Silva v. Agens CA2/5 ( 2024 )

Filed 10/31/24 Silva v. Agens CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ANNE SILVA, B318916
c/w B325201
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. Nos. 20STCV28776;
BV033830; BV033648)
DANA VERRO AGENS,
Defendant and Appellant.
APPEAL from a judgment of the Los Angeles Superior
Court, Michael L. Stern, Judge. Affirmed in part, reversed in
part, and remanded with directions.
Campbell & Farahani, Frances M. Campbell and Nima
Farahani for Plaintiff and Appellant.
Delman Vukmanovic, Dana Delman, Law Office of Tarik S.
Adlai, Tarik S. Adlai for Defendant and Appellant.
______________________________
Anne Silva appeals from a judgment following an order
dismissing her complaint for fraudulent eviction, fraud, negligent
representation and violation of Civil Code section 1947.101
against her former landlord, Dana Agens. Agens, in turn,
appeals the trial court’s denial of his motion for attorney fees as
the “prevailing party” under section 1947.10 and for Silva’s
refusals to make discovery admissions. We affirm the judgment
and the trial court’s denial of fees incurred by Silva’s refusal to
make discovery admissions, but we reverse and remand for
further consideration the trial court’s denial of attorney fees
under section 1947.10, subdivision (a).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties and Their Dispute
In 2001 Agens purchased a single-family home in Los
Angeles and occupied it as his primary residence. In 2010, he
relocated to Ukiah, where he had purchased another property he
intended to develop as a farm. Agens listed the Los Angeles
house for rent and, in April of 2010, leased it to Silva.
Thereafter, Silva and Agens executed a series of one-year leases.
All of the leases were for the entire residence, but by informal
arrangement, Agens retained control of the basement, using it to
store personal property and as a place to sleep during his
occasional visits to Los Angeles.
In March of 2019, Agens informed Silva that he would be
returning to Los Angeles and planned to move into his house
when Silva’s then-current lease ended in December of that year.
Although Silva initially expressed displeasure and requested
additional time to relocate, Agens reminded her that he had told
1 All subsequent statutory references are to the Civil Code
unless otherwise indicated.
2
her for some months that he intended to return to Los Angeles.
On March 31, 2019, Silva sent a message to Agens apologizing for
“snapping” at him and thanking him for “such a long heads up.”
Silva moved out on December 31, 2019, and Agens returned
to Los Angeles on January 4, 2020. When he arrived, he found
that Silva had left the house in poor condition. Silva denied
leaving the house in poor condition, but eventually told Agens he
could take “what you need to take out of the deposit” to pay for
repairs. On March 2, 2020, Agens sent Silva a four-page letter
listing the damage she had left behind, and providing estimates
for over $11,000 in repairs.
Agens stayed in an upstairs bedroom at the house for a few
days, but ultimately moved to the basement because of dust and
fumes from the repair work. As awareness of the COVID
pandemic increased, Agens began to reconsider staying in Los
Angeles. On March 15, 2020, Agens left Los Angeles and
returned to Ukiah. In April of 2020 he signed a lease with a new
tenant. In March of 2021 Agens was fully vaccinated against
COVID. Agens informed his new tenant that he would be moving
into his house, and has lived there continuously since April of
2021.
In the meantime, Silva learned that Agens had listed the
house for rent. Agens acknowledged listing the house, informing
Silva that he would not consider leasing the house to her because
of the damage she had caused during her initial tenancy.
B. Silva’s Lawsuit Against Agens for Fraud and
Wrongful Eviction
On July 30, 2020, Silva filed suit against Agens, alleging
causes of action for violating Los Angeles’s rent stabilization
ordinance (RSO), fraud, misrepresentation, and wrongful eviction
3
under section 1947.10, subdivision (a). Silva alleged that Agens
misrepresented his intention to move from Ukiah to Los Angeles
as a means to evict her from the home in order to lease it to a
new tenant at a higher rent, and that, because the basement was
a “separate dwelling unit,” the house was covered by Los
Angeles’s RSO. Alleging she was “wrongfully deprived” of a “rent
stabilized tenancy,” Silva sought damages, including treble
damages available to wronged tenants under section 1947.10,
punitive damages, costs and attorney fees. Agens filed a general
denial and a cross-complaint for damages.
