Reyes v. Kutnerian CA5 ( 2023 )

Filed 4/13/23 Reyes v. Kutnerian CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
ENRIQUE REYES et al.,
F083644
Plaintiffs and Appellants,
(Super. Ct. No. 20CECG03470)
v.
VEREZH KUTNERIAN et al., OPINION
Defendants and Respondents.
APPEAL from an order of the Superior Court of Fresno County. D. Tyler Tharpe,
Judge.
James A. Michel for Plaintiffs and Appellants.
Gregory L. Altounian; Michael Carrigan for Defendants and Respondents.
-ooOoo-
Plaintiffs Enrique and Guadalupe Reyes and their attorney James Michel appeal
from an October 12, 2021 order of the Fresno County Superior Court entered in favor of
defendant Kutnerian Enterprises.1 In said order, the court dismissed as frivolous the
Reyeses’ action “to vacate void judgments” (capitalization omitted) and instructed the
Reyeses and Michel to pay the $17,852.31 in attorney’s fees incurred by Kutnerian
Enterprises pursuant to Code of Civil Procedure section 128.5, subdivision (a).2 On
appeal, the Reyeses and Michel challenge the dismissal and the attorney’s fee award. For
the reasons set forth below, we affirm the order.3 Furthermore, we deny Kutnerian
Enterprises’ motion for sanctions pursuant to section 907.
FACTUAL AND PROCEDURAL HISTORY
Starting in or around March 2010, the Reyeses rented the upper portion of a land
parcel from Kutnerian Enterprises under an oral lease. In May 2013, the parties entered
into a one-year written lease. This lease expired on April 30, 2014 and became a month-
to-month tenancy. In January 2015, Kutnerian Enterprises served the Reyeses with a 30-
day notice of termination of tenancy. The Reyeses did not vacate the property.
I. Prior Litigation
a. Case No. 15CECL01766
On March 6, 2015, Kutnerian Enterprises filed an unlawful detainer complaint.
Proceeding in propria persona, the Reyeses moved to quash service of summons. That
motion was denied. In a subsequent demurrer, the Reyeses asserted that they should have
1 Kutnerian Enterprises, three of its partners (the estate of Migran Kutnerian,
Ovanes Kutnerian, and Vrezh Kutnerian), and the trustee of the Migran Kutnerian Trust
(Arman Asatrian) were named as defendants. For brevity, we refer to defendants
collectively as Kutnerian Enterprises.
2 Unless otherwise indicated, subsequent statutory citations refer to the Code of
Civil Procedure.
3 The Reyeses filed a motion for judicial notice on April 6, 2022 as well as a motion
to augment the record and a second motion for judicial notice on May 11, 2022.
Kutnerian Enterprises filed its own motion for judicial notice on July 19, 2022. We
deferred our rulings pending consideration of the appeal on its merits. Having done so,
we now (1) deny the Reyeses’ motions for judicial notice; (2) grant the Reyeses’ motion
to augment the record; and (3) grant Kutnerian Enterprises’ motion for judicial notice.
2.
received a 60-day notice because (1) pursuant to Civil Code section 1946.1, their tenancy
exceeded one year; and (2) pursuant to Civil Code section 798.55, they were mobilehome
park tenants. Trial was set for April 21, 2015 and the Reyeses’ attempts to vacate this
date were unsuccessful.
At the outset of trial, the superior court informed the Reyeses that it read their
demurrer and would consider anything raised therein as a defense. During trial, there was
no dispute that the Reyeses resided in a trailer. The testimony of David Bernel, who
rented the lower portion of Kutnerian Enterprises’ parcel, indicated that he lived in a
“house” or “home.” During closing arguments, the Reyeses reiterated that they were
mobilehome park tenants and entitled to a 60-day notice. Kutnerian Enterprises
countered that the property was not a mobilehome park.
In an oral statement of decision, the court ruled that the 30-day notice given was
sufficient and the Reyeses were not entitled to a 60-day notice pursuant to Civil Code
section 1946.1. It did not expressly resolve the mobilehome park argument. The court
awarded possession of the property to Kutnerian Enterprises and entered judgment in
favor thereof. As a result, a hearing on the Reyeses’ demurrer scheduled for April 27,
2015 was taken off calendar as moot. On May 6, 2015, the Reyeses were evicted.
On May 15, 2015, the Reyeses appealed to the appellate division of the superior
court. Among other things, they contended “that they should have been served with a 60-
day notice of termination of the tenancy because the premises was a mobilehome in a
mobilehome park.” In an opinion filed December 2, 2015, the appellate division affirmed
the judgment. It explained:
“Appellants have cited to no evidence in the record of proceedings
supporting their contention that the lot they rented was in a mobilehome
park entitling them to 60 days’ notice of termination of the tenancy. If
error on this point appeared anywhere in the record on appeal, it was
incumbent on appellants to refer the appellate panel to the portion of the
record supporting their contentions on appeal. [Citation.] Appellants had
the burden of overcoming the presumption of correctness and had the
3.
burden to provide an adequate record on the issue, requiring the appellate
panel to resolve this issue against them. [Citation.] There is no error on the
face of the complaint that would require the appellate panel to determine
that the motion to quash was improperly denied because the premises was
located in a mobilehome park. [Citation.]”
