Kalonji v. Crown Fortune Properties

Filed 7/17/07 Kalonji v. Crown Fortune Properties CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This appeal is taken from orders granting summary judgment in favor of 2122 Lakeshore Apartments, LP (Lakeshore), Crown Fortune Properties, Inc. (Crown Fortune), and Santino DeRose (DeRose) (collective referred to as respondents) and against Isaac Kashama Kalonji (appellant). We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Appellant rented an apartment from Lakeshore. Crown Fortune was the property manager for the building and DeRose was an employee of Crown Fortune. In view of appellants arguments we set forth the procedural history leading up to this appeal in some detail.

On December 7, 2004, Lakeshore served appellant with a 3-day notice to pay rent or quit for failure to pay rent pursuant to the terms of the rental agreement.

On January 3, 2005, Lakeshore filed an unlawful detainer action against appellant, alleging that he had failed to pay rent for December 2004. Appellant demurred to the complaint on several grounds, including that the complaint was premature as he had already filed an action for declaratory relief raising the same issues in San Francisco Superior Court. The trial court overruled the demurrer and ordered appellant to answer.

On April 5, 2005, Lakeshore filed a request to set the unlawful detainer case for trial.

On April 27, 2005, appellant failed to appear at trial. Judgment was entered against him.

On May 3, 2005, the trial court granted appellants application to vacate the judgment pursuant to Code of Civil Procedure section 473, subdivision (b).[1] The court issued a notice of hearing on May 10, 2005, setting the new trial date for May 26, 2005.

On May 16, 2005, appellant filed an ex parte motion contesting the setting of the May 26, 2005 trial. The court continued the hearing on the motion to June 1, 2005, because appellant had not provided proper service.

On May 26, 2005, appellant again failed to appear at trial. Judgment was entered against him and all pending motions were stricken and their hearings vacated.

On June 9, 2005, appellant appeared at the compliance hearing. The court dissolved an earlier stay. Judgment was entered awarding possession of the premises to Lakeshore. Appellant was ordered to pay Lakeshore $5,485.16 in rent and damages, $250 in attorney fees, and $579.50 in actual costs.

On June 10, 2005, appellant filed for bankruptcy in federal bankruptcy court. The trial court below dropped his pending motion for nonsuit from the calendar and stayed the action due to the automatic bankruptcy stay.

On July 5, 2005, Lakeshore obtained relief from the automatic stay, allowing it to evict appellant. The bankruptcy court denied appellants further motions relating to a stay.

On July 19, 2005, Lakeshore evicted appellant.

On July 27, 2005, appellant filed a motion to vacate the judgment and set aside the verdict. His motion was premised on the argument that the judgment was rendered in excess of the courts jurisdiction because Lakeshore had failed to file and serve a motion for new trial, and that the court had no power to retry the case on its own motion. On October 4, 2005, the court denied the motion.

On September 22, 2005, appellant filed a second amended complaint against respondents, alleging claims for wrongful eviction, conversion, invasion of privacy, intentional infliction of emotional distress, abuse of process, conspiracy, and seven causes of action for declaratory relief. Respondents filed their answers on October 27, 2005.

On January 26, 2006, Lakeshore filed a motion for summary judgment.

On April 11, 2006, appellant filed a motion for leave to file a third amended complaint (TAC).

On April 27, 2006, the trial court granted Lakeshores motion for summary judgment.

On May 12, 2006, the trial court denied appellants motion for leave to file the TAC and entered judgment in favor of Lakeshore.

On June 12, 2006, appellant filed a motion for reconsideration of the order denying his motion for leave to file the TAC.

On July 20, 2006, Crown Fortune and DeRose filed separate motions for summary judgment.

Appellants motion for reconsideration was denied on August 3, 2006.

On August 17, 2006, appellant filed a motion to vacate or set aside the judgment entered in favor of Lakeshore pursuant to Code of Civil Procedure section 473, subdivision (b). The motion was denied. His renewed motion to file the TAC was also denied.

On October 20, 2006, the court granted Crown Fortunes and DeRoses respective motions for summary judgment. Judgment was entered in their favor on November 9, 2006. This appeal followed.

