Filed 5/23/16 Morris v. First Bethany Missionary Baptist Church CA2/3
Received for posting 5/24/16
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE



MELVIN MORRIS,                                                           B263197

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BC549393)
         v.

FIRST BETHANY MISSIONARY BAPTIST
CHURCH,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William F. Fahey, Judge. Affirmed.
         Regan & Associates, James J. Regan and Lorne Lilienthal for Plaintiff and
Respondent.
         The Community Law Firm and Atyria S. Clark for Defendant and Appellant.

                                        _________________________
       Defendant and appellant First Bethany Missionary Baptist Church (Church)
appeals a judgment in an unlawful detainer action in favor of plaintiff and respondent
Melvin Morris (Morris).
       We conclude the trial court properly determined that Church was barred from
disputing Morris’s title to the subject real property because the issue of Church’s
ownership of the property previously had been adjudicated against Church. Therefore,
the judgment in favor of Morris is affirmed.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Church was the owner of real property located at 4921 South Figueroa Street in
Los Angeles (the 4921 property) as well as adjacent real property located at 4955 South
Figueroa (the 4955 property).1 One of the properties is improved with a church structure
as well as an additional 42 parking spaces, while the other property is improved with a
46-space parking lot.
       In 2006, Church contracted with Durousseau & Associates, Inc. (Durousseau) to
perform electrical work on its premises. In 2008, Durousseau filed a complaint against
Church for breach of contract, common counts, and foreclosure on mechanic’s lien, and
alleged that Church had defaulted on payment of $36,500. On July 22, 2009, Durousseau
secured a judgment against Church and initiated foreclosure proceedings.
       To avoid losing its property in a sheriff’s sale, Church entered into an agreement
with Morris for satisfaction of the judgment lien. On July 22, 2009, on Church
letterhead, Church’s Pastor McClain (McClain) and Morris entered into a one-page
written agreement for the sale of the 4921 property to Morris. On July 22, 2009,
McClain also executed a grant deed to Morris, which was recorded on the same date.
The documentation was inconsistent. The one-page written agreement specified only the
4921 property, the face of the grant deed showed the assessor’s parcel number for only




1
       The 4955 property was also known as 4951 South Figueroa (the 4951 property).

                                               2
the 4955 property (APN 5018-022-050), and the legal description in Exhibit A to the
grant deed specified both the 4921 property and the 4955 property.
       Exhibit A to the grant deed identified the subject real property being conveyed as
follows: “PARCEL 1: LOTS 1, 2, AND 3 OF THE LEWIS FIGUEROA STREET TRACT AS
PER MAP RECORDED IN BOOK 7, PAGE 141 OF MAPS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY. [¶] PARCEL 2: LOTS 47, 48, AND 49 OF THE
LEWIS FIGUEROA STREET TRACT AS PER MAP RECORDED IN BOOK 7, PAGE 141
OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. [¶]
PARCEL 3: LOT 3 OF THE WARE VILLA TRACT AS PER MAP RECORDED IN BOOK 7,
PAGE 186 OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.” Parcel 1 is the 4921 property, and Parcel 2 is the 4955 property.2
       The gravamen of this litigation is Church’s allegation that the legal description
attached to the grant deed that Morris filed with the county recorder differed from the
legal description attached to the grant deed that McClain actually signed. Church asserts
it agreed to convey solely the 4955 property to Morris, but the grant deed (with legal
description attached) recorded by Morris referenced both the 4955 and the 4921
properties.
       1. The first action (No. BC419680): Morris versus Church.
       On August 12, 2009, Morris filed suit against Church (the Morris action). In the
operative second amended complaint filed December 21, 2009, Morris alleged he
purchased the 4921 property from Church pursuant to an agreement dated July 22, 2009,
but Church failed to convey title to said property. By way of relief, Morris sought, inter
alia, damages, specific performance and rescission.
       Church answered the complaint but did not file a cross-complaint in that action.