On January 21, 2016, the Reyeses petitioned the Fifth District Court of Appeal for
“a writ of certiorari to overturn a ruling on appeal which sustained an unlawful detainer
judgment against [them].” On February 8, 2016, we summarily denied the petition.
b. Case No. 15CECG00659
Before the unlawful detainer complaint was filed, the Reyeses—proceeding in
propria persona—sued Kutnerian Enterprises. They alleged elder abuse, utility cutoff in
violation of Civil Code section 789.3, breach of the covenant of quiet enjoyment,
negligence, nuisance, breach of the implied warranty of habitability, intentional infliction
of emotional distress, and retaliatory eviction. The superior court sustained Kutnerian
Enterprises’ general demurrer to the elder abuse and breach of the implied warranty of
habitability causes of action without leave to amend. Kutnerian Enterprises then moved
for summary judgment on the remaining causes of action, which were based on claims
that it “cut off and refused to restore electricity to [the Reyeses’] travel trailer,” it “failed
to give [the Reyeses] proper notice of the termination of their tenancy,” and its “eviction
of [the Reyeses] was retaliatory.” Kutnerian Enterprises relied upon “the preclusive
effect of the final judgment and findings in the [earlier] unlawful detainer action,” which
concluded that Kutnerian Enterprises “had no obligation to provide electrical service to
[the Reyeses] and was not responsible for termination of electrical service to [the
Reyeses],” it “gave [the Reyeses] proper notice of termination of tenancy,” and the
“eviction was not retaliatory.” The court granted the motion on collateral estoppel
grounds and dismissed the Reyeses’ complaint.
On appeal to the Fifth District Court of Appeal, the Reyeses—represented by
Michel—argued that “the trial court erred in granting summary judgment because …
4.
there exist triable issues of fact.” In an opinion filed November 22, 2017, we affirmed
the judgment. We stated:
“Appellants base their theories of liability on three alleged wrongs
committed by Kutnerian [Enterprises]. According to appellants, Kutnerian
[Enterprises] wrongly cut off and refused to restore the electricity to their
trailer, failed to give appellants proper notice of termination of the tenancy,
and evicted appellants in retaliation for appellants’ small claims action.
“Appellants assert the trial court erred in granting summary
judgment because disputed factual issues related to the alleged wrongs still
exist. Appellants argue it still must be determined whether Kutnerian
[Enterprises] was responsible for the electricity cut off; whether Kutnerian
[Enterprises] was obligated to provide or restore electricity to appellants;
and whether Kutnerian [Enterprises’] eviction of appellants was retaliatory.
“However, appellants raised these alleged wrongs as defenses in the
unlawful detainer action and the issues were decided against them. The
trial court in the unlawful detainer action ruled that Kutnerian [Enterprises]
gave proper notice of termination of the tenancy to appellants. The court
further found that Kutnerian [Enterprises] was not the one who cut off the
electricity and, under the lease, Kutnerian [Enterprises] was not obligated to
provide electricity to appellants. Rather, appellants were responsible for
providing their own water and electricity. Finally, the court ruled that the
eviction was not retaliatory. The appellate department of the superior court
affirmed this decision on appeal.
“Therefore, the parties litigated, and the trial court decided, the
issues supporting appellants’ theories of liability. Thus, appellants cannot
relitigate those issues. Rather, the unlawful detainer judgment conclusively
resolved those issues against appellants. Accordingly, the trial court
properly granted summary judgment based on issue preclusion.”
c. Bankruptcy proceedings
On April 8, 2018, the Reyeses—represented by Michel—filed for Chapter 13
bankruptcy. In federal bankruptcy court, they moved to vacate the unlawful detainer
judgment, arguing said judgment was void because Kutnerian Enterprises knew that they
had to give a 60-day notice of termination of tenancy pursuant to Civil Code section
798.55 but defrauded them as well as the state superior court. Kutnerian Enterprises
5.
opposed the motion on the basis that the notice issue had already been decided by the
state courts. Citing the Rooker-Feldman doctrine,4 the bankruptcy court denied the
motion.
In a memorandum filed April 19, 2019, the Bankruptcy Appellate Panel of the
Ninth Circuit affirmed the order dismissing the Reyeses’ vacation motion. It reasoned:
“… [T]he Reyeses argue: (1) they were never served with the
30-day Notice as Kutnerian [Enterprises] told the [unlawful detainer] court;
(2) they should have received a 60-day notice from Kutnerian [Enterprises]
under California law; and (3) because they did not receive proper notice of
the [unlawful detainer] summons and complaint, the [unlawful detainer]
court was without jurisdiction to hear the action or award relief.…
[¶] … [¶]
“… [C]ontrary to their argument, all of these issues were litigated
before, and rejected by, the California courts. Since the [unlawful detainer]
court entered the judgment, it implicitly found against the Reyeses on their
argument that they failed to receive the 30-day Notice. The [unlawful
detainer] court expressly ruled against them regarding the necessity for a
60-day notice to quit [under Civil Code section 1946.1]. As for the mobile
home park issue, that was raised in the Reyeses’ demurrer, which the
[unlawful detainer] court reviewed, and Mr. Reyes raised it again in closing
argument at the [unlawful detainer] trial. The [unlawful detainer] court did
not discuss this issue in its oral statement of decision, but it apparently
ruled against them on that. The Reyeses raised all of these issues again on
appeal, but the appellate division affirmed, expressly finding that a 30-day
notice was sufficient, that Kutnerian [Enterprises] provided such notice,
and that the Reyeses had failed to establish that the property was a mobile
home park entitling them to a 60-day notice to quit. That decision is final.
