Gilmore v. Gintel CA2/5 ( 2023 )

Filed 12/22/23 Gilmore v. Gintel CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ALEXIE GILMORE et al., B310815
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. SC129317)
ERNEST GINTEL et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County, Craig D. Karlan, Judge. Reversed with
directions.
Alexie Gilmore, in pro. per.; Bernard Bilderbeck, in pro.
per., for Plaintiffs and Appellants.
Ritt Hodges, D. Jay Ritt and Warren O. Hodges, Jr., for
Defendants and Respondents.
____________________
Former tenants Alexie Gilmore and Bernard Van
Bilderbeek brought an action against landlord Shirley Gintel and
others for claims arising out of the tenancy, including claims for
discrimination and restitution of a security deposit.1 The trial
court concluded Shirley, who died during the pending litigation,
held a life estate in the rental property. The court sustained a
demurrer by Ernest Gintel and Jarrett Grode on the ground that
they were remaindermen with no liability for the claims of former
tenants. The court granted a motion to quash service in favor of
nonresident remainderman Taylor Grode. On appeal from the
judgments following these orders, Gilmore and Van Bilderbeek
contend Ernest, Jarrett, and Taylor are liable as co-owners,
beneficiaries, and/or successors in interest.2 We conclude the
demurrer should have been overruled as to Ernest, because the
evidence showed Ernest owned a portion of the property in fee
simple during the tenancy. In addition, Jarrett and Taylor, as
the landlord’s successors in interest, are potentially liable for
restitution of a security deposit under Civil Code section 1950.5.
Therefore, we reverse the judgments with directions.
1 Because multiple parties and participants share the last
name Gintel or Grode, they will be referred to individually by
their first names for ease of reference.
2 On August 10, 2023, Gilmore and Van Bilderbeek filed a
motion in this appellate court to strike portions of the
respondents’ brief for failing to provide adequate citations to the
record on appeal. The motion is denied.
2
FACTS AND PROCEDURAL HISTORY
Family History and Recorded Deeds
Shirley and her husband had three children: Ernest, Philip
Rudolph (Rudy), and Victoria (known after marriage as Victoria
Grode).
In 1984, Shirley and her husband took title to property
commonly known as 754 North Alfred Street in Los Angeles (the
Alfred property), which was improved with a four-unit apartment
building. The parents transferred portions to Ernest and Victoria
as gifts. Ultimately, in 1989, a grant deed was recorded giving 50
percent of the property to Shirley and her husband as community
property, 25 percent to Ernest, and 25 percent to Victoria.
None of the deeds subsequently recorded for the Alfred
property concerned or affected Ernest’s original 25 percent
interest.
Shirley and her husband later transferred their undivided
50 percent interest in the property to themselves as cotrustees of
the Eugene and Shirley Gintel Revocable Living Trust dated
May 10, 1984 (the family trust). After her husband’s death,
Shirley, as trustee, transferred 25 percent of the Alfred property
interest to Trust A. Ultimately, she granted Trust A’s interest to
Rudy, subject to the reservation of a life estate in favor of Shirley.
Shirley transferred the remaining 25 percent of the family
trust’s interest in the Alfred property to Trust B. From Trust B,
she granted 12.5 percent to Rudy and 12.5 percent to Ernest,
both interests subject to an existing life estate in favor of Shirley.
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Victoria passed away, leaving two children, Jarrett and
Taylor. Separate litigation in probate court between Shirley and
the executor of Victoria’s estate established the ownership
interests of Victoria’s estate. Rudy and Ernest did not appear or
participate in the trial. The probate court found Victoria’s
interest in the Alfred property was subject to reservation of a life
estate in favor of Shirley and her husband for their joint lifetimes
and for the lifetime of the survivor. The probate court also found
Victoria’s estate to have an interest in a separate commercial
property on Melrose Avenue, whose major tenant is a pawnshop
operated by Rudy and Ernest; the probate court determined
Victoria’s estate’s interest was subject to a similar life estate in
favor of Shirley and her husband. The probate court directed the
executor of Victoria’s estate to execute quitclaim deeds
transferring a life estate to Shirley in the income attributable to
the estate’s interests in the Alfred and Melrose properties. The
executor of Victoria’s estate recorded a deed granting Shirley a
life estate in the income attributable to the 25 percent interest in
the Alfred property owned by Victoria’s estate. When the probate
court subsequently approved the executor’s final account, the
court ordered distribution of the estate’s 25 percent interest in
certain properties, including Alfred and Melrose, to Jarrett and
Taylor in equal shares.