2
      The 4955 property subsequently was sold at public auction for Morris’s failure to
pay outstanding property taxes. The 4955 property is not the subject of this appeal,
which solely concerns ownership of the 4921 property. Parcel 3, the third parcel
mentioned in exhibit A to the grant deed, also is not at issue.

                                             3
       On October 29, 2010, fourteen months after filing suit, Morris voluntarily
dismissed his action against Church.
       2. The second action (No. BC450418): Church sues Morris for declaratory relief.
       On December 2, 2010, shortly after Morris dismissed his action, Church filed a
declaratory relief action against Morris (the Church action) with respect to ownership of
the 4921 property. Church pled that after the grant deed was recorded, McClain
discovered that the legal description that was attached to the grant deed that he executed
was not the same as the legal description attached to the grant deed that Morris filed with
the county recorder; the grant deed that was recorded purported to convey both the 4921
property and the 4955 property to Morris, “even though the parties never agreed to
convey both parcels of real estate in exchange for the $48,344.00 [Morris] paid to
McClain as consideration for the exchange.”
       On October 28, 2011, the trial court sustained Morris’ demurrer to the complaint
without leave to amend, stating: “Any claim the Church had on the property would have
been the province of a compulsory cross-complaint in the prior action. California Code
of Civil Procedure section 426.10(c) and California Code of Civil Procedure section
426.30.[3] Church is barred from bringing a new action after the prior one has been
resolved.” On September 26, 2013, the trial court entered judgment in favor of Morris
and against Church.
       On November 22, 2013, Church filed notice of appeal from the September 26,
2013 judgment. On November 10, 2014, after the matter was fully briefed, this court
dismissed the appeal at Church’s request.




3
      All further statutory references are to the Code of Civil Procedure, unless
otherwise specified.

                                             4
       3. The third action (the instant action) (No. BC549393): Morris’s complaint
against Church for unlawful detainer after sale.
       The third action, which is the subject of this appeal, is Morris’s complaint against
Church for unlawful detainer after sale, filed on June 20, 2014. Morris alleged that as the
owner of the 4921 property, he was entitled to possession of the property from Church,
which had refused to deliver possession of the property. The complaint sought
possession of the premises as well as damages for “unlawful detention” of the Property,
but Morris subsequently withdrew his claim for damages and elected to proceed solely on
the issue of possession.
       Church filed an answer in which it denied that Morris had purchased the 4921
property on July 22, 2009, and denied that Morris was the owner of the subject real
property. Church’s answer also asserted various affirmative defenses, including the
unlawful detainer complaint’s failure to allege facts sufficient to state a cause of action,
waiver, laches, consent by Morris to Church’s continued possession of the property, lack
of consideration and estoppel.
       The matter was set for a jury trial. In advance of the final status conference,
Morris filed three motions in limine (MILs).
       MIL No. 1 sought to preclude Church from introducing any evidence, commenting
upon, or making references that Morris had obtained title to the property from Church
fraudulently, wrongfully, or inequitably. Morris argued that previously, in the Church
action, Church already had raised those claims and they had been adjudicated in Morris’s
favor. Further, under California law, issues relating to wrongful acquisition of title are
beyond the scope of unlawful detainer proceedings and are inadmissible therein.
       MIL No. 2 sought to preclude Church from presenting evidence or argument that it
was entitled to retain possession of the property based upon defenses of waiver, consent,
laches or estoppel. Morris anticipated that Church would argue that these defenses were
supported by the fact that Morris allegedly delayed filing the unlawful detainer action for



