Case Name: Louis P. Barbaccia, Sr., et al. v. GBR Magic Sands MHP, LLC
Case No.: 17-CV-313947

Currently before the Court is the motion by defendant and cross-complainant GBR Magic Sands MHP, LLC (“GBR”) for summary judgment or, alternatively, summary adjudication.

Factual and Procedural Background

This is one of several cases that have been actively litigated over numerous years involving 20 acres of the Magic Sands Mobile Home Park in San Jose, California. Plaintiffs and cross-defendants Louis P. Barbaccia, Sr. (“Louis”), as trustee of the Louis P. Barbaccia Revocable Inter Vivos Trust dated May 22, 1984, Loubar, LLC (“Loubar”), Vivian Martorana, as successor trustee of the Josephine Pecoraro Trust, and Catherine Pecoraro (“Catherine”) (collectively, “Plaintiffs”) initiated this action against GBR on August 3, 2017. But the relevant facts reach further back in time.

In 1960, the parents of Josephine B. Pecoraro (“Josephine”), Rita Pecoraro, Louis, and Cyril G. Barbaccia (“Cyril”) purchased real property in San Jose (the “Original 20 Acres”). (Second Amended Complaint (“SAC”), ¶ 11.) Cyril and Louis acquired title to an undivided 50 percent interest of the Original 20 Acres. (Id. at ¶ 12.) “The other undivided 50 [percent] of the property was acquired by the Parents (‘Parents’ Original Undivided 50 [Percent]’).” (Ibid.)

In July 1963, Cyril arranged for him and Louis to enter into a 98-year ground lease (“1963 Lease”) of the Parents’ Original Undivided 50 Percent. (SAC, ¶ 12.) The undivided 50 percent interest in the Original 20 Acres held by Cyril and Louis was not subject to the 1963 Lease. (Ibid.) “Subsequently, the Original [20] Acres was developed into Magic Sands Mobile Home Park … and a separate site for a Chevron gas station.” (Ibid.)

In September 1967, Cyril, Louis, and their spouses incorporated Magic Sands Mobile Community, which was to serve as a management entity for Magic Sands Mobile Home Park. (SAC, ¶ 14.) On the same day, Cyril and Louis executed a lease of the Parents’ Original Undivided 50 Percent to Magic Sands Mobile Community. (Ibid.) They also leased their own 50 percent undivided interest in the Original 20 Acres to Magic Sands Mobile Community.

In 1971, the City of San Jose subjected the Original 20 Acres to a condemnation proceeding to realign and widen the road. (SAC, ¶ 13.) The effect of the condemnation was that a portion of the Original 20 Acres was taken away, but a contiguous and excess piece of property formerly used for road purposes was abandoned and thereby added to the mobile home park. (Ibid.) The 20-acre property as it existed after the 1971 changes is referred to as the “Current 20 Acres,” and includes land parcels one, three, and eight. (Ibid.) “[T]he Parents still remained the fee owners of their undivided 50 [percent] interest (hereinafter, ‘Current Undivided 50 [Percent]’).” (Ibid.)

By 1983, Cyril and Louis had created Barbaccia Properties, a California limited partnership (“the Limited Partnership”), and an additional 36 acres had been purchased such that Magic Sands Mobile Home Park comprised approximately 56 acres. (SAC, ¶ 16.)

By March 1985, “the Limited Partnership owned the fee interest in the entire 56-acre park, except for the Current Undivided 50 [Percent].” (SAC, ¶¶ 15-16.) “Also at this time, the Limited Partnership owned the ground lessee interest in the 1963 Lease.” (Ibid.)

In 2005, Louis filed a lawsuit for dissolution of the Limited Partnership. (SAC, ¶ 17.) The following year, the assets of the Limited Partnership were sold at auction. (Ibid.) “All property interests in Magic Sands, including the ground lessee interest under the 1963 Lease but excepting [(sic)] the fee interest in the Current Undivided 50 [Percent], were sold at this auction in late 2006 which, at that time, was still encumbered by the 1963 Lease.” (Ibid.) Notably, by this time, “the Parents were deceased and the fee title to the Current Undivided 50 [Percent] had already passed to their heirs via transfers and assignments as follows: 1/4 undivided interest to [Louis]; 3/8 undivided interest to [Cyril] and his wife, Lena M. Barbaccia, as trustees of their inter vivos trust dated November 16, 1982 …; 1/4 undivided interest to [Josephine], as trustee of her revocable trust; and 1/8 undivided interest to [Catherine].” (Ibid.)

After the auction, GBR San Jose MHP, LLC (“GBR San Jose”) and Barbaccia Properties Holdings, LLC (“BPH”) ultimately took title to the former Limited Partnership’s 50 percent undivided interest in the Current 20 Acres. Additionally, “the 1963 Lease was assigned to GBR’s predecessor entities, GBR Magic Sands, LLC [(‘GBRMS’)] and Barbaccia Magic Sands, LLC [(‘BMS’)].” (SAC, ¶ 18.)

In 2007, BPH as lessor and its wholly-owned subsidiary BMS as lessee entered into a ground lease of BPH’s undivided one-half interest in the former Limited Partnership’s undivided 50 percent interest in the Current 20 Acres. GBR San Jose as lessor and its wholly-owned subsidiary GBRMS as lessee entered into a virtually identical ground lease of GBR San Jose’s undivided one-half interest in the former Limited Partnership’s undivided 50 percent interest in the Current 20 Acres. Together, the twin ground leases are referred to as the “2007 Leases.”

In 2008, GBRMS and BMS transferred their ground lessee interests under the 1963 Lease to GBR. (SAC, ¶ 18.) Additionally, MHP Roll-Up (the successor in interest to BPH and GBR San Jose) became the lessor and GBR became the lessee under the 2007 Leases.

The same year, Louis, Josephine, and Catherine filed a partition action (“Partition Action”), seeking partition of the Current 20 Acres. (SAC, ¶ 19.)

