On 04/27/2018 DADSON WASHER SERVICE filed a Contract - Other Contract lawsuit against KETCH CONDOMINIUM OWNERS' ASSN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DADSON WASHER SERVICE INC.
DADSON WASHER SERVICE
MANTINI MANAGEMENT INC.
KETCH CONDOMINIUM OWNERS' ASSOCIATION
2 KETCH HOA
KETCH CONDOMINIUM OWNERS' ASSOCIATION AKA 2 KETCH HOA
KETCH CONDOMINIUM OWNERS' ASSOCIATION INC. AKA 2 KETCH HOA
DARROW JEANNETTE C.C.
DARROW JEANNETTE CHARLOTTE
8/27/2020: Opposition - OPPOSITION TO KETCH'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION
9/2/2020: Declaration - DECLARATION DECLARATION OF CRAIG J. ENGLANDER IN SUPPORT OF REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
9/2/2020: Objection - OBJECTION OBJECTION TO UNTIMELY FILED AND SERVED OPPOSITION
9/10/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)
7/9/2020: Notice Re: Continuance of Hearing and Order
1/30/2020: Declaration - DECLARATION OF CRAIG J. ENGLANDER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1/22/2020: Stipulation and Order - STIPULATION AND ORDER FOR EXTENSION AND FILING OF MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION OF ISSUES
1/7/2020: Opposition - OPPOSITION OPPOSITION TO CROSS-COMPLAINANTS MOTION TO DEEM FACTS ADMITTED AND REQUEST FOR SANCTIONS
11/14/2019: Motion to Compel - MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $435.00 AGAINST MANTINI MANAGEMENT, INC. AND ITS COUNSEL; DECLARATION OF CRAIG J. ENGLA
7/31/2019: Summons - SUMMONS ON CROSS COMPLAINT
5/24/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY"))
4/8/2019: Ex Parte Application - EX PARTE APPLICATION ORDER SHORTENING TIME ON DEMURRER
3/12/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)
2/28/2019: Reply - Reply Demurrer
1/30/2019: Ex Parte Application - Ex Parte Application Order Shortening Time for Demurrer
2/1/2019: Minute Order - Minute Order (Hearing on Ex Parte Application Order Shortening Time for Dem...)
12/14/2018: Minute Order - Minute Order (Case Management Conference; Order to Show Cause Re: proof of ...)
11/30/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
Hearing02/08/2021 at 09:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Jury TrialRead MoreRead Less
Hearing02/01/2021 at 09:00 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Final Status ConferenceRead MoreRead Less
Hearing12/03/2020 at 13:30 PM in Department STL-C at 312 North Spring Street, Los Angeles, CA 90012; MSC TimeslotRead MoreRead Less
Docketat 09:30 AM in Department M; Jury Trial - Not Held - Continued - Court's MotionRead MoreRead Less
Docketat 09:00 AM in Department M; Final Status Conference - Not Held - Continued - Party's MotionRead MoreRead Less
Docketat 10:00 AM in Department M; Hearing on Motion for Summary Judgment - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Judgment)); Filed by ClerkRead MoreRead Less
DocketObjection (Objection to Untimely Filed and Served Opposition); Filed by Ketch Condominium Owners' Association, Inc. (Defendant)Read MoreRead Less
DocketReply (Reply to Opposition to Motion For Summary Judgment); Filed by Ketch Condominium Owners' Association, Inc. (Defendant)Read MoreRead Less
DocketDeclaration (Declaration of Craig J. Englander in Support of Reply to Opposition to Motion for Summary Judgment); Filed by Ketch Condominium Owners' Association, Inc. (Defendant)Read MoreRead Less
Docketat 09:00 AM in Department M; Order to Show Cause Re: (proof of service of summons and complaint, response or dismissal for failure to timely prosecute) - HeldRead MoreRead Less
DocketMinute Order ((Case Management Conference; Order to Show Cause Re: proof of ...)); Filed by ClerkRead MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department M; Case Management Conference - Held - ContinuedRead MoreRead Less
DocketMinute Order ((Case Management Conference)); Filed by ClerkRead MoreRead Less
DocketComplaint FiledRead MoreRead Less
DocketSummons FiledRead MoreRead Less
DocketSummons; Filed by nullRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketComplaint; Filed by Dadson Washer Service (Plaintiff)Read MoreRead Less
Case Number: SC129195 Hearing Date: September 10, 2020 Dept: M
CASE NAME: Dadson Washer Service v. Ketch Condominium Owners’ Assn.