DISCUSSION

I. Standard of Review

We review the granting of a summary judgment motion de novo. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860; Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.) We consider all the admissible evidence the parties offered in connection with the motion and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving partys favor, and (3) the oppositionassuming movant has met its initial burdento decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.] [Citations.] We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)

II. The Motions for Summary Judgment

A party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law. [Citation.] A defendant satisfies this burden by showing  one or more elements of the cause of action in question cannot be established, or that there is a complete defense  to that cause of action. [Citation.] If the defendant meets his or her initial burden, the opposing party is then subjected to a burden of production of his [or her] own to make a prima facie showing of the existence of a triable issue of material fact [Citation.] (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 737.)

Respondents contend that the court properly granted summary judgment in their favor because the underlying unlawful detainer judgment was not subject to collateral attack via appellants complaint. Appellant does not directly challenge the summary judgment rulings on their merits, but rather contends the motions were granted in error because he should have been allowed leave to proceed under his TAC. We first examine the summary judgment motions.

A. Appellants Complaint

Appellant alleged seven causes of action in his second amended complaint. All of the causes of action turn on the validity of the unlawful detainer proceedings, the resulting eviction, and the subsequent seizure of his personal property.

The first cause of action is for declaratory relief. Paragraph 23 of the complaint states: [Appellant] desires a judicial determination of the rights and duties of the parties at this time in regard to the rent increases noticed on January 16, 2004 by defendant DeRose, and the validity of the judgment upon which defendants evicted [appellant] from the premises. The second cause of action is for wrongful eviction, based on appellants eviction on July 19, 2005. The third cause of action is for conversion. In this claim, appellant alleged that respondents wrongfully converted his property, which was seized following his eviction. The fourth cause of action is for invasion of privacy. This cause of action relates entirely to the actual eviction process. The fifth cause of action is for intentional infliction of emotional distress. Appellant alleged that the eviction itself was intended to cause severe emotional distress. The sixth cause of action is for abuse of process. Herein appellant claimed respondents used a judgment entered in excess of the jurisdiction of the Alameda Superior Court as a means of extortion by converting [appellants] personal property and asking him that, in order to regain it, to pay them sums that [he] did not owe. The seventh cause of action is for conspiracy with respect to all of the allegations contained in the complaint. Thus, all the causes of action arise out of the unlawful detainer action.[2]

Among their affirmative defenses, all respondents alleged in their answers that appellant was barred from maintaining his action because he was lawfully evicted from his apartment.

B. Lakeshores Motion for Summary Judgment

In its motion, Lakeshore requested summary judgment on two grounds: 1) that the court had ordered appellants eviction following a trial from which he did not appeal, and 2) that the bankruptcy court authorized the sale of his personal property and that it was appellant who voluntarily sought protection from that court. Lakeshores motion included a statement of 24 undisputed material facts.

As a threshold matter, we agree with Lakeshore that there is no dispute as to the events leading to the unlawful detainer judgment itself. In his response to Lakeshores statement of undisputed facts, apart from noting some minor discrepancies, appellant simply repeats the following litany with respect to each fact and supporting evidence: This instrument does not establish that defendants did not violate Civ. Code  1942.5(c); did not breach the covenant of quiet enjoyment; did not seek possession in violation of Oakland Municipal Code, Section 8.22.360(A)(1); did not obtained [sic] the second trial in violation of Code Civ. Proc. 1178; did not obtaining [sic] the second trial by extrinsic fraud; did not intentionally concealed [sic] material facts suggesting that the new trial was obtained in violation of Civ. Code  1710; and did not fabricate a modification of Plaintiffs Rental Agreement in violation of the provisions of Code Civ. Proc.  1161 et seq. Thus, appellant offered virtually no evidentiary challenge to Lakeshores facts, but merely disputed the manner in which those facts should be interpreted.

In its order granting summary judgment, the court stated: All of [appellants] claims are based on the contention that the judgment entered on May 26, 2005, and the resulting writ of possession, are void because the Court lacked jurisdiction. [Respondents] Undisputed Facts 1-24 and evidence cited in support establish that this Court had jurisdiction to issue the judgment and writ of possession, that the Bankruptcy Court granted relief from the stay to allow the eviction and sale of [appellants] personal property to proceed, and that the eviction and subsequent sale of [appellants] property was effected properly pursuant to Court orders. The order further states that appellant had not alleged that he did not have notice of the May 2005 trial and that he did not allege facts or offer evidence to support a claim of extrinsic fraud.

