Judge: Michael Shultz, Case: 22CMCV00020, Date: 2023-08-03 Tentative Ruling
Case Number: 22CMCV00020 Hearing Date: August 3, 2023 Dept: A
22CMCV00020 Hilda Gomez v. Michael Louis
Friedman, et al.
[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT BY
DEFENDANTS, JANET FRIEDMAN, ALICE FRIEDMAN, AND LINDA FRIEDMAN PRAVDA
I.
BACKGROUND
The
first amended complaint alleges that in 1982, Plaintiff bought real property located
in Carson which was comprised of three lots. When attempting to refinance the
property in 1987, Plaintiff discovered that the deed included only two of the
three lots. Plaintiff retained Defendant, Michael Louis Friedman (“Michael”),
to assist her in an action against the broker and seller (“First Action”).
While Plaintiff prevailed, Michael realized he had failed to bring an action to
quiet title.
On May 29, 1991, Plaintiff retained Michael
again (“Second Action”) to represent her in the appeal of the First Action. Michael
allegedly pressured Plaintiff to sign a Performance Deed of Trust (“PDOT”) to
secure his attorneys fees in the Second Action which was recorded on May 18,
1992. The PDOT remains a cloud on title. Michael died on June 1, 1992. Plaintiff
alleges claims for quiet title, reconveyance of the PDOT, and declaratory
relief.
II. ARGUMENTS
Defendants,
Janet Friedman, Alice Friedman, and Linda Pravda (“Defendants”), move for
summary judgment of all claims on grounds the PDOT securing Michael’s
attorney’s fees is valid and enforceable. Plaintiff is not entitled to a
reconveyance since Plaintiff never satisfied the debt totaling $97,000. Michael
obtained a settlement of the underlying case on Plaintiff’s behalf, and she is
obligated to pay his fees. Finally, Defendants argue that to the extent the
claims are premised on fraud because Plaintiff allegedly signed the PDOT under
duress or undue influence, the claims are barred by the four-year statute of
limitations. Plaintiff knew that the PDOT had been recorded on May 18, 1992,
over 31 years ago.
In
opposition, Plaintiff contends there are triable issues of fact including the
amount of debt, which Defendants fail to address. Fees were based on 40 percent
of the recovery of “monies.” The agreement provided that Michael would
otherwise waive fees. Plaintiff never signed an hourly retainer agreement. Defendants’
moving papers are procedurally defective.
In
reply, Defendants argue that the PDOT is not defective because the amount owed
is disputed. The contingency agreement provides for an hourly fee.
III.
LEGAL STANDARDS
Summary judgment is proper “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 judgment as a matter of law.” Until
the moving defendant has discharged its burden of proof, the opposing plaintiff
has no burden to come forward with any evidence. Once the moving party has
discharged its burden as to a particular claim, however, the plaintiff may
defeat the motion by producing evidence showing that a triable issue of one or
more material facts exists as to that cause of action. (Code
Civ. Proc., §437c(p)(2)).
The court strictly construes the moving
party's supporting evidence while the opposing party’s evidence is liberally
construed. Doubts as to the propriety of the motion should be resolved against
granting the motion. (D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20).
The court does not evaluate the credibility of testimony. (Binder
v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840). The
court applies the three-step analysis to motions for summary judgment or
adjudication: (1) identify the issues framed by the pleading, (2) determine
whether the moving party established facts which negate the opponents’ claim,
(3) if a defendant meets its threshold burden of persuasion and the burden
shifts, determine whether the opposing party has controverted those facts with
admissible evidence. (Torres
v. Reardon (1992) 3 Cal.App.4th 831, 836).
IV.
DISCUSSION
A.
Request for Judicial Notice
The court grants
Plaintiff’s request for judicial notice (“RJN”) of the Performance Deed of
Trust, copies of court records in Los Angeles County Superior Court Case No.
SCC 17215 Hilda Gomez v. Donald Hoy, et al.; verified First Amended Complaint
and Defendant’s Answer thereto. (Evid. Code, § 452(c) [permits judicial notice
of official acts of state or federal agencies] § 452(d) [permits judicial
notice of Court records.]
B.
Plaintiff’s objections to evidence
Janet
Friedman
The
entire declaration. Sustained, lacks foundation and hearsay. Ms. Friedman does
not state any basis for her knowledge of the documents to which she refers.
However, Plaintiff’s opposition relies on the same evidence, all of which the
Court has considered.
The Court
declines to consider Defendant’s objections to Plaintiff’s separate statement, which
is Plaintiff’s characterization of the evidence, and not specific items of
evidence proffered.