CASE NO.: SC129195
MOTION: Motion For Summary Judgment Or In The Alternative, Summary Adjudication
HEARING DATE: 9/10/2020
On March 25, 2019, Plaintiff Dadson Washer Service, Inc. (“Dadson Washer”) filed a verified first amended complaint (VFAC) against Defendants Ketch Condominium Owners’ Association, Inc. (“Owners’ Association” or “The Association”) and Does 1 – 100 for (1) forcible detainer and statutory damages; (2) breach of contract; and (3) conversion.
Plaintiff alleges that on September 5, 2001 and May 16, 2007, Plaintiff Dadson Washer and Edward Mantini entered into written leases for laundry space at 2 Ketch Street, Marina Del Rey, CA 90292 (“the Building”). (VFAC ¶ 4.) On May 16, 2012, Plaintiff Dadson and Edward Mantini entered into a third written lease for laundry space at the Building. (Id.) In each of the three leases, Mantini held himself out as the owner of the Building and as having had authority to enter into the leases for Plaintiff’s equipment and services. (Id.) Plaintiff alleges that Mantini was the agent for the owner, an undisclosed principal, and that the true owner of the property was Ketch Condominium Owners’ Association, Inc., aka 2 Ketch HOA. (Id.)
Plaintiff alleges that in August of 2012, Plaintiff was advised that management of the Building was taken over by Bali Management Group, and that Edward Mantini and his management group no longer managed the property. (Id. ¶ 8.) On October 17, 2017, Dadson discovered that Defendant Owners’ Association removed equipment without Plaintiff’s consent. (Id. ¶ 9.) Plaintiff alleges that the Owners’ Association refuses to surrender possession of the laundry room and the equipment. (Id.) Finally, Plaintiff alleges that Defendant is in breach of the contract. (Id. ¶ 11.)
Basis for summary judgment/summary adjudication
On January 30, 2020, Defendant Ketch Condominium Owners’ Association filed a motion for summary judgment or in the alternative summary adjudication. Defendant argues that it is entitled to summary judgment/summary adjudication as to the Second Cause of Action for Breach of Contract because (1) the contract is between Dadson and Edward Mantini, and the contract was not presented to, authorized by, or approved by Ketch; and (2) the contract is illegal and cannot Bind Ketch as a principal, whether Ketch was a disclosed principal or undisclosed principal. Defendant argues that it is entitled to summary judgment/summary adjudication as to the Third Cause of Action for Conversion because Ketch has not interfered with Dadson's possession or right to possession. Finally, Defendant argue that it is entitled to summary judgment/summary adjudication as to the first cause of action for forcible detainer because Ketch has not forcibly removed Dadson from the Building.
The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)
“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.” (Code Civ. Proc., § 437b(b)(3) (emphasis added).)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar v. Atlantic Richfiend Co. (2001) 25 Cal.4th 826, 843.)
In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Pursuant to Code of Civil Procedure section 437c(p)(2):
A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
When deciding whether to grant summary judgment, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi, 159 Cal.App.4th at 467.)
“A moving defendant now has two means by which to shift the burden of proof under subdivision (o)(2) of section 437c to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon…. Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598; see also Code Civ. Proc., § 437c(p)(2).) A moving defendant must show that plaintiff cannot reasonably obtain evidence to prove a cause of action, which is more than simply arguing that there is an absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)
A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c(f)(1).)
Ketch CONDOMINIUM’s Objections
Defendant filed an objection to Plaintiff’s untimely filed and served opposition documents -- “(2) An opposition to the motion [for summary judgment] shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c(b)(2).) In addition, “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed.” (Code Civ. Proc., § 437c(b)(2).) Defendant argues that Plaintiff did not actually overnight the opposition and separate statement on the date the opposition was due. Defendant points to the scratched off date on the mailing as well as the unsigned proofs of service.