Accordingly, based on the evidence in the appellate record,
the following ownership interests had been recorded for the
Alfred property as of August 2003: 37.5 percent owned by Rudy,
subject to a life estate for Shirley; 12.5 percent owned by Ernest,
subject to a life estate for Shirley, and 25 percent owned by
Ernest in fee simple; 12.5 percent owned by Jarrett, subject to a
life estate for Shirley in the income from the property; and 12.5
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percent owned by Taylor, subject to a life estate for Shirley in the
income from the property.
Apartment Lease and Legal Action
On January 1, 2012, Gilmore and a roommate entered into
a lease agreement to rent an apartment at the Alfred property.
The lease listed Shirley as the landlord/lessor/agent and stated
that rent payments were to be made to Shirley at a neighboring
address. The people authorized to receive rent payments were
Shirley or Rudy at the Melrose property. Shirley and Rudy were
authorized to manage the property, and any notices to the owner
or manager were to be provided to Shirley or Rudy at the Melrose
property. Shirley executed the lease agreement as owner/agent.
In 2017, Van Bilderbeek began occupying the apartment
with Gilmore and sought to be substituted as a tenant under the
lease, but his application was rejected. On August 21, 2017,
Shirley filed an unlawful detainer action against Gilmore and
unauthorized subtenants. On October 30, 2017, Shirley filed
another unlawful detainer complaint against Gilmore and
unauthorized subtenants.
On January 15, 2018, Gilmore and Van Bilderbeek vacated
the apartment. On May 23, 2018, Gilmore and Van Bilderbeek
filed an action in pro. per. against Shirley, Rudy, and the family
trust for discrimination, violation of the Los Angeles Rent
Stabilization Ordinance, retaliation, restitution of a security
deposit, and breach of contract.
On July 16, 2018, Shirley passed away. Under the terms of
the trust, the assets were to be distributed to Rudy, Ernest, and
Victoria’s children. On February 25, 2019, over the objection of
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Shirley’s lawyer, the trial court consolidated the landlord’s
unlawful detainer action and Gilmore and Van Bilderbeek’s
discrimination action.
Allegations of Operative Amended Complaint
On June 19, 2019, with the trial court’s permission,
Gilmore and Van Bilderbeek filed an amended complaint against
the family trust, Shirley’s estate, Rudy, Ernest, Jarrett, and
Taylor alleging the same causes of action based on the following
factual allegations.
Demurrer
On October 9, 2019, Ernest and Jarrett filed a demurrer on
the grounds that, as beneficiaries, they were not individually
liable for actions of the estate or the trust, and they did not
become liable as successors in interest to the trust assets. In
addition, they argued that the facts did not support a cause of
action for retaliation.
On July 1, 2020, Gilmore and Van Bilderbeek opposed the
demurrer. They argued that Rudy commenced the unlawful
detainer action on behalf of the trust, falsely representing himself
to be the trustee, and his actions were ratified by the remaining
defendants. After Shirley’s death, the unlawful detainer action
was continued for trial and Shirley’s former attorney had opposed
consolidation of the cases. In addition, the plaintiffs argued that
retaliation was correctly alleged.
Ernest and Jarrett filed a reply with respect to their
demurrer. A hearing was held on July 8, 2020. No reporter’s
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transcript was included in the record on appeal. Gilmore and
Van Bilderbeek stated they were proceeding by settled statement,
but no settled statement has been made part of the record on
appeal. The trial court ordered the parties to submit evidence of
ownership of the property during the relevant period.
Gilmore and Van Bilderbeek filed a supplemental brief
concerning the ownership of the property. Ernest and Jarrett
also filed a supplemental brief.