C. Crown Fortunes and DeRoses Motions for Summary Judgment

In its motion for summary judgment, Crown Fortune set forth 25 undisputed facts and argued that appellant could not prove the elements essential to his claims because the eviction judgment was valid. DeRose set forth 10 undisputed facts and, in addition to asserting the validity of the eviction, claimed that he could not be held personally liable for his acts as an employee of Crown Fortune.

Appellants opposition again did not rebut the facts as such, but sought to impart his own interpretation of the facts.

The court granted Crown Fortunes motion for summary judgment noting that it was undisputed that [appellant] was evicted from the premises pursuant to the judgment in the underlying unlawful detainer action. The court concluded that the effect of the judgment was to bar any claim for wrongful eviction. The court denied appellants request to amend his complaint noting that it does not allege any claims that are outside the scope of the summary judgment motion. For similar reasons, the court granted DeRoses motion.

Thus, the underlying unlawful detainer judgment formed the basis of respondents successful motions for summary judgment. The court below determined that appellant did not raise a triable issue of material fact concerning the validity of the judgment. Our independent review persuades us that the trial courts rulings were correct.

III. The Trial Court Properly Denied Leave to Amend

As noted above, appellants appeal centers on the argument that the summary judgment motions were granted in error because he should have been allowed leave to proceed under his TAC. Appellant claims that the court erred in denying his request to file the TAC.[3] We disagree.

 [T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.] [Citation.] (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) The trial court, in furtherance of justice, may allow amendment of a pleading. [Citation.] Although there is a strong policy in favor of liberal allowance of amendments, the trial courts discretion will not be disturbed on appeal unless it clearly has been abused. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) There is no abuse of discretion in denying leave to amend when the amendment is sought in response to a defendants summary judgment motion and the proposed amendments are insufficient to overcome the defects shown in the motion. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 771, fn. 18.)

Appellant claims that [s]ummary judgment was granted in error because none of the defendants produced any evidence showing prejudice from the amendments or [appellants] unreasonable delay in seeking them. Appellant also claims leave to amend should have been granted because respondents summary judgment motions did not address his alternative theory of recovery. He also claims the court erred because none of his proposed new claims were connected to the 3-day notice upon which the eviction was sought.

Where no triable issue of material fact is raised in opposition to summary judgment as to claims pleaded in either the operative or proposed complaint, the trial court is not required to follow a two-step procedure of allowing an amendment only to later grant a renewed motion for summary judgment. (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1120.) Instead, the trial court may review those allegations the party proposes to add to the complaint to cure existing deficiencies, and determine whether the proposed additions would be sufficient to survive summary judgment. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 647.)

It appears that all of appellants proposed new causes of action again revolve entirely around the unlawful detainer action. As he states, almost all of the new causes of action were founded on [respondents] illegal modifications of [appellants] lease agreement and on the use of one of those modifications to reject his rent check on December 9, 2004.[4] Additionally, the new cause of action for violation of due process was explicitly based on Lakeshores extrinsic fraud in obtaining on May 10 the retrial of the unlawful detainer.

We also note the majority of the new claims had already been raised in appellants San Francisco action. In that action, appellant raised claims for injunctive and declaratory relief concerning the 3-day notice, tortious breach of contract, breach of the covenant of good faith and fair dealing, intentional violation of Civil Code section 1942.5, subdivision (c), intentional violation of the Federal Fair Housing Act, violation of Business and Professions Code section 17200, fraud and deceit, and intentional infliction of emotional distress. The TAC repeats at least five of these claims.

In denying leave to amend, the court below stated: The proposed amendment is moot as to [Lakeshore], in light of the order granting summary judgment. In addition, the interests of justice do not favor allowing [appellant] to relitigate in this case the same claims he admits were litigated in the San Francisco action. When the judgment in that action becomes final, the doctrines of res judicata and collateral estoppel will bar any attempt to relitigate claims of retaliation under Civil Code 1942.5(c).