                                               5
five years after acquiring title, when in fact the parties had been embroiled in litigation
from the time of Morris’s acquisition five years earlier.
       MIL No. 3 sought to preclude Church from presenting any evidence of its
purported ownership rights to the subject real property on the ground that Church’s
ownership claim was barred by the doctrine of collateral estoppel. Morris argued the trial
court had dismissed the Church action, the second action, on the ground that Church’s
suit was barred by its failure to file a compulsory cross-complaint in the first action, and
therefore all issues concerning Church’s property rights now were precluded.
       In opposition to MIL No. 3 (the record does not contain Church’s opposition to
MILs No. 1 or No. 2), Church argued the issue of title to the property had not been
litigated or adjudicated by any court and therefore the doctrine of collateral estoppel did
not apply. Church asserted the demurrer in the second action was sustained purely on a
procedural ground, i.e., the compulsory cross-complaint rule, and there had not been a
judgment on the merits of the case involving title to the property. Church also contended
title was not at issue in the current unlawful detainer action, and Church was not
requesting the court to make a determination that Church was the owner of the property;
rather, Church merely was denying that Morris was the owner of the 4921 property, on
the ground that Morris lacked “good, record title to that property.” According to Church,
Morris had a defective grant deed, and Church should be able to present evidence to
dispute Morris’s claim he was the owner of the property.
       Church also filed a motion for monetary sanctions (Code Civ. Proc., § 128.7) on
the ground the unlawful detainer complaint lacked evidentiary and legal support and was
brought for an improper purpose.
       At the final status conference, after hearing arguments of counsel, the trial court
granted Morris’s three MILs and denied Church’s motion for sanctions. The trial court
explained: “I believe based upon the procedural history of the case which I summarized
earlier today, as well as the relevant case law, that it’s too late at this point in time for the
church to raise an issue of title. And having read the papers and having heard further


                                                6
from counsel this morning, it appears that the only issue that the defendant would like to
raise is that the plaintiff has no title on the basis of an alleged discrepancy in the recorded
instrument on July 22, [20]09. [¶] Previous courts have ruled that that attack is untimely.
I think it’s also untimely for the reasons indicated. [¶] And finally, I think having ruled
in that fashion, there are no triable issues of fact for either judge or a jury. [¶]
Ultimately, the court finds that the plaintiff is entitled to judgment in this case.”
       On February 24, 2015, the trial court entered judgment on the pleadings in favor of
Morris, stating: “On the basis of granting MIL No. 3, the Court hereby finds that the
Answer is insufficient and that Church has failed to assert any valid defenses in its
answer on the UD Action, and on the basis that judicial notice was taken of Instrument
No. 20091112277 [the grant deed recorded on July 22, 2009], the Court further finds that
Morris is entitled to judgment as a matter of law on the UD Action.”
       On April 2, 2015, Church filed a timely notice of appeal from the judgment.
                                      CONTENTIONS
       Church contends: the trial court erroneously deprived it of its constitutional right
to a jury trial; the trial court erred in granting the motions in limine as a substitute for a
motion for judgment on the pleadings; and the trial court abused its discretion in denying
Church’s motion for sanctions.
                                        DISCUSSION
       1. No merit to Church’s contention the trial court’s resolution of the entire case
by way of motions in limine deprived Church of its constitutional right to a jury trial.
       As this court explained in Clemens v. American Warranty Corp. (1987) 193
Cal.App.3d 444, where the trial court dismissed an action after granting various motions
in limine (id. at pp. 449-450), “[m]otions in limine are ordinarily directed at particular
items of evidence, rather than at a plaintiff’s entire case. Here, however, the motions in
limine were, in net effect, an ‘objection to all evidence’ on the grounds [plaintiff] failed
to state any cause of action as to respondents. Following the sustaining of such objection,
a separate motion for judgment on the pleadings is not essential, and an objection to all