The Reyeses also raised the notice issue in their lawsuit against Kutnerian
[Enterprises] before the California superior court, which ruled against them,
and the California Court of Appeal affirmed. That decision is also final.
4 “ ‘[U]nder what has come to be known as the Rooker-Feldman doctrine, lower
federal courts are precluded from exercising appellate jurisdiction over final state-court
judgments.’ [Citation.]” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1187, fn. 7;
see District of Columbia Court of Appeals v. Feldman (1983) 460 U.S. 462; Rooker v.
Fidelity Trust Co. (1923) 263 U.S. 413.)
6.
“Ultimately, the California courts ruled that only a 30-day notice
was required and that Kutnerian [Enterprises] provided it.… Since the
30-day Notice was proper and the Reyeses were served with it, the
[unlawful detainer] court had jurisdiction, both over the subject matter and
over the Reyeses.”
The panel’s judgment was subsequently affirmed by the Ninth Circuit.
d. Case No. 18CECG00202
In 2018, the Reyeses—proceeding in propria persona—filed another lawsuit
against Kutnerian Enterprises. They alleged elder abuse, elder financial abuse, breach of
contract, breach of quiet possession, breach of the implied covenant of good faith and fair
dealing, nuisance, and negligent infliction of emotional distress. The Reyeses again
argued that Kutnerian Enterprises’ “service of a Thirty Day (30) Notice of Termination
was in violation of Civil Code Section[s] 1946.1 and 798.55 requiring a Sixty Day (60)
Notice of Termination for tenancies over one year for mobile home tenancies.”
Kutnerian Enterprises demurred to the entire complaint and moved to declare the Reyeses
vexatious litigants pursuant to section 391. In an order entered January 10, 2019, the
superior court sustained the demurrer without leave to amend and granted the vexatious
litigant motion. It explained:
“Plaintiffs previously filed a nearly identical complaint in 2015 .…
[¶] … [¶] However, plaintiffs lost their 2015 case .… The trial court
sustained a demurrer without leave to amend as to their elder abuse and
breach of implied warranty of habitability claims, and later granted
summary judgment as to the remaining causes of action against Kutnerian
[Enterprises] based on the collateral estoppel effect of the underlying
unlawful detainer judgment. The Court of Appeal affirmed the trial court’s
orders on appeal.…
“Thus, plaintiffs’ present claims against defendant have already been
resolved in the prior action, and the judgment entered against it in that case
has been affirmed on appeal. Consequently, plaintiffs’ claims are now
barred by the doctrine of res judicata. [¶] … [¶]
“… [I]n the present case, plaintiffs have engaged in repeated
attempts to relitigate the same cause of action, claim, controversy, or issues
of fact or law. They originally sought to raise their claims in the underlying
7.
unlawful detainer action, and the trial court found against them in that
action. [Citation.] They then appealed the unlawful detainer judgment to
the Appellate Division of the Fresno County Superior Court, where they
lost again. Plaintiffs’ appeal attempted to challenge the validity of the
unlawful detainer judgment based on the same theories alleged in the
present case.… Plaintiffs then sought to challenge the decision by filing a
writ petition with the [Fifth District Court of Appeal], which was
summarily denied.… [¶] … [¶]
“Next, plaintiffs filed an action against Kutnerian [Enterprises] … in
2015. [Citation.] The trial court dismissed some of plaintiffs’ claims
against Kutnerian [Enterprises] on demurrer, and dismissed the rest after a
summary judgment motion.… Plaintiffs appealed …, which … resulted in
affirmance[] of the underlying decision[].… Thus, plaintiffs’ claims, which
arose out of the same facts and theories as the present action, were finally
determined adversely to them in the 2015 action.
“Undeterred, plaintiffs have now filed another action in the Fresno
County Superior Court, which arises out of the same basic facts and
theories as the 2015 litigation, and which seeks to overturn the judgment in
the unlawful detainer action. In the meantime, after filing the present case,
plaintiffs also filed a bankruptcy petition which, among other things, sought
to declare the judgment in the unlawful [detainer] action void.
“Thus, plaintiffs have clearly made repeated attempts to relitigate the
same claims, controversies, and issues in multiple different cases and
venues over the past several years. All of their cases arise out of the same
set of facts, namely … Kutnerian [Enterprises’] eviction of them from the
property. The 2015 case and the present case also allege many of the same
legal theories, and involve the same parties, or people in privity with them.
