Judge Teresa A. Beaudet, Case 19STUD00909 2022-07-28 Tentative Ruling

On January 25, 2019, Plaintiff De Witte Mortgage Investors Fund, LLC (“Plaintiff”) filed this unlawful detainer action against Defendants 1565 Haslam, LLC, Lee Wong (“Wong”), Alex Cardenas aka Alejandro Cardenas, Ruben Trejo, and LW Asset Management, LLC. This action concerns possession of the property located at 2115 Kress Street, Los Angeles, California 90046 (the “Property”). Plaintiff alleges that it purchased the Property following a foreclosure sale and that Defendants continued to occupy the Property after service of a 90-day notice to quit and deliver up possession. (Compl., ¶¶ 2-5.) On March 18, 2019, default and default judgment as to possession were entered against the aforementioned defendants.

On April 4, 2019, Sandra Ann Will Carradine (“Carradine”) filed a Claim of Right to Possession with the Court. Carradine claims a right to possession of the Property as the occupant of the Property on the date the Complaint was filed. Carradine’s Claim of Right to Possession was granted on April 23, 2019, and the Complaint was deemed amended to include Carradine as a defendant.

On September 13, 2021, the Court issued an Order granting Carradine’s motion for summary judgment. On September 28, 2021, Judgment was entered by the Court for Carradine and against Plaintiff. On September 28, 2021, a notice of entry of judgment was served on the parties by mail.

On November 29, 2021, Carradine filed a motion for an award of attorney’s fees. Plaintiff opposed. At the April 18, 2022 hearing on the motion, the Court issued the tentative decision attached hereto as Exhibit A and incorporated herein by this reference (the “Original Tentative Order”). Based upon the issues raised by Carradine, the Court ordered further briefing on the following:

1. Was the order issued by the Court on 4/23/29[1] a determination of the validity of the lease in question (the “Lease”) for all purposes or only for the issue of whether Carradine had standing to assert a claim in this case?

2. Whether the Court’[s] ruling on the admissibility of the Lease for purposes of this motion is incorrect and the reasons therefor.

3. Whether the issue of the burden of proof as to the existence and validity of the Lease rests with Plaintiff De Witte (“De Witte”) or Carradine and whether judicial admissions by De Witte bar a finding that the existence and validity of the [Lease] has not been established for purposes of this motion. (See April 18, 2022 minute order.)

The Court noted in the April 18, 2022 minute order that if the Court finds for Carradine on the issue(s) above, the Court would address in its tentative the remaining issues previously raised in the opposition and reply. On April 28, 2022, Carradine filed a supplemental brief. Plaintiff filed a supplemental opposition on May 31, 2022.

The Court denies Carradine’s request for judicial notice. The Court grants Plaintiff’s request for judicial notice as to as to Exhibit A and denies the request as to Exhibits B-E.

As set forth above, the Court first ordered further briefing on the following question: Was the order issued by the Court on 4/23/29[2] a determination of the validity of the lease in question (the “Lease”) for all purposes or only for the issue of whether Carradine had standing to assert a claim in this case?

On April 23, 2019, the Court issued a minute order following a hearing on the claim of right to possession as to Carradine. The Court ruled, inter alia, that “[t]he Claim of Right to Possession and Notice of Hearing filed by Sandra Ann Will Carradine on 04/02/2019 is Granted. The Court finds that the signature on the lease appears legitimate, as it bears similarity to the signatures in the exemplars provided by the Plaintiff. The Court further finds that there is no direct evidence of forgery or perjury despite Plaintiff’s ability to provide better evidence, and thus, the evidence proffered must be viewed with distrust (Evidence Code §412). The rental rate, while low, is consistent with the poor condition of the property. The Complaint is deemed amended to include Sandra Ann Will Carradine as the Defendant.”