A hearing was held on the demurrer on September 23,
2020, and the court took the matter under submission. The court
took judicial notice of the grant deeds and court orders filed by
both parties. On September 28, 2020, the trial court sustained
the demurrer without leave to amend. The court found the
plaintiffs had failed to allege any specific acts by Ernest or
Jarrett or any other legal basis for holding them liable for the
alleged actions of the trust before the property passed to them as
beneficiaries or remaindermen. Neither Ernest nor Jarrett was
named as a successor trustee.
Motion to Quash
On November 1, 2019, Taylor filed a motion to quash
service for lack of personal jurisdiction. In support of the motion,
she filed a declaration stating that she has been a resident of
New York for the past 12 years, and worked as a teacher in
Brooklyn, New York for the past 9 years. She does not maintain
a residence in California or conduct business in California. Her
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sole contact with California is through visits with family and
friends once or twice a year.
After her mother passed away, Taylor inherited a partial
interest in the Alfred Street property, subject to a life estate held
by Shirley. Taylor did not receive any income from the property
during Shirley’s lifetime and had no involvement in the
management of the property. She received income from the
property for the first time in June 2019. That same month, she
learned from her uncle Rudy about the lawsuit and the purported
service of the complaint on her by mail to her uncles’ pawnshop
business. She has no knowledge of her uncles’ business and has
not been personally served with the complaint.
Gilmore and Van Bilderbeek opposed the motion to quash.
They argued that Civil Code section 1962.7 allows for service on a
landlord by mail at the place where a tenant pays rent in the
event that there was no address for personal service in the lease.
They paid their rent at the pawnshop. In addition, they argued,
Taylor’s passive ownership of the property conferred long arm
jurisdiction. Gilmore submitted her own declaration and portions
of the lease agreement in support of the opposition.
Taylor filed a reply in support of her motion to quash
service. She argued that because her contact with California was
limited to visits and she only recently inherited a minority
ownership interest in the property after the events giving rise to
the action, the court did not have specific jurisdiction over her.
She asserted that she was never Gilmore and Van Bilderbeek’s
landlord, because she was not a party to the rental agreement,
nor was she an owner of the property during the relevant time.
Gilmore and Van Bilderbeek filed a rebuttal to Taylor’s
reply and requested judicial notice of grant deeds and court
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orders. Gilmore filed a declaration stating that Taylor was her
landlord at all times.
A hearing was held on the motion to quash service on
September 3, 2020, and the court took the matter under
submission. On September 10, 2020, the trial court granted the
motion to quash. The court found the controversy did not arise
out of Taylor’s contacts with California, because the
discrimination and retaliation allegations occurred during
Shirley’s tenancy, before Taylor had a right to any income from
the property. Liability as alleged in the complaint was based on
allegations that Taylor permitted, authorized, and ratified all
actions taken by Rudy with respect to the plaintiffs, without
further evidence or information. In addition, the court concluded
exercise of jurisdiction over Taylor did not comport with fair play
and substantial justice. Taylor receives passive income and had
no active participation in management of the property. Shirley
received the income, was responsible for management, entered
into the lease with Gilmore in her individual capacity, and
brought the unlawful detainer action in her individual capacity.
There was no evidence that Taylor played any role with respect to
any aspect of the tenancy at issue. Taylor only began receiving
passive income after the plaintiffs vacated the premises and
Shirley passed away.
Judgments and Appeal
On November 20, 2020, the trial court entered a judgment
of dismissal as to Ernest and Jarrett. On January 7, 2021, the
court entered a judgment of dismissal as to Taylor. Gilmore and
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Van Bilderbeek filed a timely notice of appeal from the
November 20, 2020 order and the January 7, 2021 order.
DISCUSSION
Demurrer
A. Standard of Review
“When we review a judgment dismissing a complaint after
the trial court has sustained a demurrer without leave to amend,
our first step is to review the complaint de novo, assuming the
truth of properly pleaded or implied factual allegations, to
determine whether the complaint states facts sufficient to state a
cause of action. [Citation.] Then, if we conclude that the
complaint does not state a cause of action, ‘we must decide
whether there is a reasonable possibility the plaintiff could cure
the defect with an amendment. [Citation.] If we find that an
amendment could cure the defect, we conclude that the trial court
has abused its discretion and we reverse; if not, no abuse of
discretion has occurred. [Citation.]’ [Citation.]” (Eghtesad v.