Including the multiple appeals and writ petitions filed in the various cases,
there are more than three attempts to relitigate the same claims and issues.
Even the bankruptcy petition filed by plaintiffs appears to be, at least in
part, an attempt to relitigate the same issues, since plaintiffs admit they are
using the bankruptcy case to have the unlawful detainer judgment declared
void.”
II. Current Litigation (Case No. 20CECG03470)
On November 30, 2020, the Reyeses—represented by Michel—filed a
“COMPLAINT FOR EQUITABLE RELIEF TO VACATE VOID JUDGMENTS”
against Kutnerian Enterprises. They contended: (1) “[t]he unlawful detainer judgment
8.
which [Kutnerian Enterprises] obtained in Fresno County Superior Court, Case Number
15 CE CL 01766, is void for lack of subject matter jurisdiction”; and (2) the judgments in
favor of Kutnerian Enterprises “in Case Number 15 CE CG 00659” and “in Case Number
CE CG 00202” “must be vacated and set aside as void accordingly” because they were
“based on the premise that the unlawful detainer judgment in Case Number 15 CE CL
01766 precluded the subsequent claims of Plaintiffs REYES.” The Reyeses maintained
that “California Civil Code Section 798.55 required that a minimum of 60 days notice be
used to terminate [their] tenancy” and “Kutnerian [Enterprises’] failure to serve the
requisite 60-day notice never conferred the special jurisdiction for unlawful detainer upon
the court.”
On February 18, 2021, Kutnerian Enterprises filed a motion to strike the Reyeses’
action as a strategic lawsuit against public participation (SLAPP) pursuant to section
425.16, subdivision (a). Following an August 18, 2021 hearing, the superior court denied
the motion because “the gravamen of [the Reyeses’] lawsuit does not fall within the
purview of … section 425.15.”5 The court also issued—“pursuant to … section 128.5,
subdivision (a)”—an order to show cause (OSC) why the lawsuit should not be dismissed
as frivolous; advised the parties that it would also consider “imposing sanctions in the
form of attorneys’ fees upon [the Reyeses] and their attorney for filing of a ‘frivolous’
lawsuit”; and instructed Kutnerian Enterprises to “file and serve their documentation in
support of any attorneys’ fees no later than August 23, 2021.” The ruling was served by
mail August 20, 2021.
5 In the alternative, the court denied Kutnerian Enterprises’ motion because “an
action seeking equitable relief from a void judgment is a legally recognized means of
collateral attack and thus, exempt from the doctrine of res judicata.” However, in its
order filed October 12, 2021, the court acknowledged that “an independent action in
equity to set aside a void judgment” “is brought to nullify the judgment” and “is not a
collateral attack.”
9.
Counsel for Kutnerian Enterprises filed a declaration on August 20, 2021, which
(1) itemized the $11,520 in attorney’s fees and $2,372.31 in costs incurred by Kutnerian
Enterprises; (2) asked the court to “impos[e] sanctions against [the Reyeses] and their
attorney and in favor of [Kutnerian Enterprises] in the form of attorneys’ fees totaling
$11,520.00”; and (3) asked the court to “award [Kutnerian Enterprises] their costs
totaling $2,372.31.” In another declaration filed September 3, 2021, counsel for
Kutnerian Enterprises advised that Kutnerian Enterprises incurred an additional $3,960 in
attorney’s fees related to the preparation of a response to the Reyeses’ opposition to the
OSC. A hearing on the OSC was held on September 16, 2021.
In an order filed October 12, 2021, the superior court dismissed the case with
prejudice, imposed $17,852.31 in “sanctions” (boldface & underlining omitted) against
the Reyeses and Michel pursuant to section 128.5, and entered a prefiling order. It
reasoned:
“Here, plaintiffs have been arguing and litigating whether a 60-day
notice was required to terminate their tenancy for over six years. It was
raised via demurrer in the unlawful detainer action. [Citation.] The issue
was then placed before every trial court in every case filed since including
the bankruptcy court. [Citations.] No court found the argument persuasive
in plaintiffs’ efforts to overturn the unlawful detainer judgment or the
judgments entered in the subsequent litigation. This steadfast refusal to
accept the rulings of not only the trial courts but the appellate courts
constitutes ‘deliberate and egregious misconduct’ sufficient to support
dismissal. [Citation.] The fact that this action was filed by an attorney is of
no consequence when it is nothing more than another ‘spin’ of the
‘inadequate notice wheel.’ [Citation.] Case No. 20CECG03470 is
dismissed with prejudice. [¶] … [¶]
“Here, plaintiffs and their counsel continue to insist that their
mobilehome (aka a ‘travel trailer’) was situated in a ‘mobilehome park’ at
the time of the unlawful detainer action such that a 60-day notice pursuant
to Civil Code section 798.55, subdivision (b)(1), was required. As stated
above, the steadfast refusal to accept the rulings of not only the trial courts
but the appellate courts constitutes ‘deliberate and egregious misconduct.’
Plaintiffs’ counsel has argued this is a ‘novel’ issue and should be decided.
10.