B. Agens’s Motion for Summary Judgment
On July 2, 2021, Agens filed a motion for summary
judgment or, in the alternative, summary adjudication, arguing
first, that his house was a single dwelling unit and therefore
excluded from Los Angeles’s RSO, and second, that he had not
misrepresented his intentions to Silva. Agens’s supporting
declaration set out the history of his landlord-tenant relationship
with Silva, his plans to move back to Los Angeles, the condition
in which he found his house when he returned, and how his
growing concerns about COVID prompted his return to Ukiah in
March of 2020. He attached copies of his most recent lease to
Silva, his text messages and correspondence with her, and
photographs comparing the condition of the house when he leased
it to Silva and its condition when he returned in January of 2020.
He also attached declarations from several friends, corroborating
his intention to return to Los Angeles.
Silva’s opposition argued the basement was a separate
dwelling unit because, inter alia, it had a refrigerator, a
microwave, and a full bathroom. Silva also disputed Agens’s
declared intention to return to Los Angeles, attaching excerpts
4
from his deposition showing he had not changed his voter
registration, found new medical providers, or purchased furniture
for the house. Silva also submitted extensive objections to the
declarations of Agens’s friends.
C. The Order Granting Summary Judgment
On September 17, 2021, the trial court granted Agens’s
summary judgment motion, finding Agens’s house comprised a
single dwelling unit and was therefore not covered by the RSO
and that even if the RSO applied, Silva had not shown fraud or
misrepresentation by Agens, rendering all of Silva’s claims
lacking in viability. The trial court sustained many of Silva’s
evidentiary objections, but admitted those portions of Agens’s
supporting declarations corroborating Agens’s stated intention to
move back to Los Angeles. The trial court ordered Agens, as the
prevailing party, to submit a motion for attorney fees. Finally,
the trial court severed Agens’s cross-complaint for damages and
ordered it transferred to a limited jurisdiction court.
D. The Order Denying Attorney Fees
On November 18, 2021, Agens filed a motion for an award
of attorney fees, under Code of Civil Procedure section 2033.420,
subdivision (b) (based on fees incurred as a result of Silva’s
refusal to admit facts in discovery) and section 1947.10,
subdivision (a), which provides an award of attorney fees to the
“prevailing party” in a wrongful eviction action. Silva’s
opposition argued good cause supported her refusal to make
admissions in discovery and Agens was not the prevailing party
under section 1947.10.
The trial court denied fees relating to the requests for
admissions, agreeing that the requests involved “complicated
legal and factual issues that, in this case, remained for
5
determination by the trier of fact.” The trial court also denied
Agens’s request for fees under section 1947.10, finding that,
notwithstanding the statutory language that reads “[t]he
prevailing party shall be awarded attorney’s fees and costs,” the
statute was “ambiguous” and “the intent of the [statute] appears
to be that the attorneys’ fee provision is for a successful tenant
only.”
Silva filed a notice of appeal from the judgment following
the order granting Agens’s motion. Agens filed a separate appeal
from the order denying his motion for attorney fees. These
appeals have been consolidated.
II. DISCUSSION
We find no error in the trial court’s grant of summary
judgment or its denial of attorney fees based on Silva’s refusal to
make admissions in discovery. The trial court did, however,
erroneously construe the plain language of section 1947.10 as
applying exclusively to prevailing tenants.
A. The Trial Court Committed No Error in Granting
Summary Judgment
1. Standard of Review and General Principles
We apply a de novo standard of review to the trial court’s
order granting summary judgment, “considering all the evidence
set forth in the moving and opposing papers except that to which
objections were made and sustained,” “liberally constru[ing] the
evidence in support of the party opposing summary judgment,”
and “resolv[ing] doubts concerning the evidence in favor of that
party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384,
389.) As with any appeal, we presume the order appealed from is
correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Thus, “ ‘[o]n review of a summary judgment, the appellant has
6
the burden of showing error, even if he did not bear the burden in
the trial court.’ ” (Dinslage v. City and County of San Francisco
(2016) 5 Cal.App.5th 368, 379.)