In October 2010, the parties to the Partition Action stipulated to the entry of an order establishing the procedure for sale of the Current 20 Acres. The stipulated order provided among other things that “[a]ll bidders and the Buyer shall have completed all due diligence before a bid is submitted.” It further provided that the property would be sold “as a unit” and “as is-where is” to the highest bidder, that “[t]he sale and purchase of the Property shall be subject to all leases, easements and other exceptions affecting the Property referenced on the Title Report and all encumbrances of record,” and that “[a]ll exceptions will remain on title at the close of escrow.”

The sale of the fee interest in the Current 20 Acres took place on November 4, 2010. (SAC, ¶ 19.) Louis, Josephine, and Catherine, were the successful bidders at that auction. (Ibid.) As a result of the sale, “title to their collective pre-auction interests in the Parents’ Current Undivided 50 [Percent] remained the same,” and the pre-auction interest of the Parents’ Current Undivided 50 [Percent] that belonged to Cyril and his wife was conveyed to Loubar. (Ibid.) Thus, “the fee title to the Current Undivided 50 [Percent] was held as follows: 1/4 undivided interest to [Louis]; 3/8 undivided interest to [Loubar]; 1/4 undivided interest to [Josephine], as trustee of her revocable trust; and 1/8 undivided interest to [Catherine].” (Ibid.) Additionally, the pre-auction 50 percent undivided interest in the Current 20 Acres belonging to MHP Roll-Up was conveyed to Loubar. After the sale, ownership of the Current 20 Acres was as follows: Josephine owned an undivided 2/16 interest subject to the 1963 Lease; Catherine owned an undivided 1/16 interest subject to the 1963 Lease; Louis and/or his company Loubar owned an undivided 5/16 interest subject to the 1963 Lease; and Loubar owned an undivided 8/16 interest subject to the 2007 Leases.

On the date of the auction, Josephine and Catherine filed an action against GBR, Louis, Cyril, and Cyril’s wife, seeking, cancellation of the 1963 Lease (“1963 Lease Cancellation Action”). (SAC, ¶ 20.) The operative pleadings in the 1963 Lease Cancellation Action were Josephine and Catherine’s second amended complaint, Louis’s third amended cross-complaint against Cyril, and Cyril and GBR’s cross-complaint against Josephine, Catherine, and Louis.

Josephine and Catherine’s second amended complaint asserted causes of action for cancellation of the 1963 Lease and damages (Civ. Code, § 3412), rescission, quiet title, breach of fiduciary duty against Cyril, financial elder abuse of Josephine against Cyril, and fraudulent concealment against Cyril. The gravamen of the complaint was that Cyril had a confidential and fiduciary relationship with the parents in 1963 and used it to gain an unfair advantage by inducing them to enter into a 98–year lease with terms that he knew were “unfair, substantially below fair market value and otherwise not customary or usual for leases of this type … .”

Louis’s third amended cross-complaint asserted a single cause of action for cancellation of the 1963 Lease. The gravamen of the cross-complaint was that Cyril as the oldest son “in his words ‘masterminded’ the [1963 Lease] transaction,” thus exploiting the confidential and fiduciary relationship he enjoyed with his parents at the time.

Cyril and GBR’s cross-complaint asserted causes of action for deceit, declaratory relief, and indemnity by Cyril against Louis. The gravamen of that cross-complaint was that Josephine, Catherine, and Louis’s false representations induced Cyril and GBR’s predecessors in interest to consummate a $38.5 million loan secured in part by the 1963 Lease. The cross-complaint sought a declaration that cancellation of the 1963 Lease would violate their agreement and “that the 1963 Lease is in full force and enforceable.”

In 2011, Loubar filed an action to cancel the 2007 Leases (“2007 Lease Cancellation Action”). In that action, GBR also filed a cross-complaint seeking to reform the 2007 Leases. After sustaining a demurrer and granting a motion for judgment on the pleadings, the trial court issued a judgment in favor of U.S. Bank finding Loubar could not cancel the 2007 Leases. Loubar appealed, but the judgment was affirmed by the Sixth District Court of Appeal.

Judgment in the 1963 Lease Cancellation Action was entered in 2013. (SAC, ¶ 20 & Ex. B.) The judgment stated: “The 1963 Lease is void; the fee title holders to the Property are, therefore, entitled to cancellation of the 1963 Lease effective as of August 3, 2012 and possession of GBR’s undivided fifty percent interest in the Property previously subject to the 1963 Lease effective as of August 3, 2012.” (Ibid.) The judgment further stated that GBR “shall forthwith relinquish possession of GBR’s undivided fifty percent leasehold interest in the [Current Undivided 50 Percent] previously subject to the 1963 Lease.” (Ibid.)

GBR filed an undertaking and an appeal, which stayed enforcement of the judgment and prevented the fee title holders from taking possession of the property previously subject to the 1963 Lease. (SAC, ¶ 21.) The Sixth District Court of Appeal affirmed the judgment and remittitur issued on January 12, 2017. (Id. at ¶ 22.)

As a consequence of the judgment becoming final, Plaintiffs allege that GBR no longer enjoyed any rights or benefits under the 1963 Lease, including but not limited to, “the right to possession of the Current Undivided 50 [Percent], or any rights or entitlement to any of the net profits from the Current Undivided 50 [Percent].” (SAC, ¶ 23.) “As to the net profits from the Current Undivided 50 [Percent], … such net profits comprised the gross rental income of the 215 mobile home spaces located on the Current [20] Acres, less reasonable operating expenses, reduced by 50 [percent] (representing the net profits attributable to the Current Undivided 50 [Percent]).” (Ibid.) The net profit is referred to as “Net Operating Income” or “NOI.” (Ibid.)