But plaintiffs were evicted from the property. [Citation.] After six years,
the ‘novel’ issue is moot. [Citation.] Pursuing the point at this stage is
academic.
“The repeated litigation of this issue constitutes both ‘frivolous’ and
‘bad faith’ litigation subjecting plaintiffs and their attorney to sanctions.
Plaintiffs’ counsel may argue that he only filed the case at bench, therefore
sanctions against him are unwarranted. However, it is significant that he
has been involved in some of the appeals of the cases listed above. He is
clearly responsible for the persistent presentation of the frivolous
arguments as discussed above. Accordingly, he should be sanctioned as
well.”
DISCUSSION
I. Dismissal of Action as Frivolous
“A court has inherent power, upon a sufficient factual showing, to dismiss an
action ‘ “shown to be sham, fictitious or without merit in order to prevent abuse of the
judicial process.” ’ [Citation.]” (Flores v. Georgeson (2011) 191 Cal.App.4th 881, 887;
see Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1271
[“Courts have the inherent authority to dismiss a case as a sanction.”]; Del Junco v.
Hufnagel (2007) 150 Cal.App.4th 789, 799 [“Trial courts should only exercise this
authority in extreme situations, such as when the conduct was clear and deliberate, where
no lesser alternatives would remedy the situation [citation], the fault lies with the client
and not the attorney [citation], and when the court issues a directive that the party fails to
obey.”].) “The inherent power to dismiss … is a discretionary power.” (Guardianship of
A.H. (2022) 83 Cal.App.5th 155, 162; see Crowley v. Modern Faucet Manufacturing Co.
(1955) 44 Cal.2d 321, 324.)
“ ‘Generally, where a trial court has discretionary power to decide an issue, an
appellate court is not authorized to substitute its judgment of the proper decision for that
of the trial judge. The trial court’s exercise of discretion will not be disturbed on appeal
in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to
amount to a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Brawley v. J.C.
11.
Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1137.) “ ‘ “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can be reasonably deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court.” ’ [Citations.]” (Ibid.) “We view the
entire record in the light most favorable to the court’s ruling, and draw all reasonable
inferences in support of it.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155
Cal.App.4th 736, 765 (Slesinger).)
“Unlawful detainer actions are authorized and governed by state statute.” (Larson
v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1297, citing § 1161 et
seq.) The statutory scheme sets forth “the procedure for landlords and tenants to resolve
disputes about who has the right to possess real property.” (Stancil v. Superior Court
(2021) 11 Cal.5th 381, 394.) “Given the need for quick, peaceful resolutions of unlawful
detainer actions, the statutory procedures must be strictly adhered to, including the
stringent requirements for service, notice, and filing deadlines.” (Id. at pp. 394–395,
fn. omitted.)
“A tenant may defend against an unlawful detainer action by asserting that the
lessor has not provided proper notice of termination, as required by statute.” (Wasatch
Property Management v. Degrate (2005) 35 Cal.4th 1111, 1117.) Generally, “as a
prerequisite to filing an unlawful detainer action based on a terminated month-to-month
tenancy, the landlord must serve the tenant with a 30-day written notice of termination.”
(Losornio v. Motta (1998) 67 Cal.App.4th 110, 113; see § 1161, subd. 1; Civ. Code,
§§ 1945, 1946; Renner v. Huntington-Hawthorne Oil & Gas Co. (1952) 39 Cal.2d 93,
102.) “In 1978, the Legislature enacted the Mobilehome Residency Law[6] (MRL),
which extensively regulates the landlord-tenant relationship between mobilehome park
owners and residents. The MRL recognizes that, unlike other renters, mobilehome
6 Civil Code section 798 et seq.
12.
owners cannot easily relocate if their tenancies are terminated.” (Greening v. Johnson
(1997) 53 Cal.App.4th 1223, 1226; see Civ. Code, § 798.55, subd. (a).) “ ‘[I]t is apparent
that the Legislature intended to make it very clear that mobile home tenancies are
different from the ordinary tenancy and that landlord-tenant relations involving mobile
homes are to be treated differently .…’ ” (Greening v. Johnson, supra, at p. 1226,
quoting Palmer v. Agee (1978) 87 Cal.App.3d 377, 384.) For instance, termination of a
mobilehome tenancy is “contingent on a 60-day notice.” (Palmer v. Agee, supra, at
p. 384.) Subdivision (b)(1) of Civil Code section 798.55 reads:
“The management may not terminate or refuse to renew a tenancy, except
for a reason specified in this article and upon the giving of written notice to
the homeowner, in the manner prescribed by Section 1162 of the Code of
Civil Procedure, to sell or remove, at the homeowner’s election, the
mobilehome from the park within a period of not less than 60 days, which
period shall be specified in the notice.” (Civ. Code, § 798.55, subd. (b)(1).)
A “park” refers to “a mobilehome park” (Civ. Code, § 798.6), i.e., “an area of land where
two or more mobilehome sites are rented, or held out for rent, to accommodate
mobilehomes used for human habitation” (Civ. Code, § 798.4).