State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 410–411.)
B. Ernest’s Property Interest
Gilmore and Van Bilderbeek contend that the complaint
states a cause of action against Ernest based on his ownership of
the property under the recorded deeds. We agree.
A 1984 deed granted the Alfred property to Eugene,
Shirley, Ernest, and Victoria as joint tenants in fee simple. In
10
1989, the joint tenants executed a deed that gave 25 percent of
the Alfred property to Ernest in fee simple. Ernest did not make
an appearance or participate in the litigation of Victoria’s estate.
None of the court orders with respect to Victoria’s estate had any
effect on Ernest’s property interest. In August 2002, Shirley
transferred 12.5 percent of the Alfred property from Trust B to
Ernest, subject to a life estate for herself. There was no evidence,
however, that Shirley retained a life estate in the original 25
percent interest granted to Ernest, or that Ernest granted Shirley
a life estate in the original 25 percent interest that he held in fee
simple.
The complaint alleged that Ernest had an ownership
interest in the Alfred property, and that he authorized and
ratified Rudy’s actions with respect to the property. Although not
a model of clarity, the allegations of the complaint sufficiently
allege that Ernest authorized Shirley and Rudy to act as his
agent with respect to his ownership interest in the Alfred
property. None of the documents subject to judicial notice
established otherwise as a matter of law. The trial court erred by
sustaining the demurrer on the ground that Ernest’s interest was
solely that of a remainderman.
C. Jarrett’s Property Interest
Gilmore and Van Bilderbeek contend that Jarrett’s interest
in the Alfred property was not subject to a life estate for Shirley
because the deed granting a life estate to Shirley was limited to
the income from the property and the probate court ordered
distribution of Victoria’s interest in the property to her children
without allowing for a life estate to Shirley. The plaintiffs’
11
analysis of the property transfers is incorrect, but we agree the
complaint states a cause of action for return of a security deposit
against Jarrett as a successor in interest.
“ ‘A life estate is an estate whose duration is limited to the
life of the person holding it or of some other person.’ ” (Peterson
v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 844, 850–851.)
Some life estates are “absolute,” meaning the owner of the life
estate may use the land in the same way as an owner in fee
simple other than to commit waste. (Forrest v. Elam (1979) 88
Cal.App.3d 164, 170 (Forrest); Civ. Code, § 818.) “Others are
known as determinable or contingent because of various sorts of
limitations placed upon the life estate.” (Forrest, at p. 170.)
Unless there is an express statement of intent to sever title
from the right to enjoy the benefits of ownership, a grant of the
income from productive property confers a corresponding estate.
(See Annot., Grant or gift of income as carrying an absolute
interest in the property, 174 A.L.R. 319 (originally published
1948).) If the income from certain property is granted for life, it
confers a life estate in the property to the recipient; if the income
is granted for an unlimited time, it confers an absolute interest in
the property. (Ibid; see Steeve v. Yaeger (1956) 145 Cal.App.2d
455, 462 [reservation of unqualified right to receive income from
property for life conveyed a life estate in the property itself].)
During Victoria’s lifetime, she received 25 percent of the
Alfred property in fee simple. After her death, pursuant to a
court order, her executor recorded a deed granting a life estate to
Shirley in the income attributable to the estate’s 25 percent
interest in the Alfred property. Shirley’s life estate in the income
from Victoria’s interest in the Alfred property was equivalent to a
life estate in the property itself. After transferring the life estate,
12
the estate held only a remainder interest in 25 percent of the
property. When the probate court ordered distribution of the
estate’s property interests to Jarrett and Taylor, the estate could
only transfer the interest in the Alfred property that it had.
Jarrett received half of the estate’s interest in the Alfred
property, which was a remainder interest subject to Shirley’s life
estate.
On appeal, Gilmore and Van Bilderbeek concede that to the
extent Shirley held a life estate in the property, Jarrett, as a
remainderman, is not liable for her actions. They contend,
however, that the complaint states a cause of action against
Jarrett for return of a security deposit under Civil Code section
1950.5, subdivision (j)(1), as a successor in interest. We agree
that Gilmore has stated a cause of action for restitution of her
security deposit.