Plaintiff and Michael
signed a Contingency Agreement on May 27, 1991, which was secured by a deed of
trust recorded on May 18, 1992. The PDOT
encumbered Plaintiff’s real property. (UF 3-4, 7.) The Contingency Agreement
defined “recovery” as “the gross sum without deduction of any kind obtained by
way of settlement arbitration, or judgment.” (UF 9.) Plaintiff does not dispute
that the Contingency Agreement provides that Michael was “given a lien and
assignment to the extent of [his] fees and disbursements on any and all recovery
client may obtain, and may retain those amounts from the recovery.” (UF 12.) Plaintiff
settled the case which was the subject of the Contingency Agreement and received
the missing parcel. (UF 14).
The applicable
statute of limitations for a particular claim depends on the nature of the
cause of action i.e., the gravamen of the action. (Hensler v. City of Glendale (1994) 8
Cal.4th 1, 22.) The court considers the “nature
of the right sued upon.” (Vera v. REL-BC, LLC (2021) 66
Cal.App.5th 57, 64.) In an action for quiet title, the
statute of limitations “is determined with reference to the underlying theory
of relief.” (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 944.)
The FAC alleges
that Plaintiff’s title to the property arises from a 1992 grant deed
transferring the real property from Evan and Myra Beddle to Plaintiff. (FAC 32)
Plaintiff alleges that Defendants’ claim “is without any right whatsoever.”
(FAC ¶ 33.) While Plaintiff alleges that she felt “pressured” to sign the PDOT,
the gravamen of the claim is that the PDOT does not give Michael a valid lien
on the property, because the PDOT was tied to a Contingency Agreement that entitled
Michael to fees based on monies recovered. (FAC ¶ 14-15.)
Whether
Plaintiff is entitled to relief depends on whether the PDOT gives Michael a
valid lien for a debt owed by Plaintiff. The PDOT “by way of a written
instrument, conveys title to real property from the trustor-debtor to a third-party
trustee to secure the payment of a debt owed to the beneficiary-creditor under
a promissory note." (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 508.)
Accordingly, the material issue is whether Plaintiff owes a debt to Michael.
The parties’
respective interpretation of the Contingency Agreement is fundamentally in
dispute with respect to whether Michael’s fees were based on the “gross sum
obtained.” (UF 9.) Defendants do not assert as a material fact whether
Plaintiff recovered a “gross sum” from which attorney’s fees could be calculated.
Defendants contend that Michael performed
legal services for Plaintiff and won a monetary award on Plaintiff’s behalf.
(Fact 2.) However, this fact is misleading in that Defendants do not assert
whether the monetary award arose from the First Action against the sellers or
the Second Action concerning an appeal. (See Fact 2).
There is no
dispute that Plaintiff settled the Second Action whereby Plaintiff received the
“missing parcel.” (UF 14.) Defendants assert that Plaintiff has not paid the
debt secured by the PDOT. (Fact 15.) However, none of the material facts
asserted establish that Plaintiff owes a debt in the first instance.
The PDOT was
signed on April 8, 1992, and secured performance of fee agreements for payment
of attorney’s fees and costs, “including but not limited to the written
agreement being dated May 27, 1991, and signed by beneficiary.” (Plaintiff’s
Ex. 3). On that date, Plaintiff signed a “Retainer Agreement – Contingent” which
covered the “handling of client’s tort suit against Beedle/Hoy for recovery of
judgment or personal injuries and property damage to client in the accident of
Gomez v. Hoy.” (Plaintiff’s Ex. 2, .pdf p. 16.) Plaintiff agreed to pay fees
“for appeal and collection efforts.” The parties settled the matter, and
Plaintiff received the missing parcel. (UF 14.)
The Contingency
Agreement obligated Plaintiff to pay a “percentage of the recovery (gross sum)”
“for appeal and collection efforts” of 33 1/3 percent if settlement was made
before the appeal was filed and 40 percent of “any and all amounts recovered”
after appeal or if collection efforts became necessary. (Plaintiff’s Ex. 2,
.pdf p. 12). There is no dispute that recovery
is defined as “the gross sum” obtained by way of settlement, arbitration, or
judgment. (UF 9.)
Defendants
refer to the provision of the Contingency Agreement allowing for payment of
fees at an hourly rate of $150 per hour “if client decides to permanently waive
the claim and declines to proceed.” (UF 13.) Defendants have not established
that these conditions occurred. Rather, Defendants admit that Plaintiff
obtained settlement giving her title to the missing parcel.
Defendants have
not met their burden of establishing they are entitled to judgment in their
favor as the material facts do not establish that the PDOC secures a valid debt
owed by Plaintiff.
V.
CONCLUSION
Based on the foregoing,
Defendants’ Motion for Summary Judgment is DENIED.