                                               7
evidence which is sustained may be followed by a judgment in favor of the objecting
party. (6 Witkin, [Cal. Procedure (3d ed. 1985) Proceedings Without Trial] § 273, at pp.
572–573.)” (Id. at pp. 451-452; see now 6 Witkin, Cal. Procedure (5th ed. 2008)
Proceedings Without Trial, § 200, p. 640.)
       In the instant case, the net effect of the trial court’s order granting the three MILs
was to eliminate Church’s defenses to Morris’s suit for possession of the premises, so as
to entitle Morris to judgment on his complaint. 4
       2. Trial court properly entered judgment for possession in favor of Morris,
following grant of his three motions in limine.
              a. MIL No. 1; exclusion of evidence relating to Morris’s acquisition of title.
       The order granting MIL No. 1 precluded Church in the unlawful detainer
proceeding from introducing any evidence, commenting upon, or making references that
Morris had obtained title to the property from Church fraudulently, wrongfully, or
inequitably. The trial court’s order granting MIL No. 1 was proper.
       In unlawful detainer proceedings, “ordinarily the only triable issue is the right to
possession of the disputed premises, along with incidental damages resulting from the
unlawful detention. [Citations.] Ordinarily, issues respecting the title to the property
cannot be adjudicated in an unlawful detainer action. [Citations.] The denial of certain
procedural rights enjoyed by litigants in ordinary actions is deemed necessary in order to
prevent frustration of the summary proceedings by the introduction of delays and
extraneous issues. [Citations.] [¶] However, the trial court has the power to consolidate
an unlawful detainer proceeding with a simultaneously pending action in which title to
the property is in issue. That is because a successful claim of title by the tenant would
defeat the landlord’s right to possession. [Citation.] When an unlawful detainer


4
       A plaintiff may obtain judgment on the pleadings where the complaint states facts
sufficient to constitute a cause of action, and the answer neither raises any material issue
nor states a defense. (Adjustment Corp. v. Hollywood Hardware & Paint Co. (1939)
35 Cal.App.2d 566, 569-570.)

                                              8
proceeding and an unlimited action concerning title to the property are simultaneously
pending, the trial court in which the unlimited action is pending may stay the unlawful
detainer action until the issue of title is resolved in the unlimited action, or it may
consolidate the actions. [Citations.]” (Martin-Bragg v. Moore (2013) 219 Cal.App.4th
367, 385.)
       Here, on November 7, 2014, while Church’s declaratory relief action was pending
on appeal, the trial court duly consolidated the Church action with the unlawful detainer
action, designating the unlawful detainer proceeding as the lead case.5 6 Three days later,
Church dismissed its appeal in the declaratory relief action. Thus, at the time the MILs
were heard and granted, there was no longer a pending civil action concerning title to the
real property.
       Consequently, Church did have the opportunity to litigate its title dispute with
Morris in the Church action for declaratory relief. In that action, the trial court sustained
Morris’s demurrer without leave to amend and Church appealed. Once the Church action
terminated with Church’s voluntary dismissal of its appeal, Church could not relitigate its
title dispute in the context of the instant unlawful detainer action.
       Accordingly, the trial court properly granted MIL No. 1, thereby precluding
Church in the unlawful detainer proceeding from introducing any evidence, commenting
upon, or making references that Morris had obtained title to the property from Church
fraudulently, wrongfully, or inequitably.7