Since August 3, 2012, GBR has maintained exclusive control and possession of the Current 20 Acres to the exclusion of Plaintiffs. (SAC, ¶¶ 27-29, 47-49, 57, 61-65.) In addition, GBR has allegedly refused to pay Plaintiffs any of the NOI due and owing. (Id., at ¶¶ 26-29.) “For a time, the only monies paid to [Louis and Loubar] from August 3, 2012, going forward and in connection with the Current Undivided 50 [Percent], are the Plaintiffs’ respective pro-rata shares of rent under the 1963 Lease – an amount far less than the outstanding NOI owing to Plaintiffs.” (Ibid.) Moreover, “GBR’s pro-rata 1963 Lease rent payments … ceased effective November, 2016 for [Louis], and February, 2017, for [Loubar].” “Since those dates, GBR has paid [Louis and Loubar] absolutely no money in connection with its occupation, use and control, and wholesale reaping of literally all of the NOI of the Current Undivided 50 [Percent].” (Id. at ¶ 26.)

With respect to Vivian Martorana and Catherine, the obligation to pay NOI was allegedly stayed pending appeal. (SAC, ¶ 27.) During the appeal, GBR paid pro-rata shares of rent under the 1963 Lease. (Ibid.) When remittitur issued, GBR ceased making any payments to Vivian Martorana and Catherine. (Ibid.) GBR has not made any payments in connection with its “occupation, use and control, and wholesale reaping of literally 100 [percent] of the NOI of the Current Undivided 50 [Percent].” (Ibid.)

Based on the foregoing allegations, Plaintiffs’ operative SAC alleges causes of action for: (1) mesne profits as to parcel one; (2) mesne profits as to parcel three; (3) mesne profits as to parcel eight; (4) declaratory relief; (5) declaratory relief; (6) financial elder abuse; (7) ejectment; and (8) permanent injunction.

In August 2018, GBR filed a special motion to strike the sixth, seventh, and eighth causes of action of the SAC. Two months later, Plaintiffs dismissed the sixth, seventh, and eighth causes of action of the SAC, without prejudice.

On December 3, 2018, GBR filed the instant motion for summary judgment or, alternatively, summary adjudication, which was set for hearing on February 7, 2019. Plaintiffs filed papers in opposition to the motion on January 11, 2019. On January 24, 2019, GBR filed reply papers. Most recently, on January 30, 2019, Plaintiffs filed an objection to GBR’s objections to Plaintiffs’ responsive separate statement.

Discussion

Pursuant to Code of Civil Procedure section 437c, GBR moves for summary judgment of the SAC or, alternatively, summary adjudication of each and every cause of action of the SAC. (GBR’s Ntc. Mtn., pp. 1:27-3:3.)

I. Requests for Judicial Notice

A. GBR’s Request

Preliminarily, GBR asks the Court to take judicial notice of the fact that Plaintiffs filed their initial complaint in this action on August 3, 2017. GBR also asks the Court to take judicial notice of various documents filed in this action, the Partition Action, the 1963 Lease Cancellation Action, and the 2007 Lease Cancellation Action. GBR further asks the Court to take judicial notice of (1) the decision of Pecoraro v. Barbaccia (Cal. Ct. App., Oct. 18, 2016, No. H040008) 2016 WL 6085884 issued by the Sixth District Court of Appeal in the 1963 Lease Cancellation Action and (2) the decision of Loubar, LLC v. U.S. Bank, N.A. (Cal. Ct. App., Sept. 16, 2016, No. H040422) 2016 WL 4939566 issued by the Sixth District Court of Appeal in the 2007 Lease Cancellation Action. Lastly, GBR asks the Court to take judicial notice of the 2007 Leases, which were recorded with the Santa Clara County Recorder’s Office on April 4, 2007.

The fact that Plaintiffs filed their initial complaint in this action on August 3, 2017, is a proper subject of judicial notice. The fact is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See Evid. Code, § 452, subd. (h).)

Next, the various documents filed in this action, the Partition Action, the 1963 Lease Cancellation Action, and the 2007 Lease Cancellation Action are proper subjects of judicial notice. The documents are court records that are relevant to the pending motion. Evidence Code section 452, subdivision (d) states that courts may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455 (Woodell).) Thus, the existence of the records and the truth of the results reached in orders, statements of decision, and judgments are proper subjects of judicial notice.

In addition, the unpublished opinions of the Sixth District Court of Appeal in the 1963 Lease Cancellation Action and the 2007 Lease Cancellation Action are generally proper subjects of judicial notice. Courts may properly take judicial notice of procedural matters and background facts in unpublished appellate decisions. (See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 73, fn. 3 (ZF Micro) [taking judicial notice of procedural matters and background facts in prior unpublished opinion]; see also K.G. v. Meredith (2012) 204 Cal.App.4th 164, 172, fn. 9 (K.G.) [courts may appropriately cite unpublished decisions to explain the factual background of the case and not as legal authority].)

Finally, the Court may take judicial notice of the 2007 Leases as real property documents recorded in Santa Clara County. (See Evid. Code, § 452, subd. (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265, disapproved on other grounds in Yvanova v. New Century Morg. Corp. (2016) 62 Cal.4th 919 [court may take judicial notice of the existence and recordation of real property records].)

Accordingly, GBR’s request for judicial notice is GRANTED.

B. Plaintiffs’ Request

Initially, Plaintiffs ask the Court to take judicial notice of documents filed in this action, the Partition Action, and the 1963 Lease Cancellation Action. Plaintiffs also ask the Court to take judicial notice of the reporter’s transcripts prepared in connection with hearings in the 1963 Lease Cancellation Action on March 29, May 1, June 19, June 26, and July 12, 2013, and July 7, 2017. Plaintiffs further ask the Court to take judicial notice of (1) unsecured supplemental property tax bills issued by the County of Santa Clara Department of Tax and Collections and (2) a check issued by Loubar, purporting to make a first installment payment for secured property taxes. Lastly, Plaintiffs ask the Court to take judicial notice of: (1) letters sent by Plaintiffs’ counsel to the trial court (Hon. Aaron Persky) in connection with the 1963 Lease Cancellation Action; (2) a “[Further Revised Proposed] Statement of Decision After Court Trial” prepared in connection with the 1963 Lease Cancellation Action; (3) an email from Robert Williams to Plaintiffs’ counsel, purporting to calculate rents due and owing under the 1963 Lease; (4) an email from GBR’s counsel to Plaintiffs’ counsel, regarding Plaintiffs’ request to occupy office space at the Magic Sands Mobile Home Park.

