Judge: Nathan Vu, Case: 2022-01275076, Date: 2022-11-28 Tentative Ruling
Please Note: The hearing on this matter is scheduled for 8:30 A.M.
Motion to Expunge Lis Pendens
Defendant Trinh To Thi Ly’s Motion to Expunge Lis Pendens is GRANTED.
The court ORDERS that the Notice of Pendency of Action recorded on 08/16/2022 against the real property located at 13666 Harbor Boulevard, Garden Grove, California 92843 be expunged.
The court ORDERS Plaintiff A Plus Autobody, Inc. to pay Defendant Trinh To Thi Ly attorney’s fees in the amount of $3,200 within 30 days of receiving the notice of ruling.
Defendant Trinh To Thi Ly’s request for judicial notice is GRANTED.
Defendant Trinh To Thi Ly moves to expunge the lis pendens recorded on 08/16/2022 by Plaintiff A Plus Autobody, Inc. against the real property located at 13666 Harbor Boulevard, Garden Grove, California 92843 (Subject Property).
Standard to Expunge Lis Pendens
“[T]he court shall order the notice [of lis pendens] expunged if the court finds that the pleading on which the notice is based does not contain a real property claim,” (Code Civ. Proc. § 405.31.)
Alternatively, “the court shall order the notice [of lis pendens] if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” (Code Civ. Proc. § 405.32.)
A “real property claim” is defined as a “cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.” (Code Civ. Proc. § 405.4.)
First Amended Complaint
Plaintiff’s First Amended Complaint (FAC) asserts causes of action for 1) breach of contract, 2) breach of the covenant of good faith and fair dealing, 3) specific performance, 4) negligence per se, 5) breach of covenant of quiet enjoyment, 6) retaliatory eviction, 7) trespass, 8) fraud and deceit, 9) unfair business practices, 10) rescission, and 11) declaratory relief.
This lawsuit revolves around the Commercial Lease Agreement (Lease) entered into between Plaintiff and Defendant. Pursuant to the Lease, Plaintiff rented the Subject Property from the Defendant, who is the owner of the Subject Property.
The crux of the dispute between the parties is that Plaintiff alleges that there are violations of the Garden Grove Municipal Code, the California Health & Safety Code, the California Building Code, and/or the International Property Maintenance Code at the Subject Property that Defendant has failed to remedy. Plaintiff alleges that the violations of these codes have made it impossible for Plaintiff to carry on its business at the Subject Property.
1st Cause of Action (Breach of Contract) and 2nd Cause of Action (Breach of the Covenant of Good Faith and Fair Dealing)
The first cause of action alleges Defendant breached the lease between the Plaintiff and the Defendant by refusing to fix the code violations. In the prayer for relief for this claim, Plaintiff seeks monetary damages, “injunctive relief as justice requires,” and attorney’s fees and costs.
The second cause of action alleges the same code violations and seeks the same relief. These two causes of action seek primarily monetary damages for violations of the Lease and do not affect the title to, or the right to possession of the property. They are not real property claims under Civil Procedure Code section 405.4.
3rd Cause of Action (Specific Performance)
The third cause of action seeks to compel specific performance of the Lease, although the FAC is not clear what actions Plaintiff seeks to compel. Plaintiff’s opposition to the instant motion implies that Plaintiff seeks to compel Defendant to correct the code violations. (Opp’n at p. 6:26-28.) Regardless, this cause of action does not affect the title to, or the right to possession of the Subject Property and thus, is not a real property claim under Civil Procedure Code section 405.4.
4th Cause of Action (Negligence Per Se)
The fourth cause of action alleges that Defendant had a duty to lease property that was code compliant and Defendant breached that duty. In the prayer for relief for this claim, Plaintiff seeks monetary damages, “injunctive relief as justice requires,” and attorney’s fees and costs. Similar to the first and second causes of action, this claim seeks primarily monetary relief for the code violations and does not affect title to, or the right to possession of the property. It is not a real property claim under Civil Procedure Code section 405.4.
5th Cause of Action (Breach of Covenant of Quiet Enjoyment)
The fifth cause of action pleads that Defendant violated the implied covenant of quiet enjoyment by failing to remedy the code violations, and that as a result, Plaintiff is entitled to damages in the amount of $1 million. (FAC, ¶¶ 52-53.) In the prayer for relief for this claim, Plaintiff seeks monetary damages, “injunctive relief as justice requires,” and attorney’s fees and costs.
This is consistent with the case law, which normally limits plaintiffs bringing claims of breach of the covenant of quiet enjoyment to seeking damages and, in limited circumstances, injunctive relief to fix the problems that are interfering with the plaintiff’s right to use and enjoy the Subject Property. Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 590-591; Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846-847; Civil Code ss, 3300 & 3304.) The fifth cause of action does not affect the title to, or the right to possession of the Subject Property, and thus, is not a real property claim under Civil Procedure Code section 405.4.
