Sorensen v. Lam CA4/3 ( 2020 )

Filed 12/4/20 Sorensen v. Lam CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
KERRY L. SORENSEN,
Plaintiff and Appellant, G058065
v. (Super. Ct. No. 30-2016-00842327)
KENNETH LAM et al., OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Layne H.
Melzer, Judge. Affirmed.
Law Office of Kerry L. Sorensen and Kerry L. Sorensen for Plaintiff and
Appellant.
Hartsuyker, Stratman & Williams-Abrego, Brian Rizzi; Veatch Carlson and
Serena L. Nervez for Defendants and Respondents.
* * *
This appeal is the latest development in a multi-year dispute between a
residential tenant and his landlords concerning the landlords’ failure to repair the
premises and the tenant’s withholding of rent. In his first lawsuit against his landlords,
the tenant asserted causes of action for breach of the warranty of habitability, fraud, and
other claims. Meanwhile, the landlords initiated unlawful detainer proceedings against
the tenant and his wife.
While the tenant’s first lawsuit was pending, the trial court ruled in the
unlawful detainer action that although the landlords had breached the warranty of
habitability, the landlords nevertheless were entitled to reduced rent and possession of the
premises. The landlords then caused the tenant and his wife to be served with a notice to
vacate.
At about the same time, the tenant’s wife became gravely ill with cancer.
He therefore stipulated to dismiss his pending lawsuit against the landlord with prejudice
in exchange for an extended move-out date. Soon after that, the tenant’s wife passed
away, and he vacated the premises. A few months later, he filed a motion to set aside the
dismissal of his first lawsuit against the landlords, but that motion was denied.
Three years later, the tenant sued the landlords again, asserting claims for
breach of the warranty of habitability and quiet enjoyment, breach of contract based on
their failure to make repairs, rescission of the stipulation to dismiss his first lawsuit,
fraud, and other claims. The trial court in that action ruled in favor of the landlords and
against the tenant on all claims—first in a summary adjudication ruling, then in a motion
for judgment, and finally, at the conclusion of trial in its statement of decision. For the
reasons below, we affirm.
2
FACTS
Kerry Sorensen and his wife leased a house in Mission Viejo from Pui Lan
1
Luk Lam (Pui ) in 2007. The lease was periodically renewed; it eventually converted to a
month-to-month rental agreement.
Sorensen’s relationship with his landlord gradually deteriorated due to the
also deteriorating condition of the house, and in June 2012, he advised his landlord he
would be withholding rent until certain repairs were made.
The repairs evidently were not made, so Sorensen filed a complaint (the
First Lawsuit) against Pui and her sons, Kenneth and Raymond Lam, who reportedly
helped manage the property. The complaint also named as a defendant Pui’s limited
liability company, Wynket Regional, LLC (Wynket), to which Pui had allegedly
transferred her interest in the property back in 2009. The complaint asserted claims for
fraud and deceit based on their failure to make repairs, intentional infliction of emotional
distress, nuisance, and declaratory relief concerning the property’s reasonable rental
value.
The Sorensens were soon served with a three-day notice to pay rent or quit,
as well as a 60-day notice to quit based on termination of the rental agreement. Pui and
Kenneth then initiated an unlawful detainer action (the UDA) against the Sorensens, who
asserted breach of the warranty of habitability as an affirmative defense. Wynket was
later substituted in as the plaintiff in the UDA, and Pui and Kenneth were removed as
plaintiffs.
While the UDA was pending, Sorensen amended his complaint in the First
Lawsuit to assert additional claims against Wynket, Pui, Kenneth, and Raymond for
breach of the warranty of habitability, retaliatory eviction, and statutory penalties.
1
Because several defendants share the same last name of Lam, we refer to
them by their first names to avoid confusion. We mean no disrespect.
3
In December 2012, on the eve of trial in the UDA, Sorensen’s wife was
diagnosed with inoperable lung cancer and was hospitalized on an emergency basis.
Trial in the UDA went forward nevertheless.