The various documents filed in this action, the Partition Action, and the 1963 Lease Cancellation Action are proper subjects of judicial notice. The documents are court records that are relevant to the pending motion. Evidence Code section 452, subdivision (d) states that courts may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (Woodell, supra, 17 Cal.4th at p. 455.) Thus, the existence of the records and the truth of the results reached in orders, statements of decision, and judgments are proper subjects of judicial notice.

Next, the reporter’s transcripts prepared in connection with hearings in the 1963 Lease Cancellation Action are proper subjects of judicial notice. (See Evid. Code, § 452, subd. (d) [permitting courts to take judicial notice of court records]; see also Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 65 [taking judicial notice of a hearing transcript].)
The remaining items at issue are not proper subjects of judicial notice.

First, Plaintiffs seek judicial notice of (1) unsecured supplemental property tax bills and (2) a check issued by Loubar pursuant to Evidence Code section 452, subdivision (c). However, Plaintiffs do not cite any legal authority providing that tax bills and payments thereof constitute “[o]fficial acts of the legislative, executive, and judicial departments of the United States [or] of any state of the United States.” (Evid. Code, § 452, subd. (c); see Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Second, Plaintiffs seek judicial notice of (1) letters sent to the trial court (Hon. Aaron Persky) in connection with the 1963 Lease Cancellation Action, (2) the “[Further Revised Proposed] Statement of Decision After Court Trial” prepared in connection with the 1963 Lease Cancellation Action, (3) an email from Robert Williams to Plaintiffs’ counsel, and (4) an email from GBR’s counsel to Plaintiffs’ counsel pursuant to Evidence Code section 452, subdivisions (d) and (h). Evidence Code section 452, subdivisions (d) and (h) allow courts to take judicial notice of court records and facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code, § 452, subds. (d) & (h).) However, there is no indication that the subject documents were filed in any action. Furthermore, Plaintiffs do not present any reasoned argument or legal authority demonstrating that the subject documents constitute facts or propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See Badie, supra, 67 Cal.App.4th at pp. 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Accordingly, Plaintiffs’ request for judicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as to the unsecured supplemental property tax bills, the check issued by Loubar, the letters sent to the trial court (Hon. Aaron Persky), the “[Further Revised Proposed] Statement of Decision After Court Trial,” the email from Robert Williams to Plaintiffs’ counsel, and the email from GBR’s counsel to Plaintiffs’ counsel. The request is GRANTED as to documents filed in this action, the Partition Action, and the 1963 Lease Cancellation Action, and the reporter’s transcripts prepared in connection with hearings in the 1963 Lease Cancellation Action.

II. Evidentiary Objections

A. Plaintiffs’ Objections

In connection with their opposition, Plaintiffs submit objections to the following evidence offered in support of GBR’s motion: (1) the decision of Loubar, LLC v. U.S. Bank, N.A. (Cal. Ct. App., Sept. 16, 2016, No. H040422) 2016 WL 4939566 issued by the Sixth District Court of Appeal in the 2007 Lease Cancellation Action; and (2) portions of the declaration of John Guerra (“Guerra”).

Plaintiffs’ objection to the decision of Loubar, LLC v. U.S. Bank, N.A. (Cal. Ct. App., Sept. 16, 2016, No. H040422) 2016 WL 4939566 issued by the Sixth District Court of Appeal in the 2007 Lease Cancellation is overruled. As previously stated, the Court may properly take judicial notice of, and consider, the unpublished decision to help complete the context of this case. (See ZF Micro, supra, 5 Cal.App.5th at p. 7, fn. 3 [“Some of the procedural matters and background facts are taken from our unpublished decision in the prior TAT proceeding … [.] [Citation.] Pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a), we take judicial notice of that opinion and of the record submitted in connection with that proceeding. [Citation.]”]; see also K.G., supra, 204 Cal.App.4th at p. 172, fn. 9 [“The parties dispute whether it is appropriate to cite this unpublished appellate opinion. (See Cal. Rules of Court, rule 8.1115(a).) … We … may appropriately cite the decision to explain the factual background of the case and not as legal authority. We have previously suggested this is an appropriate use of unpublished opinions that does not violate rule 8.1115 of the California Rules of Court. (See Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 443, fn. 2 … [discussing Cal. Rules of Court, former rule 977].)”].)

The Court declines to rule on Plaintiffs’ remaining objections to portions of the Guerra declaration because the objections are not material to the disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)

B. GBR’s Objections

In connection with its reply, GBR submits objections to “additional facts” set forth in Plaintiffs’ responsive separate statement of undisputed material facts.

GBR’s objections do not comply with California Rules of Court.

As an initial matter, the objections to the “additional facts” set forth in Plaintiff’s responsive separate statement of undisputed material facts are improper because they are not directed to specific evidence proffered in support of the additional undisputed material facts. (See Cal. Rules of Ct., rule 3.1354 [providing that objections are to be directed at specific evidence].)

Furthermore, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). Here, GBR failed to comply with the rule as it did not submit a proposed order. (See Cal. Rules of Ct., rule 3.1354(c) [a party must provide a proposed order that complies with one of the formats described in the rule].)
Because GBR’s objections do not comply with the California Rules of Court, the Court is not required to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

Accordingly, the Court declines to rule on GBR’s objections.