The Court is aware that the U.S. postal service is experiencing delays as a result of the global pandemic, and that there has been a general slowdown in the mails. Here, the opposition was filed on August 27, 2020. The timestamp indicates that it was filed at 11:59 p.m. but, the separate statement was not filed until the next day, on August 28, 2020 at 1:29 a.m. The opposition and any other supporting documents are required to be filed and served on the same day. Although the hearing on the motion for summary judgment had been continued many times, the hearing was continued from Tuesday, September 1, 2020 to Thursday September 10, 2020. Although the Court may be mistaken, it also appears that Plaintiff electronically served the documents on August 27, 2020.
Defendant requests that Plaintiff be ordered to sign each proof of service and provide tracking information. Defendants’ request is granted in part. Plaintiff is ordered to provide tracking information at the hearing on this motion. Based upon that information, the Court will decide whether to consider the opposition papers. As to the opposition, the Court further notes that Plaintiff did not comply with California Rules of Court, Rule 3.1113(c) in portions of its opposition brief. Plaintiff cites to cases without including the official report volume, page number, and year of decision.
Defendant filed the motion for summary judgment/summary adjudication on January 30, 2020 and set the date for the motion for summary judgment for April 7, 2020. Per section 437c(a)(2), “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c(a)(2).) However, the Court granted a stipulation by the parties where the parties agreed that Defendant could file its motion for summary judgment on January 30, 2020. Therefore, the motion is timely.
COA 2: Breach of Contract
Plaintiff’s second cause of action is for breach of contract. Plaintiff alleges that it entered into a contract with Defendant through Edward Mantini as the undisclosed principal of Defendant on May 16, 2012. (VFAC ¶ 24.) Plaintiff alleges that it was the occupant “in exclusive, actual, peaceable and undisturbed possession of the subject laundry rooms at the Building pursuant to the written lease agreement dated May 16, 2012.” (Id. ¶ 25.) Plaintiff alleges that it performed all of the actions required of it under the lease. (Id. ¶ 26.) Plaintiff further alleges that on October 17, 2017, Defendant removed equipment without Dadson’s knowledge or consent and that Defendant refuses to reinstall Dadson’s laundry equipment in violation of the lease. (VFAC ¶¶ 27-28.) The elements of a breach of contract cause of action are (1) the existence of contract between plaintiff and defendant; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage to plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830; Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387.) The essential elements of the existence of a contract are: “(1) Parties capable of contracting; [¶] (2) Their consent; [¶] (3) A lawful object; and, [¶] (4) A sufficient cause or consideration.” (Civ. Code, § 1550.)
The contract was attached to the VFAC. The lease was made on May 16, 2012 between Dadson Washer Service, Inc. (“Lessee”) and Ed Mantini (“Lessor”). The contract states, “LESSOR grants, conveys and transfers to LESSEE the exclusive use and possession of the laundry room(s) located at the real property known as 2 Ketch Street, Marina Del Rey 90292 consisting of 24 units (‘LEASED PREMISES’), for the purpose of installing, maintaining, and operating coin-operated laundry equipment, to have and to hold the same for and during a term of ten years.” Paragraph three of the contract also states that “LESSOR represents and warrants that LESSOR is the owner of the real property described above. This lease shall be binding upon all future owners of the real property described above . . .. Any agent signing this lease on behalf of LESSOR represents and warrants that the agent signs with and has full authority in writing to enter into this lease on Lessor’s behalf.”
Defendant moves for summary judgment or summary adjudication on this cause of action. Defendant has the burden to show that Plaintiff cannot establish any of the elements of the cause of action or that it has a defense. Defendant argues that it cannot be held liable for this contract because its agent did not have actual or ostensible authority to enter into this contract. Finally, Defendant also argues that since its own authority was limited by law, its agent’s authority was limited by law, and by its agent entering into this contract, the agent did so illegally, making the contract void.
“It is well settled as a general rule that an undisclosed principal can either sue or be sued on the contract made by his agent [Citations.]” (Wood Bldg. Corp. v. Griffitts (1958) 164 Cal.App.2d 559, 565.) “An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification.” (Civ. Code, § 2307.) “The existence of an agency relationship is a factual question for the trier of fact whose determination must be affirmed on appeal if supported by substantial evidence. [citations.]” (Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1086.) When there is no dispute of fact, “an agency determination can be made as a matter of law. [Citations.]” (Id.)
