Filed 9/25/14 Sapp v. Super. Ct. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

LISA SAPP et al.,

Petitioners,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

GWENDOLYN TRIPLETT et al.,

Real Parties in Interest. B256088 (Super. Ct. No s. BC536146, 14U03062, 14U03061, 14U02876)

Petition for writ of mandate to the Los An geles Superior Court. Kevin Brazile, Deborah Christian, Judge s. Petition granted. Lee & Fields, Edward Y. Lee, David A. Figueroa, for Petitioners. No appearance for Respondent. Dennis P. Block & Associates, Dennis P. Block, for Real Party In Interest.

_____________ ___________2 Petitioners Lisa Sapp, James Carrey Bl ount, Kathy Bush, and Darlene Wallace (collectively the Sapp parties), are plaintiffs in a civil acti on arising from a sale of the stock cooperative housing program in which th ey allegedly own residential units, and are defendants in separate unlawful detainer acti ons filed by the property’s alleged purchaser. They seek review of orders of the trial cour t denying their applicati on for consolidation of the actions, which they sought in order to pr event the trial of their rights to title to the property under the summary procedures that apply to unlawful detainer proceedings. We grant the requested relief.

Background The Sapp parties filed an unlimited civil action in the Lo s Angeles Superior Court, No. BC536146. Their March 5, 2014, first amended complaint alleges claims against individual defendants Gwendolyn Triplett and Latonya Higgins, against San Pedro Townhouses #1, Inc., a stock cooperative housing program sponsored by the federal Department of Housing and Ur ban Development (the Associ ation), and against Exusia Investment Company, LLC (Exusia). 1 The pleading alleges br each of fiduciary duty, fraud and intentional misrepresentation, neg ligent misrepresentation, and conversion, seeking an accounting, preliminary and perm anent injunction, and declaratory relief (against the individual defend ants and the Association), and quiet title and cancellation of instruments against Exusia. Triplett and Higg ins, acting as the Association’s board of directors, are alleged to have converted and misappropriated Asso ciation income and assets, fraudulently misrepresenting to others that they individually owned each of the

units within the Associa tion including the units ow ned by the petitioners, and

1 The Association is alleged to have be en incorporated on February 29, 1972, under California’s general nonprofit corporati on law, “to provide housing on a mutual nonprofit basis [under title 2, section 236, of the National Housing Act] for families and persons of lower income . . . .”3 surreptitiously and with out authority selling the Associ ation’s property, including the petitioners’ units, to Exusia. 2 Also on March 5, 2014, Exusia filed four actions for unlawful detainer pursuant to three-day notice against the petitioners, allegi ng that on or about Fe bruary 4, 2014, the Sapp parties had sold the units to Exusia a nd are holdover tenants on the property. On March 13, 2014, the Sapp partie s answered the unlawful deta iner complaints and filed a notice identifying case No. BC5 36146 and the unlawful detain er cases as related cases. 3 On March 28, 2014, Judge Kevin Brazile ruled in case No. BC536146 that case

No. BC536146 and the unl awful detainer cases are not rela ted cases. On April 16, 2014, Judge Brazile denied an ex parte a pplication to consolidate the cases. 4

The unlawful detainer actions were sche duled for trial on May 8, 2014. On May 7, 2014, the Sapp parties filed this petition. They also requested a stay of the unlawful detainer proceedings pending the petition’s determ ination. This court stayed the unlawful detainer proceedings, and on June 19, 2014, entered an order directing respondent superior court to show cause why a peremptory writ should not issue ordering it to vacate its April 16, 2014 order deny ing petitioners’ application to consolidate case No.

2 The petitioners claim owners hip of four of the Association’s eight residential units; that real parties in interest Triple tt and Higgins each own one unit; and that the Association owns the two remain ing units, which it rents to i ndividual tenants. Sapp, for example, claims to have lived since her early childhood in her home in San Pedro Townhomes; that her mother pur chased the unit on June 1, 1982, and on Ju ly 3, 2001, transferred her shares in the st ock cooperative, representing th e units ownership, to Sapp. Sapp paid off the property’s mortga ge debt on November 30, 2012.

3 The record leaves uncertain whether thre e or four unlawful detainer actions are involved, a matter that the pa rties do not address and that has no apparent impact on our ruling in this proceeding. We ignore it.

4 The ex parte application asked that in the alternative if consolidation were denied, for an order shortening time to hear th e motion to consolidate or for a stay of the unlawful detainer proceedings until determ ination of the quiet title action.4 BC536146 and unlawful detainer actions No s. 14U03062, 14U030 61 and 14U02876, and

to enter a new and differe nt order granting same. 5

Discussion Mandate is appropriate to review an order denying consolidation of cases. ( Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) “Although it is well

established that mandamus cannot be issued to control a court’s discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can be exercised in only one way.” ( Babb v. Superior Court (1971) 3 Cal.3d 841, 851.) The petitioners’

unlimited civil action raises issues of title that , if established in their favor, would negate

the facts and conditions on which Exusia’s clai m of title and right to possession depend.