5
      The consolidation order’s reference to BC419680 rather than BC450418 was
obviously a clerical error. BC419680, the Morris action, terminated in 2010. BC450418,
the Church action, was an active case which was pending on appeal.
6
       By consolidating the two actions, in the event the declaratory relief action were to
be reversed on appeal and remanded, Church’s action for declaratory relief would have
been heard in conjunction with the unlawful detainer proceeding.
7
       We note the trial court in the unlawful detainer action did make a limited inquiry
into the basis of Morris’s title before awarding him possession of the 4921 property. (See
Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465.) In
ruling on the matter, the trial court took judicial notice of the grant deed executed and
                                               9
               b. MIL No. 2; exclusion of Church’s evidence that it was entitled to retain
possession of the property based upon defenses of waiver, consent, laches or estoppel.
       MIL No. 2 anticipated that Church would assert it was entitled to retain possession
of the premises based upon defenses of waiver, consent, laches, or estoppel, on the theory
that Morris purportedly delayed filing his unlawful detainer action for five years after
acquiring title. Morris argued that none of those defenses applied because the parties had
been litigating ownership of the property since 2009.
       We agree with Morris that given the chronology of this litigation, Church’s
assertion that Morris “sat on his rights” is unsupported. Litigation of this property
dispute has been ongoing since 2009. Further, Morris filed the instant unlawful detainer
action in June 2014, during the pendency of Church’s appeal from the dismissal of its
declaratory relief action. Under these circumstances, the grant of MIL No. 2 was proper.
               c. MIL No. 3; exclusion of evidence of Church’s purported ownership of
the 4921 property.
       MIL No. 3 sought to preclude Church from presenting any evidence of its
purported ownership rights in the subject real property, on the ground that Church’s
ownership claim was barred by the doctrine of collateral estoppel. Morris argued the
second action (the Church action for declaratory relief) already had been dismissed on
the ground it was barred by Church’s failure to file a compulsory cross-complaint in the
initial Morris action, and as a result, all issues concerning Church’s purported ownership
of the 4921 property now were precluded. The trial court in the instant unlawful detainer
matter agreed, stating “based upon the procedural history of the case . . . as well as the
relevant case law, . . . it’s too late at this point in time for the church to raise an issue of
title.” As explained, the trial court’s ruling herein was proper.




recorded on July 22, 2009, which evidenced Morris’s title to both the 4921 property and
the 4955 property, by reference to the properties’ respective assessor’s parcel numbers
and legal descriptions.

                                                10
       In the first action, initiated by Morris, Church did not file a compulsory cross-
complaint alleging an ownership interest in the subject real property. The pertinent
statute, section 426.30, provides in pertinent part at subdivision (a): “[I]f a party against
whom a complaint has been filed and served fails to allege in a cross-complaint any
related cause of action which (at the time of serving his answer to the complaint) he has
against the plaintiff, such party may not thereafter in any other action assert against the
plaintiff the related cause of action not pleaded.” The term “related cause of action” is
defined by section 426.10, subdivision (c), as “a cause of action which arises out of the
same transaction, occurrence, or series of transactions or occurrences as the cause of
action which the plaintiff alleges in his complaint.” Since section 426.30 “bars claims
which the party failed to assert by cross-complaint in a previous action arising from the
same occurrence, it necessarily bars issues which were never litigated and never actually
decided.” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1157.) Thus, the trial court
in the Church action ruled that the compulsory cross-complaint rule barred Church from
litigating in the second action, the Church action for declaratory relief, its claim that it
had an ownership interest in the 4921 property, a claim that it had failed to raise by way
of a cross-complaint in the first action, i.e., the Morris action.
       Pursuant to the compulsory cross-complaint rule, the second action, Church’s suit
against Morris for declaratory relief with respect to ownership of the 4921 property, was
dismissed by the trial court following the sustaining of Morris’s demurrer without leave
to amend. Church appealed the dismissal of the second action but later abandoned its
appeal. At that juncture, the trial court’s judgment in the Church action became final and
binding.8

8
       Even assuming that Church at one time could have argued that the compulsory
cross-complaint rule does not apply under the circumstances of this case, that issue is
foreclosed. The trial court’s order in the Church action, sustaining Morris’s demurrer
without leave to amend pursuant to the compulsory cross-complaint rule, is final and
binding. Therefore, Church cannot resist the unlawful detainer action by disputing
Morris’s title to the property.