The trial court in the UDA found the Sorensens had “put significant labor
into improving the premises with [Wynket] paying only for materials,” and Wynket had
done “a poor job of maintaining the home, which would be in even worse shape than it is
but for [the Sorensens’] efforts.” Citing evidence of water intrusion, lack of heat and air
conditioning, and sewer backups, the court found the Sorensens had successfully raised
the warranty of habitability as an affirmative defense, and noted some of that damage still
needed to be repaired. However, the court rejected the Sorensens’ argument that the fair
rental value of the home was zero, found the habitability issues justified only a reduction
in rent, not a total failure to pay any rent, and concluded the property’s reasonable
monthly rental value from June 2012 onward was $2,000. The court also found
Wynket’s 60-day notice to terminate was valid and not retaliatory, noting the Sorensens
had failed to pay any rent.
Accordingly, the trial court in the UDA found Wynket was entitled to
$9,399 ($4,000 for past due rent, plus daily damages of $66.66 per day), forfeiture of the
rental agreement, possession of the premises, and a writ of possession to issue. It further
ordered monthly rent would be limited to $2,000 per month until the defects were
repaired. It then entered a judgment for Wynket and against the Sorensens. The
judgment noted Wynket had “breached the agreement to provide habitable premises to”
the Sorensens, but Wynket was “entitled to possession of the premises,” plus $9,399.
Later that month, Wynket obtained a writ of possession and had the sheriff
serve Sorensen and his wife with a notice to vacate. Sorensen and Wynket’s attorney
agreed the Sorensens’ “lock-out” date would be February 18, 2013.
Unfortunately, Sorensen’s wife’s medical condition worsened, so on
February 18, Sorensen and Wynket agreed to extend the Sorensens’ move-out date to
4
April 2 on the condition that (1) the Sorensens would pay monthly rent through April 2
up front, plus an additional $1,500, (2) Sorensen would dismiss his complaint in the First
Lawsuit with prejudice, and (3) the Sorensens would not file any more lawsuits against
Wynket, Pui, or other members of the Lam family (the February 2013 Stipulation). In
accordance with the stipulation, Sorensen filed a request for dismissal of the First
Lawsuit the following week.
Sorensen’s wife passed away in March, and he vacated the property on
April 2. According to Sorensen, he was unable to move out all his personal property due
to time and financial constraints. That personal property was never returned to him.
Two months later, Sorensen filed a motion to set aside the dismissal of the
First Lawsuit on the basis of extrinsic fraud, duress, and mistake. He asserted that
Wynket, Pui, Kenneth, and Raymond had “violated an agreement that they would act
reasonably in requiring Plaintiff and his wife to move out, violated an agreement not to
seek a writ of possession without first notifying Plaintiff, and . . . forced Plaintiff to agree
to dismiss this action in exchange for an agreement not to have the Sheriff forcibly
remove Plaintiff’s wife from her death bed.”
The trial court denied the motion, finding no evidence Sorensen had entered
into the February 2013 Stipulation based on coercive conduct by Wynket or the Lams,
and finding no grounds to vacate the dismissal. The court noted Sorensen could have
sought judicial intervention rather than dismissing the lawsuit, but he provided no
explanation for why he did not do so. Sorensen did not appeal that ruling.
Three years later, Sorensen allegedly discovered that in 2011, Wynket had
executed a deed (which was not recorded until 2016) transferring its interest in the
premises to Raymond, who then transferred the premises by deed in 2016 to the Peridot
Trust. According to Sorensen, this meant Wynket had not been a proper plaintiff in the
UDA.
5
Sorensen filed a new lawsuit (the Second Lawsuit) against Pui (who had
died in 2013), Pui’s Estate, Kenneth, Raymond, Wynket, and Shelly Lam, individually
and as trustee of the Peridot Trust. In his operative fourth amended complaint, he
asserted claims against Pui, her Estate, Kenneth, Raymond, and Wynket for breach of the
warranty of habitability and quiet enjoyment, rescission of the February 2013 Stipulation,
conversion of personal property, breach of contract (failure to make repairs), failure to
return his security deposit, and fraud and deceit (based on alleged misrepresentations
during the UDA about who owned the property). He asserted claims against Raymond
and Shelly to set aside the fraudulent conveyance of the premises and for conspiracy.