We therefore hold that the trial court abused its discretion by refusing to grant petitioners’ request for consolidation or other relief from the summary procedures that govern unlawful detainer actions, for unlimited civil action in case No. BC 536146, in which the respective parties’ right to title to th e property is a controlling issue. Ordinarily the only triable issue in an unlawful detainer proceeding is the right to possession of the disputed premises, along with any incidental damages that result from the property’s unlawful detention. ( Larson v. City and Coun ty of San Francisco (2011) 192 Cal.App.4th 1263, 1297; Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2012) ¶ 8:4, p. 8-1 (rev. # 1, 2011).) Issues of title to the property ordinarily cannot be adjudicated in an unlawful detainer action. ( Drybread v. Chipain Chiropractic Corp . (2007) 151 Cal.App.4t h 1063, 1072; Friedman, supra , ¶ 7:267, p. 7- 58.15 (rev. # 1, 2012).) The de nial of some procedural rights in unlawful detainer cases is deemed necessary in orde r to prevent frustration of th e summary proceedings by the introduction of delays a nd extraneous issues. ( Markham v. Fralick (1934) 2 Cal.2d 221, 227; Martin-Bragg v. Moore , supra , 219 Cal.App.4th at p. 385.)

5 Real party in interest Exusia has filed opposition to th e petition; individual parties Triplett and Higgins have not appeared.5 However, Code of Civil Procedure sect ion 1148 provides trial courts with discretion to consolidate pendi ng actions that involve common questions of law or fact; and applicable case law (unmentioned by Exusia in this court and in the trial court) requires the consolidation of actions that invol ve the same parties, witnesses, evidence, and questions of law and fact , in order to avoid substantial prejudice to a party. When allegations in pending unlawful detainer and unlimited civil actions demonstrate that the unlawful detainer plain tiff’s title might be insufficient to justify relief, and that the unlawful detainer defe ndant might be entitled to quiet title to the disputed property, a trial court abuses its discretion by refusing relief from the summary procedures that apply to unlawful detainer pr oceedings, as to trial of the issue of the property’s ownership. ( Martin-Bragg v. Moore , supra , 219 Cal.App.4th at pp. 385, 395.)

Under such circumstances the cases should be granted consolidation or some equivalent relief from the summary procedures that apply to unlawful detainer proceedings: “When an unlawful detainer proceeding and an unlim ited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer acti on until the issue of title is reso lved in the unlimited action, or it may consolidate the actions. [Citation.] If it does neither and instead tries the issue of title under the summary procedures that c onstrain unlawful detain er proceedings, the parties’ right to a full trial of the issue of title may be unfairly expedited and limited. If complex issues of title are tried in the unlawfu l detainer proceeding, the proceeding loses its summary character; defects in the plaintiff’s title ‘are neither prop erly raised in this summary proceeding for posse ssion, nor are they conc luded by the judgment.’ [Citations.]” ( Id. at p. 385.) These circumstances are shown by the record in this proceeding. Exusia’s right to unlawful detainer is dependen t on its title to the propertie s for which it seeks unlawful detainer. A pending civil action, as well as af firmative defenses to the unlawful detainer complaints, allege facts that, if established, might entitle the petitioners to quiet title to those properties against Exusia and therefore might defeat Exus ia’s right to prevail in its unlawful detainer actions. Exusia’s right to unlawful detainer thus depends on the6 outcome of the quiet-title action, an un limited civil action to which the summary procedures that govern unlawful detainer proc eedings do not apply. (Code Civ. Proc., §§ 1161, 1161a.) The controlling interests of the parties in the various actions, taken collectively, are identical, res ting on the validity of Exusia’s purported purchase of the property that encompasses the residential units allege dly owned by each of the petitioners. In this case, as in Martin-Bragg v. Moore , supra , 219 Cal.App.4th 367, the right to unlawful detainer depends on the outcome of the quiet title action, which cannot be made subject to the summary unlawful deta iner procedures. As we held in Martin-Bragg v.