Carradine argues that if a claimant alleges that they have a claim of right to possession based on a lease with a prior owner who lost the property through foreclosure, a court adjudicating that claim of right to possession must necessarily find that there was a lease with a prior owner. In support of this assertion, Carradine cites to Crescent Capital Holdings, LLC v. Motiv8 Investments, LLC (2022) 75 Cal.App.5th Supp. 1, 4, which held that “a postjudgment claimant is entitled to be inserted into the lawsuit if the claimant proves, by a preponderance of evidence, that the claimant: (1) was an occupant of the premises on the date the unlawful detainer was filed; and (2) had a colorable right to possession in that the occupancy was not as an invitee, licensee, guest, or trespasser.”

Plaintiff counters that the presentation of the purported lease may have been sufficient to show “a colorable right to possession” but did not show that the purported lease is valid. As Plaintiff notes, the Court found that there was no direct evidence of forgery or perjury as to the lease, but did not make a specific finding that the purported lease was a valid, enforceable contract. Plaintiff cites to Code of Civil Procedure section 1174.3, subdivision (d), which provides that “[a]t the hearing [on a claim of right to possession], the court shall determine whether there is a valid claim of possession by the claimant who filed the claim, and the court shall consider all evidence produced at the hearing, including, but not limited to, the information set forth in the claim. The court may determine the claim to be valid or invalid based upon the evidence presented at the hearing. The court shall determine the claim to be invalid if the court determines that the claimant is an invitee, licensee, guest, or trespasser.” Plaintiff asserts that “the entire 1174.3 hearing and procedure is to weed out those who have no colorable right to possession and are clearly trespassers, invitees or licensees, so that a fairer opportunity for occupants is given to defend an unlawful detainer.” (Opp’n at p. 5:2-4.)

The second question the Court ordered further briefing on was whether the Court’s ruling, as set forth in the original Tentative Order, on the admissibility of the Lease for purposes of this motion was incorrect and the reasons therefor. Carradine asserts that the purported lease was already authenticated and that should be sufficient. Carradine notes that when she submitted the Lease in opposition to Plaintiff’s motion for summary judgment, Plaintiff objected to the document based on authentication, foundation, and hearsay, and the Court overruled those objections. (See Plaintiff’s November 4, 2019 Objections to Carradine’s Evidence Cited in Support of Opposition to Motion for Summary Judgment or, in the alternative, Motion for Summary Adjudication; Court’s November 6, 2019 Order at p. 2:26.)

Carradine also notes that the notice of motion for the instant motion for attorney fees indicates that the motion is based upon, among other things, “the Court’s file.” (Carradine’s Notice of Motion at p. 2:5.) Carradine cites to Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 291, where the Court of Appeal found that the trial court erred in refusing to consider previously filed documents in connection with a fee motion. The Court noted that “[Cal. Rules of Court] Rule 3.1110 addresses the general format for motions. As noted ante, rule 3.1110(d) states that ‘[a]ny paper previously filed must be referred to by date of execution and title.’ Rule 3.1113 provides rules for the memorandum in support of the motion, and rule 3.1113(j) states that ‘[t]o the extent practicable, all supporting memorandums and declarations must be attached to the notice of motion.’ Consistent with these rules, a litigant may incorporate previously filed documents and, where practicable, should file them with the motion.But a litigant is not required to do so absent a rule precluding incorporation by reference.” (Ibid, emphasis in original.) In Roth, the subject motion for attorney’s fees “stated it was based on the ‘Declaration of Scott A. McMillan in Support of Defendant Plikaytis’ Motion for Attorneys’ Fees [previously filed in court on May 6, 2014]’ and ‘the Declaration of Stephen T. Cummings, Esq. in Support of Motion for Attorneys’ Fees dated January 29, 2013[, previously filed in court on May 6, 2014],’ among other documents.” (Id. at p. 288.) The Court noted that the defendant “incorporated by reference the original Scott A. McMillan and Cummings declarations, and other documents from the first fee motion, and provided courtesy copies of those declarations and certain other materials. This was enough to put them before the court.” (Id. at p. 292.) Here, by contrast, Carradine’s notice of motion for the instant motion does not refer to any previously filed declarations by date of execution and title (per Cal. Rules of Court, rule 3.1110(d)), rather, it generally indicates that the motion is based upon, among other things, “the Court’s file.” The Court finds that this is insufficient to establish the existence of the Lease and certainly not the validity of the Lease.