Midway through the litigation of the Second Lawsuit, Sorensen dismissed
Pui (who had died in 2013) and Wynket (which had been dissolved). Additionally, the
clerk entered defaults against Raymond and Pui’s Estate. The remaining two defendants,
Kenneth and Shelly, both answered the complaint.
Kenneth and Shelly filed a motion for summary judgment, or in the
alternative, summary adjudication. Although the trial court denied summary judgment, it
granted summary adjudication in part, finding in Kenneth’s favor on Sorensen’s claims
for breach of warranty, rescission of the February 2013 Stipulation, breach of contract,
and conversion. The court reasoned the first three claims were “simply an effort by
[Sorensen] to relitigate the First Lawsuit and the [UDA] and to undo the January 3, 2013
judgment [in the UDA], the February 18, 2013 stipulation, and the February 21, 2013
dismissal of the First Lawsuit. Each of these causes of action was litigated in the First
Lawsuit and/or the [UDA] or could have been litigated in either or both of those
lawsuits.” The court found the conversion claim failed for lack of evidence because
Sorensen did not tell defendants he wanted his personal property back, and because
defendants never refused to return the property to him.
On the eve of trial, Pui’s Estate and Raymond moved to set aside the
defaults entered against them and for permission to file answers, seeking relief based on
6
attorney mistake, inadvertence, surprise or neglect. The trial court advanced the hearing
date on the motion to the next day, denied Sorensen’s oral request to continue trial, and
granted the motion to set aside the defaults.
The case moved forward as a bench trial. After Sorensen rested, defendants
moved for judgment under Code of Civil Procedure section 631.8. The trial court granted
the motion in part, finding in their favor on the fraud claim; in favor of Pui’s Estate and
Raymond on the claims for breach of warranty, rescission, and breach of contract; finding
in Raymond’s favor on the claims for conversion and return of the security deposit; and
finding in favor of Raymond and Shelly on the claims for fraudulent conveyance and
conspiracy. Thus, by the time of closing arguments, the only remaining causes of action
were against Pui’s Estate for conversion, and against Pui’s Estate and Kenneth for return
of the security deposit.
Following trial, the trial court issued a detailed statement of decision
finding for defendants on all causes of action. It then entered judgment for defendants.
Sorensen filed a notice of appeal.
DISCUSSION
1. Sorensen’s Request to Continue Trial
Sorensen first challenges the trial court’s refusal to continue the trial date
when it set aside the defaults against Pui’s Estate and Raymond. As noted above, on the
eve of trial in the Second Lawsuit, Pui’s Estate and Raymond filed a motion to set aside
the defaults entered against them and allow the filing of answers. The next court day, the
parties answered ready for trial, and counsel informed the court of the pending motion to
set aside the defaults. Sorensen orally asked the court to postpone trial until the motion
was heard, but the court denied his request, noting “this is an older case and needs to be
brought to conclusion.” The court then advanced the hearing on the motion to set aside
the defaults to the following day, and it gave Sorensen until the hearing to file an
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opposition. Sorensen’s opposition addressed why he believed relief from default was
inappropriate, but it did not argue for a continuance of the trial date. After considering
the parties’ briefs and hearing oral argument, the court granted the motion to set aside the
defaults, and the case proceeded to trial.
Sorensen concedes “the granting of the motion [to set aside the defaults]
was within the sound discretion of the Court,” but he insists “the refusal to grant a [trial]
continuance was an abuse of discretion because it resulted in a denial of procedural due
process to Plaintiff and extremely prejudiced his case.” According to Sorensen, because
of the trial court’s “unconditional” granting of the motion to set aside defaults (i.e.,
because the court did not continue the trial date), he was denied proper notice of the trial
as to Pui’s Estate and Raymond, he was unable to conduct discovery as to either
defendant, he was unable to compel either defendant to appear or produce documents at
2
trial, and some of his claims suffered as a result for lack of evidence.
