Judge: Michael Shultz, Case: 22CMCV00346, Date: 2023-06-29 Tentative Ruling
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Case Number: 22CMCV00346 Hearing Date: June 29, 2023 Dept: A
22CMCV00346 RHDM Oil, Inc. et al v. Mohummed S. Islam and Rahima
Islam
[TENTATIVE] ORDER
DENYING MOTION BY DEFENDANTS/ TO EXPUNGE LIS PENDENS BY DEFENDANT/CROSS-COMPLAINANT,
MOHUMMED S. ISLAM
I.
BACKGROUND
The first amended complaint (“FAC”) alleges that Plaintiffs leased
commercial real property from Defendant, Mohummed S. Islam (“Landlord” or
“Defendant”) pursuant to a written lease agreement for use of the premises as a
gas station and food mart. Plaintiffs allege
Defendant forcefully and wrongfully evicted Plaintiffs and locked them out of the
premises without complying with the requirements for unlawful detainer. Defendant
allegedly failed to give written notice to Plaintiffs about the sale of the
premises although Plaintiffs had the contractual right to exercise an option to
purchase. Plaintiffs allege claims for breach of contract, abuse of process,
civil conspiracy, forcible detainer, and for declaratory relief.
On October 10, 2022, Plaintiffs filed a Notice of Pendency of
Action (lis pendens) contending that the complaint affects possession of the
real property at issue in the litigation.
Defendant Landlord filed a first amended cross-complaint against the
tenant Plaintiffs, RHDM Oil, Inc. (“RHDM”), and Mohammed Ehtesham Ansari
(“Ansari”), alleging that Cross-Defendant breached the lease agreement by
failing to pay rent and taxes and engaged in fraudulent conduct.
II.
ARGUMENTS
Defendant Landlord moves
to expunge the lis pendens as it is improper. The Plaintiffs’ complaint does
not allege a real property claim, rather it asserts breach of a contractual right
of first refusal in the event Defendant intended to sell the real property. It
is Plaintiffs’ burden to establish a probable validity of a real property
claim. The lis pendens creates a cloud on title and should be expunged to
enable Landlord to sell the real property. Alternatively, the Court should
exercise its discretion to require Plaintiffs to post an undertaking to
compensate Defendant for damages caused by the improper lis pendens. Defendant
requests attorney’s fees incurred to prepare this motion.
In opposition, the
tenant Plaintiffs argue the motion is defective as Defendant did not give
required notice of the motion which results in prejudice to Plaintiffs who
cannot prepare an adequate opposition. Plaintiffs contend that the FAC alleges
multiple real property claims. The declaratory relief action affects
Plaintiffs’ possession of the real property at issue.
In reply, Defendant
Landlord contends that Plaintiffs do not have cash for purchase of the
premises. The allegations that Landlord wrongfully evicted Plaintiffs are
irrelevant to Landlord’s desire to sell the property. Plaintiffs should not be
allowed to interfere with the sale of the property to a third property.
III.
LEGAL STANDARDS
Defendant untimely
served the motion by email on June 7, 2023. Sixteen court days of notice is
required, increased by two court days for service by email, in this case by June
2, 2023. (Code Civ. Proc., § 1005 subd. (b).) ; Code Civ. Proc., § 1010.6, subd. (a)(4)(A). However,
it is well settled that a party who files an opposition on the merits, appears
at the hearing, does not request a continuance, and does not demonstrate
prejudice waives “any defects or irregularities in the notice of motion.” (Carlton
v. Quint (2000) 77 Cal.App.4th 690, 697.)
Despite insufficient notice, Plaintiffs were able to prepare an opposition
which the court has considered. (Id. [“One
who has been notified to attend a certain proceeding and does do so cannot be
heard to complain of alleged insufficiency of the notice; it has in such
instance served its purpose.”].) Plaintiffs have not demonstrated any prejudice
from the defective notice. (Reedy
v. Bussell (2007) 148 Cal.App.4th 1272, 1289.)
IV.