III. Procedural Issue

As a threshold matter, Plaintiffs argue that GBR’s motion is procedurally deficient. Plaintiffs contend that GBR’s motion is procedurally deficient because: (1) GBR did not “provide proper notice that it would seek summary judgment on the basis of its First Affirmative Defense: failure to state a cause of action”; and (2) “GBR’s third argument … is undecipherable as it blends issues of 2007 Lease interpretation … on the one hand, with supposed consent based upon the terms of sale in the 2008 Partition Action … on the other.” (Ps’ Opp’n., p. 8:10-22.) Plaintiffs conclude that the Court can deny the motion based on these procedural deficiencies, citing see also Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974, fn. 4 (Maryland).

This case is distinguishable from Maryland because the instant motion does not seek summary adjudication of discrete issues. (Cf. Maryland, supra, 221 Cal.App.3d at p. 974, fn. 4 [the moving party moved for summary adjudication of discrete issues, but failed identify the coverage provided by particular policies as an issue on which it was seeking summary adjudication in its notice of motion].) Instead, GBR moves for summary judgment of the SAC or, alternatively, summary adjudication of each and every cause of action of the SAC. (GBR’s Ntc. Mtn., pp. 1:27-3:3; see Code Civ. Proc., 437c, subds. (a)(1) [“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”] & (f)(1) [“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”].)

Moreover, GBR’s notice of motion clearly identifies the action of which it seeks summary judgment and the causes of action of which it, alternatively, seeks summary adjudication. No further detail is required in the notice of motion. (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478 [“Defendants’ motion was made in August 1992, more than 18 months after the 1990 amendment to Code of Civil Procedure section 437c took effect. Subdivision (f) of that statute redefines the summary adjudication process, eliminating its use for facts or issues “that do not completely dispose of a cause of action or a defense.” [Citation.] Accordingly, there is no longer any reason for a notice of motion to identify specific issues; a listing of the disputed causes of action, as was done here, is sufficient. The trial court’s stated requirement that the ‘matters’ at issue be more precisely identified would have been accurate under the prior system of summary adjudication [citation], but is unjustified under the present version of section 437c, subdivision (f).”].)

Thus, Plaintiffs’ argument that the motion is procedurally deficient lacks merit.

IV. Legal Standard on Motions for Summary Judgment or Adjudication

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and 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.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] §
437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005)
132 Cal.App.4th 458, 464.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

V. Substantive Merits of Motion

GBR argues that it is entitled to summary judgment of the SAC or, alternatively, summary adjudication of each and every cause of action of the SAC because Plaintiffs fail to allege facts sufficient to constitute a cause of action. (GBR’s Mem. Ps. & As., pp. 2:27-3:14 & 19:3-25.) GBR also argues that it is entitled to summary judgment of the SAC or, alternatively, summary adjudication of each and every cause of action of the SAC because Plaintiffs’ claims are barred by res judicata, judicial estoppel, the 2007 Leases, and the statute of limitations. (Id., at pp. 1:22-2:26, 3:15-4:1, 9:3-19:2, & 19:26-20:22.)

A. Failure to Allege Facts Sufficient to Constitute a Cause of Action

GBR argues that Plaintiffs fail to allege a legally cognizable claim against it. GBR points out that the first, second, and third causes of action are labeled as claims for mesne profits, and the fourth and fifth causes of action are claims for declaratory relief. GBR asserts that each cause of action is based on an allegation that “ ‘as a consequence of the Judgment’ [in the 1963 Lease Cancellation Action] [it] is obligated to pay mesne profits, which Plaintiffs define as a share of GBR’s net operating income with Plaintiffs.” GBR contends that the judgment in the 1963 Lease Cancellation Action cannot properly form the basis of any claim against it because “[t]he Judgment … does not direct [it] to pay Plaintiffs mesne profits or other damages.” (GBR’s Mem. Ps. & As., pp. 2:27-3:6 & 19:3-10.)

Next, GBR states that “[a]lthough ‘ouster’ is not alleged as a cause of action, the SAC alleges that [its] occupation and operation of Magic Sands [Mobile Home Park] operates as a nonconsensual ‘ouster’ … .” (GBR’s Mem. Ps. & As., pp. 3:7-8.) GBR contends that a claim of ouster cannot be stated here because such a claim can only exist between co-owners who are tenants in common and “[it] is a lessee of the 20 Acres – not an owner.” (Id., at pp. 3:7-10 & 19:11-25.) GBR then asserts that “[i]f [its] possession of the property violates Plaintiffs’ rights as owners, [it] would be guilty of trespass”; however, it cannot be held liable for trespass because it has the right to possess and use the entire Current 20 Acres under the terms of the 2007 Leases. (Id., at pp. 3:10-14 & 19:11-25.)

“A defendant’s motion for summary judgment necessarily includes a test of the sufficiency of the complaint. [Citation.] When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true. [Citation.]” (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1055.) If the time for a demurrer has passed by the time the motion for summary judgment was filed, the motion is treated as a motion for judgment on the pleadings to the extent it tests whether the complaint states a cause of action. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117–1118 (American).)

For purposes of determining whether the complaint states a claim, courts treat the properly pleaded allegations of the complaint as true, and also consider those matters subject to judicial notice. (American, supra, 12 Cal.4th at p. 1118.) Moreover, the allegations must be liberally construed with a view to attaining substantial justice among the parties. (Ibid.) The primary task of the court is to determine whether the facts alleged provide the basis for a cause of action against the defendants under any theory. (Ibid.)

The Court first considers the sufficiency of the first, second, and third causes of action.

The first, second, and third causes of action are labeled as claims for mesne profits. However, when evaluating the legal sufficiency of a pleading, a court is not bound by the label on a cause of action. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane); see Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1190 [the nature of a cause of action does not depend on the label the plaintiff gives it or the relief the plaintiff seeks, but on the primary right involved].) If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, the complaint is good against challenge to its legal sufficiency. (Quelimane, supra, 19 Cal.4th at p. 38.)