Summary judgment is proper where a cause of action has
no merit, meaning that “one or more of the elements of the cause
of action cannot be separately established.” (Code Civ. Proc.,
§ 437c, subd. (o)(1).) A triable issue of material fact exists only if
“the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
2. The Trial Court Correctly Determined the
Property Was Not Subject to Los Angeles’s RSO
We agree with the trial court that, as a threshold matter,
the property was not subject to the RSO. The RSO regulates
“rental units,” and specifically excludes “[d]wellings, one family”
(Los Angeles Mun. Code, § 151.02), which are defined as a “group
of two or more rooms, one of which is a kitchen, designed for
occupancy by one family for living and sleeping purposes.”
(Los Angeles Mun. Code, § 12.03.)
All of the evidence was that the basement was connected to
the main house and was never offered, used, or intended to serve
as a separate residence or dwelling unit. The evidence was
uncontroverted that Agens used the basement space to store his
belongings and, on his occasional visits to Los Angeles, as a place
to sleep. We further observe that although Silva emphasized the
placement of a microwave and refrigerator in the basement, she
never introduced evidence that the basement was comprised of
“two or more rooms” (not including the bathroom, which is
excluded from the definition of habitable room under Los Angeles
7
Municipal code section 12.03) as required for a separate dwelling
unit under the Los Angeles Municipal Code, nor did she challenge
Agens’s evidence that the basement was never permitted, offered,
or used for separate occupancy. Indeed, during the entire nine-
year period of Silva and Agens’s landlord-tenant relationship,
there were never any tenants or renters other than Silva, and the
lease was for the entire property (including the basement). It
was only through informal agreement that Agens retained access
to the basement for storage and for his temporary stays when he
visited Los Angeles during Silva’s tenancy. Because there was no
triable issue on whether or not the property was subject to the
RSO, summary judgment was proper. (ABCO, LLC v. Eversley
(2013) 213 Cal.App.4th 1092, 1100.)
3. Even Assuming the Property Were Subject to the
RSO, and Taking Silva’s Evidence As True, There
Was Insufficient Evidence to Demonstrate Bad Faith
or Fraud
We also agree with the trial court’s assessment that all of
Silva’s claims are predicated on her allegation that Agens
intentionally or negligently misrepresented his plan to return to
Los Angeles and occupy his house as a means to evict Silva in bad
faith.
Silva offered no evidence that Agens’s March 2019
statement to her regarding his intention to return to Los Angeles
at the end of the 2019 calendar year and occupy the house by
January 2020 was false when it was made. Agens’s actions
nearly a full year later, at the beginning of the COVID pandemic,
are insufficient to raise a triable issue as to the truthfulness of
his statement to Silva in March of 2019. “ ‘[T]he truth of a
statement as to a person’s intention depends on his intention at
8
the time that the statement is made and is not affected if he
subsequently, for any reason, changes his mind.’ ” (Edmunds v.
Valley Circle Estates (1993) 16 Cal.App.4th 1290, 1300.)
Silva offered no evidence to support even an inference that
Agens’s March 2019 representation was false when it was made.
To the contrary, Silva did not dispute that Agens actually moved
from Ukiah to Los Angeles, and that he moved into the house
after arriving on January 4, 2020. Thus, Silva concedes that, at
least initially, Agens acted in conformance with his stated
intention to move to Los Angeles and occupy his house. And,
while Silva alleges in her complaint that Agens’s true motive was
to evict her so he could lease the house to new tenants at a higher
monthly rent, that assertion does not appear in her separate
statement opposing Agens’s motion – not even as one of Silva’s
proffered “undisputed facts.”
Silva’s argument that the trial court could infer fraud
because Agens only remained in the house for a short time is
unavailing and, critically, ignores two extenuating and
unchallenged factors. When Agens returned to the house he
found not merely cosmetic damage, but damage extending to
major appliances on which Agens would necessarily depend to
live in his house. Silva denies responsibility,2 but she does not
deny that the house was damaged or that appliances were
broken. The second extenuating factor is the COVID pandemic,
2 Although Silva denied, in her separate statement opposing
Agens’s motion for summary judgment, that she “cause[d]
damage to the house,” her opposing separate statement cites no
supporting evidence for this assertion. Thus, we may disregard
it. (United Community Church v. Garcin (1991) 231 Cal.App.3d
327, 337 [“ ‘This is the Golden Rule of Summary Adjudication: if
it is not set forth in the separate statement, it does not exist.’ ”].)