Here, in the unlawful detainer action, the Reyeses alleged in their demurrer that
they were mobilehome park tenants entitled to a 60-day notice of termination pursuant to
Civil Code section 798.55. They were advised by the superior court that anything raised
in their demurrer would be considered as a defense at trial. During said trial, there was
no question that the Reyeses resided in a trailer, which could satisfy the definition of a
“mobilehome.” (See Civ. Code, § 798.3, subd. (b).) As for whether Kutnerian
Enterprises’ parcel constituted a “[m]obilehome park” “where two or more mobilehome
sites are rented” (Civ. Code, § 798.4), the evidence showed that Bernel—who leased the
lower portion of Kutnerian Enterprises’ parcel—lived in a “house” or “home.” The
Reyeses did not elicit more specific testimony nor did they furnish additional evidence on
the matter, but they still argued in summation that they were mobilehome park tenants.
13.
Ultimately, the court ruled that the 30-day notice given was sufficient. It did not make an
express finding on the mobilehome park issue, but this alone is not fatal. (See, e.g.,
Slesinger, supra, 155 Cal.App.4th at p. 768.) On appeal to the appellate division of the
superior court, the Reyeses restated that they were mobilehome park tenants entitled to a
60-day notice of termination pursuant to Civil Code section 798.55. The appellate
division unequivocally rejected this contention, pronouncing that the Reyeses “cited to no
evidence in the record of proceedings supporting their contention that the lot they rented
was in a mobilehome park entitling them to 60 days’ notice of termination of the
tenancy.”
Notwithstanding the aforementioned determination, in subsequent state and
federal court proceedings, the Reyeses—either proceeding in propria persona or
represented by Michel—routinely invoked Civil Code section 798.55. Citing the
preclusive effect of the final judgment in the unlawful detainer action, the courts
unvaryingly ruled against the Reyeses. (See Lucido v. Superior Court (1990) 51 Cal.3d
335, 341 [“Collateral estoppel precludes relitigation of issues argued and decided in prior
proceedings.”].) On one occasion (Case No. 18CECG00202), the state court granted
Kutnerian Enterprises’ vexatious litigant motion. In the instant case, the Reyeses—
represented by Michel—once again invoked Civil Code section 798.55. The superior
court dismissed the action, observing that the Reyeses “have been arguing and litigating
whether a 60-day notice was required to terminate their tenancy for over six years” “in …
efforts to overturn the unlawful detainer judgment or the judgments entered in the
subsequent litigation” and deeming their “steadfast refusal to accept the rulings of not
only the trial courts but [also] the appellate courts [as] constitut[ing] ‘deliberate and
egregious misconduct’ sufficient to support dismissal.” Where “[the] plaintiff[s] w[ere]
in fact seeking to relitigate the precise issue that was finally adjudicated against [them] in
[a] former action, the trial court properly exercised its power to stop vexatious litigation,
clearly without merit, and burdensome to the courts as well as to [the] defendants.”
14.
(Crowley v. Modern Faucet Manufacturing Co., supra, 44 Cal.2d at pp. 324–325.)
Hence, we conclude that the court’s dismissal did not fall outside the bounds of reason.
On appeal, the Reyeses correctly point out that “the court’s inherent power may
only be exercised to the extent not inconsistent with the federal or state Constitutions, or
California statutory law.” (See Slesinger, supra, 155 Cal.App.4th at p. 762.) They then
contend that section 430.807 “affords [them] a statutory right to not waive or forfeit the
subject matter jurisdiction argument even if not asserted in previous litigation.” In other
words, because the Reyeses purportedly “exercise[d] … a California statutory right to
assert a lack of subject matter jurisdiction” (boldface & some capitalization omitted), “the
trial court had the duty to rule on [their] jurisdictional challenge to the unlawful detainer
judgment” (boldface & capitalization omitted). The issue is whether the unlawful
detainer law’s notice requirement implicates subject matter jurisdiction. We do not
believe so.
“ ‘Jurisdiction’ refers to ‘a court’s adjudicatory authority.’ [Citation.]
Accordingly, the term ‘jurisdictional’ properly applies only to ‘prescriptions delineating
the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)’
implicating that authority. [Citations.]” (Reed Elsevier, Inc. v. Muchnick (2010) 559
U.S. 154, 160–161.) “Here we are concerned with jurisdiction in what we typically refer
to as its ‘fundamental sense’: specifically, the power of the court over the subject matter
of the case. [Citations.] A lack of fundamental jurisdiction is the ‘ “ ‘ “entire absence of
power to hear or determine the case.” ’ ” ’ [Citation.]” (Quigley v. Garden Valley Fire
Protection Dist. (2019) 7 Cal.5th 798, 807 (Quigley).) “[A]ny judgment or order
7 “If the party against whom a complaint or cross-complaint has been filed fails to
object to the pleading, either by demurrer or answer, that party is deemed to have waived
the objection unless it is an objection that the court has no jurisdiction of the subject of
the cause of action alleged in the pleading or an objection that the pleading does not state
facts sufficient to constitute a cause of action.” (§ 430.80, subd. (a).)
15.
rendered by a court lacking subject matter jurisdiction is ‘void on its face .…’
[Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196.)
“Because it concerns the basic power of a court to act, the parties to a case cannot confer
fundamental jurisdiction upon a court by waiver, estoppel, consent, or forfeiture.”
(Quigley, supra, at p. 807.)
We presume that “statutes do not limit the courts’ fundamental jurisdiction absent
a clear indication of legislative intent to do so. [Citation.] California’s superior courts
are courts of general jurisdiction, which means they are generally empowered to resolve
the legal disputes that are brought to them. [Citations.]” (Quigley, supra, 7 Cal.5th at
p. 808.) “The power of the courts to resolve cases is the essential underpinning of the
judiciary’s ability to ‘ “effectively … function as a separate department of government.” ’
[Citation.] ‘ “Consequently an intent to defeat the exercise of the court’s jurisdiction will
not be supplied by implication.” ’ [Citation.] If the Legislature means to withdraw a
class of cases from state court jurisdiction, we expect it will make that intention clear.
[Citation.]” (Ibid.)
Here, under the pertinent statutory provisions, a written notice of termination is a
prerequisite to filing an unlawful detainer action. (See § 1161, subd. 1; Civ. Code,
§§ 798.55, 1945, 1946.) Nevertheless, “[n]othing in the language of th[ese] provision[s]
suggests [an intent] to withdraw a class of cases from the courts’ power to adjudicate.
Unlike some other provisions that have been understood to have such an effect, [these
provisions] make[] no reference to the jurisdiction of the courts, nor [do they] otherwise
speak to the courts’ power to decide a particular category of cases.” (Quigley, supra, 7
Cal.5th at p. 808; see Landgraf v. USI Film Products (1994) 511 U.S. 244, 274
[jurisdictional statutes “ ‘speak to the power of the court rather than to the rights or
obligations of the parties’ ”]; cf. Pub. Util. Code, § 1759, subd. (a) [“No court of this
state, except the Supreme Court and the court of appeal, to the extent specified in this
article, shall have jurisdiction to review, reverse, correct, or annul any order or decision
16.
of the [Public Utilities Commission] .…”]; Bus. & Prof. Code, § 6100 [“For any of the
causes provided in this article, arising after an attorney’s admission to practice, he or she
may be disbarred or suspended by the Supreme Court.”].) The notice requirement is
more accurately identified as “an element of an unlawful detainer cause of action that
must be alleged and proven for the landlord to acquire possession.” (Borsuk v. Appellate
Division of Superior Court (2015) 242 Cal.App.4th 607, 612–613; see, e.g., Kruger v.
Reyes (2014) 232 Cal.App.4th Supp. 10, 16; CACI No. 4306.) “[T]he fact that … notice
must be ‘allege[d] … and, if controverted, prove[n] [at] trial’ does not transform the
requirement into a jurisdictional prerequisite.” (Borsuk v. Appellate Division of Superior
Court, supra, at p. 617; see Reed Elsevier, Inc. v. Muchnick, supra, 559 U.S. at p. 161
[“Courts … have sometimes mischaracterized claim-processing rules or elements of a
cause of action as jurisdictional limitations .…”]; cf. Arbaugh v. Y & H Corp. (2006) 546
U.S. 500, 511 [“ ‘Subject matter jurisdiction in federal-question cases is sometimes
erroneously conflated with a plaintiff’s need and ability to prove the defendant bound by
the federal law asserted as the predicate for relief—a merits-related determination.’ ”].)
Furthermore, were we to indulge the Reyeses and broaden the scope of subject
matter jurisdiction to encompass elements of causes of action, we would significantly
undermine res judicata and eliminate the certainty and finality that the doctrine is
designed to protect. (See Vella v. Hudgins (1977) 20 Cal.3d 251, 257 [“The doctrine of
res judicata, whether applied as a total bar to further litigation or as collateral estoppel,
‘rests upon the sound policy of limiting litigation by preventing a party who has had one
fair adversary hearing on an issue from again drawing it into controversy and subjecting
the other party to further expense in its reexamination.’ ”].) We would also make subject
matter jurisdiction contingent upon the actions of a party, contradicting the established
17.
principle that parties cannot confer fundamental jurisdiction. (See Quigley, supra, 7
Cal.5th at p. 807.)8
II. Attorney’s Fees Under Section 128.5
“A trial court may order a party, the party’s attorney, or both, to pay the
reasonable expenses, including attorney’s fees, incurred by another party as a result of
actions or tactics, made in bad faith, that are frivolous or solely intended to cause
unnecessary delay.” (§ 128.5, subd. (a).) “Expenses pursuant to this section shall not be
imposed except on notice contained in a party’s moving or responding papers or, on the
court’s own motion, after notice and opportunity to be heard.” (Id., subd. (c).) An action
or tactic is frivolous if it is “totally and completely without merit or for the sole purpose
of harassing an opposing party.” (Id., subd. (b)(2); accord, In re Marriage of
Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 135 (Taeb); Levy v. Blum (2001)
92 Cal.App.4th 625, 635 (Levy).) “Whether an action is frivolous is governed by an
objective standard: any reasonable attorney would agree it is totally and completely
without merit.” (Levy, supra, at p. 635; accord, Taeb, supra, at p. 135.) “There must also
be a showing of an improper purpose, i.e., subjective bad faith on the part of the attorney
or party to be sanctioned.” (Levy, supra, at p. 635; see id. at p. 633 [actions taken in
subjective bad faith lack “ ‘honest belief in the propriety or reasonableness of such
actions’ ”]; see also Taeb, supra, at pp. 128, 134–135 [2017 amendments to § 128.5
confirmed subjective standard of bad faith].) “When a tactic or action utterly lacks merit,
a court is entitled to infer the party knew it lacked merit yet pursued the action for some
ulterior motive.” (Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1505; see
Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 574 [“An evil
8 Since we reject the notion that the unlawful detainer law’s notice requirement
implicates subject matter jurisdiction, we necessarily reject any claims premised upon
that notion.