Civil Code section 1950.5 provides, in pertinent part, that
upon the termination of the landlord’s interest in the premises by
death, the landlord’s agent shall, within a reasonable time, either
transfer the portion of the security remaining after lawful
deductions to the landlord’s successor in interest or return the
portion of the security remaining after lawful deductions to the
tenant, with an accounting. (Civ. Code, § 1950.5, subd. (h).)
“In the event of noncompliance with subdivision (h), the
landlord’s successors in interest shall be jointly and severally
liable with the landlord for repayment of the security, or that
portion thereof to which the tenant is entitled, when and as
provided in subdivisions (e) and (g).” (Civ. Code, § 1950.5, subd.
(j)(1).)
Gilmore commenced litigation against Shirley seeking
restitution of her security deposit within months of vacating the
13
premises and failing to receive her deposit. During the litigation,
Shirley died and Jarrett became a successor in interest. Based
on the allegations of the complaint and the judicially noticed
documents, Gilmore stated a cause of action for restitution of her
security deposit against Jarrett as Shirley’s successor in interest.
Jarrett’s demurrer must be overruled as to the cause of action
concerning the security deposit.
Motion to Quash
The plaintiffs contend the trial court erred in concluding
that Taylor did not have sufficient contacts in California to
exercise specific jurisdiction over her. We agree.
A. General Principles and Standard of Review
Under California’s long-arm statute, our courts may
exercise jurisdiction “on any basis not inconsistent with the
Constitution of this state or of the United States.” (Code Civ.
Proc., § 410.10.) The federal Constitution permits a state to
exercise personal jurisdiction over a defendant if the defendant
has sufficient “minimum contacts” with the forum such that
“maintenance of the suit does not offend ‘traditional notions of
fair play and substantial justice.’ [Citations.]” (Int’l Shoe Co. v.
Washington (1945) 326 U.S. 310, 316.)
Personal jurisdiction may be general or specific. (Thomson
v. Anderson (2003) 113 Cal.App.4th 258, 265–266 (Thomson).) “A
court has general jurisdiction over defendants who are at home in
the court’s forum; general jurisdiction allows a court to hear any
claim against a defendant, regardless of where the underlying
14
events occurred.” (Bader v. Avon Products, Inc. (2020) 55
Cal.App.5th 186, 193.) A defendant may be subject to specific
jurisdiction when (1) the defendant has purposefully availed
himself or herself of forum benefits; (2) the controversy at issue
arises from or is related to the defendant’s forum-related contact;
and (3) assertion of jurisdiction comports with fair play and
substantial justice. (Thomson, supra, 113 Cal.App.4th at p. 265.)
“[T]he determination of the reasonableness of the exercise
of jurisdiction in each case will depend on an evaluation of
several factors. A court must consider the burden on the
defendant, the interests of the forum State, and the plaintiff’s
interest in obtaining relief. It must also weigh in its
determination ‘the interstate judicial system’s interest in
obtaining the most efficient resolution of controversies; and the
shared interest of the several States in furthering fundamental
substantive social policies.’ ” (Asahi Metal Industry Co. v.
Superior Court (1987) 480 U.S. 102, 113.) The question is
whether, “the defendant’s conduct and connection with the forum
State are such that he [or she] should reasonably anticipate being
haled into court there.” (World-Wide Volkswagen Corp. v.
Woodson (1980) 444 U.S. 286, 297.)
“On a challenge to personal jurisdiction by a motion to
quash, the plaintiff has the burden of proving, by a
preponderance of the evidence, the factual bases justifying the
exercise of jurisdiction. [Citation.] The plaintiff must come
forward with affidavits and other competent evidence to carry
this burden and cannot simply rely on allegations in an
unverified complaint. [Citation.] If the plaintiff meets this
burden, ‘it becomes the defendant’s burden to demonstrate that
the exercise of jurisdiction would be unreasonable.’ [Citation.]”
15
(Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362
(Buchanan).)
