Judge Ralph C. Hofer, Case Number: EC063536, Date: 2025-03-07 Tentative Ruling

Judge: Ralph C. Hofer, Case: EC063536, Date: 2025-03-07 Tentative Ruling

Case Number: EC063536 Hearing Date: March 7, 2025 Dept: D

TENTATIVE RULING

Calendar: 10

Date: 3/7/2025

Case No: EC 063536

Case Name: Mellenthin, et al. v. Komisar, et al.

APPLICATION TO AMEND JUDGMENT

Moving Party: Judgment Creditors Eve Somer, as Trustee of the Eve Somer Living Trust dated July 1, 2020, and Gregory C. Yaitanes, as Trustee of the Gregory C. Yaitanes Family Trust

Responding Party: Defendants/Cross Complainants Boris Komisar and Elvira Shut

RELIEF REQUESTED:

Amend Judgment of May 23, 2018 to decree

(1) Judgment Debtor’s revocable licenses for Encroachment Nos. 1 and 3 are terminated;

(2) Encroachment Nos. 1-4 are to be removed by date certain; and

(3) Entry of the Amended Judgment is to be held in abeyance until the City of Los Angeles approves or denies the lot line adjustment application submitted by Judgment Debtors.

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiffs Michael Mellenthin and Donna Mellenthin, trustees of the Mellenthin Family Trust, brought this action alleging they were owners of real property on Oakdale Road in Studio City, against defendants Boris Komisar and Elvira Shut, the owners of real property on El Cerro Lane in Studio City, alleging that defendants’ wall, wall supporting pool deck, concrete pillar, and gas, water, drains and electric lines encroached onto the easterly portion of the Mellenthin property.

Plaintiff sought a mandatory injunction requiring defendants to remove the encroachments from the disputed property and judgment quieting title in plaintiffs as of the date of the complaint.

Defendants Komisar and Shut filed a cross-complaint against plaintiffs, alleging that when defendants inspected and eventually purchased the Komisar property, a large pool deck and a driveway existed on the property, with the driveway bordered by a short retaining wall and an ivy covered chain link fence on the western side of the property, which cross-complainants thought was the border between the Komisar property and the Mellenthin property. Komisar and Shut alleged that the walls, pool decks, foundation, fences, and gas, water, drain and electrical lines had been in existence at their current locations for more than five years prior to the filing of the present lawsuit, and that cross-complainants were entitled to a prescriptive easement to use the Mellenthin property for those alleged encroachments. In the alternative, cross-complainants alleged that during a remodeling project and public hearings for the remodeling project, Michael Mellenthin, an experienced residential property developer and retired licensed general contractor, reviewed the construction plans, and represented that he knew the plan included encroachments on his property but did not care about them, but that his only concern was that the project have adequate drainage so that no water would flow from the Komisar property to the Mellenthin property. After the hearing, and the approval of the plans, cross-complainants proceeded with the remodeling project. Hence, they alleged that if they were not entitled to a prescriptive easement, they were entitled to have an equitable or other easement to use that portion of the Mellenthin property containing alleged encroachments, particularly if the award of such equitable easement was conditioned on cross-complainants paying cross-defendants the reasonable value of said easements.

The cross-complaint alleged that removing the retaining wall would remove the lateral support for cross-complainants’ driveway and create a soil subsidence issue on the Mellenthin property, that the removal of the pool deck would endanger the structural integrity of the structure, and that moving gas, water, drain and electrical lines would be prohibitively expensive, and of negligible harm to cross-defendants, when the lines were not interfering with the Mellenthins’ use of the ornamental landscape then being maintained. The cross-complaint sought a determination of title to prescriptive, equitable or other easements for the encroaching structures, and a judicial determination as to the rights and duties of the parties concerning those structures.

The file shows that the matter went to a court trial in November of 2017 through January of 2018. Post-trial briefs and motions were filed, and on April 25, 2018, the court issued and served it Statement of Decision, which was to issue a mandatory injunction for defendants’ trespass as to a large pillar encroachment [Encroachment No. 2], and for defendants’ trespass as to the electrical and plumbing encroachment [Encroachment No. 4], and to issue a license to defendants for the driveway wall encroachment [Encroachment No. 1] and the pool deck wall encroachment [Encroachment No. 3]. The Statement of Decision provides for a damages award to plaintiffs in the amount of $14,755 for construction of a new fence and $5,498.30 for new replacement trees.

On May 23, 2018, the court signed and filed the Judgment submitted jointly by the parties.