9
which became a matter of public knowledge and concern at
precisely the time Agens left Los Angeles and returned to a rural
setting. Again, Silva does not dispute that the timing of Agens’s
departure from Los Angeles coincided with the pandemic or that
Agens later moved back to Los Angeles in 2021 after being
vaccinated for COVID, nor does she dispute that Agens has
continuously lived in his house since that time. In sum, the
evidence is fully consistent with Agens’s statements that, in
March 2019, his intention was to resume residency in Los
Angeles by the end of that year and all of Agens’s subsequent
actions are consistent with those intentions.
B. The Trial Court Did Not Abuse Its Discretion in
Admitting Evidence
Silva argues the trial court abused its discretion by
accepting declarations corroborating Agens’s intention to move
back to Los Angeles. We review decisions regarding admission of
evidence for abuse of discretion. (Christ v. Schwartz (2016)
2 Cal.App.5th 440, 446-447.) We must also consider Evidence
Code section 353, which provides that “[a] verdict or finding shall
not be set aside, nor shall the judgment or decision based thereon
be reversed, by reason of the erroneous admission of evidence
unless . . . [¶] (b) the court which passes upon the effect of the
error or errors is of the opinion that the admitted evidence should
have been excluded on the ground stated and that the error or
errors complained of resulted in a miscarriage of justice.”3
3 Article VI, section 13 of our state’s Constitution provides in
relevant part that, “No judgment shall be set aside, . . . in any
cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, . . . unless, after an
10
We find neither an abuse of discretion nor a miscarriage of
justice. The trial court admitted the declarations in question
under Evidence Code section 1250, which provides an exception
to the hearsay rule for statements “of the declarant’s then
existing state of mind . . . (including a statement of intent, plan,
motive, [or] design . . .) . . . .” The trial court acted within its
discretion to admit the declarations of Agens’s friends for the
limited purpose of corroborating his stated intentions as of March
2019.
C. The Trial Court Properly Denied Cost-of-Proof
Fees But Erroneously Construed Section 1947.10
subdivision (a)
1. Standard of Review
Although an order granting or denying an award of
attorney fees is ordinarily reviewed for abuse of discretion
(Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th
1309, 1319), independent or de novo review is warranted when,
as here, the “determination of whether the criteria for an award
of attorney fees . . . have been satisfied amounts to statutory
construction and a question of law” (Connerly v. State Personnel
Bd. (2006) 37 Cal.4th 1169, 1175; accord, Ellis Law Group, LLP
v. Nevada City Sugar Loaf Properties, LLC (2014) 230
Cal.App.4th 244, 252).
2. The Trial Court Acted Within Its Discretion in
Declining to Award Fees Based on Silva’s Refusal to
Make Discovery Admissions
We find no abuse of discretion in the court’s refusal to
examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted
in a miscarriage of justice.”
11
award cost-of-proof expenses. As Silva points out, the
applicability of the RSO was an issue of law requiring judicial
determination. Nor do we find any abuse of discretion in the
court’s refusal to award attorney fees based on Silva’s refusal to
admit facts regarding Agens’s state of mind. For example,
request number 8 asked Silva to admit Agens “intended to occupy
the [house] as a primary residence” after Silva’s tenancy ended,
while request number 9 asked for an admission that Agens “acted
in good faith in recovering possession of the [house].” Agens’s
state of mind is not something Silva could know or reasonably
investigate.
It was within the court’s discretion to deny Agens the legal
fees he incurred to prove these facts.