There are two types of agencies; an agent either has ostensible authority or actual authority. “An agent has such authority as the principal, actually or ostensibly, confers upon him.” (Civ. Code, § 2315.) Ostensible authority is “such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” (Civ. Code, § 2317 (emphasis added).) “Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.” (Civ. Code, § 2316.) “Actual authority may be implied as well as express.” (Transport Clearings-Bay Area v. Simmonds (1964) 226 Cal.App.2d 405, 425 [citing Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 450].)
Defendant argues that Plaintiff cannot show ostensible authority. Defendant relies upon Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, in which the plaintiff admitted that he knew “a vote of the membership was required” before an agreement could be reached. (Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1734.) The Court held that since the plaintiff did not show that he relied on the principal’s conduct, he could not establish ostensible authority. (Id.) Defendant argues that the undisputed facts show that Plaintiff knew that 2 Ketch Street was a condominium that is governed by a Board of Directors. (UMFs 10, 14; Ex. D. – Doniz Depo. at 115:15-23; 123:24-124:16.) Defendant also argues that the evidence shows that Plaintiff did not request or review Defendant’s covenants, codes, and restrictions (“CC&Rs”), Board minutes, or a vote of the members. (UMFs 19; Doniz Depo. at 113:10-114:17; 131:7-18.) This is sufficient to meet Defendant’s burden. The burden now shifts to Plaintiff to show that there is a dispute of fact as to ostensible authority.
Plaintiff argues that it reasonably relied on Mantini’s representations in the lease that Mantini was the owner of the building. However, believing that someone this is owner of a building is not the same as providing evidence that a person has ostensible authority. “Ostensible authority of an agent cannot be based on the agent's conduct alone; there must be evidence of conduct by the principal which causes a third party reasonably to believe the agent has authority. (Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1734 [citing Petersen v. Securities Settlement Corp. (1991) 226 Cal.App.3d 1445, 1452; South Sacramento Drayage Co. v. Campbell Soup Co. (1963) 220 Cal.App.2d 851, 856–857.) For these reasons, Plaintiff cannot demonstrate that Mantini had ostensible authority.
As mentioned above, Defendant contends that Edward Mantini did not have actual authority to enter into this contract. Defendant provides evidence that the Association was established on 1977 for homeowners that own property at 2 Ketch Street, Marina del Rey, California 90292. (UMF 1.) The CC&Rs were established on October 11, 1977 and were recorded. (UMF 2.) Under the CC&Rs, “the Board shall ha[s] the following powers and duties...(d) To contract for materials and/or services for the Common Area or the [sic] the Owners Association with the term of any service contract limited to a duration of one year, except with approval of a majority of members of the Association . . . .” (UMF 4.) The Association entered into a property management agreement with Mantini Management, Inc. sometime prior to 2001, (UMF 5) thereby creating an agency relationship with Mantini and itself.
Defendant argues that it “could not and did not authorize Mantini Management to do what [it] could not do.” (Mot. at 8:5-7.) Defendant presents evidence in the form of the declaration of Lawrin S. Lewin. Lewin is the current president of the Association (Lewin Decl. ¶ 3) and declares that the Association found out about the lease when the Association’s “new management company received a letter from Dadson forwarding the Laundry Room Lease and the Non-Assignable Addendum.” (Lewin Decl. ¶ 13.) Lewin also notes that this lease was not presented to himself as either President or as an individual, to the Board, nor to the members, and that the lease was never authorized by the Board or submitted to a vote for approval by the members. (UMF 16-18, Lewin Decl. ¶ 11.)
While Defendant presents evidence that it and Mantini Management entered into an agreement for managing the building, Defendant does not present evidence that it expressly told Edward Mantini of Mantini Management that he could not enter into certain contracts per its CC&Rs. As previously noted, actual authority can be express or implied. The statutory definition of “actual authority is such as a principal intentionally confers upon the agent . . . or by want of ordinary care, allows the agent to believe himself to possess.” (Civ. Code, § 2316.)
