Judge Thomas D. Long, Case 21STCV36174 2023-04-20 Tentative Ruling

On January 11, 2022, Plaintiff Varouj Krajian filed a first amended complaint (“FAC”) against Defendant Razmer #3 LLC.

On February 2, 2023, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

Plaintiff’s request for judicial notice of pictures/maps (Exhibit A), emails and letters (Exhibit B), and links to websites about Avi Ryzman’s real estate experience (Armas Decl. ¶ 13) is denied. These are not proper subjects of judicial notice.

Plaintiff’s request for judicial notice of HM Montebello’s Statement of information and Grant Deed (Exhibit C) and MC Montebello’s Articles of Incorporation and Statement of Information (Exhibit D) are also denied. The source of these documents is not authenticated, and the documents are being used to prove the truth of their contents, of which the Court cannot take judicial notice. (See Armas Decl. ¶ 4.)

Furthermore, the Court finds that these documents are irrelevant to its decision.

Nos. 1-2, 6: Sustained. (See Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 531 (Roger) [“because the statement is not based on [the declarant’s] experience or personal knowledge, but on her ‘understanding,’ it is insufficient to support a finding as to the truth of what she said”]; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 719-720 (Bowden) [“The phrase ‘To the best of my knowledge’ indicates something less than the ‘personal knowledge’ required under Code of Civil Procedure section 437c, and implies that the declarant's statement is based on something similar to information and belief.”].)

No. 1: Sustained. (See Roger, supra, 44 Cal.App.5th at p. 531; Bowden, supra, 67 Cal.App.3d at pp. 719-720.)

Nos. 17-18, 20-21, 26-27: Sustained as hearsay and for lack of foundation and personal knowledge. Overruled as to the document citations.

A. Plaintiff’s Documents Do Not Comply With the Requirements for Electronic Filing.

Under the Court’s First Amended General Order for electronic filing, the table of contents and all attachments, including exhibits, must be bookmarked. (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).)

Plaintiff’s Opposition and declarations did not include any bookmarks, which is particularly troublesome when navigating the exhibits. If Plaintiff continues to electronically file noncompliant documents in this action, the Court may strike the filings or issue sanctions.

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 (United Community Church).) “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).) “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient. ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.’” (United Community Church, supra, 231 Cal.App.3d at p. 335.) “The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.)

Defendant’s separate statement is 46 pages long and contains 106 “material” facts. Like the “inappropriate” separate statement in Nazir, “[t]he exact number of supposedly material facts is impossible to know without actually counting them,” as many of the same facts are repeated with new numbering. (Nazir, supra, 178 Cal.App.4th at p. 252.) Many facts are unnecessary and are not, in fact, material to the claims or defenses.

Plaintiff inserted improper argument in his responses to Defendant’s separate statement. The separate statement of material facts is not the proper place for objections or argument. The separate statement in opposition to a motion for summary judgment is supposed to “unequivocally state whether the fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (California Rules of Court, rule 3.1350(f)(2).)

“[T]trial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis.” (Ibid.) Although the Court will not strike portions of the separate statement here, counsel is cautioned to include only facts that are truly material to the motion, along with proper responses to the separate statement.

Plaintiff owns the real property commonly known as 728 S. Vail Avenue, Montebello, California 90640. (Undisputed Material Facts “UMF” 1.) Plaintiff’s Property abuts the public street South Vail Avenue, where there is access to the parking lot and the front of the building with two roll-up doors and two pedestrian doors. (UMF 2.)

Defendant owns the real property commonly known as 760 S. Vail Avenue, Montebello, California 90640. (UMF 3.)

On January 25, 2000, MC Montebello LLC acquired Defendant’s Property from the Christenson Family Trust dated 5/28/85, Marshall Family Trust dated 6/22/84, Declaration of Trust dated 9/12/77 for the benefit of Edward Marshall and the Marshall Family Trust dated 10/7/98. (UMF 4.)

On June 29, 2006, HM Montebello LLC sold Plaintiff’s Property to Tony Ishizaki. (UMF 5.)