We review the trial court’s decision to grant or deny a continuance for
abuse of discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) “The burden
rests on the complaining party to demonstrate from the record that such an abuse has
occurred.” (Id. at p. 985.) “[A]ny error in failing to grant a request for a continuance—
whether mandatory or discretionary—is reversible only if it is tantamount to the denial of
a fair hearing. [Citations.] There is no presumption of prejudice. [Citations.] Instead,
the burden to demonstrate prejudice is on the appellant.” (Freeman, supra,
2
Defendants contend we should not reach these arguments because
Sorensen’s notice of appeal did not mention the order granting the motion to set aside
default or its refusal to continue the trial date. But an order “granting of [a] defendant’s
motion to set aside [a] default can be presented on appeal from the judgment.”
(Veliscescu v. Pauna (1991) 231 Cal.App.3d 1521, 1523, fn.1 [citing Code Civ. Proc.,
§ 904.1, subd. (a)].) And a trial court’s “failure to grant [a] requested continuance is
reviewable on appeal from the judgment.” (Freeman v. Sullivant (2011) 192 Cal.App.4th
523, 527 (Freeman).) Sorensen’s appeal from the “[j]udgment after court trial” therefore
sufficiently encompassed these interlocutory orders.
8
192 Cal.App.4th at pp. 527-528.) “The party seeking to challenge an order on appeal has
the burden to provide an adequate record to assess error. [Citation.] Where the party
fails to furnish an adequate record of the challenged proceedings, his claim on appeal
must be resolved against him.” (Rancho Santa Fe Assn. v. Dolan-King (2004)
115Cal.App.4th 28, 46.)
Applying those standards here, we find no abuse of discretion in the trial
court’s refusal to continue trial. To start, Sorensen’s request was procedurally defective.
“A party seeking a continuance of the date set for trial, whether contested or uncontested
or stipulated to by the parties, must make the request for a continuance by a noticed
motion or an ex parte application under the rules in chapter 4 of this division, with
supporting declarations.” (Cal. Rules of Court, rule 3.1332(b).) Sorensen did neither.
Further, a trial court may not grant a continuance absent “an affirmative
showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332(c).)
Here, it is unclear from the record what grounds, if any, Sorensen cited to support his oral
continuance request. Our record does not include a reporter’s transcript from the hearing
during which he orally requested a continuance. Although Sorensen now complains the
lack of continuance prevented him from conducting discovery as to the Estate and
Raymond and from compelling them to appear and produce documents at trial, there is
nothing in the appellate record to confirm he ever raised these concerns with the court.
We have only the court’s minute order, which states, “All counsel answer ready for trial.
[¶] . . . [¶] . . . Counsel inform the Court there is currently a motion to set aside default
scheduled. [¶] Plaintiff requests postponement of trial until motion is heard. Request is
denied as this is an older case and needs to be brought to conclusion.” On this sparse
record, we cannot say the court abused its discretion in denying his request to continue
trial.
9
2. The Trial Court’s Res Judicata Rulings
Sorensen next attacks the trial court’s rulings that the doctrine of res
judicata bars his claims for breach of warranty, breach of contract, and rescission of the
February 2013 Stipulation. As noted above, the court granted summary adjudication for
Kenneth on those claims, finding Sorensen was attempting “to relitigate the First Lawsuit
and the [UDA].” And midway through trial, the court granted the Estate’s and
Raymond’s motion for judgment on those claims, citing the doctrines of res judicata and
collateral estoppel.
3
We review the trial court’s order grant of summary adjudication de novo.
(Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493, 497.) Although we
normally review a ruling on a motion for judgment for substantial evidence (Higgins v.
Higgins (2017) 11 Cal.App.5th 648, 658), the trial court’s ruling here was based on the
application of res judicata, a question of law that we review de novo. (Johnson v.
GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507.)
A. Res Judicata Principles
“The claim preclusion doctrine, formerly called res judicata, ‘prohibits a
second suit between the same parties on the same cause of action.’ [Citation.] ‘Claim
preclusion arises if a second suit involves (1) the same cause of action (2) between the
same parties (3) after a final judgment on the merits in the first suit.’ [Citation.]
‘Retraxit’ describes the particular application of claim preclusion to a claim that has been
dismissed with prejudice. [Citation.] A dismissal with prejudice is considered a
judgment on the merits preventing subsequent litigation between the parties on the
3
Defendants assert we may not review the summary adjudication ruling
because it is not mentioned in Sorensen’s notice of appeal. But an order granting
summary adjudication is reviewable on appeal from the final judgment in the action.