Defendant argues that Mantini Management as a property management company and Edward Mantini as a former real estate broker should be held to a higher standard of care with respect to his authority. Defendant cites Colpe Inv. Co. v. Seeley & Co. The dispute in Colpe arose between an agent and the principal where the agent was sued by the principal for fraud. (Id.) The Colpe court held that where “it is clear that defendant was acting as agent for the plaintiff . . . it is the duty of an agent to exercise good faith and reasonable diligence to [act in the best interest of the principal]; and if he is a professional agent he should be required to exercise the particular skill reasonably to be expected of such an agent, and to have knowledge as to the different companies and terms available with respect to the commission assumed by him. [Citations omitted.]” (Id. at 20.) Colpe is distinguishable. Colpe involved the principal agent relationship in an insurance context where the principal sued the agent. By contrast, this suit is by a third-party against the principal. The statutory definition of actual authority includes authority that the agent believes himself to have. Defendant has not provided evidence that its agent did not believe itself to have such authority or it did not allow the agent to believe that it had such authority to bind Defendant.
Whether the contract was illegal
Defendant attacks the first element of the breach of contract claim. As noted above, the essential elements of the existence of a contract are: “(1) Parties capable of contracting; (2) Their consent; (3) A lawful object; and (4) A sufficient cause or consideration.” (Civ. Code, § 1550.) The interpretation of a contract is a question of law. (Schaffter v. Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745, 751.)
Plaintiff quotes Title 10 of California Code of Regulations section 2792.21 in its VFAC. Plaintiff alleges that its contract with Mantini is not illegal, void, or voidable. Plaintiff alleges that based on Mantini’s representations of authority and ownership, Plaintiff believed and had reason to believe that Mantini had the proper authority to enter into the lease. (VFAC ¶ 7.)
Defendant argues that Mantini’s authority was limited by law. Under Title 10 of California Code of Regulations section 2792.21, “The governing body of the Association shall ordinarily be prohibited from taking any of the following actions, except with the assent, by vote at a meeting of the Association or by written ballot without a meeting pursuant to Corporations Code Section 7513, of a simple majority of the members, other than the subdivider, constituting a quorum consisting of more than 50 percent of the voting power of the Association residing in members other than the subdivider: (1) Entering into a contract with a third person wherein the third person will furnish goods or services for the common area or the owners' Association for a term longer than one year with the following exceptions: . . . . (D) Lease agreements for laundry room fixtures and equipment of not to exceed five years duration provided that the lessor under the agreement is not an entity in which the subdivider has a direct or indirect ownership interest of 10 percent or more.” (Cal. Code Regs., tit. 10, § 2792.21(b)(1)(D) (double emphasis added).)
Defendant argues that since its own power to enter into service contracts for laundry of more than five years is limited by law, its agent was also similarly prohibited from entering into such contracts by law. Defendant further argues that since the lease is longer than a period of five years, and since Plaintiff nor Defendant’s agent sought permission for this contract, the contract is illegal. Defendant also argues that the under the terms of the CC&Rs, Mantini could not have entered into the contract without the consent of the HOA. Article V of the CC&Rs reads: “Without limiting the generality of the foregoing, the Board shall have the following powers and duties. . . (d) To contract for materials and/or services for the Common Area or the Owners Association with the term of any service contract limited to a duration of one year, except with approval of a majority of members of the Association, exclusive of the vote of the Declarant.” (See Ex. A. to Lewin Decl.)
Here, the contract attached to Plaintiff’s VFAC contains the terms of the contract. (Ex. 1 to VFAC.) The lease between Mantini and Plaintiff was for a term of 10 years. (Id.) Defendant presents evidence that neither Plaintiff nor Mantini obtained the consent of the Defendant Association or a simple majority of a quorum of the members of Defendant. (UMF 16-18; Lewin decl. ¶ 11.) Defendant also provides evidence that Plaintiff did not have documents that showed whether or not the Association approved the contract. (See Doniz Depo. 113:24-114:21.) Paragraph five of the lease states, “This lease shall renew from the date of its expiration for two (2) additional term each equal to the original term unless lessee gives lessor notice in writing by certified mail return receipt requested at least 180 days prior to the end of the then-current term. If the real property is sold or management is changed subsequent to the written notice by lessor provided herein, and prior to the end of the term herein, then said notice shall be null and void and shall be considered rescinded.” (Ex .1 to VFAC, ¶ 5.) On its face, this contract contains illegal terms because the contract (1) is for 10 years, and (2) renews automatically without the consent of the Board or its members. Defendant has met its initial burden here by negating the first element of this cause of action, that is, whether the parties were capable of entering into this contract. The burden shifts to Plaintiff to show that there is a triable issue of material fact as to this element.