18.
motive is not required; subjective bad faith may be inferred from the prosecution of a
frivolous action.”].)
“An order awarding attorneys’ fees pursuant to section 128.5 … is reviewed under
the abuse of discretion test.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193
Cal.App.4th 435, 450.) “A ruling amounts to an abuse of discretion when it exceeds the
bounds of reason .…” (Ibid.) “In reviewing the facts which led the trial court to impose
sanctions, we must accept the version thereof which supports the trial court’s
determination, and must indulge in the inferences which favor its findings.” (West Coast
Development v. Reed (1992) 2 Cal.App.4th 693, 698.) “We do not independently
determine whether appellant’s conduct was frivolous or in bad faith, and we may not
substitute our judgment for the judgment of the court below.” (Sabek, Inc. v. Engelhard
Corp. (1998) 65 Cal.App.4th 992, 1001.)
As outlined above, the Reyeses first claimed in the 2015 unlawful detainer action
that they were mobilehome park tenants entitled to a 60-day notice of termination
pursuant to Civil Code section 798.55. Although the superior court did not directly
address this contention, the appellate division explicitly found that the Reyeses failed to
cite supporting evidence. Yet, in numerous court proceedings thereafter, the Reyeses—
either proceeding in propria persona or represented by Michel—continued to make the
same argument. (See Harris v. Rudin, Richman & Appel (2002) 95 Cal.App.4th 1332,
1342–1344 [party repeatedly raised previously rejected claim].) One could reasonably
conclude that this appeal filed in 2021 lacked merit (see Taeb, supra, 39 Cal.App.5th at
p. 135; Levy, supra, 92 Cal.App.4th at p. 635) and infer that the Reyeses and Michel
acted in subjective bad faith (Campbell v. Cal-Gard Surety Services, Inc., supra, 62
Cal.App.4th at p. 574; Dolan v. Buena Engineers, Inc., supra, 24 Cal.App.4th at p. 1505).
Hence, we conclude that the court’s award of attorney’s fees did not fall outside the
bounds of reason.
19.
On appeal, the Reyeses contend: (1) “a monetary sanction imposed after a court
motion is limited to a penalty payable to the court and may not include or consist of
monetary sanctions payable to a party”; and (2) the OSC “did not notify [them] that they
would be subject to sanctions, unless within 21 days of service of the [OSC], the
complaint was withdrawn.” For both contentions, they rely on section 128.5, subdivision
(f). This provision, however, is inapplicable. “Section 128.5 discusses attorney’s fees in
two separate areas of the statute. The first mention of attorney’s fees under section 128.5
appears in subdivisions (a), and (c), which discuss ‘expenses.’ ” (Changsha Metro Group
Co., Ltd. v. Xufeng (2020) 57 Cal.App.5th 1, 8.) “The second mention of attorney’s fees
in section 128.5 appears in subdivision (f), which discusses ‘sanctions.’ ” (Ibid.) The
record here shows that the court—while using the term “sanctions” rather than
“expenses”—employed the procedure set forth in section 128.5, subdivision (a). (See
Kinney v. Superior Court (2022) 77 Cal.App.5th 168, 177 [appellate court indulges all
intendments and presumptions in favor of the correctness of a lower court’s judgment or
order].)
III. Section 907 Sanctions
“When it appears to the reviewing court that the appeal was frivolous or taken
solely for delay, it may add to the costs on appeal such damages as may be just.” (§ 907;
see Cal. Rules of Court, rule 8.276(a)(1).) In a “MOTION FOR SANCTIONS” filed
July 19, 2022, Kutnerian Enterprises asked us for “an order awarding them monetary
sanctions in the amount of $23,280.00, or such other amount deemed appropriate by the
Court.” We deferred our ruling pending consideration of the appeal on its merits.
Having now done so, we deny the motion. (See Citizens for Amending Proposition L v.
City of Pomona (2018) 28 Cal.App.5th 1159, 1194 [“Whether to impose appellate
sanctions is a matter within our discretion.”].)
20.
DISPOSITION
The order is affirmed. The motion for sanctions is denied. Costs on appeal are
awarded to defendant Kutnerian Enterprises.
LEVY, Acting P. J.
WE CONCUR:
DETJEN, J.
SMITH, J.
21.