The final question the Court ordered further briefing on is whether the issue of the burden of proof as to the existence and validity of the Lease rests with Plaintiff or Carradine and whether judicial admissions by Plaintiff bar a finding that the existence and validity of the [lease] has not been established for purposes of this motion.

Carradine notes that Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) provides that attorney’s fees are allowable as costs when authorized by contract. Pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5)(A), “[a] claim not based upon the court’s established schedule of attorney's fees for actions on a contract shall bear the burden of proof.” Thus, as Carradine notes, it is a moving party’s burden to demonstrate that there is a contract binding the parties which provides for attorney fee recovery under the circumstances of the particular case.

Moreover, Carradine cites to Active Properties, LLC v. Cabrera (2016) 6 Cal.App.5th Supp. 6, 14, where the Court of Appeal noted that “[t]he court will need to act as a fact finder in determining a party’s entitlement to attorney fees based on evidence presented in support of the motion.” (Emphasis added, citing to Cal. Rules of Court, rule 3.1306(a), “[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.”)

Carradine notes that Plaintiff did not file evidentiary objections in its opposition to the instant motion. However, Plaintiff has consistently contested the validity of the Lease. Carradine does not point to any asserted judicial admissions by Plaintiff to the contrary.

Based on the foregoing, Carradine has the burden of presenting evidence in connection with her motion for attorney’s fees. As the Court previously noted, Carradine herself did not proffer any evidence as to the existence and validity of the purported Lease Agreement in connection with this motion. In addition, Carradine’s notice of motion did not reference any specific previously filed documents that Carradine was relying on in connection with the motion.

The declaration from Carradine’s counsel is not competent to establish the existence, let alone the validity of the purported Lease Agreement, because he has no personal knowledge thereof.

Even if the existence and validity of the purported Lease Agreement had been established, Plaintiff asserts that it did not sue defendants pursuant to the terms of the purported Lease Agreement. “To determine whether an action is on the contract, we look to the complaint and focus on the basis of the cause of action.” (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 821.) “[F]ees are properly awarded under section 1717 ‘to the extent that the action in fact is an action to enforce—or avoid enforcement of—the specific contract.’” (Turner v. Schultz (2009) 175 Cal.App.4th 974, 980.) Plaintiff alleges that it purchased the Property following a foreclosure sale and that the defendants continued to occupy the Property after service of a 90-day notice to quit and deliver up possession of the premises. (Compl., ¶¶ 2-5.) Plaintiff contends that the 90-day notice was served in compliance with Code of Civil Procedure section 1161a et seq. (Compl., ¶ 5.) Plaintiff alleges that the defendants were holding over and continuing in possession of the Property without the permission of Plaintiff, and that Plaintiff is entitled to immediate possession of the Property. (Compl., ¶ 8.) The Complaint does not mention the purported Lease Agreement and is not an action to enforce or avoid enforcement thereof.

Superior Court of California

County of Los Angeles

Department 50

Carradine now moves, pursuant to Civil Code section 1717, and Code of Civil Procedure sections 1033.5 and 1032 for an award of attorney’s fees. Plaintiff opposes.

Civil Code section 1717 provides: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”

Code of Civil Procedure section 1033.5(a)(10)(A) states that attorneys’ fees authorized by contract may be recoverable. Finally, California Rules of Court, rule 3.1702(1) states: “A notice of motion to claim attorney’s fees . . .must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case . . . .” (Cal. Rules of Court, rule 3.1702(1).) This is the only limitation under statutory and judicial authority regarding time of filing a motion for attorney’s fees.

As an initial matter, the Court notes that there is no dispute that the motion for attorney’s fees was timely served and filed.