DISCUSSION
A. The
lis pendens is properly supported by real property claims.
A lis pendens is a recorded instrument
that gives constructive notice of a pending lawsuit affecting title to or
possession of real property. (Code
Civ. Proc., § 405.4.) The practical effect of the document is to
prevent the real property’s transfer until the litigation is resolved or the
lis pendens is expunged or released. (J&A
Mash & Barrel, LLC v. Superior Court of Fresno County
(2022) 74 Cal.App.5th 1, 15.)
The court shall expunge the lis pendens if the complaint does
not contain a real property claim or the claimant has not established by a
preponderance of evidence the probable validity of the real property claim. (Code
Civ. Proc., §§ 405.31, 405.32.) To
determine whether the complaint states a real property claim, the court
considers the allegations of the complaint only; no independent evidence is
required. (Urez
Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149 [“The issue is
simply whether the action as pleaded is one that affects title or possession of
the subject property.”]. (Id.)
Plaintiffs have alleged a real property
claim in the declaratory relief claim and the claim for forcible detainer. Plaintiffs
allege that Defendant forcibly removed, evicted, and locked Plaintiffs out of
the premises. (FAC, ¶ 23). A person is guilty of forcible entry, where the person
enters peaceably upon real property and turns out the party in possession by
force, threats, or menacing conduct. (Code
Civ. Proc., § 1159). Pursuant to that section, Plaintiffs are entitled
to restitution of the premises, which is the “primary remedy.” (Allen
v. McMillion (1978) 82 Cal.App.3d 211, 219.”
Additionally, the declaratory relief claim
requests damages and “any such other and further relief as the Court deems
proper.” (FAC .pdf p. 16, l. 6.) Therefore, the lis pendens is supported by
real property claims.
B. Plaintiffs
have met their burden of showing probable validity of their claims.
The
burden falls on Plaintiffs to establish a probable validity of the claim by a
preponderance of evidence, defined as “more likely than not that plaintiff will
obtain a judgment against the defendant on the claim”. (Code
Civ. Proc., § 405.32.)
1) Evidence
a) Plaintiffs’
request for judicial notice is granted.
(Evid. Code, § 452(d).)
The court takes judicial
notice of the court records in the unlawful detainer action: Case No.
22CMCV00220, Mohummed S. Islam (Landlord) v. RHDM Oil, Inc., et al. (RJN, Ex. 1-4). The
Hon. Michael Shultz granted the tenants’ ex parte application to vacate and set
aside the default judgment entered against the Landlord, who subsequently
dismissed the unlawful detainer action. (RJN, Exs. 3 and 4.)
b) Plaintiffs’
objections to the Declaration of Defendant, Mohummed Islam.
#1. Paragraph 4. SUSTAIN.
Lacks foundation and hearsay. Landlord does not provide any documentary
evidence of all the amounts purportedly owed by Plaintiff pursuant to the lease
agreement.
#2. Paragraphs 2-4. SUSTAINED.
Irrelevant. The offers to buy the premises prepared by a commercial real estate
agent and the present package for purchase is irrelevant to whether Plaintiffs
can prove probable validity of the claim.
c) Plaintiffs’
objections to the Declaration of Lorrain Anderson (Defendant’s counsel).
#5-7. SUSTAIN. Ms. Anderson’s
efforts to convey the proposed buyer’s offer to Plaintiffs are irrelevant to
the motion.
d) Plaintiffs’
objections to the Declaration of David Yashar (Real Estate Agent).
#8-10. SUSTAIN. Mr. Yashar’s
preparation of the offers to purchase the property is irrelevant to the motion.
2)
Plaintiffs
have established the probable validity of prevailing on the claim for
defendant’s breach of contract by failing to give the tenant Plaintiffs the
option to buy the property.
Pursuant
to the lease, Defendant Landlord was obligated to provide Plaintiffs with
express written notice that the property was available for sale. (Mot. Ex. A, ¶
37, .pdf p. 18.) Plaintiffs declare that Defendant never informed them that one
of Monem’s family members would be making an offer to purchase. Defendant did
not provide Plaintiffs with express written notice of the sale as required by
the lease, precluding Plaintiffs from exercising their option to purchase.