6th Cause of Action (Retaliatory Eviction)
The sixth cause of action for retaliatory eviction alleges that Defendant terminated the Lease in retaliation for Plaintiff’s demands to remedy the code violations, although Plaintiff does not specify which code sections were violated. However, in the prayer for relief for this claim, Plaintiff seeks not only compensatory and punitive damages, “injunctive relief as justice requires”, and attorney’s fees and costs, but also “possessory rights to the Property.” Therefore, this cause of action could affect the right to possession of the property.
The issue then becomes whether Plaintiff has established the probable validity of this claim. Plaintiff has the burden of proving by a preponderance of the evidence the probable validity of any real property causes of action. (Code Civ. Proc., § 405.32.) “Probable validity” means that it is more likely than not that claimant will obtain a judgment against the defendant on the claim. (Code Civ. Proc., § 405.3.)
The courts have recognized a common law defense in unlawful detainer actions where an eviction is sought “in retaliation for the exercise of statutory rights by the tenant.” (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 774, citing Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517.) Subsequently, the courts held that retaliatory eviction could also be the basis for an affirmative cause of action by which a tenant could obtain damages and injunctive relief. (See Aweeka v. Bonds (1971) 20 Cal.App.3d 27, 281; Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 329-330.)
At the same time, the legislature has created a statutory cause of action and defense of retaliatory eviction. Pursuant to Civil Code section 1942.5, “if the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services . . .” (Civil Code, § 1942.5, subd. (a).) The rights in Section 1942.5 are in addition to those found under the common law. (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.4th 239, 249-252.)
The only evidence presented by Plaintiff as to the probable validity of its retaliatory eviction claim is the declaration of its counsel in opposition to the instant motion. Plaintiff’s counsel’s declaration puts forth the Lease, a Notice of Violation from the City of Garden Grove, and some written discovery responses.
As an initial matter, the common law cause of action for retaliatory eviction requires that the tenant involuntarily vacate the premises. (Banuelos v. LA Investment, LLC, supra, 219 Cal.App.4th at p. 328.) In this case, Plaintiff neither pleads in the FAC nor presents evidence that it has vacated the Subject Property.
In addition, the evidence presented by Plaintiff falls short of the showing required by either a common law or statutory cause of action for retaliatory eviction. The Lease, Notice of Violation, and written discovery responses only show that Plaintiff was entitled as a tenant to possession of the Subject Property and that there were code violations at the Subject Property.
The evidence does not show that Plaintiff exercised its statutory rights or complained to an appropriate agency as to the tenantability of a dwelling. Nor is there a showing that Defendant retaliated by terminating the Lease because of Plaintiff’s alleged exercise of its statutory rights or complaint to code enforcement authorities. Plaintiff has not established the probable validity of the sixth cause of action.
7th Cause of Action (Retaliatory Eviction) and 8th Cause of Action (Fraud and Deceit)
The seventh cause of action for trespass alleges Defendant entered on the property without prior notice or permission to change the locks and the eighth cause of action alleges that Defendants fraudulently represented that Plaintiff must match the terms of a $3.1 million purchase offer.
Plaintiff seeks by these causes of action compensatory damages of $1 million, punitive damages of $1 million, “injunctive relief as justice requires”, and attorney’s fees and costs. Plaintiff does not explain how these claims in particular affect the title to, or the right to possession of the Subject Property. Neither of these causes of action is a real property claim under Civil Procedure Code section 405.4.
9th Cause of Action (Unfair Business Practices)
In the ninth cause of action, the FAC pleads that Defendant committed unfair business practices by leasing the Subject Property when it was not code compliant and fraudulently representing that Plaintiff had to match the terms of a $3.1 million purchase offer. In the prayer for relief for this claim, Plaintiff seeks rescission, restitution, “injunctive relief as justice requires,” and attorney’s fees and costs. This cause of action does not affect title to, or the right to possession of the property and thus is not a real property claim under Civil Procedure Code section 405.4.
10th Cause of Action (Rescission) and 11th Cause of Action (Declaratory Relief)
The tenth cause of action seeks a rescission and a “judgment from this Court declaring that the Lease is invalid and rescinded for failure of consideration by Defendant [and] that Defendants shall return all rent sums paid by Plaintiff to Defendant.” (FAC, ¶ 80.)
In the eleventh cause of action, Plaintiff seeks declaratory relief and a judicial determination that the lease is null, void, and unenforceable because Defendant leased a property that was not up to code and untenantable. (FAC, ¶ 82.)
By these claims, Plaintiff seeks a determination that the Lease is invalid and that Defendant must pay damages and/or return of all rents to Plaintiff. These causes of action do not affect title to, or the right to possession of the Subject Property. However, even if the claims were considered to be real property claims, Plaintiff has not provided evidence sufficient to establish the probable validity of either claim, for the reasons explained above.
Attorney’s Fees
The court is required to “direct” an award to the prevailing party of the reasonable attorney fees and costs of making or opposing the motion unless it finds that either 1) “the other party acted with substantial justification” or 2) “other circumstances make the imposition of attorney's fees and costs unjust.” (Code Civ. Proc., § 405.38.)
Plaintiff has not shown that it acted with substantial justification or that circumstances make the imposition of attorney’s fees and costs unjust. The court will therefore award Defendant attorney’s fees of $3,200 (8 hours at $400 per hour).
Defendant shall give notice of this ruling.