                                              11
       The issue then becomes the impact of the two prior proceedings on Church’s
ability in the instant unlawful detainer action to dispute Morris’s ownership of the 4921
property. Church failed in the first case, the Morris action, to file a compulsory cross-
complaint asserting an ownership interest in the 4921 property. Thereafter, in the second
case, the Church action, Church suffered an involuntary dismissal due to its inability to
plead a viable declaratory relief claim with respect to its alleged ownership of the 4921
property, and then abandoned its appeal from the judgment of dismissal. These
circumstances rendered Church incapable of defending the unlawful detainer action on
the basis that Morris was not the owner of the 4921 property and not entitled to
possession thereof.
       The dismissal of the Church action for declaratory relief, following the sustaining
of Morris’s demurrer without leave to amend, amounted to a final judgment with respect
to Church’s alleged ownership of the subject real property. A final judgment “ ‘rendered
upon the merits by a court having jurisdiction of the cause, is conclusive of the rights of
the parties and those in privity with them, and is a complete bar to a new suit between
them on the same cause of action. This is the general doctrine of res judicata.’ ”
(Goddard v. Security Title Insurance & Guarantee Co. (1939) 14 Cal.2d 47, 51.) A
judgment not rendered on the merits does not operate as a bar. (Id. at p. 52.) A judgment
“ ‘based upon the sustaining of a special demurrer for technical or formal defects is
clearly not on the merits and is not a bar to the filing of a new action. [Citation.] . . . A
judgment given after the sustaining of a general demurrer on a ground of substance, for
example, that an absolute defense is disclosed by the allegations of the complaint, may be
deemed a judgment on the merits, and conclusive in a subsequent suit; and the same is
true where the demurrer sets up the failure of the facts alleged to establish a cause of
action, and the same facts are pleaded in the second action. [Citations.] But even a
judgment on general demurrer may not be on the merits, for the defects set up may be
technical or formal, and the plaintiff may in such case by a different pleading eliminate
them or correct the omissions and allege facts constituting a good cause of action, in


                                              12
proper form. Where such a new and sufficient complaint is filed, the prior judgment on
demurrer will not be a bar. [Citations.] This result has frequently been reached where
the failure of the first complaint was in misconceiving the remedy, or framing the
complaint on the wrong form of action.’ ” (Id. at p. 52.)
       Applying these principles to the case before us, we look to the trial court’s
resolution of the second action, the Church action. In sustaining Morris’s demurrer
without leave to amend, the trial court in the second action ruled that “[a]ny claim the
Church had on the property would have been the province of a compulsory cross-
complaint in the prior action.” This ruling in the second action sustaining the demurrer
without leave to amend was on the merits because the defect on which the order was
based -- a failure by Church to file a compulsory cross-complaint in the original action --
is not one that Church can cure by filing a new complaint. As a result, the trial court in
the instant case properly held that Church could not defend the unlawful detainer action
by challenging Morris’s ownership of the 4921 property.
               d. Church’s additional arguments.
       In an attempt to preserve its challenge to Morris’s ownership of the 4921 property,
Church argues that it was not until October 29, 2010, when Morris dismissed the initial
action, that Church discovered that the grant deed recorded on July 22, 2009 purported to
transfer title to the 4921 property. Church’s claim of delayed discovery is unavailing. As
the trial court ruled, in an action for quiet title based on fraud or mistake, the statute of
limitations is three years from the discovery of the facts constituting the fraud or mistake.
(Ankoanda v. Walker-Smith (1996) 44 Cal.App.4th 610, 615.) Moreover, after Church
allegedly discovered the fraud, it unsuccessfully brought a declaratory relief action
against Morris in December 2010. At this juncture, the issue of delayed discovery is an
irrelevancy.
       Church’s arguments that Morris’s deed to the 4921 property is void because it was
obtained by fraud, and that there was a lack of consideration for the deed, suffer from the
same infirmities discussed above.


                                               13
       Church also contends that in opposing the unlawful detainer complaint, it could
have contended that an unidentified third party, rather than Morris or Church, was the
owner of the 4921 property. This assertion that a third party owns the property is
unsupported by the record and also is at odds with Church’s theory of the case that
Morris “fraudulently” recorded title to the 4921 property.
       3. No error in denial of Church’s motion for sanctions.
       Having determined the trial court properly entered judgment in favor of Morris,
Church’s contention that the trial court abused its discretion in denying Church’s request
for sanctions necessarily fails.
                                     DISPOSITION

       The judgment is affirmed. Morris shall recover his costs on appeal.

       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EDMON, P. J.


We concur:




                      ALDRICH, J.




                      HOGUE, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                            14