(Decl., Mohammad Ansari, ¶¶ 19-20.)
Defendant argues that the option was
not sufficiently certain to be enforced since it contemplated appraisals and
negotiations. (Mot., 5:24-26.) Defendant’s
case authority instructs that the first question to be decided in determining
ambiguity is whether the contract language is reasonably susceptible to the
interpretation urged by Plaintiffs. (Epic
Communications, Inc. v. Richwave Technology, Inc.
(2015) 237 Cal.App.4th 1342, 1354). Defendant has not
demonstrated that the contractual obligation to provide Plaintiffs with an
express written notice of sale -- which would have triggered Plaintiff’s
obligations to exercise the option -- is ambiguous.
3)
Plaintiffs
have established the probability of prevailing on the claim for forcible detainer
under Civil Code § Code Civ. Code, §. Proc., § 1159.
Plaintiffs declare that Defendant
forcibly removed them from the premises by changing the locks and threatening
Plaintiffs and their family with physical harm and financial ruin if Plaintiffs
attempted to re-take control of the property. (Plaintiffs’ decl., ¶ 5).
Plaintiffs were precluded from accessing the property by Defendant from July
2020 to September 8, 2022. ((Id.)., ¶
6.) Nor has Defendant proffered any evidence addressing the unlawful detainer
action in Case No. 21CMCV00310, in which
Plaintiffs assert they were never served with a notice to pay rent or quit or
any other pleading in the unlawful detainer action. ((Id.)., ¶ 16.)
4) Defendant
has not persuasively argued that Plaintiffs should post an undertaking.
Defendant
requests that if expungement is denied, the Court should require Plaintiffs to
post a bond to compensate Defendant for any damages which may be caused
by maintaining the lis pendens. (Mot. 4:5-9.) (Code
Civ. Proc., § 405.34). A court can set an amount high enough to
cover damages that Defendant is likely to suffer if the lis pendens is not
removed, such as carrying costs of the property or lost profits on resale. (Elder
v. Carlisle Ins. Co. (1987) 193 Cal.App.3d 1313, 1319
[The undertaking “serves to protect only against damages that actually result
from the nonexpungement."]; (CMSH
Co. v. Antelope Development, Inc. (1990) 223 Cal.App.3d 174,
181
[“comparing the difference between the fair market value of the property at the
time of the filing of the lis pendens with its fair market value at the time of
its termination.”].)
Defendant did not proffer any
evidence that Plaintiffs are unlikely to prevail on any of their claims in the
first instance. Nor has Defendant demonstrated why it would be just for
Plaintiffs to carry the costs of the property where Plaintiffs have been barred
from the property and can no longer operate the business. Additionally,
Defendant has not offered any evidence to permit a determination of damages
that Defendant is likely to suffer if the lis pendens is not removed.
Accordingly, the alternative request is DENIED.
5) As
the prevailing party, Plaintiffs are entitled to an award of fees and costs.
The court shall direct that the
party prevailing on the motion be awarded the reasonable attorney’s fees and
costs in making or opposing the motion unless the court finds that the other
party acted with substantial justification or if imposing fees and costs would
be unjust. (Code
Civ. Proc., § 405.38.) Sanctions are awarded against the party,
not counsel. (Doyle
v. Superior Court (1991) 226 Cal.App.3d 1355, 1359.)
Defendant has not established that
it acted with substantial justification.
Plaintiffs’ counsel incurred fees of $6,760 (20.8 hours x $325 per hour)
to review the motion and prepare the opposition, review the reply, and in
anticipation of appearing at the hearing. Accordingly, the Court orders
Defendant, Mohummed S. Islam, to pay $6,760 to Plaintiffs within 10 days.
V.
CONCLUSION
Based on the foregoing, Defendant’s motion
to expunge the lis pendens is DENIED. The Court awards fees and costs to
Plaintiffs as described above.