In the SAC, Plaintiffs allege that they obtained the co-tenancy rights that were previously leased to GBR under the terms of the 1963 Lease (i.e., undivided fifty percent interest in the Current 20 Acres) once the judgment in the 1963 Lease Cancellation Action became final. (SAC, ¶¶ 20-23, 26-29, 47-49, 57, 61-65.) As the owner of those rights, Plaintiffs allege that they are entitled to share possession of the Current 20 Acres with GBR (which leases the remaining undivided fifty percent interest in the Current 20 Acres under the terms of the 2007 Leases) and GBR cannot exclude them from any part of the Current 20 Acres. (Ibid.) Plaintiffs allege that GBR has wrongly claimed the whole of the Current 20 Acres for itself and excluded them from the property such that they are entitled to recover the rental value of the property from GBR. (Ibid.)

These allegations are sufficient to state a claim to recover the reasonable value of the use and enjoyment of Plaintiffs’ share of the Current 20 Acres from GBR. Each party owning an undivided interest in real property is equally entitled to share in the possession of the entire property and neither may exclude the other from any part of it. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548 (Zaslow); Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 455 (Swartzbaugh).) Each cotenant may lease his or her right to occupy and use the common property to a third person to the same extent that it could be occupied and used by the lessor cotenant. (Verdier v. Verdier (1957) 152 Cal.App.2d 348, 352 (Verdier); Tompkins v. Superior Court of City and County of San Francisco (1963) 59 Cal.2d 65, 68 (Tompkins).) However, if the lessee of one cotenant is in the exclusive possession of the property and excludes the other cotenants when they attempt to enter, “the excluded cotenant can recover the reasonable value of the use and enjoyment of his or her share of the estate from the lessee.” (4 Miller & Starr, Cal. Real Estate (4th ed. 2018) Holding Title, § 11:3, p. 11-8, citing Swartzbaugh, supra, 11 Cal.App.2d at p. 455; Lee Chuck v. Quan Wo Chong (1891) 91 Cal. 593, 598-599 [where the defendant is in possession of the property with the license, lease, or consent of the plaintiff’s co-tenant and excludes the plaintiff, the plaintiff is entitled to be let into possession with the defendant to enjoy his moiety and recover his share of the reasonable value of the use and enjoyment of the property].) This is what allegedly occurred here. Thus, GBR fails to demonstrate that the first, second, and third causes of action do not state legally sufficient claims.

Next, the Court considers the sufficiency of the fourth and fifth causes of action for declaratory relief.

An action for declaratory relief in codified in Code of Civil Procedure sections 1060 and 1060. A party must plead “two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.’ [Citation.]” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.)

A challenge to the legal sufficiency of the pleadings, such as a general demurrer or motion for judgment on the pleadings, “is usually not an appropriate method for testing the merits of a declaratory relief action, because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff’s interest.’ [Citation.]” (Qualified Patients Ass’n v. City of Anaheim (2010) 187 Cal.App.4th 734, 751 (Qualified); Centex Homes v St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 29 (Centex); Western Homes, Inc. v. Herbert Ketell, Inc. (1965) 236 Cal.App.2d 142, 146.) It is an abuse of discretion for a trial court to sustain such a challenge to a legally sufficient complaint for declaratory relief even if the trial court concludes that the plaintiff is not entitled to a favorable declaration. (Qualified, supra, 187 Cal.App.4th at p. 756; Centex, supra, 237 CalApp.4th at p. 29.)

Here, GBR does not contend, or otherwise demonstrate, that the fourth and fifth causes of action fail to plead the essential elements of a claim for declaratory relief. Rather, GBR appears to assert that Plaintiffs are not entitled to a declaration in their favor. Thus, GBR fails to demonstrate that the fourth and fifth causes of action do not state legally sufficient claims for declaratory relief.

B. Res Judicata

GBR argues that Plaintiffs’ claims are barred by res judicata because the primary right that Plaintiffs sought to vindicate in the 1963 Lease Cancellation was “the right to own the 20 Acres unburdened by the 1963 Ground Lease because it was procured by undue influence” and the instant action seeks relief from the same invasion of the same primary right. (GBR’s Mem. Ps. & As., pp. 1:24-2:2 & 10:14-13:28.)
Res judicata, i.e., claim preclusion, “prevents relitigation of the same cause of action in a second suit between the same parties” and “arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-824.)

At issue here is whether the 1963 Lease Cancellation Action and this lawsuit involve the same causes of action.

To determine whether two proceedings involve identical causes of action for purposes of res judicata, California courts have “consistently applied the ‘primary rights’ theory.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 97 (Boeken); see DKN Holdings, supra, 61 Cal.4th at p. 827, fn. 1; see also Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) “Under this theory, ‘[a] cause of action … arises out of an antecedent primary right and corresponding duty and the delict or breach of such primary right and duty by the person on whom the duty rests. ‘Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term … .’ ’ ” (Boeken, supra, 48 Cal.4th at pp. 797-98.) “[F]or purposes of applying the doctrine of res judicata, … [t]he cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” (Id., at p. 798.) “ ‘[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ ’ Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Ibid., internal citations and emphasis omitted.)

The case of Boeken illustrates this principle. In Boeken, the complaint in the plaintiff’s common law action for loss of consortium alleged that the defendant tobacco company’s wrongful conduct “permanently deprived” her of her husband’s companionship and affection. (Boeken, supra, 48 Cal.4th at p. 798.) That action was dismissed with prejudice. Then, after her husband’s death from the lung cancer, the plaintiff brought another wrongful death action against the defendant, again seeking compensation for the loss of her husband’s companionship and affection. (Id., at pp. 791–793.)