On February 25, 2011, MC Montebello and Tony Ishizaki entered into a License Agreement. (UMF 6.) Under the License Agreement, licensor MC Montebello granted to licensee Ishizaki an irrevocable non-exclusive license to use a strip of land measuring 15 feet by 235 feet on Defendant’s Property solely to provide ingress and egress to a roll door at the rear of the 728 S. Vail (Defendant’s Property) for the purpose of loading and unloading trucks. (UMF 7; FAC, Ex. C.) The License Agreement runs with the land and binds successor owners of both properties. (Response to UMF 7; FAC, Ex. C.) The License Agreement was not recorded. (UMF 8.)

Defendant conducted due diligence prior to close of escrow on the purchase of Defendant’s Property. (UMF 11.) Defendant obtained a Preliminary Report and survey for the property, which did not identify the License Agreement. (UMF 12-13.) The Property Information Sheet provided to Defendant by the seller’s agent stated that the seller had no knowledge of any unrecorded title matters, including licenses, on Defendant’s Property. (UMF 16.) Escrow for the purchase of Defendant’s Property closed on January 10, 2018, and the Grant Deed was recorded on January 12, 2018. (UMF 17.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

A. There is No Triable Issue of Fact Regarding Defendant’s Lack of Notice of the License Agreement (First Cause of Action).

The first cause of action seeks to establish Plaintiff’s continued right to use the license area under the irrevocable License Agreement. (See FAC ¶¶ 38-43.) An irrevocable license does not survive transfer of the property to a purchaser without actual notice of the license. (Gamerberg v. 3000 E. 11th St., LLC (2020) 44 Cal.App.5th 424, 432.-433) “California courts have long recognized that ‘[a]n irrevocable license . . . is for all intents and purposes the equivalent of an easement,’” and easements “are likewise unenforceable against a subsequent purchaser without notice.” (Id. at p. 434.)

It is undisputed that the License Agreement was not recorded. (UMF 8.) It is also undisputed that the Preliminary Report and survey did not identify the License Agreement. (UMF 12-13.) Additionally, it is undisputed that the Property Information Sheet provided by the seller’s agent stated that the seller had no knowledge of any unrecorded title matters, including licenses, on Defendant’s Property. (UMF 16.) Defendant understood the striping and “No Parking” painted on the disputed area to be related to the use of the area by the prior tenant for the location of its above-ground storage and holding tanks for hazardous materials. (UMF 15.) Defendant has met its initial burden of showing no actual notice of the License Agreement.

Plaintiff argues that the License Agreement was shared with Defendant’s agent, Brian Dror, during the purchase. (Opposition at p. 10.) Defendant’s representatives, including Avi Ryzman and Rafi Ryzman, were also informed of the link from the seller’s attorneys containing all due diligence documents, including the License Agreement. (Ibid.) Plaintiff does not cite supporting evidence in the Opposition. In his Response to Separate Statement, Plaintiff cites the Declaration of Andrei Armas and its exhibits. (Response to UMF 14.)

The seller’s attorneys uploaded the License Agreement to the seller’s ShareFile “Property” folder on September 27, 2017. (Armas Decl., Ex. F at Row 46 [MCM0002258].) The next day, Tony Naples from Lee & Associates had several downloads of the ShareFile “Property” folder. (Armas Decl., Ex. F at Row 13 [MCM0002258].) Naples is not Defendant’s real estate agent, although he works at the same company as the agents for both parties. Jack Cline, Jr. represented Defendant and Peter Bacci represented the seller. (UMF 10.) Because both sides have real estate agents at Lee & Associates, Naples’s access does not show that Defendant downloaded the files.

On December 1, 2017, at 11:22 a.m. and 11:26 a.m., Procopio (the seller’s counsel’s firm) shared the License Agreement, via ShareFile, with Defendant’s Manager, Brian Dror, at Brian@brdcpas.com. (Armas Decl., Ex. F [MCM0006763- MCM0006764]; see Dror Decl. ¶ 3.) Dror confirmed that this was his correct email address. (Dror Depo. at p. 74.) Plaintiff also provides a document that indicates that Dror had access to those documents in the Sharefile. (Armas Decl. ¶ 6(f) & Ex. F [MCM0006762].) However, Dror never received this email or ShareFile link, despite being familiar with using ShareFile. (Dror Decl. ¶ 5.) Plaintiff provides no evidence that Dror actually accessed the link or downloaded the files, unlike what was provided showing Naples’s downloads.

Instead, Dror and Avi Ryzman, an authorized representative of Defendant, explains that on November 30, 2017 at 8:56 p.m., the seller’s real estate agent sent a Dropbox link with “all other information” to Defendant’s real estate agent. (Dror Decl. ¶ 4 & Ex. 12; Ryzman Decl. ¶ 4 & Ex. 12.) A minute later, Defendant’s real estate agent forwarded that email to Dror and Ryzman. The Dropbox files did not include the License Agreement. On December 1, 2017, Defendant’s real estate agent sent Dror and Ryzman a Sharepoint link that also did not include the License Agreement. (Dror Decl. ¶ 4 & Ex. 13; Ryzman Decl. ¶ 4 & Ex. 13.)

On December 26, 2017, the seller’s real estate agent informed Cline, Defendant’s real estate agent, that all due diligence information was in the link from the seller’s attorney. (Armas Decl., Ex. I [RAZMER2007].) Cline forwarded this email to Ryzman. (Ibid.) Even if this should have put Ryzman on notice of a possible link from the seller’s attorney, the seller’s attorney did not send the ShareFile link to Ryzman (or Cline), and even if Ryzman were to further search his email, he could not have possibly found the link. It is reasonable for Ryzman and Cline to not further investigate this statement from Bacci in light of the seller’s real estate agent’s Dropbox link several weeks earlier, particularly when communications between the seller and Defendant were though their real estate agents. (See Dror Decl. ¶ 4; Ryzman Decl. ¶¶ 3-4.)

Plaintiff also relies on the testimony of Peter Bacci, the seller’s agent. (Opposition at p. 10.) Bacci testified that the License Agreement was sent by the seller’s attorney to Defendant’s agent, Brian Dror. (Bacci Depo. at pp. 54-55.) Bacci talked with the agents and Avi Ryzman about the License Agreement sometime in December 2017 or January 2018. (Id. at p. 55.) Later Bacci was asked, “And have you ever discussed the license agreement with Mr. Avi Ryzman?” (Id. at p. 144.) He responded, “I don’t remember if I did. I’m sure that when it was sent over to them at some point. Maybe Jack talked to him about it, but I wasn’t representing him so. I was representing the seller.” (Ibid.) He did not remember discussing the license agreement with Defendant’s agents, although he said it was possible. (Id. at pp. 144-145.) This equivocal testimony is not sufficient to defeat summary adjudication. Instead, it appears consistent with Defendant’s evidence that on January 30, 2018, after the close of escrow, Bacci met with Ryzman at Defendant’s Property about an easement from a utility company. (Ryzman Decl. ¶ 9; see also Armas Decl., Ex. K [email dated January 18, 2018]; UMF 17 [escrow closed on January 10, 2018].)

In sum, Plaintiff has not produced substantial responsive evidence to create a triable issue of fact regarding Defendant’s knowledge of the License Agreement.

B. Defendant Has Shown That Plaintiff Lacks Evidence to Support the Second Cause of Action.

The second cause of action seeks to establish an implied easement created by conveyance of the Properties from a common owner. (See FAC ¶¶ 45-47.)

“An easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner’s prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141.)

Defendant argues that there is no evidence of a common owner of Defendant’s Property and Plaintiff’s Property, primarily relying on Plaintiff’s discovery responses. (Motion at p. 18; see UMF 19.) Summary judgment law “continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854, footnote omitted.) Defendant must therefore “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.)

Request for Admission No. 12 asked Plaintiff to “Admit YOU have no facts showing the COMMON OWNER used the alleged LICENSE AREA to load or unload trucks.” (Vaqar Decl., Ex. 9.) On May 31, 2022, Plaintiff responded, “Denies. At the very least, there is a license agreement,” and noted that discovery was ongoing. (Vaqar Decl., Ex. 10.) Special Interrogatory No. 18 asked, “State all facts RELATING TO YOUR claim that there is an implied easement to use the alleged LICENSE AREA.” (Vaqar Decl., Ex. 7.) On May 31, 2022, Plaintiff provided a response that began, “On information and belief, Plaintiff’s Property and Defendants’ Property were owned by a common owner, who subsequently conveyed the properties to separate buyers. As detailed in the First Amended Complaint, there was an understanding between Plaintiff’s and Defendants’ predecessors that was intended to run with the land . . . . On information and belief, the use of the License Area on Defendants’ Property for the benefit of Plaintiff’s Property has been ongoing prior to the 10 years memorialized by the License Agreement, which was only meant to formally signify the permeant use of this benefit.” (Vaqar Decl., Ex. 8.)

These factually devoid discovery responses based only on “information and belief” are sufficient for Defendant to shift the burden to Plaintiff. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [cited with approval in Aguilar, supra, 25 Cal.4th at p. 854, fn. 22].)

Plaintiff’s Opposition does not cite evidence to support his argument. (See Opposition at pp. 14-15.) In his Response to UMF 19, Plaintiff cites Exhibits C and D, which the Court declined to judicially notice. Even if the Court considers this evidence, it does not show common ownership of Plaintiff’s and Defendant’s Properties. Exhibit C shows that Kathlyn B. Marshall was a manager of HM Montebello LLC (a prior owner of Plaintiff’s Property, see UMF 5) as of October 14, 2003. Exhibit D shows that John Hugh Marshall was a manager of MC Montebello LLC (a prior owner of Defendant’s Property, see UMF 4) as of April 1, 2019, and Frank G. Marshall was the agent for service of process as of June 22, 1999. None of this information shows common ownership of Plaintiff’s and Defendant’s Properties, even if the individuals are family. At best, these documents suggest that the properties were separately owned by different LLCs since at least 2003.

Plaintiff also cites Exhibit H, Bacci’s deposition. When asked “Do you know what property is located to the north of 760?” Bacci responded, “Yeah, I don’t remember the address. What you guys referring to. Is it like—whatever it is. Whatever you guys have been talking about. Yeah, I know the property. We used to own that property. The Marshalls owned that property when it was sold to Tony [Ishizaki].” (Bacci Depo. at pp. 141-142.) This is consistent with Plaintiff’s Exhibits C and D, and Bacci’s statement to clarify which property was being discussed is not evidence of common ownership.

Plaintiff did not submit a declaration pursuant to Code of Civil Procedure section 437c, subdivision (h), asserting that additional facts or evidence may exist and cannot be obtained in time to oppose the motion.

Therefore, Defendant has shown that Plaintiff cannot prove common ownership of the properties, and Plaintiff failed to provide evidence creating a triable issue of fact on this element. (See Code Civ. Proc., § 437c, subd. (o)(1) [a cause of action has no merit if one or more of the elements of the cause of action cannot be separately established].)

C. There Are No Remaining Triable Issues on the Third, Fourth, and Fifth Causes of Action.

The third cause of action for nuisance alleges that Defendant is blocking Plaintiff’s access to the license area and is interfering with Plaintiff’s use of that area. (See FAC ¶¶ 30 [placing metal fencing with chains and padlocks, construction materials, and pallets in the license area], 34 [blocking access to the license area], 53-62.) The fourth cause of action seeks injunctive relief to enjoin Defendant from interfering with Plaintiff’s use of the area, and the fifth cause of action seeks a judicial declaration of the parties’ rights and duties regarding the License Agreement and license area. (See FAC ¶¶ 64-66.)

Defendant argues that these causes of action fail because Plaintiff has no right to the disputed portion of the property. (See Motion at pp. 19-20 & fn. 8.) Because the Court grants summary adjudication of the first and second causes of action—the only alleged basis for Plaintiff’s right to use the property—Defendant has met its burden, and Plaintiff has not shown disputed facts.

To the extent that Plaintiff attempts to reframe the third cause of action as Defendant creating a nuisance that interferes with Plaintiff’s use and enjoyment of his own property (Opposition at pp. 15-16), that is outside the scope of the FAC’s allegations. Because the pleadings frame the issues, Plaintiff cannot avoid summary adjudication by now alleging blockage of his emergency exit and a threat to the safety and health of the occupants. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“[T]he [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings,” quotations and citations omitted].)

Summary adjudication of the third, fourth, and fifth causes of action is granted.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court