In opposition, Plaintiff argues that Section 2792.21(a) does not apply but does not cite any authority to support this position. Plaintiff appears to argue that it reasonably relied on Mantini’s conduct throughout 11 years and so the contract is proper as to Ketch. “Because an illegal contract is void, it cannot be ratified by any subsequent act . . .. [Citations.]’ (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 432, pp. 473–474.)” (Black Hills Investments, Inc. v. Albertson's, Inc. (2007) 146 Cal.App.4th 883, 896.) Plaintiff’s apparent ratification argument is not supported by law. Plaintiff also fails to present evidence that demonstrate a dispute of fact as to whether the contract was presented and approved by the HOA. Defendant is entitled to summary adjudication on this cause of action.
COA 3: Conversion/Trespass to Chattels
“Conversion is a species of strict liability in which questions of good faith, lack of knowledge and motive are ordinarily immaterial.” (Irving Nelkin & Co. v. South Beverly Hills Wilshire Jewelry & Loan (2005) 129 Cal.App.4th 692, 699 [quoting City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d 143, 149].) “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.) Conversion and trespass to chattels are property two different property torts. “Dubbed by Prosser the ‘little brother of conversion,’ the tort of trespass to chattels allows recovery for interferences with possession of personal property ‘not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.’ (Prosser & Keeton, Torts (5th ed.1984) § 14, pp. 85–86.)” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350; see also CACI No. 2101.)
Here, Plaintiff alleges that it owns items of personal property, including laundry equipment, fixtures and accessories then existing in the subject laundry rooms of the Building. (VFAC ¶ 31.) “Defendant intentionally and substantially interfered with Dadson’s property by removing the property from said premises without the consent of Dadson and disposing the property.” (Id. ¶ 32.) “Plaintiff Dadson did not consent to the detention or removal of its property.” (Id. ¶ 33) Finally, Plaintiff alleges it was harmed by “Defendant’s unlawful control over and disposal its property.” (Id. ¶ 34.)
Defendant argues that it did not commit conversion because it did not remove Plaintiff’s personal property from the building, Defendant only moved the machines to another common area without asserting ownership over the machines. (UMF 25; Lewin decl. ¶¶ 15, 17.) “The act of removing personal property from one place to another, without an assertion of ownership or preventing the owner from exercising all rights of ownership in such personal property, is not enough to constitute a conversion. [Citations.]” (Itano v. Colonial Yacht Anchorage (Simonian v. Patterson (1994) 27 Cal.App.4th 773, 782.) Defendant provides evidence in the form of the deposition testimony of Linda Doniz. Doniz testified that Defendant had requested Plaintiff to remove its laundry equipment from the building and that Plaintiff has refused to remove the equipment. (UMF 25, Doniz Depo. 56:4-57:7.)
However, while Plaintiff’s cause of action is labeled as “conversion,” Plaintiff has actually stated a cause of action for trespass to chattels. “Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief. (See, e.g., Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2, 229 Cal.Rptr. 605.) ‘It is not what a paper is named, but what it is that fixes its character.’ (Parnham v. Parnham (1939) 32 Cal.App.2d 93, 96, 89 P.2d 189.)” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) In a trespass to chattels context, Plaintiff’s reliance on Zaslow v. Kroenert In Zaslow, the Court allowed a claim for damages for moving the property of a party explaining that to establish conversion, “it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of his property.” (Id. at 550.) The Supreme Court noted that there was no conversion in that case. (Id.) However, the Court found that a party could recover damages for trespass to chattel: “Where the conduct complained of does not amount to a substantial interference with possession or the right thereto, but consists of intermeddling with or use of or damages to the personal property, the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.” (Id. at 551.)
