2017-00221989-CU-OR

Vadim Ormanzhi vs. Elena Ormanzhi

Nature of Proceeding: Motion for an Order Expunging Lis Pendens

Filed By: Vorobets, Alla V.

Defendant and Cross-complainant Elena Kovalevskaya fka Elena Ormanzhi’s Motion for an Order to Expunge Recorded Lis Pendens, or Alternatively Requiring the Posting of an Undertaking is GRANTED.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by with C.R.C., Rule 3.1308 and Local Rule 3.04(D). Local Rules for the Sacramento Superior Court are available on the Court’s website at Counsel for moving party is ordered to notify opposing party immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 3.04(B).

Plaintiff Vadim Ormanzhi’s (“Vadim”) verified complaint alleges four causes of action against his mother, Elena Ormanzhi (“Elena”), for: adverse possession, oral contract to transfer ownership fully performed constructive or resulting trust and unjust enrichment/restitution. Plaintiff seeks a judgment quieting title to the real property commonly known as 5526 20th Avenue also known as 5526 21st Avenue, Sacramento. CA 95820, against Elena Ormanzhi. On Nov. 13, 2017, plaintiff filed an Amended Notice of Lis Pendens.

On Jan. 16, 2018 Elena filed a cross-complaint against Vadim for 1st quiet title, 2nd slander of title, 3rd conversion, 4th unjust enrichment, 5th ejectment, 6th declaratory relief, 7th in the alternative, partition and 8th in the alternative, accounting.

Vadim justifies his lis pendens on his cause of action for adverse possession of the real property. Defendant asserts that Vadim cannot have a claim for adverse possession against his mother, nor when she consented to his possession of the real property.

The cause of action for oral contract to transfer is barred by the statute of frauds and the equitable causes of action for constructive or resulting trust and unjust enrichment/ restitution cannot form the basis for a lis pendens.

Material Facts

Elena married Vasiliy Ormanzhi (“Vasiliy”) on September 25, 1993, when Vadim was seven years old. (Declaration of Elena Kovalevskaya fka Elena Ormanzhi (“EKO Dec”), ¶ 3.) She formally adopted Vadim and his two younger siblings on December 25, 1995. (EKO Dec, ¶ 4.) The family immigrated to America in the 1990s. (EKO Dec,

¶ 5.) During the 18-year marriage, Elena served as homemaker, mother, caregiver for her husband’s elderly parents as well as office manager, bookkeeper, secretary, dispatcher and translator for Vasiliy’s commercial trucking business. (EKO Dec, ¶ 6.) On October 10, 2002, Elena and Vasiliy purchased the Property. (EKO Dec, ¶ 7, Exhibit 1.) They took the title to the Property as joint tenants. (EKO Dec, ¶ 8, Exhibit 2.)

To this day, the title to the Property remains unchanged. (EKO Dec, ¶ 9.) Approximately three years after purchase, Elena and Vasiliy began construction on a second house on the Property. (EKO Dec, ¶ 10.) Elena applied for and obtained the necessary permits, and was instrumental in choosing and purchasing building materials, etc. (EKO Dec, ¶ 11.)

During the 18-year marriage, Elena declares that she was the victim of abuse by Vasiliy, but remained in the marriage for the sake of her children. (EKO Dec, ¶ 12.) On Feb. 1, 2011, Elena filed for divorce. She also obtained a domestic violence restraining order against Vasiliy. She took Vasiliy’s default and Judgment of Dissolution was entered on July 15, 2011. Although requested, the Dissolution Judgment did not include an order as to division of the real property. (EKO Dec, ¶ 13-15, Exhibit 3-4.) Elena continued to maintain the close, loving relationships she had with her three children after the divorce. (EKO Dec, ¶ 16.)

On September 21, 2015, Vasiliy passed away from a heart attack. (EKO Dec, ¶ 17.) Vadim, who had moved back in with his father earlier that year, continued to reside in the Property with Elena’s consent. (EKO Dec, ¶ 18.) Elena was never asked to, and never agreed to give Vadim an interest in the Property. (EKO Dec, ¶ 19.) As reflected in plaintiff’s Complaint, there is nothing in writing from Vasiliy indicating he intended to give Vadim an interest in the Property. (EKO Dec, ¶ 21.)

In late 2016, real property values in the area began to increase and Vadim demanded that Elena pay him a sum of money for him to surrender possession of the Property or that she transfer title to him. (EKO Dec, ¶ 22.) Elena refused his demands. (EKO Dec,

¶ 23.) Vadim then installed a renter in the Property, without telling Elena, and moved back to Pennsylvania. (EKO Dec, ¶ 25.) In October 2017, Elena decided to sell the property and retained a real estate agent. On Nov. 9, 2017 Vadim responded by filing this suit and recording a lis pendens.

Lis Pendens

The California Legislature has placed the burden of proof upon the claimant to establish, by a preponderance of the evidence, the probable validity of the real property claim. (Cal. Civ. Pro. Code’ §§405.30, 405.31 and 405.32.) The “claimant” is the party “who asserts a real property claim and records a notice of the pendency of

action”. (CCP § 405.1.) Probable validity, with respect to a real property claim, means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim.” (CCP § 405.3) “Real property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property ….” (Code Civ. Proc., § 405.4.)

