Judge: Salvatore Sirna, Case: 21PSCV00844, Date: 2023-02-28 Tentative Ruling

Case Number: 21PSCV00844    Hearing Date: February 28, 2023    Dept: G

Plaintiff/Cross-Defendant Ricardo Fernandez and Cross-Defendant Fervino, Inc.’s Motion for an Order Recovering Personal Property

Respondent: Defendant/Cross-Complainant Raul Trevino

TENTATIVE RULING

Plaintiff/Cross-Defendant Ricardo Fernandez and Cross-Defendant Fervino, Inc.’s Motion for an Order Recovering Personal Property is DENIED.

BACKGROUND

This is a contractual fraud action. In February 2020, Ricardo Fernandez (Fernandez) and Anarbys Abrahante (Abrahante) entered into an oral partnership agreement with Raul Trevino (Trevino) to establish a Slaters 50/50 franchise on the first floor of a building in Covina (hereafter, Covina Property) that Trevino owned. On March 6, parties formed a corporation named Fervino, Inc. (Fervino). Prior to the partnership, Trevino operated a nightclub on the first floor of the Covina Property. Trevino allegedly agreed to relocate the nightclub to the second floor of the Covina Property and transfer the nightclub’s liquor license to Fervino. Trevino also allegedly agreed to allow Fervino to utilize the nightclub’s equipment, furniture, dishes, utensils, and other items. Furthermore, Trevino agreed to contribute $200,000 to Fervino in exchange for a share of stock and to cooperate with Fervino in acquiring permits, while waiving all rent payments.

By June 22, 2021, Trevino allegedly had not begun the process of changing the nightclub’s address and instead of transferring the liquor license to Fervino, Trevino allegedly paid for a renewal of the nightclub’s liquor license. Trevino also allegedly failed to timely submit elevator lift plans to the City of Covina for approval, causing additional delays in the approval process. Trevino allegedly failed to provide full access to the first floor of the Covina Property and continued to operate the nightclub there.

On October 15, 2021, Fernandez and Abrahante filed a complaint against Trevino and Does 1-50, alleging (1) breach of partnership agreement, (2) breach of fiduciary duty, (3) intentional misrepresentation, (4) negligent misrepresentation, (5) promissory fraud, (6) promissory estoppel, (7) intentional interference with business relationship, (8) unfair business competition, (9) declaratory relief, and (10) preliminary injunction/stay of unlawful detainer.

On November 24, 2021, Trevino filed a cross-complaint against Fernandez, Abrahante, Juan Fernandez, Fervino, and Roes 1-50, alleging the following causes of action: (1) breach of contract, (2) intentional fraud and misrepresentation, (3) fraud and suppression of a material fact, (4) breach of fiduciary duty, (5) accounting, (6) conspiracy, (7) conversion, (8) preliminary injunction, and (9) declaratory relief.

On January 7, 2022, Abrahante and Fervino filed a motion for consolidation with and stay of an unlawful detainer action filed by Trevino against Fervino. On May 9, the court denied the motion.

On July 5, 2022, Juan Fernandez filed a cross-complaint against Trevino, Sylvia Depaz (Depaz), and Roes 1-50, alleging the following causes of action: (1) declaratory relief, (2) rescission/cancellation of the CLA, (3) unfair business practices and conspiracy, and (4) quasi-contract/unjust enrichment.

On January 27, 2023, Fernandez and Fervino (collectively, Moving Parties) filed the present motion. A hearing is set for for February 28, 2023, with a final status conference set for July 1, 2024 and a jury trial set for July 16.

ANALYSIS

Moving Parties seek an order from the court allowing them to collect personal property and trade fixtures from the Covina Property pursuant to Code of Civil Procedure section 715.010 and Civil Code section 1019. For the following reasons, the court DENIES the motion.

Code of Civil Procedure section 715.010 allows a judgment for possession of real property to be enforced through a writ of possession and establishes additional requirements for that writ of possession, including “[a] statement that any personal property . . . remaining on the real property after the judgment creditor has been placed in possession will be sold or otherwise disposed of in accordance with Section 1174 unless the judgment debtor or other owner pays the judgment creditor the reasonable cost of storage and takes possession of the personal property not later than 15 days after the time the judgment creditor takes possession of the real property.” (Code Civ. Proc., § 715.010, subd. (a), (b)(3).)

Pursuant to Civil Code section 1019, “A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.”

However, neither statute provides authorization for the type of motion brought by Moving Parties. While Civil Code section 1019 gives tenants the right of removal “during the continuance of his term,” the Moving Parties’ tenancy has already been terminated following a unlawful detainer judgment entered on August 12, 2022 in Case No. 21WCUD00793. (Trevino Decl., ¶ 4-5.) Code of Civil Procedure section 715.010 merely establishes the requirements for a writ of possession to enforce a judgment for possession of real property.

Accordingly, because Moving Parties have failed to demonstrate legal grounds for an order to remove personal property or trade fixtures in a property subject to a separate unlawful detainer judgment, the court DENIES their motion.

CONCLUSION

Based on the foregoing, Moving Parties’ motion is DENIED.