This matter was originally heard on June 28, 2024. The parties submitted on the court’s tentative ruling which was posted online and at the courtroom. The court adopted its modified tentative ruling as set forth in the minute order, which was:

“Counsel are ordered to meet and confer in person or by Zoom by no later than 07/26/2024 to make efforts in submitting the Joint Application and moving this case forward to a resolution. The court sets the matter on the dates indicated below. Briefs are due on September 20, 2024 which are to outline what has been done to bring compliance, what needs to be done, and what is the hold up.”

A Status Conference Compliance—Briefs Due was scheduled for October 4, 2024, and the hearing on the motion was continued to December 6, 2024.

On October 4, 2024, at the Status Conference Compliance—Briefs Due, after conferring with counsel, the court ordered the parties to mediate based on the court’s prior order. The parties were ordered to meet and confer and be prepared to inform the court on the next court date when mediation was set to occur and with whom. Counsel for plaintiff was ordered to submit assignee paperwork as required. A Status Conference Re: Mediation and Filing of Assignment of Judgment paperwork was scheduled for October 21, 2024. The court also that date entered a nunc pro tunc minute order to correct the minute order of 06/28/2024 to reflect the correct tentative ruling.

At the Status Conference on October 21, 2024, counsel stated that they were in the process of scheduling a mediation date. After conferring with counsel, the court ordered the Status Conference continued to December 19, 2025, and the motion to amend judgment was continued to March 7, 2025.

ANALYSIS:

Since the previous hearing date, defendants/cross-complainants Boris Komisar and Elvira Shut have filed a Status Report Re: Property Line Adjustment, indicating that the parties agreed through counsel to attend mediation through Signature Resolution, as specified in a Lot Line Adjustment Contract prepared by Assignees/moving parties. The Status Report indicates that the Contract calls for mediation of any disputes pertaining to the Contract, but moving parties have made clear their intention to not comply with the Contract and mediate. The Status Report also indicates that the moving parties have cancelled the lot line adjustment, and so should be estopped from pursuing the remedy to amend the judgment.

The attached executed Lot Line Adjustment Agreement was executed on March 11, 2024, and provides, in pertinent part:

“Mediation. The Parties agree to and shall mediate any dispute or claim between them arising out of this Agreement or any resulting transaction. The mediation shall be held prior to any civil action. In the event the parties are not able to agree on a mediator within thirty days of the first party seeking mediation, the parties shall submit the matter to mediation before Signature Resolution in Los Angeles County, California, who shall appoint a mediator.”

[Status Report, Ex. A, para. 17].

The Status Report attaches emails showing the parties have not been able to schedule a mediation. [Ex. B].

The Status Report also indicates that, more importantly, the moving parties/assignees have sold their interest in the property. The Status Report attaches a recorded Grant Deed, executed on July 2, 2024 and recorded on July 31, 2024, pursuant to which Eve Somer, Trustee, and Gregory C. Yaitanes, Trustee, each granted to John Blakeman, Trustee of The Whole Bottle Trust, their undivided 50% interest in the subject property at 3318 Oakdell Rd. in Studio City. [Ex. C].

It accordingly appears the motion has been rendered moot, as moving parties are no longer owners of the subject property entitled to become assignees. It would appear that the covenant at issue runs with the land, and that the new owner would have an interest in this matter and its ultimate resolution.

The court notes that the moving parties have filed a Judgment Assignees’ Status Report, and various supporting documents, including a Notice of Non-Opposition to the Application to Amend Judgment, none of which address the Grant Deed or explain the impact on the application to be named as assignees the fact that the recorded ownership of the property is now in a third party. The moving parties take the position that they have been cooperating in efforts to schedule the mediation, and have not wrongfully withdrawn the Lot Line Adjustment application made to the City of Los Angeles Planning Department. The moving parties submit an undated copy of a Case Summary screen from Los Angeles City Planning, which seems to reflect that as of the unidentified date of the search the matter was still pending. [Hummer Decl., para. 21, Ex. B]. Without a date, this showing is not strong evidence that the lot line application is still pending.

In any case, the court is concerned that the Grant Deed is not addressed, and that since the execution of the Grant Deed and its recording, the moving parties have submitted status reports to the court on September 20, 2024, November 4, 2024 and February 26, 2025 and attending a Status Conference before the court on October 21, 2024 without making mention of the transfer of ownership of the property in July of 2024.

The matter accordingly is deemed moot. The court will hear argument concerning whether the new owners of the property have standing to file a claim as assignees.

RULING:

Judgment Creditors’ Application to Amend Judgment is MOOT in light of the recording on July 31, 2024 of a Grant Deed granting the property formerly held by plaintiffs from the moving parties to John Blakeman, Trustee of The Whole Bottle Trust dated July 2, 2024.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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