The California Supreme Court held that “[t]he primary right was the right not to be wrongfully deprived of spousal companionship and affection, and the corresponding duty was the duty not to wrongfully deprive a person of spousal companionship and affection.” (Boeken, supra, 48 Cal.4th at p. 798.) The alleged breach of that duty was the conduct of the defendant that wrongfully induced the plaintiff’s husband to smoke the defendant’s cigarettes. (Ibid.) The Court noted: “It does not matter what weakness, if any, in plaintiff’s previous lawsuit might have led her to dismiss it with prejudice. Once plaintiff did so, the primary right and the breach of duty (together, the cause of action) had been adjudicated in defendant’s favor. Therefore, plaintiff could not later allege the same breach of duty in a second lawsuit against defendant, based on a new legal theory (statutory wrongful death).” (Ibid.)

Here, the primary right at issue in the 1963 Lease Cancellation Action was Plaintiffs’ right not to be wrongfully deprived of possession of the undivided 50 percent interest in the Current 20 Acres that was subject to the 1963 Lease. The corresponding duty was the duty not to wrongfully deprived Plaintiffs of possession of the undivided 50 percent interest in the Current 20 Acres that was subject to the 1963 Lease. The alleged breach of that duty was GBR’s possession of the undivided 50 percent interest in the Current 20 Acres that was subject to the 1963 Lease under a false claim of right. In other words, the delict was GBR’s claim of possession of the undivided 50 percent interest in the Current 20 Acres pursuant to 1963 Lease, which was procured by undue influence.

The primary right at issue in this lawsuit is Plaintiffs’ right not to be wrongfully deprived of possession of the undivided 50 percent interest in the Current 20 Acres that was subject to the 1963 Lease. The corresponding duty was the duty not to wrongfully deprived Plaintiffs of possession of the undivided 50 percent interest in the Current 20 Acres that was subject to the 1963 Lease. But the essential delict (i.e., the alleged wrongful conduct) is GBR’s use and possession of the entire Current 20 Acres, to the exclusion of Plaintiffs, after the 1963 Lease was cancelled. The wrongful conduct is not GBR’s possession of the undivided 50 percent interest in the Current 20 Acres pursuant to 1963 Lease, which was procured by undue influence.

Thus, the 1963 Lease Cancellation Action and this lawsuit do not involve the same causes of action.

C. Judicial Estoppel

GBR argues that Plaintiffs’ claims are barred by the doctrine of judicial estoppel. GBR contends that Plaintiffs have taken positions in the 1963 Lease Cancellation Action and this lawsuit that are totally inconsistent. GBR states that Plaintiffs dropped their claim for damages in the 1963 Lease Cancellation Action and asserted that they would not seek “monetary damages” and “other claims” against GBR. GBR asserts that the claims in this lawsuit for mesne profits “qualifies as one of the ‘other claims against [it]’ that Plaintiffs specifically represented to Judge Persky that they would ‘not pursue.’ ” (GBR’s Mem. Ps. & As., p. 15:14-21.)

“The concept of judicial estoppel prevents a party from asserting a position in a judicial proceeding that is contrary or inconsistent with a position previously asserted in a prior proceeding. The purpose is to protect the integrity of the judicial process and not the parties of the lawsuit.” (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) Judicial estoppel is implicated when: “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)

In the 1963 Lease Cancellation Action, Josephine and Catherine’s operative second amended complaint asserted causes of action for cancellation of the 1963 Lease and damages (Civ. Code, § 3412), rescission, quiet title, breach of fiduciary duty against Cyril, financial elder abuse of Josephine against Cyril, and fraudulent concealment against Cyril. The gravamen of the complaint was that Cyril had a confidential and fiduciary relationship with the parents in 1963 and used it to gain an unfair advantage by inducing them to enter into a 98–year lease with terms that he knew were “unfair, substantially below fair market value and otherwise not customary or usual for leases of this type … .” Josephine and Catherine initially sought damages for GBR’s wrongful conduct (i.e., GBR’s claim of possession of the undivided 50 percent interest in the Current 20 Acres pursuant to 1963 Lease, which was procured by undue influence). At trial, Josephine and Catherine indicated that if the 1963 Lease was cancelled and set aside they would not seek “monetary damages” from GBR or pursue “their other claims” against GBR.

Here, there is a triable issue of material fact as to whether the statement purportedly made by Plaintiffs regarding their abandonment of monetary damages and other claims in the 1963 Lease Cancellation Action is totally inconsistent with Plaintiffs’ pursuit of mesne profits in this lawsuit. As Plaintiffs persuasively argue, their statement that they would not pursue “their other claims” can reasonably be understood to mean that Plaintiffs would not pursue their claims for breach of fiduciary duty, financial elder abuse, and fraudulent concealment as alleged in the 1963 Lease Cancellation, as opposed to any and all other claims that Plaintiffs might possibly have against GBR. Similarly, their statement that they would not seek “monetary damages” can reasonably be understood to mean that Plaintiffs would pursue damages for GBR’s claim of possession of the undivided 50 percent interest in the Current 20 Acres pursuant to 1963 Lease, which was procured by undue influence. Notably, in the present lawsuit, GBR seeks monetary damages for different wrongful conduct—GBR’s use and possession of the entire Current 20 Acres, to Plaintiffs’ exclusion, after the 1963 Lease was cancelled.

Thus, GBR fails to demonstrate that judicial estoppel bars Plaintiffs’ claims.

D. 2007 Leases

GBR argues that the 2007 Leases bar Plaintiffs’ claims because the 2007 Leases grant it the right to possess the entire Current 20 Acres free from interference from the lessors. GBR contends that although Plaintiffs were not the original lessors under the 2007 Leases, they agreed to assume the obligations under the 2007 Leases when they purchased the fee title interest in the Current 20 Acres.

The evidence shows that, together, the 2007 Leases leased to GBR the undivided 50 percent interest in the Current 20 Acres that was not subject to the 1963 Lease. Thus, GBR had right to occupy and use the Current 20 Acres to the same extent that it could be occupied and used by MHP-Rollup (the lessor cotenant). (See Verdier, supra, 152 Cal.App.2d at p. 352; see also Tompkins, supra, 59 Cal.2d at p. 68.) In other words, under the terms of the 2007 Leases, GBR was entitled to share in the possession of the entire property, but GBR could not exclude the owner of the other undivided 50 percent interest in the Current 20 Acres (i.e., Plaintiffs) from any part of it. (See Zaslow, supra, 29 Cal.2d at p. 548; see also Swartzbaugh, supra, 11 Cal.App.2d at p. 455.) It just so happened that GBR had also leased Plaintiffs’ undivided 50 percent interest in the Current 20 Acres pursuant to the 1963 Lease.