Here the claimant, Plaintiff Vadim alleges in a verified complaint that Vasiliy and Elena Ormanzhi purchased the subject property and took title as husband and wife as joint tenants on or about October 15, 2002. (Complaint, ¶ 6) Both Elena and Vasiliy treated the house as though they were unaware of the consequence of not identifying it in the Dissolution proceedings and addressing the post- dissolution consequences. Record title remained in the names of Vasiliy and Elena as joint tenants. Either one of them had the power to unilaterally convert the joint tenancy to a tenancy in common. Vasiliy is dead and did nothing. (Compl. ¶ 11)

Plaintiff’s complaint alleges only two real property causes of action: the 1st for adverse possession and the 2nd for oral contract.

Adverse Possession

Here, plaintiff’s 1st cause of action for adverse possession requires proof of: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises in such a manner as to constitute reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) possession which is uninterrupted and continuous for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.” (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604.)

Vadim does not have color of title as he does not hold possession founded on a written instrument, judgment, or decree, purporting to convey the land. (Buic, supra, at 1604.) To proceed under a claim of right, Vadim must make a strong showing of proof on each of the required elements. (Thompson v. Dypvik (1985) 174 Cal.App.3d 329, 339; 5 Miller & Starr, Cal. Real Estate (2d ed. 1989) Adverse Possession, § 16:2, p. 625.)

Vadim must establish that he maintained actual, open and notorious occupancy of the property. The general rule is that where a close familial relationship exists between the owner and the claimant of property, the possession by the claimant will not be considered adverse to the owner in the absence of a clear showing of the assertion of a hostile claim and actual or constructive notice. (Lobro v. Watson (1974) 42 Cal.App.3d 180, 186.)

Vadim must show evidence of adverse possession to Elena by both Vasiliy and Vadim. There must be a dispute as to the title during the period of possession, and the claimant’s possession must be adverse to the record owner, “unaccompanied by any recognition, express or inferable from the circumstances, of the right in the latter.” ( Buic v. Buic (1992) 5 Cal.App.4th 1600, 1605.)

Here, no evidentiary showing of repudiation of Elena’s rights to the subject property has been made. The complaint admits that Vasiliy “did nothing” to change the title on the property during his lifetime. The Complaint admits that Elena is still a title holder of record. Vadim does not allege that Vasiliy communicated to Elena that he, Vasiliy, was the owner of the property to the exclusion of Elena.

Nor does the Complaint allege that Vadim communicated to Elena that Vadim was the owner of the property to the exclusion of Elena. Rather, Vadim’s declaration reflects that he offered to purchase the property from Elena in late Sept. or early Oct. 2015. (Vadim Dec. ¶ 29) This contradicts his allegations that he asserted ownership hostile to Elena’s.

Nor has Vadim provided admissible evidence that his possession of the property was uninterrupted and continuous for at least five years. Rather he admits that he resided in the property for only two years.

To the extent that Vadim asserts that he can tack his father Vasiliy’s possession of the real property onto Vadim’s, Vasiliy’s possession must have been hostile and adverse to Elena’s which has not been established, as set forth above.

The Court cannot find that plaintiff Vadim has established, by a preponderance of the evidence, the probable validity of the real property claim for adverse possession against his mother Elena.

Oral Contract

A contract to convey an interest in real property is invalid unless it is in writing. (Civ. Code, § 1624; Contreras v. Loya (1961) 192 Cal.App.2d 176, 178.)

In opposition, plaintiff asserts that agreements among partners or joint venturers regarding real property are not within the statute of frauds. (Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 583.)

However, plaintiff had no contractual agreement with Elena to enforce a joint venture agreement against her. Enforcement of such an agreement against Vasiliy’s estate must be done in the Probate Court.

The alleged oral contract between Vasiliy and Vadim is unenforceable against Elena.

Intestate succession

Plaintiff’s opposition relies for the first time on the contention that the property is his by virtue of intestate succession.

Prob. Code, § 5042 (a) provides that a joint tenancy between the decedent and the decedent’s former spouse, created before or during the marriage … is severed as to the decedent’s interest if, at the time of the decedent’s death, the former spouse is not the decedent’s surviving spouse … as a result of the dissolution or annulment of the marriage….”

Here, the Judgment of Dissolution was entered on July 15, 2011, prior to Vasiliy’s death, thus Elena was not the decedent’s surviving spouse. As Vasiliy died intestate, his interest in the real property would pass by intestate succession.

However, plaintiff has failed to plead any decision by the Probate Court reflecting that he is entitled to inherit Vasiliy’s property, following the death of his father Vasiliy on September 21, 2015. Probate proceedings are required to determine heirship.

Plaintiff’s uncorroborated statements as to what his father Vasiliy said or intended are inadmissible hearsay, as are his representations as to the positions of his brother, sister and his father’s third wife. No declarations under penalty of perjury have been provided by any of them.

The Court’s role on a motion to expunge a lis pendens is to determine whether the Complaint sets forth a real property claim. The court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim. (Code Civ. Proc., § 405.31.)

No undertaking is required, as the Court cannot find that plaintiff’s complaint contains a real property claim on which he is likely to prevail.

Prevailing party shall submit a formal order for the Court’s signature, pursuant to C.R.C., Rule 3.1312.