(Wilson v. County of San Joaquin (2019) 38 Cal.App.5th 1, 7.)
10
dismissed claim.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91
(Kim).)
The related doctrine of collateral estoppel, also known as issue preclusion,
“prohibits the relitigation of issues argued and decided in a previous case, even if the
second suit raises different causes of action. [Citation.] Under issue preclusion, the prior
judgment conclusively resolves an issue actually litigated and determined in the first
action.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN).) The
doctrine “applies[:] (1) after final adjudication (2) of an identical issue (3) actually
litigated and necessarily decided in the first suit and (4) asserted against one who was a
4
party in the first suit or one in privity with that party.” (Id. at p. 825.)
B. The Breach of Warranty and Breach of Contract Claims
Applying those principles here, we conclude the trial court correctly found
for defendants on Sorensen’s causes of action for breach of warranty and breach of
contract.
To start, the doctrine of issue preclusion bars Sorensen’s claims for breach
of the warranty of habitability and for breach of contract (failure to make repairs) because
the issues of whether Wynket breached the warranty of habitability and failed to make
4
For purposes of collateral estoppel, privity “‘“refers ‘to a mutual or
successive relationship to the same rights of property, or to such an identification in
interest of one person with another as to represent the same legal rights . . . and, more
recently, to a relationship between the party to be estopped and the unsuccessful party in
the prior litigation which is “sufficiently close” so as to justify application of the doctrine
of collateral estoppel.’”’” (Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499,
1511.) “‘Under the requirement of privity, only parties to the former judgment or their
privies may take advantage of or be bound by it. [Citation.] A party in this connection is
one who is ‘directly interested in the subject matter, and had a right to make a defense, or
to control the proceeding, and to appeal from the judgment.’ [Citations.] A privy is one
who, after rendition of the judgment, has acquired an interest in the subject matter
affected by the judgment through or under one of the parties, as by inheritance,
succession, or purchase.’” (Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29,
37-38.)
11
repairs were litigated and determined at trial in the UDA. Sorensen therefore cannot
relitigate those same issues against Wynket’s privies (i.e., Pui’s Estate, Kenneth, and
Raymond) in the Second Lawsuit. (See DKN, supra, 61 Cal.4th at pp. 824-825.)
The doctrine of claim preclusion also bars Sorensen’s claim for breach of
the warranty of habitability. Sorensen previously asserted that a cause of action for
breach of the warranty of habitability against Pui, Kenneth, and Raymond in the First
Lawsuit, and then dismissed that lawsuit with prejudice. Under the doctrine of retraxit,
that dismissal with prejudice constitutes a judgment on the merits against Sorensen,
preventing him from later relitigating that dismissed claim in the Second Lawsuit. (See
Kim, supra, 9 Cal.5th at p. 91.)
Sorensen contends his claim for breach of the warranty of habitability is not
5
barred because he prevailed on that issue in the UDA. That argument misses the point.
The doctrine of issue preclusion looks not at whether a party won on a given issue, but
whether that issue was actually litigated and decided. The doctrine bars Sorensen from
relitigating that same issue in the Second Lawsuit in an attempt to get a second bite at the
apple. (See Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty &
Surety Co. of America (2005) 133 Cal.App.4th 1319, 1327 [collateral estoppel prevents a
party who has had one fair adversary hearing on an issue from again drawing it into
controversy and subjecting other party to further expense in its reexamination].)
Sorensen also asserts his breach of warranty cause of action is not barred
because, unlike in the First Lawsuit, his breach of warranty cause of action in the Second
Lawsuit included a claim for breach of warranty of quiet enjoyment. According to
Sorensen, that component of his breach of warranty claim in the Second Lawsuit is based
5
As noted above, the judgment in the UDA specified Wynket had “breached
the agreement to provide habitable premises to” Sorensen, but nevertheless stated
Wynket was “entitled to possession of the premises,” plus $9,399.
12
on facts discovered after his dismissal of the First Lawsuit, when he learned Wynket
allegedly did not own the premises in 2012 and thus was not a proper plaintiff in the
UDA.
