allege claims for fraud and intentional misrepresentation based on the
contention that Msrian used the property, not for the commercial purposes
stated in the lease, but instead subleased portions of the property in
violation of the lease agreement.
Code Civ. Proc. §426.50 provides for the relief
requested. That statute and case law provide that a motion for leave to file a
compulsory cross-complaint may be granted at any time, even on the eve of
trial, so long as there is no showing of bad faith. Silver Organization Ltd.
v. Frank (1990) 217 Cal.App.3d 94, 98-99.
Msrian opposes on procedural grounds as the motion is not
supported by evidence and is not accompanied by a copy of the proposed
pleading. However, the requirements of California Rules of Court, rule 3.1324
do not apply to motions for leave to file compulsory cross-complaints. Further,
while the Weil & Brown Rutter Guide is a respected source of information,
it cites no legal authority for such requirements either. Msrian’s only
authority are non-citable trial court orders of the Superior Court. Opposition
at 7:18-25.
The only basis on which relief is properly denied is upon
a showing of bad faith. Here, there is no such showing. Msrian attempts to
argue prejudice by pointing out all the discovery that has already taken place.
But, as Pitinyan points out, the only discovery that has occurred took place
prior to the time Msrian filed his action. That is, as to the claims of fraud
Msrian alleges against Pitinyan (and those she seeks to allege against him), no
discovery has yet occurred.
For all these reasons, the motion for leave to file a
compulsory cross-complaint is granted. Pitinyan is to file and serve her
cross-complaint within ten calendar days of today’s date.
Pitinyan is ordered to give
notice.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT