JOHNNY KI LEE et al., Plaintiffs and Appellants, v. SEAN KOTYLUK, Defendant and Respondent.
G058631
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 1/7/21
CERTIFIED FOR PARTIAL PUBLICATION (Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A, II.B, and II.C.3.)
(Super. Ct. No. 30-2019-01080056)
Appeal from a judgment of the Superior Court of Orange County, Carmen R. Luege, Temporary Judge. (Pursuant to
Niddrie Addams Fuller Singh, John S. Addams; Smith & Silbar and Rachelle Singer for Plaintiffs and Appellants.
Peirano & Associates, Inc., Cristian L. Peirano, Sean Raymond Bozarth and Tom N. Yacko for Defendant and Respondent.
*
*
*
First, can a property owner file an unlawful detainer action under
Second, must a notice under
Based on these conclusions, we find the trial court properly granted the motion seeking judgment on the pleadings because nothing in the complaint or its attachments indicated that Haynes, rather than plaintiffs, served the notice. But the court abused its discretion by denying plaintiffs leave to amend to add this allegation and thus we reverse the judgment.2
I
FACTS AND PROCEDURAL HISTORY
Plaintiffs filed a form unlawful detainer complaint against defendant on June 28, 2019, alleging they were the owners of certain commercial property in Lake Forest that defendant was unlawfully possessing. Defendant was allegedly using the property to sell unlicensed marijuana. Plaintiffs claimed this violated a section of the lease requiring the property to be used “only for the primary operation of a retail store selling Crystals & Gems, Candles, Incense & Oils, Greeting Cards, New & Used Books, and related items.”
Defendant initially filed a demurrer to the complaint, which was overruled. He later filed a motion for summary judgment, which was denied. Then, a week before trial, defendant filed a “Motion in Limine Number 1 for Judgment on the Pleadings.” The motion contended the notice was defective because plaintiffs did not own the property when it was served. Specifically, the notice had been served on June 4, 2019, and expired on June 7, but plaintiffs did not obtain ownership of the property until June 20, 2019.
Plaintiffs’ opposition clarified that they had not served the notice. Rather, it had been served by the prior owner of the property, Haynes, on June 4, 2019. Haynes then sold the property to plaintiffs who recorded the grant deed on June 20, 2019, and then filed this unlawful detainer lawsuit on June 28, 2019. Plaintiffs maintained the notice was valid and that they could file an unlawful detainer action based upon it.
The motion was heard on October 8, 2019. Although the motion was styled as a motion in limine, the court exercised its discretion to hear it as a motion for judgment on the pleadings. At the start of oral argument, the trial court appeared unaware of plaintiffs’ contention that Haynes had served the notice. In orally presenting its tentative ruling, the court framed the relevant issue as “whether a plaintiff who is not the owner of the property can issue or cause to be issued a three-day notice that expires – that also expires prior to them becoming the owners.” It then tentatively concluded that “at the
After hearing the tentative ruling, plaintiffs reiterated that Haynes, not plaintiffs, had served the notice. In response, the trial court stated that nothing in the complaint or the notice stated that Haynes had served it. Further, the court explained the proper procedure would have been for Haynes to file the lawsuit upon expiration of the notice and then amend her complaint after the sale to add plaintiffs as a party. The court also found the notice was defective because it did not identify the person to whom defendant could return possession of the property (which had not been raised by either party). Plaintiffs’ request for leave to amend was denied, as the court found the defective notice could not be cured. The minute order issued after oral argument stated that “the notice [is] defective as it was issued prior to [plaintiffs] owning the subject premises. The notice also lacks any information as to whom to turn possession over to.”
Judgment was entered in favor of defendant and against plaintiffs on October 16, 2019. The judgment erroneously stated that it had been made after trial and that the court had considered plaintiffs’ testimony and evidence. Plaintiffs moved to set aside or vacate the judgment so that a correct judgment could be entered. That motion was granted, and the trial court entered an amended judgment on November 15, 2019, which the plaintiffs appealed. After they filed their notice of appeal, the trial court awarded defendant $25,794 in attorney fees and $1,445 in costs. Attorney fees were awarded under paragraph 31 of the lease, which allows the prevailing party to recover such fees. Costs were awarded to defendant as the prevailing party under
DISCUSSION
A. Defendant‘s Motion to Dismiss
Defendant contends the appeal is moot because possession of the property has already been restored to plaintiffs. Plaintiffs admit that defendant returned possession of the property but argue the appeal is not moot because, among other things, the propriety of defendant‘s fees and costs award depends on the correctness of the trial court‘s judgment. Plaintiffs have filed a separate appeal (G058768) challenging the trial court‘s award of $27,239 in attorney fees and costs. We agree with plaintiffs and deny defendant‘s motion to dismiss.3
“‘Generally, an appeal will be dismissed as “moot” when, through no fault of respondent, the occurrence of an event renders it impossible for the appellate court to grant appellant any effective relief.‘” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77-78.) “‘A case is moot when the decision of the reviewing court “can have no practical impact or provide the parties effectual relief. [Citation.]” [Citation.] . . . [Citation.]’ [Citation.] An appeal will be decided, however, where part but not all of the controversy has been rendered moot.” (Id. at p. 78.)
For example, an appeal is not moot where the appellate court‘s decision will determine whether the respondent was properly named the prevailing party for purposes of fees and costs. In Indio Police Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th 521, 526-527 (Indio Police Command), the City of Indio appealed a permanent injunction that prohibited it from implementing a plan to reorganize its police department. The injunction was dissolved after the appeal was filed, which, the City
Likewise, the trial court in this case awarded attorney fees and costs to defendant as the prevailing party under the terms of the lease and under
Defendant argues the three cases cited above – Indio Police Command, Kawagoe, and Save Our Residential Environment – are inapplicable because they all involved fees awarded under
Next, defendant quotes a portion of Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul), which states “it is settled that an appeal will not be retained solely to decide the question of liability for costs.” But Paul was discussing appellate costs and is inapposite here.
Paul cites three cases for the above proposition, all of which explicitly address appellate costs. (Paul, supra, 62 Cal.2d at p. 134.) The first citation is Turner v. Markham (1909) 156 Cal. 68, 69-70, which states an appellate court “will not retain an appeal where its consideration and disposition upon the merits will not affect any substantial right of the parties. The mere fact that liability for costs of appeal may be involved does not affect this conclusion.” (Italics added.) Second, Paul cites Leroy v. Bella Vista Inv. Co. (1963) 222 Cal.App.2d 369, 378, which specifies “the matter of the payment of the costs of the appeal does not serve as legal grounds of objection to the dismissal of [a moot] appeal.” (Italics added.) Finally, it cites Hake v. City of Bakersfield (1942) 49 Cal.App.2d 174, 175, which provides “[t]he only thing argued at the hearing was with respect to the right of the respondents to recover their costs on appeal in the event of a dismissal. We know of no reason for a different rule, with respect to costs, where an appeal is dismissed because the questions raised have become moot than in a case where the appeal is dismissed for other reasons.” (Italics added.)
Nowhere in Paul does it mention that an award of costs or fees by the trial court was at issue. Rather, the only mention of fees or costs in the entire opinion states “[t]he parties will bear their own costs on each appeal.” (Paul, supra, 62 Cal.2d at p. 135.) Thus, it appears Paul was simply restating the rule on appellate costs set forth in
Both parties cite a footnote from Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1843, footnote 2, in which this court interpreted Paul “as granting discretion to the appellate court to refuse to decide a moot case where the only remaining issue is [attorney fees and trial court costs].” In other words, Cinnamon Square Shopping Center suggests that Paul applies to attorney fees and trial court costs. But the footnote in Cinnamon Square Shopping Center is only dicta. The court had already determined the appeal was not moot for other reasons. (Id. at pp. 1842-1843.) After making this finding, the court briefly mentioned Paul in a footnote but did not conduct any analysis of its statement regarding costs. (Id. at pp. 1842-1843, fn. 2.)
B. Defendant‘s Motion to Strike and Plaintiffs’ Motion to Augment
Defendant also filed a motion to strike certain portions of plaintiffs’ appendix. We deny this motion and defendant‘s related request for sanctions. (See Cal. Rules of Court, rule 8.124(g).)
The appellant “has the burden of providing an adequate record.” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) An appellant‘s appendix must contain any item “that is necessary for proper consideration of the issues, including . . . any item that the appellant should reasonably assume the respondent will rely on.” (Cal. Rules of Court, rule 8.124(b)(1)(B).) Generally, an appellant must err on the side of being overinclusive since “[f]ailure to provide an adequate record on an issue requires that the issue be resolved against” them. (Hernandez, at p. 502.) As sagely advised by Justice Wiseman, “[w]hen practicing
Defendant asserts that certain portions of the appendix are irrelevant to our review and also present a biased account of the trial court proceedings. This includes several minute orders and other documents filed in the trial court, as well as the hearing transcript for defendant‘s summary judgment motion. Defendant suggests that since our review is limited to the face of the complaint, any document outside our scope of review is extraneous and was improperly included in the record. We disagree.
Defendant did not bring a typical motion for judgment on the pleadings. Rather, on the verge of trial, he brought a motion in limine that sought judgment on the pleadings. In recent years, courts have criticized the use of in limine motions to dispose of claims. “A motion in limine is properly ‘made to exclude evidence before the evidence is offered at trial, on grounds that would be sufficient to object to or move to strike the evidence. The purpose of a motion in limine is “to avoid the obviously futile attempt to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury.” [Citations.]’ [Citations.] ‘What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure.‘” (Johnson v. Chiu (2011) 199 Cal.App.4th 775, 780-781.) We recognize that courts have inherent authority to use in limine motions in this manner. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595.) They also have statutory authority to grant a motion for judgment on the pleadings sua sponte. (
Because of the timing of defendant‘s motion, the portions of the record to which defendant objects are generally relevant to showing the procedural history of this
Plaintiffs also filed a motion to augment the record to include the sur-reply they filed in connection with defendant‘s motion seeking judgment on the pleadings. We grant this motion, as discussed in part C.3, infra. (Cal. Rules of Court, rule 8.155.)
C. Merits of the Motion
“‘A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.’ [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.‘” (Eckler v. Neutrogena Corp. (2015) 238 Cal.App.4th 433, 439in [the] complaint.‘” (JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 689.)
A trial court‘s decision on a motion for judgment on the pleadings is reviewed de novo. (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.) For the reasons below, we find the trial court properly granted the motion but erred by failing to allow plaintiffs leave to amend the complaint.
We first examine the trial court‘s finding that the notice was defective because it failed to identify the party to whom defendant could turn over possession of the property. We are unaware of any authority on this issue outside the text of the statute. Likewise, neither party was able to find any case law on this specific issue. After reviewing the statute, we find that a notice provided under
“‘Our role in interpreting statutes is to ascertain and effectuate the intended legislative purpose. [Citations.] We begin with the text, construing words in their broader statutory context and, where possible, harmonizing provisions concerning the same subject.‘” (Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 478 (Dr. Leevil).) In doing so, we give “‘the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute‘s purpose [citation].‘” (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) Our inquiry ends “‘“[i]f this contextual reading of the statute‘s language reveals no ambiguity . . . .“‘” (Dr. Leevil, supra, 6 Cal.5th at p. 478.)
“The unlawful detainer action was created to provide property owners who sought to recover possession of their property with a relatively inexpensive and quick legal remedy, thus discouraging property owners from resorting to self-help methods.” (Dr. Leevil, supra, 6 Cal.5th at pp. 480-481.) At the time the notice was served,
Aside from
Similarly, a notice provided under
Given the detailed requirements for payment instructions in
Indeed, case law has suggested the notice requirements for
Moreover, the purpose behind a three-day notice is not subverted if the notice fails to identify the party to whom possession should be returned. The notice‘s purpose is to inform the tenant of the breach so the tenant can rationally choose whether to cure the breach and retain possession, quit the property, or contest the allegations. (See Delta Imports, supra, 146 Cal.App.3d at p. 1036.) The primary concern being providing the tenant with the opportunity to cure and retain possession. (See Fifth & Broadway Partnership v. Kimny, Inc. (1980) 102 Cal.App.3d 195, 202.) Specific instructions identifying the person to receive possession of the property may be helpful, but they are inessential to the overall purpose.
Whatever its reasons for doing so, the Legislature did not mandate that a notice under subdivisions (2), (3), or (4) of
Defendant argues there are practical reasons to identify the party to whom possession should be returned. He contends that if he had “delivered possession of the property to Haynes” after plaintiffs obtained ownership on June 20, 2019, then he “would still be guilty of Unlawful Detainer because he would have effectively put a subtenant (Haynes) into possession of the property.” But defendant never attempted to return possession of the property to Haynes, and we find no reason to address this unlikely hypothetical scenario. Further, even if such a requirement could be read into the
The trial court also found “the notice [was] defective as it was issued prior to [plaintiffs] owning the subject premises.” We agree with the trial court that the complaint does not set forth a viable unlawful detainer claim. Plaintiffs obtained ownership of the property on June 20, 2019, when they closed escrow and recorded the grant deed.7 The notice was served on June 4, 2019. Plaintiffs could not serve a valid notice on June 4, because they did not own the property at that time and were strangers to the lease. (See Kassan v. Stout (1973) 9 Cal.3d 39, 44; Bawa v. Terhune (2019) 33 Cal.App.5th Supp. 1, 5; cf. Dr. Leevil, supra, 6 Cal.5th at pp. 482-484.) While they contend the notice was served by Haynes, their predecessor in interest, nothing in the complaint or the notice indicates it was served by Haynes. Rather, the notice is signed by Singer as “Attorney for Landlord.” As such, the complaint does not show that a valid notice was served on defendant. (JPMorgan Chase Bank, N.A. v. Ward, supra, 33 Cal.App.5th at p. 689.)
Though it correctly granted the motion, the trial court erred by refusing to allow plaintiffs leave to amend. Plaintiffs could have cured the above defect by amending the complaint to state that Haynes had served the notice. “If there is a reasonable possibility the defect in the pleading can be cured by amendment, denial of leave to amend is an abuse of discretion.” (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 209.)
Nothing in the complaint, the notice, or the record contradicts plaintiffs’ assertion that Haynes served the notice. Adding such an allegation to the complaint
Moreover, we find that plaintiffs were entitled to base their unlawful detainer action against defendant on the notice served by Haynes. Generally,
Since Haynes purportedly served the notice on June 4, 2019, she would have been entitled to file an unlawful detainer lawsuit against defendant on June 7, when the notice expired. (Hsieh v. Pederson, supra, 23 Cal.App.5th Supp. at p. 7.) She did not
Plaintiffs, as Haynes’ successors in interest, could rely on her notice and file an unlawful detainer action against defendant after perfecting title. Nothing in
Such an interpretation of the statute does not subvert the purpose of the notice requirement, which, as set forth above, is primarily designed to give the tenant an opportunity to cure the breach and retain possession of the property. (See Delta Imports, supra, 146 Cal.App.3d at p. 1036; Fifth & Broadway Partnership v. Kimny, Inc., supra, 102 Cal.App.3d at p. 202.) This concern is served regardless of whether Haynes or plaintiffs served the notice. Under either scenario, defendant was on notice that the unlicensed selling of marijuana on the property was a breach of the lease and that he needed to stop such activity to avoid forfeiture. He did not and forfeited his right to remain in possession of the property. Nor does it seem reasonable to require plaintiffs to provide another notice and give defendant another opportunity to cure the breach or quit
Further,
Finally, the trial court thought the proper procedure was for Haynes to file the lawsuit after the notice expired and then amend the complaint after the sale to add plaintiffs as parties. We are aware of no authority stating that this proposed procedure is improper. And the procedure suggested by the trial court is similar to what occurred here. In both scenarios, the successor owner is relying on the notice given by the prior owner. Any challenges that a tenant might have to the new owner would exist regardless of whether the new owner was substituted in as a plaintiff or had initiated the action themselves after perfecting title.
In response, defendant argues a successor in estate generally does not have standing under
The unlawful detainer “statute was subsequently amended to provide . . . that the action might be maintained by the landlord ‘or the successor in estate of his landlord.’ Under this amendment the courts [have] found no difficulty in holding that the landlord‘s successor in estate could maintain the action, although the conventional relation of landlord and tenant did not exist between the tenant and the landlord‘s successor.” (Hewitt v. Justice‘s Court of Brooklyn Township (1933) 131 Cal.App. 439, 442Civil Code section 1111 was enacted a few years after Reay and states that “[g]rants of rents or of reversions or of remainders are good and effectual without attornments of the tenants . . . .” Under this statute, the “attornment of the tenant [is not] necessary to enable plaintiffs as vendees of the leased lands to maintain [an unlawful detainer] action.” (Plummer, supra, 20 Cal.App. at p. 321.)
Despite this authority, defendant contends that Reay is still applicable to
It is true that
In contrast,
With regard to
However, we note that
Similarly, defendant argues that no case has found that
Defendant also suggests that allowing successor owners to file an unlawful detainer action based on the notice of their predecessor could create confusion for tenants. He provides a hypothetical scenario in which a predecessor owner issues a
The notice here contained no such ambiguity. It stated that to cure the violation, defendant needed to stop “using the premises for the unlicensed selling of marijuana,” and he needed to conform his use of the property with paragraph J of the lease, which set forth the items that he could sell. Defendant had three days from the date of Haynes’ notice to correct this violation or vacate the property. He did neither. As such, by the time plaintiffs obtained ownership of the property, defendant was already “guilty of unlawful detainer” under
Finally, we do not address defendant‘s arguments that plaintiffs could not serve the notice prior to obtaining ownership of the property. The complaint does not allege that plaintiffs served the notice, nothing in the record shows that plaintiffs ever claimed to have served the notice, and plaintiffs asserted at the hearing that Haynes served the notice. Thus, as set forth above, plaintiffs should have been granted leave to amend the complaint.
Defendant claims that plaintiffs’ failure to include in the record their sur-reply to the motion, which was considered by the trial court, means that we must “presume support for the judgment would be found in the missing documents. In particular, a statement or admission by [plaintiffs] that leave to amend would not be fruitful.” In response, plaintiffs filed a motion to augment the record with the sur-reply. Despite raising the sur-reply as an issue, defendant opposed plaintiffs’ motion to augment. We grant the motion to augment, as stated above, to evaluate defendant‘s argument. Nothing in the sur-reply adds support for the judgment. Plaintiffs only respond to various arguments that defendant made in his reply brief. There is certainly no express or implied admission by plaintiffs that leave to amend would be futile.
Finally, defendant argues the court‘s judgment should be affirmed because the unlawful detainer claim is barred under the doctrine of laches or because plaintiffs waived, changed, or cancelled the notice. Defendant did not raise these arguments below, and “[a]ppellate courts will generally not consider new theories raised for the first time on appeal. [Citation.] Exceptions exist, however, in cases where a new point of law is decided after the trial court proceedings [citation] or where the new theory ‘presents a question of law to be applied to undisputed facts in the record.‘” (RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1518.)
As to the laches argument, defendant contends that after the notice expired on June 7, 2019, plaintiffs unreasonably delayed by filing the unlawful detainer complaint on June 28, 2019. However, laches is not a defense to an unlawful detainer action. (Northridge Hospital Foundation v. Pic ‘N’ Save No. 9, Inc. (1986) 187 Cal.App.3d 1088, 1101.) And even if it were, given the facts in this case, filing an unlawful detainer action 21 days after the expiration of the notice does not constitute an unreasonable delay. (In re Marriage of Parker (2017) 14 Cal.App.5th 681, 688 [stating elements for laches].)
III
DISPOSITION
The trial court‘s judgment is reversed. Plaintiffs are entitled to their costs on appeal.
MOORE, ACTING P. J.
WE CONCUR:
ARONSON, J.
GOETHALS, J.