We believe the court did not abuse its discretion. Appellant had the opportunity to litigate his wrongful eviction claim in the San Francisco action. Having failed to succeed there, we see no reason why the court in Alameda County would be an appropriate forum within which to resurrect that claim.

Furthermore, when the court denied appellants renewed motion to amend its complaint, the court observed: [Appellant] concedes that his motion to amend is dependent upon an order setting aside the judgment in favor of [Lakeshore]. A motion for reconsideration will not lie after judgment has been entered. (Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545.)

Appellants reliance on Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742 is misplaced. That case held that a landlord could not obtain contract damages in an unlawful detainer action because the contract damages were outside the scope of an unlawful detainer proceeding, which is designed primarily to secure possession. (Id. at p. 747.) Appellant does not seek damages for breach of contract. His reliance on Landeros v. Pankey (1995) 39 Cal.App.4th 1167 is similarly misplaced as that case involved a stipulated judgment in an unlawful detainer action and an alleged breach of the warranty of habitability.

His reliance on Vella v. Hudgins (1977) 20 Cal.3d 251 is also misplaced. In that case, after the plaintiff was evicted she sued her landlord for fraud. The landlord attempted to use res judicata and collateral estoppel to bar the fraud action. In contrast, in the present case, appellant essentially seeks to relitigate the merits of the eviction itself.

Finally, we do not see how appellant could have been prejudiced by the rejection of the proposed amendment. Appellant contends that the court below was required to determine his claim for wrongful eviction based on a confusing set of circumstances regarding his alleged efforts to pay his December 2004 rent. Suffice it to say we do not see why appellants claims could not have been raised as a defense in the unlawful detainer action.

IV. The Unlawful Detainer Action is Not Subject to Collateral Attack

As appellant states, This case is about collateral attack on the underlining [sic] unlawful detainer judgment. A collateral attack is made, not in a proceeding brought for the specific purpose of attacking the judgment, but in some other proceeding having a different purposeit is an attempt to avoid the effect of a judgment or order made in some other proceeding. [Citations.] In a collateral attack the invalidity of the former judgment or order must appear on the face of the record and if such invalidity or want of jurisdiction does not appear on the face of the record, it will be presumed in favor of the former judgment or order. [Citations.] As observed by Witkin In a direct attack the judgment is reviewed for error, including jurisdictional defects. In a collateral attack the judgment comes up only incidentally, and may be effectively challenged only if it is completely invalid as to require no ordinary review to annul it. [Citation.] (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 632.)

A. The Court had Fundamental Jurisdiction in the Unlawful Detainer Case

The term jurisdiction, used continuously in a variety of situations, has so many different meanings that no single statement can be entirely satisfactory as a definition. [Citation.] Essentially, jurisdictional errors are of two types. Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and thus vulnerable to direct or collateral attack at any time. [Citation.] (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.)

However, in its ordinary usage the phrase lack of jurisdiction is not limited to these fundamental situations. [Citation.] It may also be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no jurisdiction (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. [Citation.]  [W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.  [Citation.] When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by principles of estoppel, disfavor of collateral attack or res judicata. [Citation.] Errors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless unusual circumstances were present which prevented an earlier and more appropriate attack. [Citations.] (People v. American Contractors Indemnity Co., supra, 33 Cal.4th 653, 661.)

In arguing that the unlawful detainer judgment is invalid, appellant cites to a declaration dated August 14, 2005, wherein an attorney for one of the respondents states that the calendar clerk told him that he did not need to file a new written request, but that she would re-set the trial since [his] original written request would still be valid. It would thus appear that the fault in setting the May trial date, if any, was an error committed by the court, not respondents.

Even if the court erred in setting the May 26, 2005 trial date for the unlawful detainer action, that error did not deprive it of fundamental jurisdiction. It is undisputed that the court had the authority to hear the unlawful detainer proceeding. The property in question was situated in Alameda County and all parties had made appearances in the action.