The trial court correctly rejected this argument. As the court explained in
its statement of decision, Sorensen’s breach of warranty cause of action “speaks in terms
of his quiet enjoyment being disturbed by a breach of the covenant of habitability, which
is how the court understood that claim based on the pleadings. This primary right was
fully adjudicated in the habitability lawsuit—Lawsuit #1. At trial . . . Plaintiff asserted
the ‘true owners’ of the Premises (not Wynket because according to Plaintiff it was not
the actual owner during the [UDA]) sat idly by while ‘an imposter,’ (aka Wynket) evicted
Plaintiff and hence disturbed Plaintiff’s quiet enjoyment by bringing the [UDA]. Plaintiff
never attempted to amend his pleading to set forth this theory and hence it was not
properly before the Court. Nonetheless, even if this Court were to consider this new
6
theory it remains that Plaintiff’s right to possession was fully adjudicated in the [UDA].”
We agree with this analysis. For these reasons, we conclude the trial court correctly
found for defendants on Sorensen’s claims for breach of warranty and breach of contract.
C. The Rescission Claims
Whether res judicata bars Sorensen’s claims for rescission of the February
2013 Stipulation requires a bit more scrutiny. As noted above, in the February 2013
Stipulation, Sorensen and Wynket agreed to extend the Sorensens’ move-out date to
April 2 on the condition that (1) the Sorensens would pay monthly rent through April 2
up front, plus an additional $1,500; (2) Sorensen would dismiss his complaint in the First
Lawsuit with prejudice; and (3) the Sorensens would not file any more lawsuits against
6
In any event, the trial court in the Second Lawsuit rejected Sorensen’s
assertion that Wynket did not actually own the premises in 2012, so even if Sorensen’s
breach of quiet enjoyment theory is not barred by claim or issue preclusion, it would still
fail for lack of evidence.
13
Wynket, Pui, or other members of the Lam Family. In the Second Lawsuit, Sorensen
asserted two causes of action to rescind the February 2013 Stipulation: one cause of
action alleged the stipulation was obtained by duress and undue influence given his
wife’s medical condition, and the other alleged the stipulation was illegal because it
contradicted the judgment in the UDA, which stated rent shall be only $2,000 per month
until repairs are completed.
The rescission claim based on duress is barred by issue preclusion. The
issue of whether Sorensen’s dismissal of the First Lawsuit was procured by duress was
litigated and decided in the First Lawsuit when the trial court in that case denied his
motion to set aside the dismissal. As noted, the court found no evidence Sorensen had
entered into the February 2013 Stipulation based on coercive conduct by Wynket or the
Lams. That settled that issue. Sorensen cannot relitigate the same issue in the Second
Lawsuit. (See Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 84 [an “order denying
plaintiff’s motion to set aside [a] dismissal [with prejudice] is a bar to future attacks on
7
the dismissal under the doctrine of res judicata”].)
But Sorensen’s rescission claim based on illegality, which alleged the
February 2013 Stipulation was void because it contradicted the rent amount specified in
the judgment in the UDA, is not barred by issue preclusion; that illegality theory was not
raised or litigated in Sorensen’s motion to set aside default. Even so, we conclude the
trial court properly entered judgment for defendants on this cause of action.
7
In an effort to downplay the impact of the denial of his motion to set as the
dismissal in the First Lawsuit, Sorensen argues his rescission causes of action do not seek
to set aside the dismissal, but rather to rescind the February 2013 Stipulation. This is a
meaningless distinction, considering the February 2013 Stipulation is what prompted
Sorensen to dismiss the First Lawsuit. Indeed, Sorensen’s rescission cause of action
sought to rescind the stipulation so he could “pursue the damages set forth in his
Complaint for Damages previously dismissed pursuant to the” Stipulation (i.e., his
complaint in the First Lawsuit).
14
Notwithstanding the judgment in the UDA, Sorensen was free to negotiate a different
rental amount in consideration for being allowed to stay in the premises longer. The
provision in the February 2013 Stipulation changing the rent amount thus was not
“illegal.”