Carradine, through the declaration of her counsel only, contends that she is entitled to attorney’s fees based on a lease agreement she allegedly entered into with Wong to rent out the Property (the “Lease Agreement”). (Post Decl., ¶ 3, Ex. A.) Section 38 of the purported Lease Agreement provides in pertinent part that, “[i]n any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs.…” (Post Decl., ¶ 3, Ex. A, § 38.) Carradine argues that Plaintiff became bound by the Lease Agreement upon its taking of ownership of the Property because Plaintiff became the “landlord” for purposes of the agreement. Carradine notes that “[a]bsent a contrary agreement of the parties, a sale by a lessor of real property during an unexpired term does not of itself abrogate the lease. Its effect is to grant all the rights of the original lessor to the grantee of the reversion. The grantee then becomes the landlord by operation of law and the tenant becomes a tenant of the grantee of the reversion.” (Kirk Corp. v. First Am. Title Co. (1990) 220 Cal.App.3d 785, 808 (internal quotations omitted.))

Plaintiff, on the other hand, asserts, inter alia, that the instant action did not arise from the purported Lease Agreement. The Court notes that from the start of this case, Plaintiff has contested the validity of the Lease Agreement attached as Exhibit “A” to the Post Declaration. (See e.g. Plaintiff’s Motion for Summary Judgment filed 10/24/19, pp. 20-22.); and Plaintiff continues to contest the validity of the Lease Agreement in connection with this motion. (Opp’n, p. 3; Rubanowitz Decl. ¶¶ 9-10.)

Moreover, Plaintiff asserts that it did not sue defendants pursuant to the terms of the purported Lease Agreement. “To determine whether an action is on the contract, we look to the complaint and focus on the basis of the cause of action.” ((Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 821.) “[F]ees are properly awarded under section 1717 ‘to the extent that the action in fact is an action to enforce—or avoid enforcement of—the specific contract.’” ((Turner v. Schultz (2009) 175 Cal.App.4th 974, 980.) As set forth above, Plaintiff alleges that it purchased the Property following a foreclosure sale and that the defendants continued to occupy the Property after service of a 90-day notice to quit and deliver up possession of the premises. (Compl., ¶¶ 2-5.) Plaintiff contends that the 90-day notice was served in compliance with Code of Civil Procedure section 1161a et seq. (Compl., ¶ 5.) Plaintiff alleges that the defendants were holding over and continuing in possession of the Property without the permission of Plaintiff, and that Plaintiff is entitled to immediate possession of the Property. (Compl., ¶ 8.) The Complaint does not mention the purported Lease Agreement and is not an action to enforce or avoid enforcement thereof.

More importantly for purposes of this motion, the validity of the purported Lease Agreement has never been established in this case (Opp’n, pp. 4-5), and even its very existence has not been established in connection with this motion. As noted above, Carradine herself did not proffer any evidence as to the existence and validity of the purported Lease Agreement in connection with this motion. The declaration from her counsel is not competent to establish the existence, let alone the validity of the purported Lease Agreement because he has no personal knowledge thereof.

In the reply, Carradine does not adequately address the issues as to the existence and validity of the purported Lease Agreement. Contrary to Carradine’s suggestion, Carradine has the burden of proving the existence and validity of the purported Lease Agreement not Plaintiff. (Cf. Opp’n p. 5.) Instead, Carradine asserts that the issue of the validity of the Lease Agreement should have been raised in connection with Carradine’s summary judgment motion and that “this Court must have implicitly found true that Ms. Carradine had a tenancy [that] commenced before the change in ownership by virtue of the lease agreement she signed.” (Reply, pp. 2, 4-5.) The Court disagrees since the only issue before the Court in Carradine’s motion for summary judgment was the issue of compliance with LAMC § 49.92 with regard to the contents of the requisite notice. Consequently, the Court finds that Carradine has not established the existence or the validity of the purported Lease Agreement; therefore, she has not established her entitlement to attorneys’ fees in this case.

As an initial matter, the Court notes that there is no dispute that the motion for attorney’s fees was timely served and filed.