Moore , an action for unlawful detainer can co-e xist with other causes of action “only ‘so long as the entire case is tr eated as an ordinary civil action, not as a summary proceeding.’” ( Id. at p. 387; Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603, 608.) The trial court did not identify on the re cord the grounds on which it denied the petitioners’ requests for consolidation. Nor do es Exusia’s opposition to consolidation in either the trial court or this court identify any sufficient basis for the denial. Exusia alleges that it is a bona fide purchaser of the property, and that the facts alleged by petitioners fail to allege wrong doing by Exusia sufficient to su pport consolidation. But it does not deny that its unlawful detainer claims depend on the validity of its title to the property, nor that its right to title is at i ssue in both the quiet title action and the unlawful detainer cases. Exusia alleges that being deprived of the expedited unlawful detainer procedures would result in irreparable injury , that the petitioners w ould be able to occupy the property without paying re nt (which might not be collectable following a disposition favorable to Exusia), and that the consolid ated cases would cause “the thousands in damages and legal fees” that Exusia has alr eady incurred to “grow exponentially”; but it

identifies no factual bases for these claims. 6

6 Because Exusia intended to hold the property for rental rather th an to reside in it, its potential damages from delay in the pro ceedings are only monetary. Application of the summary procedures of unlawful detainer to the petitioners, on the other hand, would7 The authorities on which Exusia relies in opposing consolid ation provide it no support. In Mobil Oil Corp. v. Superior Court (1978) 79 Cal.App.3d 486, the trial court granted relief from the trial court’s stay of an unlawful detainer proceeding pending trial of the tenant gasoline station’s action alleging the improper termination of its franchise. But here, unlike in the Mobil Oil case, the issue is not merely restoration of a tenant’s lease founded on its franchise contract, but qui et title to the property from which ouster is sought. And in Gonzales v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029, the court confirmed that an adjudication of fraud und er summary unlawful detainer procedures could not result in a binding determination of title. ( Id. at pp. 1036-1037.) As noted above, in more recent cases that are neither cited nor discussed by Exusia, the law recognizes that the pendency of co mplex issues of title justify and may require consolidation or equivalent relief from the expedited and summary procedures that govern typical unlawful detainer proceedings. ( Martin-Bragg v. Moore , supra , 219 Cal.App.4th 367; Asuncion v. Superior Court (1980) 108 Cal. App.3d 141, 147 [compromise of summary procedures of unlawf ul detainer action is justified because due process precludes homeowners’ eviction w ithout the opportunity to adjudicate affirmative defenses of fraud, which, if proved, would demonstrate their right to ownership and possession]; Mehr v. Superior Court (1983) 139 Cal.Ap p.3d 1044, 1047- 1050 [unlawful detainer defendants’ clai m that plaintiff’s title was obtained by fraud required trial court to stay execution of unlawful detainer judgment upon reasonable conditions for the protection of parties’ interests]; Berry v. Society of Saint Pius X (1999) 69 Cal.App.4th 354, 364, fn. 7 [treatment of unlawful detainer action as ordinary civil action for declaratory relief was justified be cause summary remedy of unlawful detainer is not proper vehicle fo r litigation of complex issues of title]; see Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 [sanctions impo sed for appellant’s failu re to address most

potentially deprive them of thei r constitutional rights to due pr ocess in the adjudication of their right to continue residing in th eir long-held residential units. (See Lindsey v. Normet (1972) 405 U.S. 56, 64–66 [applying su mmary unlawful detainer procedures is not constitutionally justified when complex i ssues of title require subordination of due process to the summary procedur es of unlawful detainer].)8 pertinent legal authority]; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884-885 [same].) The Sapp parties’ pleading s in these actions demonstrate a right to relief on the merits of their petition. The law is clear that trial courts ha ve available various procedural options—inc luding consolidation—to address the parties legitimate rights and to provide the unlawful detainer plainti ff with reasonable protection from unjustified delay of the proceedings while affording r easonable and fair opportunities for discovery and preparation for trial of the issues of title on which the right to the unlawful detainer remedy depends. ( Martin-Bragg v. Moore , supra , 219 Cal.App.4th at p. 393.) The trial

court abused its discreti on by failing to grant any su ch available options. The Sapp parties’ petition also satisfies the other requirements for mandate. The order denying consolidation is not an appealable order (Cod e Civ. Proc., § 904.1, subd. (c)); and review by appeal from a final judg ment in either the quiet title action or the

unlawful detainer actions could not a fford timely or effective relief.

Disposition Let a peremptory writ of mandate issue directing respondent court to vacate the order of April 16, 2014, in Los Angeles Superior Court case No. BC536146, denying consolidation of that case with Los Angeles S uperior Court unlawful detainer case Nos. 14U03062, 14U03061, and 14U0 2876, and to enter a new a nd different order either granting consolidation of the actions for furt her proceedings, or gran ting such other relief as will permit the issues of title raised by ca se No. BC536146 to be heard and determined

before trial of unlawful detainer case Nos. 14U03062, 14U 03061, and 14U02876,

without the restrictions that otherwise apply to actions for unlawful detainer.9 Petitioners to recover their costs in th is proceeding, without prejudice to any additional recovery to wh ich they may be entitled.

NOT TO BE PUBLISHED.

CHANEY, Acting P. J.

We concur:

JOHNSON, J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.