3. Conversion
Sorensen next contends the trial court erred in finding for Pui’s Estate at
trial on Sorensen’s conversion cause of action. He asserts the court committed
prejudicial error by applying California case law on conversion rather than Civil Code
sections 1980 through 1991, which set forth optional procedures for disposing of a former
tenant’s personal property.
In its statement of decision, the trial court cited the common law definition
of conversion, noting there “‘can be no conversion where an owner expressly or
impliedly assents to or ratified the taking, use or disposition of his property.’” The court
explained its analysis: “Defendant Kenneth Lam testified that he corresponded with
Plaintiff on 4/3/13 regarding the items of personal property that Plaintiff left at the
residence when he vacated. Plaintiff was told these items needed to be claimed or were
subject to disposal by way of a ‘notice of right to reclaim abandoned property.’ Exh 201.
This notice was mailed to Plaintiff’s last known address. Plaintiff failed to respond.
Third party witness Michael O’Young, who was the landlord’s attorney at the time,
testified that he likewise spoke to Plaintiff on or about 4/3/13 regarding his remaining
personal property. Plaintiff replied in effect that he did not care what was done with
these items and that they could be discarded. Plaintiff did not in any meaningful way
dispute this conversation nor its import. Mr. O’Young confirmed his communication in
writing and mailed it to Plaintiff’s business address, Exh 202.”
The statement of decision then reached its conclusion: “Defendant’s notice
[that personal property remained on the premises] (Exh 201) substantially complied with
Civil Code § 1983 and it advised that based on the limited value of the remaining
15
property, Plaintiff’s personal property would be disposed of (rather than auctioned and
sold). Pursuant to Civil Code § 1989 a landlord who provides such notice is permitted to
dispose of such unclaimed property without monetary liability. See also CCP §1174(1).
Moreover, Plaintiff was told he had the right to reclaim his personal property upon
payment of the reasonable costs of storage within the statutorily permitted timeframe.
CCP § 1170(h). Plaintiff failed to demonstrate that he could have (or even attempted to)
reclaim[ed] his property in compliance with the law. He simply abandoned it and in
effect consented to its disposition. [¶] Indeed, Plaintiff specifically told the landlord the
property could be discarded, and the landlord did as instructed. Notwithstanding
compliance with Civil Code §1981 (which is ostensibly ‘optional’), the Court finds that
Plaintiff consented to and/or waived any right to a return of or payment for the
abandoned items of personal property based on his words and conduct in this context.”
(Boldface omitted.)
Sorensen asserts the trial court committed prejudicial error by relieving
defendants of liability based on his alleged consent, and that a tenant cannot consent to
his landlord’s failure to meet the statutory “requirements” of Civil Code sections 1980
through 1991. We disagree. Those provisions merely provide an optional procedure for
the disposition of personal property left behind on the premises after a tenancy has
terminated and the premises have been vacated by the tenant. (Civ. Code, § 1981,
subd. (a); see id., subd. (e) [“If the requirements of this chapter are not satisfied, nothing
in this chapter affects the rights and liabilities of the landlord, former tenant, or any other
person”].) It would make no sense to force a landlord to comply with the various
“optional” procedures outlined in the Civil Code (i.e., notice, waiting period, sale at
public option, etc.), if the tenant has already consented unequivocally to the disposal of
the property.
The remainder of Sorensen’s arguments about his conversion cause of
action are based on photographs introduced at trial, which are not part of our record, and
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his unsupported statements concerning what evidence was presented at trial, which
evidence is also not part of the appellate record. We therefore treat those arguments as
forfeited. (Cal. Rules of Court, rule 8.204(a)(2)(C); Citizens Opposing a Dangerous
Environment v. County of Kern (2014) 228 Cal.App.4th 360, 366, fn. 8.)