Carradine, through the declaration of her counsel only, contends that she is entitled to attorney’s fees based on a lease agreement she allegedly entered into with Wong to rent out the Property (the “Lease Agreement”). (Post Decl., ¶ 3, Ex. A.) Section 38 of the purported Lease Agreement provides in pertinent part that, “[i]n any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs.…” (Post Decl., ¶ 3, Ex. A, § 38.) Carradine argues that Plaintiff became bound by the Lease Agreement upon its taking of ownership of the Property because Plaintiff became the “landlord” for purposes of the agreement. Carradine notes that “[a]bsent a contrary agreement of the parties, a sale by a lessor of real property during an unexpired term does not of itself abrogate the lease. Its effect is to grant all the rights of the original lessor to the grantee of the reversion. The grantee then becomes the landlord by operation of law and the tenant becomes a tenant of the grantee of the reversion.” (Kirk Corp. v. First Am. Title Co. (1990) 220 Cal.App.3d 785, 808 (internal quotations omitted.))

Plaintiff, on the other hand, asserts, inter alia, that the instant action did not arise from the purported Lease Agreement. The Court notes that from the start of this case, Plaintiff has contested the validity of the Lease Agreement attached as Exhibit “A” to the Post Declaration. (See e.g. Plaintiff’s Motion for Summary Judgment filed 10/24/19, pp. 20-22.); and Plaintiff continues to contest the validity of the Lease Agreement in connection with this motion. (Opp’n, p. 3; Rubanowitz Decl. ¶¶ 9-10.)

Moreover, Plaintiff asserts that it did not sue defendants pursuant to the terms of the purported Lease Agreement. “To determine whether an action is on the contract, we look to the complaint and focus on the basis of the cause of action.” ((Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 821.) “[F]ees are properly awarded under section 1717 ‘to the extent that the action in fact is an action to enforce—or avoid enforcement of—the specific contract.’” ((Turner v. Schultz (2009) 175 Cal.App.4th 974, 980.) As set forth above, Plaintiff alleges that it purchased the Property following a foreclosure sale and that the defendants continued to occupy the Property after service of a 90-day notice to quit and deliver up possession of the premises. (Compl., ¶¶ 2-5.) Plaintiff contends that the 90-day notice was served in compliance with Code of Civil Procedure section 1161a et seq. (Compl., ¶ 5.) Plaintiff alleges that the defendants were holding over and continuing in possession of the Property without the permission of Plaintiff, and that Plaintiff is entitled to immediate possession of the Property. (Compl., ¶ 8.) The Complaint does not mention the purported Lease Agreement and is not an action to enforce or avoid enforcement thereof.

In the reply, Carradine does not adequately address the issues as to the existence and validity of the purported Lease Agreement. Contrary to Carradine’s suggestion, Carradine has the burden of proving the existence and validity of the purported Lease Agreement not Plaintiff. (Cf. Opp’n p. 5.) Instead, Carradine asserts that the issue of the validity of the Lease Agreement should have been raised in connection with Carradine’s summary judgment motion and that “this Court must have implicitly found true that Ms. Carradine had a tenancy [that] commenced before the change in ownership by virtue of the lease agreement she signed.” (Reply, pp. 2, 4-5.) The Court disagrees since the only issue before the Court in Carradine’s motion for summary judgment was the issue of compliance with LAMC § 49.92 with regard to the contents of the requisite notice. Consequently, the Court finds that Carradine has not established the existence or the validity of the purported Lease Agreement; therefore, she has not established her entitlement to attorneys’ fees in this case.

[1]The Court notes that the April 18, 2022 minute order incorrectly states “4/23/29.” The minute order must be corrected nunc pro tunc to state “4/23/19.”

[2]As set forth above, this should state 4/23/19.

DE WITTE MORTGAGE INVESTORS FUND, LLC, Plaintiff, vs. 1565 HASLAM, LLC, et al., Defendants.	Case No.:	19STUD00909
	Hearing Date:	April 18, 2022
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MOTION FOR ATTORNEY FEES