And even if respondents conduct was fraudulent (a contention we discuss further below), this precise issue was immediately apparent to appellant because six days after the notice was sent that set the May 26, 2005 trial he filed an ex parte motion contesting the trial date. He concluded his ex parte motion with the following language: Time has come to instruct [the court clerk] to follow the law. By scheduling a new trial date for May 26, 2005, she has exceeded the trial courts jurisdiction. If her mistake was induced by [opposing counsel], however, then the Court should admonish [him] because this is not the first time he has, by his conduct, intentionally misled the Court to [Appellants] prejudice. Thus, even if viewed in the light most favorable to appellant, it is clear that, at best, the judgment was in excess of the courts jurisdiction and was therefore voidable, not void.

B. Appellants Claim of Extrinsic Fraud Fails

Appellant claims that his TAC was designed to show that his collateral attack on the underlining [sic] unlawful detainer judgment was based on Lakeshores extrinsic fraud in obtaining on May 10, 2005 the date on which to retry the unlawful detainer. He also sought to include in the TAC allegations that the respondents committed fraud by illegally modifying his lease, failing to disclose in the 3-day notice that payment had to be made by certified funds, and allowing him to rely on an alleged promise that he could pay his rent late as long as he paid late fees.

Attacks on judgments that have become final may be allowed if based on extrinsic, as opposed to intrinsic, fraud. (Clark v. Clark (1961) 195 Cal.App.2d 373, 377.) Fraud . . . is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court. . . . A party who has been given proper notice of an action, however, and who has not been prevented from full participation therein, has had an opportunity to present his case to the court and to protect himself from any fraud attempted by his adversary. . . . Fraud perpetrated under such circumstances is intrinsic, even [if] the unsuccessful party does not avail himself of his opportunity to appear before the court.. (Westphal v. Westphal (1942) 20 Cal.2d 393, 397.)

The record before us fails to establish any extrinsic fraud. Instead, appellant had the opportunity to fully litigate his claims in the unlawful detainer action and any failure to do so was caused by his own conduct in failing to appear at the May 26, 2005 trial, not by any act committed by respondents. He had notice of the action and the hearings and the opportunity to raise all factual and legal issues in the unlawful detainer action. Thus, there was no extrinsic fraud.

In sum, the trial court correctly concluded that he was not entitled to collaterally attack the validity of the judgments based on extrinsic fraud. Appellants remedy was to file a timely motion to vacate the May 26, 2005 judgment on the basis of the courts failure to properly set the matter for trial, or alternatively, to pursue a direct appeal of the unlawful detainer judgment.

V. Additional Claims of Error

In claiming that the court erred, appellant asserts two additional claims of reversible error. One is that the judge failed to refer, in its order granting summary judgment to Lakeshore, to the evidence of his request to amend.

Code of Civil Procedure section 437c, subdivision (g), states in pertinent part: Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. Nevertheless, on appeal we review the validity of the ruling rather than the reasons for the ruling, and failure to provide a sufficient statement of reasons is not automatically a ground for reversal. [Citation.] Where our independent review establishes the validity of the judgment, any error is harmless. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027.)

We concluded in the prior section that the trial courts determination that the unlawful detainer action was not subject to collateral attack was correct. Our conclusion is that if there were error, it would be harmless and reversal and remand on this issue would be pointless.

Finally, appellant contends that the trial court erred by adopting Lakeshores arguments made in its reply memorandum. However, appellant does not provide a citation to the record showing where the court did so.

DISPOSITION

The orders granting summary judgment to respondents and denying appellants motion to file the TAC are affirmed.

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[1] Code of Civil Procedure section 473, subdivision (b), provides, in part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.

[2] In his prayer for relief, appellant asked for a declaration concerning whether respondents had properly noticed certain rent increases, a holding that the unlawful detainer judgment was void as having been entered in excess of jurisdiction, an order enjoining the sale of his personal property, and for damages, costs and any other relief deemed proper.

[3] The proposed TAC alleged the following causes of action: Declaratory relief, violation of Civil Code section 1942.5; breach of the covenant of good faith and fair dealings (sic); violation of Civil Code section 827; violation of Civil Code section 1950.5 et seq.; violation of the Consumer Legal Remedy Act, Civil Code section 1750 et seq.; violation of Business & Professions Code section 17200 et seq.; violation of due process; fraud by concealment of material facts; conversion; and conspiracy.

[4] The rent check was rejected because it was a third party check drawn on a business that had been suspended by the California Franchise Tax Board and it was not in certified funds.