“When there is conflicting evidence, the trial court’s factual
determinations are not disturbed on appeal if supported by
substantial evidence. [Citation.] When no conflict in the
evidence exists, however, the question of jurisdiction is purely
one of law and the reviewing court engages in an independent
review of the record.” (Vons Companies, Inc. v. Seabest Foods,
Inc. (1996) 14 Cal.4th 434, 449 (Vons).)
“ ‘Determination of the merits of the complaint [is] not
within the scope of the issues raised by the motion. [Fn.
omitted.]’ [Citation.] Thus a motion to quash does not serve the
function of a demurrer as to whether the complaint states a cause
of action.” (Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1360.)
B. Purposeful Availment
Decades ago, Taylor inherited remainder interests in real
properties in California. Upon Shirley’s death, Taylor became
the owner of 12.5 percent of the Alfred property, which is
improved with rental units. She never disclaimed or disposed of
her California property interests. By owning real property in
California, Taylor has purposefully availed herself of the benefits
and protections of the laws of California. (See Buchanan, supra,
241 Cal.App.4th at p. 1363 [by owning properties in California,
defendant availed himself of the benefits and protections of the
laws of California].) Upon Shirley’s death, Taylor became liable
for obligations and expenses related to her interest, such as taxes
and maintenance costs. When Taylor received and retained
16
property interests in California, her contacts with California
became purposeful.
C. Arising From Contacts
“ ‘The second prong of the specific jurisdiction test requires
that the controversy relate to or arise out of the defendant’s
contacts with the forum. The question is whether the plaintiff’s
causes of action arose out of or had a substantial connection with
a relationship the defendant purposefully established with the
forum state. [Citation.] “[T]he cause of action must arise out of
an act done or transaction consummated in the forum . . . .’
[Citation.] Stated another way, there must “be a substantial
nexus or connection between the plaintiff’s cause of action and
the defendant’s forum contacts . . . .” [Citation.] “[T]he ‘arising
out of or relating to’ standard is in the disjunctive, and is
intended as a relaxed, flexible standard . . . .” [Citation.]’
[Citation.]” (Buchanan, supra, at p. 1364.)
We independently conclude there is a substantial
connection or nexus between Taylor’s co-ownership of the Alfred
rental property as a successor in interest to Shirley and Gilmore’s
cause of action for restitution of a security deposit under Civil
Code section 1950.5.
D. Reasonableness
“ ‘[O]nce it has been decided that a defendant purposefully
established minimum contacts within the forum State, these
contacts may be considered in light of other factors to determine
whether the assertion of personal jurisdiction would comport
17
with “fair play and substantial justice.” ’ [Citation.] Courts may
evaluate the burden on the defendant of appearing in the forum,
the forum state’s interest in adjudicating the claim, the plaintiff’s
interest in convenient and effective relief within the forum,
judicial economy, and ‘the “shared interest of the several States
in furthering fundamental substantive social policies.” ’
[Citation.]” (Vons, supra, 14 Cal.4th at pp. 447–448.)
Although Taylor claims it is unreasonable to subject her to
jurisdiction in California because she had no ownership or
management of the Alfred property before Shirley died, Taylor
assumed obligations upon Shirley’s death as a successor in
interest. It is in the state’s interests and the interests of the
plaintiffs to have the lawsuit heard and decided where the rental
property is located. If tenants could not maintain an action
against a nonresident landlord as the successor in interest to the
owner of a life estate, the tenant protections provided by
California statutes would be greatly diminished. Moreover, in
this case, there are co-owners who reside in California to assist
with defense of the action. It is not unreasonable to subject
Taylor to jurisdiction in California under the facts of this case.
DISPOSITION
The judgments, the order sustaining the demurrer, and the
order granting the motion to quash are reversed. The trial court
is directed to enter a new and different order denying the motion
to quash, overruling the demurrer in its entirety with respect to
Ernest Gintel, overruling the demurrer as to the cause of action
for restitution of a security deposit with respect to Jarrett Grode,
and sustaining the demurrer as to the remaining causes of action
18
alleged against Jarrett Grode. In the interests of justice, the
parties are ordered to bear their own costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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