In October 2010, the parties to the Partition Action stipulated to the entry of an order establishing the procedure for sale of the Current 20 Acres. The stipulated order provided among other things that “[a]ll bidders and the Buyer shall have completed all due diligence before a bid is submitted.” It further provided that the property would be sold “as a unit” and “as is-where is” to the highest bidder, that “[t]he sale and purchase of the Property shall be subject to all leases, easements and other exceptions affecting the Property referenced on the Title Report and all encumbrances of record,” and that “[a]ll exceptions will remain on title at the close of escrow.” Furthermore, the 2007 Leases were listed in the Title Report.

The sale of the fee interest in the Current 20 Acres took place on November 4, 2010. Louis, Josephine, and Catherine, were the successful bidders at that auction.

As a result of the sale, the fee title to the undivided 50 percent interest that was subject to the 1963 Lease was held as follows: 1/4 undivided interest to Louis; 3/8 undivided interest to Loubar; 1/4 undivided interest to Josephine; and 1/8 undivided interest to Catherine. Additionally, the undivided 50 percent undivided interest in the Current 20 Acres that was subject to the 2007 Leases was conveyed to Loubar. Thus, after the sale, ownership of the Current 20 Acres was as follows: Josephine B. Pecoraro owned an undivided 2/16 interest subject to the 1963 Lease; Catherine Pecoraro owned an undivided 1/16 interest subject to the 1963 Lease; Louis and/or his company Loubar owned an undivided 5/16 interest subject to the 1963 Lease; and Loubar owned an undivided 8/16 interest subject to the 2007 Leases.

After the partition sale, the 1963 Lease was ultimately cancelled. Consequently, GBR only retained rights to possess the Current 20 Acres as granted to it under the terms of the 2007 Leases.

In other words, GBR had the right to occupy and use the entire Current 20 Acres, but it GBR could not exclude the owner of the undivided 50 percent interest in the Current 20 Acres that was not subject to the 2007 Leases. Therefore, the 2007 Leases do not bar Plaintiffs’ claims as GBR’s alleged wrongful conduct is that it is now wrongfully excluding Plaintiffs (the owners of the remaining interest in the Current 20 Acres that was previously subject to the 1963 Lease) from the Current 20 Acres.

GBR points out that the 2007 Leases provide that it “shall peaceably and quietly have, hold and enjoy the Premises for the term without hindrance or molestation from the Landlord.” But this language does not permit GBR to exclude Plaintiffs from the Current 20 Acres such that they are unable to possess or use their moiety. The term “Premises” is defined in the 2007 Leases as a 50 percent tenancy in common interest in the land, and all improvements thereon, owned by the landlord. Thus, 2007 Leases simply provide that: (1) GBR has the right to occupy and use the entire Current 20 Acres in accordance with the 50 percent undivided interest in the Current 20 Acres that has been leased to it; and (2) the lessor will not hinder, molest, or otherwise interfere with that right. GBR has not shown how Plaintiffs’ possession and use of their 50 undivided interest in the Current 20 Acres would hinder, molest, or otherwise interfere with its right to occupy and use the entire Current 20 Acres in accordance with the 50 percent undivided interest in the Current 20 Acres that has been leased to it.

Finally, GBR points out that the partition order states that the real property at issue was to be sold as “a single unit” and consisted of the “the parties’ collective interest” in the Current 20 Acres. But GBR does not present reasoned argument or legal authority demonstrating that the use of the terms “single unit” and “collective interest” somehow re-wrote the terms of the 2007 Leases such that it may now possess and use the Current 20 Acres to the exclusion of Plaintiffs. (See Badie, supra, 67 Cal.App.4th at pp. 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) As Plaintiffs persuasively argue, the terms “single unit” and “collective interest” merely indicate that all of the fee interests in the Current 20 Acres were being sold together as opposed to a fractional interest in the Current 20 Acres.

E. Statute of Limitations

GBR argues that the claims are barred by the statute of limitations because Plaintiffs knew as early as January 8, 2008, that the 1963 Lease had been procured by undue influence and was, therefore, void. GBR asserts that “Plaintiffs were required to file, within the applicable statute of limitations, a claim for all damages that allegedly flowed from GBR’s occupation of the 20 Acres under the tainted 1963 Ground Lease.” (GBR’s Mem. Ps. & As., p. 20:4-6.) GBR contends that the longest applicable statute of limitations for claims for mesne profits is five years under Code of Civil Procedure section 336. GBR concludes that the lawsuit is time-barred because Plaintiffs filed the instant lawsuit on August 3, 2017, “more than nine years” after January 8, 2008. (Id. at p. 20:4-13.)

GBR’s argument lacks merit. As previously explained, this lawsuit does not seek “damages that allegedly flowed from GBR’s occupation of the 20 Acres under the tainted 1963 Ground Lease.” (GBR’s Mem. Ps. & As., p. 20:4-6.) Rather, the wrongful conduct that forms the basis of the SAC is GBR’s use and possession of the entire Current 20 Acres, to the exclusion of Plaintiffs, after the 1963 Lease was cancelled. As GBR’s alleged wrongful conduct did not occur until August 3, 2012 (the date the 1963 Lease was cancelled), at the earliest, the lawsuit is not time-barred by the statute of limitations set forth in Code of Civil Procedure section 336.

F. Conclusion

Because all of GBR’s arguments are not well-taken, GBR’s motion for summary judgment of the SAC or, alternatively, summary adjudication of each and every cause of action of the SAC is DENIED.