3. Agens Was Entitled to Attorney Fees As a
“Prevailing Party”
Applying a de novo standard, we conclude the trial court
erred when it interpreted section 1947.10, subdivision (a), to
exclude an award of fees to a prevailing landlord. “ ‘ “The
fundamental rule of statutory construction is that the court
should ascertain the intent of the Legislature so as to effectuate
the purpose of the law. [Citation.]” ’ ” (Morin v. ABA Recovery
Service, Inc. (1987) 195 Cal.App.3d 200, 205, disapproved on
another ground in Lakin v Watkins Associated Industries (1993)
6 Cal.4th 644.) “In determining such intent ‘[t]he court turns
first to the words themselves for the answer.’ [Citation.]” (People
v. Black (1982) 32 Cal.3d 1, 5.) “When statutory language is clear
and unambiguous, there is no need for construction and courts
should not indulge in it.” (People v. Overstreet (1986) 42 Cal.3d
891, 895.) The language of section 1947.10, subdivision (a)
awarding attorney fees to a “prevailing party” is unambiguous,
12
and the trial court erred by looking outside the plain language to
conclude that a prevailing landlord was ineligible for an award of
attorney fees.
It is well settled that the Legislature “knows how to write
both unilateral fee statutes, which afford fees to either plaintiffs
or defendants, and bilateral fee statutes, which may afford fees to
both plaintiffs and defendants.” (Jankey v. Lee (2012) 55 Cal.4th
1038, 1046.) “When the Legislature intends that the successful
side shall recover its attorney’s fees no matter who brought the
legal proceeding, it typically uses the term ‘prevailing party.’
[Citations.] On the other hand, when the Legislature desires to
authorize the award of fees only to one side or the other, it
signals that intent by using such terms as ‘plaintiff’ [citations] or
‘defendant’ [citations].” (Stirling v. Agricultural Labor Relations
Board (1987) 189 Cal.App.3d 1305, 1311.) Moreover, Agens is
entitled to recover attorney fees under section 1947.10,
subdivision (a), even though he prevailed by showing the
underlying RSO does not apply to his rental property. “[T]he
enactment of a prevailing party attorney fee provision generally
reflects a legislative intent to adopt a broad, reciprocal attorney
fee policy that will, as a practical and realistic matter, provide a
full mutuality of remedy to plaintiffs and defendants
alike.” (Tract 19051 Homeowners Assn. v. Kemp (2015) 60
Cal.4th 1135, 1145.) There, a statute awarded attorney fees to
the prevailing party in an action to “enforce” governing
documents of a common interest development, and the defendant
prevailed by showing no governing documents exist. The Court of
Appeal reversed a fee award in favor of the defendant. The
Supreme Court reinstated the fee award, holding the statute
could not be construed to deny fees to a defendant in an action
13
where “the plaintiffs would have obtained attorney fees had they
prevailed in their claim, but the defendants would be denied
attorney fees because they defeated the plaintiffs’ action by
showing that no common interest development exists.” (Id. at
p. 1146; see also Mechanical Wholesale Corp. v. Fuji Bank, Ltd.
(1996) 42 Cal.App.4th 1647, 1661, fn. 14 [statute awarded fees to
prevailing party in action to enforce bonded stop notice;
defendant who prevailed by showing no stop notice was issued
was entitled to statutory attorney fees].)
Silva’s argument that Agens merely secured a “dismissal”
of the claims against him is belied by the record. Agens prevailed
on a motion for summary judgment as to all four claims for relief
brought by Silva. Agens unquestionably won on the merits, and
is the “prevailing party” for purposes of a fee award under section
1947.10, subdivision (a).4
4 We further note that the parties did not challenge the
applicability of section 1947.10 and we deem that issue waived.
14
DISPOSITION
We affirm the summary judgment in favor of Agens, as well
as that portion of the order denying Agens’s motion for costs of
proof related to his requests for admissions. We reverse the order
denying Agens attorney fees as the “prevailing party” on Silva’s
fourth cause of action for wrongful eviction and remand to the
trial court to determine a fee award (if any) under section
1947.10, subdivision (a). The parties are to bear their own costs
on appeal.
DAVIS, J.*
I CONCUR:
MOOR, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6 of the California
Constitution.
15
Anne Silva v. Dana Agens
B318916
BAKER, Acting P. J., Concurring in Part and Dissenting in Part
I join Part I, Part II.A.1, Part II.A.2, and Part II.C.2 of the
opinion for the court. Civil Code section 1947.10 has no
application in this case because the tenancy in question is not
subject to the Los Angeles Rent Stabilization Ordinance.
Because the predicate for application of Civil Code section
1947.10 (a rent-controlled tenancy) does not exist, I believe there
is no basis to award attorney fees under the statute.
BAKER, Acting P. J.