Judge: Michael Shultz, Case: 23CMCV00700, Date: 2023-10-10 Tentative Ruling

Case Number: 23CMCV00700    Hearing Date: April 16, 2024    Dept: A

23CMCV00700 Evelin Quintero v. Wily Oris Barrios, et al.

Tuesday, April 16, 2024, at 8:30 a.m.

 

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR IMPOSITION OF MONETARY SANCTIONS UNDER CODE CIV. PROC., 128.7 AGAINST PLAINTIFF AND COUNSEL

 

I.        BACKGROUND

      The first amended complaint filed on October 24, 2023, alleges that Plaintiff suffered injury resulting from uninhabitable conditions in leased premises owned by Defendants. Plaintiff also alleges that Defendant breached a “lease-to-buy” Agreement granting Plaintiff exclusive rights to the property (the “Castlegate property”) with an option to purchase for one year. Plaintiff alleges 22 causes of action for contract-related claims, eviction-related torts, fraud-related claims, personal injury claims, and statutory violations.

 

II.      ARGUMENTS

      Defendant, Wily Osiris Barios (“Defendant” or “Barios”), contends that the 18th cause of action for “denial of pre-move out inspection” in violation of Civil Code section 1950.5 subd. (f) which was supposed to occur on July 5, 2023, is frivolous. Defendant no longer owned the Castlegate property on that date, a fact that Plaintiff omits. The intentional omission violates the duty to disclose all relevant facts and law to the court. Plaintiff pursues this litigation in bad faith with the aim of coercing and intimidating Defendant.

      In opposition, Plaintiff argues that the Court overruled Barrios’ demurrer to the 18th cause of action. Barrios’ contention that he didn’t own the Castlegate property at the time of the required inspection is a disputed issue of fact which is overcome by the allegations. Plaintiff objects to Defendant’s evidence.

      In reply, Defendant argues that the Court should take judicial notice of the grant deed establishing that Defendant did not own the property at the relevant time period, which demonstrates that the 18th cause of action lacks merit.

 

III.    LEGAL STANDARDS

      An attorney who signs and presents a pleading to the court certifies that the pleading has factual and legal merit.  (Code Civ. Proc., § 128.7.) The attorney certifies that the pleading is not being presented primarily for an improper purpose such as to harass or to cause unnecessary delay, or increase in the cost of litigation and that the claims have evidentiary support or would likely have evidentiary support after a reasonable investigation. (Id. subd. (b).) The court may impose sanctions for violations of subdivision (b). (Id.)

      Defendant has complied with the statute’s “safe harbor” provision by first serving the motion on Plaintiff and allowing 21 days for Plaintiff to withdraw the improper pleading and avoid sanctions. (Id. at subd. (c)(1).) At the end of the waiting period, Defendant may file the motion for sanctions if Plaintiff does not withdraw the offending pleading. (Id.) The proof of service reflects that Defendant served the motion on December 7, 2023, and subsequently filed this motion February 15, 2024. Plaintiff did not withdraw the 18th cause of action. 

     

IV.    DISCUSSION

      The 18th cause of action alleges that at the time Plaintiff signed the “lease to buy” agreement on June 28, 2020, Barrios was the owner of the Castlegate property. (FAC, ¶ 27.) Since the time Plaintiff became a tenant, Defendant Barrios was the landlord. (FAC, ¶ 283.)

Plaintiff alleges that Barrios, among other defendants, failed to comply with their statutory obligation to notify the Plaintiff in writing of the tenant’s option to request a pre-move out inspection. (FAC, ¶ 281.) Defendant, Uriel Rivera, and Plaintiff subsequently agreed to schedule a pre-move out inspection for July 5, 2023. (FAC, ¶ 282.) However, Plaintiff alleges that Defendants locked her out of the property on July 2, 2023, and was prevented entry onto the property from that date forward (FAC, ¶ 283-284; Civ. Code, § 1950.5 subd. (f)(1).)

      Defendant argues that Plaintiff does not allege Barrios was an owner or landlord of the property, and a recorded deed establishes that Barrios had transferred  his ownership in the property before the date of the inspection. (Mot. 8:17-18.) The first contention is not supported by the allegations of the pleading as referenced above.

      With respect to Defendant’s second contention that he no longer owned the property at the time of the inspection, Barrios’s counsel, Steve Lopez, submits a deed that Barrios signed and recorded on February 23, 2023, (before the date of inspection) purporting to transfer the real property from Barrios to Rivera. Defense counsel has not provided foundation for his personal knowledge of the deed’s contents or facts to support authentication, except to assert it is true and correct.  (Lopez Decl. ¶ 2. (RJN, Ex. 1, 1a.) Plaintiff’s objections to Mr. Lopez’s declaration and the submitted recorded deeds are sustained on those grounds.

      While the court has discretion to take judicial notice of documents, including a recorded deed, Defendant does not request it; even if Defendant had made the request, such notice is permitted as to those facts that cannot be reasonably subject to dispute. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

      Defendant argues in reply, that the court can take judicial notice of the “legal effect” of the deed, and that a grant of real property is conclusive against the grantor. (Reply 4:13-4; 5:1-5.) Defendant contends that judicial notice of the grant deed settles the purported dispute that since Defendant had previously divested his interest in the property, he did not owe a duty of inspection to Plaintiff.  "A court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading. This includes recorded deeds." “ (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, citing Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468–469 and Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 977.)

      Judicial notice is improper under the circumstances because Defendant’s purported transfer of ownership is reasonably subject to dispute.  Defendant’s deposition testimony controverts the purported “legal effect” of the recorded deed. Defendant controverted his own testimony at his deposition, claiming that he both did and did not have an interest in the property as he never purchased it. (Opp. Ex. 2, 42:8-43:1.)

      Defendant contends in reply that the deposition testimony and Defendant’s credibility are irrelevant to any issue raised in the complaint. (Reply 6:10-14.) The testimony is relevant, however, to whether the court should exercise its discretion to take judicial notice of the “legal effect” of the deed. As Defendant’s ownership of the property at the time of the inspection is reasonably subject to dispute, judicial notice is improper.

      The existence of the deed alone does not provide a basis for imposing sanctions against Plaintiff. Defendant has not proffered evidence that Plaintiff asserted the 18th cause of action “primarily” for an improper purpose such as to harass or to cause unnecessary delay, or increase the cost of litigation, or that the claims do not have evidentiary support or are unlikely to have evidentiary support after a reasonable investigation. (Code Civ. Proc., § 128.7 subd. (b).)  

 

V.      CONCLUSION

      Based on the foregoing, Defendant’s motion for imposition of sanctions pursuant to Code Civ. Proc., § 128.7 is DENIED.