For these reasons, the Court concludes that while Defendant negated an element of conversion, Defendant has not negated the elements of trespass to chattel, although it is hard to envision what damages may exist through the movement of these machines in light of the Court’s determination that the contract was illegal. Therefore, Defendant has not met his initial burden on this cause of action and summary adjudication is not proper.
COA 1: Forcible Detainer and Statutory Damages
“The forcible detainer statute protects the ‘occupant of real property,’ meaning one ‘in the peaceable and undisturbed possession of such lands.’” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1038 [quoting Code Civ. Proc., § 1160; Moldovan v. Fischer (1957) 149 Cal.App.2d 600, 607].) Under Code of Civil Procedure section 1160, there are two ways by which a person is guilty of a forcible detainer. (Code Civ. Proc., § 1160(a).) The first is “[b]y force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise.” (Code Civ. Proc., § 1160(a)(1).) The second way a forcible detainer occurs is when someone, “[w]ho, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.” (Code Civ. Proc., § 1160(a)(2) (emphasis added).) “The inquiry in such cases is confined to the actual peaceable possession of the plaintiff and the unlawful or forcible ouster or detention by defendant the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right.” (Jordan v. Talbot (1961) 55 Cal.2d 597, 604.)
“On the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show,  in addition to the forcible entry or forcible detainer complained of,  that [plaintiff] was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer.” (Code Civ. Proc., § 1172 [emphasis added].) To mount a defense, “The defendant may show . . . that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest therein is not then ended or determined; and such showing is a bar to the proceedings.” (Code Civ. Proc., § 1172.)
Plaintiff Dadson Washer alleges that it “was the occupant in exclusive, actual, peaceable and undisturbed possession of the laundry room in the Building. In the laundry room, Dadson provided coin-operated laundry equipment for the use of the tenants of the Building.” (VFAC ¶ 13.) Plaintiff Dadson Washer alleges that on October 17, 2017, Defendant Owners’ Association entered without Plaintiff’s permission and removed Dadson Washer’s laundry equipment. (VFAC ¶ 15.) Plaintiff alleges that within five days, it demanded that Defendant surrender the premises, but that Defendant has instead continued to possess the premises. (VFAC ¶¶ 17-19.)
In order to meet its initial burden on summary judgment, Defendant has to show that Plaintiff cannot prove one of the elements of the cause of action or that Defendant has a complete defense. Defendant argues that it did not commit a forcible detainer because there was no unlawful entry onto land. Defendant argues that it is entitled to summary judgment/summary adjudication as to this cause of action because Ketch has not forcibly removed Dadson from the building. Defendant argues “[t]he equipment was non-violently moved from one common area to another common area in the building, without menace, threat or force.” Defendant provides evidence that “the equipment was simply moved by lawfully entering one open common area on the premises to another.” (UMF 25.) Defendant essentially argues that because the laundry machines were in an area accessible to all, Defendant did not unlawfully enter upon the real property.
Since the underlying lease is invalid, the Court concludes that Defendant did not unlawfully enter the common law area of the premises and remove Plaintiff’s laundry machines. Moreover, Defendant moved the machines to another room and repeatedly made them available to Plaintiff for pick up. Therefore, summary adjudication of the first cause of action is granted.
Defendant met its initial burden as to the second cause of action and demonstrated that the contract was illegal. The burden shifted to Plaintiff to show that there is a dispute of fact as to whether the contract was illegal. Plaintiff did not meet its burden and so Defendant is entitled to summary adjudication on the second cause of action. In light of this determination, the Court concludes that Plaintiff did not have the exclusive right to maintain its machines in the designated common area, and any movement of those machines was not a forcible detainer. Therefore, summary adjudication is also granted as to the first cause of action.
For the third cause of action, while Defendant met its initial burden of showing that there is no dispute of fact as to the second element of conversion, Plaintiff actually stated facts to support a cause of action for trespass to chattels and Defendant did not negate elements of that cause of action. Therefore, Defendant failed to meet it initial burden and summary adjudication is denied as to the third cause of action.