Case Number:?BC625210????Hearing Date:?October 04, 2018????Dept:?78
Superior Court of California
County of Los Angeles
Department 78
| RUTH ALVIZURES, et al.,
Plaintiffs, v. AGUSTINA ARAUJO, et al., Defendants. |
??Case No.:??BC625210
Hearing Date: Thursday, October 4, 2018 ??RULING RE: DEFENDANTS MOLLY JOHNSON, INDIVIDUALLY AND AS TRUSTEE OF THE MOLLY JOHNSON REVOCABLE SURVIVOR?S TRUST?S MOTION TO ENFORCE SETTLEMENT RE LIEN RIGHTS. |
Defendants Molly Johnson, individually and as Trustee of the Molly Johnson Revocable Survivor?s Trust?s Motion to Enforce Settlement re Lien Rights is GRANTED.
FACTUAL BACKGROUND
This is a housing discrimination case. The First Amended Complaint (?FAC?) alleges that Plaintiffs Ruth Alvizures and Leslie Mendoza (collectively, ?Tenants?) lived in an apartment owned by defendant Molly Johnson (?Johnson?) and managed by defendants Augstina Araujo and Alberto Araujo (collectively, the ?Araujos?). (FAC ?? 4?7.)
Tenants moved into the apartment in 2006 and allege that they have been subject to discrimination and harassment on the basis of their religion. (FAC ? 12.) In August 2014, Alberto Araujo invited Tenants to their apartment for coffee, and the two had a conversation about religion, during which Araujo attempted to persuade Tenants to leave the Catholic Church. (FAC ?? 14?18.) After the conversations, the Araujos stopped greeting Tenants, and the Araujo?s daughters began pushing Tenants and calling them ?witches.? (FAC ? 19.) The Araujos also allegedly told Tenants not to burn incense in their home, would bang on the door and run away, and would leave ?smelly? trash in front of their door. (Ibid.)
Tenants reported this harassment to Johnson, but nothing was done to resolve the matter. (FAC ? 20.) On May 4, 2016, Tenants received an eviction notice. (FAC ? 28.) Subsequently, Tenants were subjected to an unlawful detainer action (the ?UD Action?). (FAC ? 31.)
The following facts are taken from defendants? Requests for Judicial Notice addressed below.
In the UD Action, Tenants asserted affirmative defenses of discriminatory and retaliatory conduct on the basis of religion. (RJN Ex. 9, MTS 098?090.) On the date the UD Action trial was set to begin, Tenant Parties filed an ex parte application with this court to stay or abate the UD Action to allow discovery as to their affirmative defenses. (RJN Ex. 10.) This court denied the ex parte application. (RJN Ex. 11.)
The UD Action proceeded to a 13-day jury trial. (RJN Ex. 2.) The jury returned a verdict in favor of Johnson, and made a special finding that the eviction was not discriminatory or retaliatory. (RJN Ex. 16.) The court entered judgment in favor of Johnson and awarded her possession of the premises. (RJN Ex. 16.) The Tenants have since moved out. (FAC ? 35.)
PROCEDURAL HISTORY
Tenants filed their Complaint on June 28, 2016. Tenants filed their FAC on November 10, 2016, alleging three causes of action:
- Fair Employment and Housing Act, Cal. Gov. Code sections 12900 et seq.
- Unruh Civil Rights Act, Cal. Civ. Code section 51 et seq.
- Breach of Covenants of Quiet Enjoyment of Premises
This court on February 2, 2017, overruled Defendants? Demurrer to the FAC and granted in part their Motion to Strike portions of the FAC.
On June 14, 2017, Tenants filed a Notice of Settlement of Entire Case.
On October 6, 2017, Defendant Johnson filed a Notice of Lien in the amount of $3,425.50 pursuant to an October 27, 2016 judgment for damages and attorneys? fees obtained against Ruth Alvizures in an unlawful detainer action.
On October 23, 2017, this court granted Tenants? Petition for Minor?s Compromise.
Defendants filed the present Motion to Enforce Settlement re Lien Rights on April 26, 2018.
Tenants filed an untimely Opposition on September 28, 2018. Defendants filed an objection to the Opposition on September 28, 2018.
DISCUSSION
- MOTION TO ENFORCE SETTLEMENT
Code Civ. Proc. section 664.6 states that:
If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
?Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit. [Citation.] It is for the trial court to determine in the first instance whether the parties have entered into an enforceable settlement. [Citation.] In making that determination, ?the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement. [Citation.] Trial judges may consider oral testimony or may determine the motion upon declarations alone. [Citation.] When the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his [or her] memory. [Citation.]? [Citation.]? (Osumi v. Sutton?(2007) 151 Cal.App.4th 1355, 1359?1360.)
The present motion concerns a contest of purported liens. Johnson on October 6, 2017, filed a notice of lien in the amount of?$3,425.50 arising from a related unlawful detainer action. Tenants? counsel, Rastegar Law Group, APC, has since informally asserted a lien on the settlement in the amount of $5,000, representing an amount advanced to Alvizures on her anticipated recovery in this case. (Lemieux Decl. ? 3.) The total agreed-to settlement in this case was $66,000.00 with $58,706.93 going to Rastegar Law for fees and costs, with $4,543.07 going to Ms. Alvizures and $2,750 going to Alvizures? minor daughter. (Motion at p. 4.) Johnson has sent checks to Rastegar Law for an amount set to go to the minor plaintiff and for its fees; this dispute concerns the amount Johnson is to send to Rastegar for Alvizures?s settlement. (Motion at p. 5.)
?[A] prior lien on a judgment in favor of an attorney for legal fees takes precedence over a subsequent judgment creditor’s lien.? (Cetenko v. United California Bank?(1982) 30 Cal.3d 528, 530.) However, by Rastegar?s admission the $5,000 lien was a loan to Alivzures because she ?was past due in her monetary obligations and needed the funds to be able to stay in the Los Angeles area.? (Rastegar Decl. ? 4.) Although the retainer agreement between Rastegar and Tenants does create a lien for litigation costs and expenses, the $5,000 at issue here was not a litigation cost, but a loan by an attorney to a client for living expenses. The writing that Rastegar offers as creating the lien is dated November 20, 2017, after Johnson filed her Notice of Lien. ?Other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia.? (Civ. Code ? 2897.)
The court agrees that Johnson?s lien has priority over the $5,000 lien asserted by Rastegar and orders that the remaining $3,425.50 be distributed by Rastegar law to Molly Johnson, individually and as Trustee of the Molly Johnson of the Molly Johnson Revocable Survivor?s Trust.
Johnson?s Motion to Enforce Settlement is therefore GRANTED.
Defendants to give notice.
Dated: October 4, 2018
__________________________________________
????????????????????????????????????????????????????????????????????????Hon. Robert S. Draper
????????????????????????????????????????????????????????????????????????Judge of the Superior Court