4. The Fraud Causes of Action
Sorensen next asserts the trial court erred in ruling against him on his fraud
cause of action. His argument relies largely on the following passage from the court’s
statement of decision: “Plaintiff’s theory is that because Wynket allegedly transferred
title to the Premises prior to final judgment in the [UDA] and Defendants (Pui Lam,
Kenneth Lam and Raymond Lam) failed to disclose this transfer, these Defendants
committed a fraud on the Court and Plaintiff. The predicate for this ‘concealment’ claim
is the assumption that just prior to the inception of the [UDA] (but not discovered until
2016 when deeds were recorded) Wynket transferred title of the Premises to Pui Lam
who in turn transferred to Raymond Lam. There was in fact evidence that these deeds
were signed in July 2011, demonstrating an intent at some point to transfer from Wynket
to Pui Lam, and then an intent at some point to transfer from Pui Lam to Raymond Lam.
But there was no evidence of delivery.”
According to Sorensen, this passage shows the trial court “erroneously
believed it was Plaintiff’s burden to produce evidence of delivery to PUI,” when in fact,
“the grantee’s possession of the deed raises a rebuttable inference of delivery.” Not so.
As the plaintiff asserting a fraud claim, Sorensen had the burden to show Wynket had no
ownership interest in the premises when it pursued the UDA, and Pui, Kenneth, and
Raymond concealed that fact. (CACI No. 1900.)
True, “possession of a deed by the grantee named therein is prima facie
evidence of its delivery and hence gives rise to an inference the instrument was duly
delivered.” (20th Century Plumbing Co. v. Sfregola (1981) 126 Cal.App.3d 851, 853.)
But here, any inference of delivery was rebutted. As the trial court noted in its statement
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of decision, the law “requires an act of delivery with the intent to transfer title at that
point in time. The only evidence as to when there was an intent to effect transfer of title
comes later—after the [UDA] was over—when Pui Lam indicated a desire to transfer the
property to Raymond Lam as a birthday gift just before her death in or around 5/2013.”
The court evidently found any inference of delivery to have been rebutted. We have no
basis to reweigh the evidence on appeal (nor could we, considering the record does not
include a reporter’s transcript).
The trial court also concluded Sorensen did not meet his burden of showing
fraudulent intent. Sorensen does not address this defect in his fraud claim, so even if the
court somehow erred in articulating the parties’ respective burdens, judgment for
defendants on the fraud claim was proper.
Sorensen also asserts the trial court committed prejudicial error in ruling
against him on the fraudulent conveyance cause of action. The court found he “failed to
carry his burden of proof as to an intent to defraud on behalf of Raymond.” According to
Sorensen, “the lack of evidence presented by Plaintiff was a direct result of the Court’s
denial of a continuance” after setting aside Pui’s and Raymond’s defaults. But as we
explained above, the court did not abuse its discretion in declining Sorensen’s
continuance request. We therefore need not consider this argument further.
5. The Costs Award
The introduction of Sorensen’s opening brief asserts that he also appeals
the costs award. He failed to present any argument on that point, however, so we treat
the issue as forfeited. (Dinslage v. City & County of San Francisco (2016) 5 Cal.App.5th
368, 377, fn. 3 [“‘[a]lthough we address the issues raised in the headings, we do not
consider all of the loose and disparate arguments that are not clearly set out in
a heading and supported by reasoned legal argument’”]; Consolidated Irrigation Dist. v.
City of Selma (2012) 204 Cal.App.4th 187, 201 [appellant “forfeited the argument by
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violating the rule that requires each point be presented in an appellate brief under a
separate heading”].)
6. Other Matters
On a final note, we observe that Sorensen’s appellate briefs largely fail to
comply with the California Rules of Court. For example, portions of his briefs omit
record references (Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must cite “to the
volume and page number of the record where the matter appears”]); his briefs often cite
to material outside the record (id., rule 8.204(a)(2)(C) [facts in briefs must be “limited to
matters in the record”]); and his briefs largely fail to provide any legal authorities in
support of his arguments, citing only six cases in his 50-page opening brief (id., rule
8.204(a)(1)(B) [briefs must include “citation of authority”].) Although Sorensen is
appearing in propria persona in this action, he is an attorney. Indeed, at oral argument he
described himself as a civil litigator with 45 years of experience. As is the case with all
litigants before this court, whether they are represented or not, he must comply with all
applicable rules in any future filings with this court.
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DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1).)
GOETHALS, J.
WE CONCUR:
FYBEL, ACTING P. J.
THOMPSON, J.
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