Filed 9/25/14 Sapp v. Super. Ct. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


LISA SAPP et al.,                                                    B256088
                                                                     (Super. Ct. Nos. BC536146, 14U03062,
         Petitioners,                                                14U03061, 14U02876)

         v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

         Respondent;

GWENDOLYN TRIPLETT et al.,

         Real Parties in Interest.



         Petition for writ of mandate to the Los Angeles Superior Court. Kevin Brazile,
Deborah Christian, Judges. Petition granted.
         Lee & Fields, Edward Y. Lee, David A. Figueroa, for Petitioners.
         No appearance for Respondent.
         Dennis P. Block & Associates, Dennis P. Block, for Real Party In Interest.
                                         ________________________
       Petitioners Lisa Sapp, James Carrey Blount, Kathy Bush, and Darlene Wallace
(collectively the Sapp parties), are plaintiffs in a civil action arising from a sale of the
stock cooperative housing program in which they allegedly own residential units, and are
defendants in separate unlawful detainer actions filed by the property’s alleged purchaser.
They seek review of orders of the trial court denying their application for consolidation of
the actions, which they sought in order to prevent the trial of their rights to title to the
property under the summary procedures that apply to unlawful detainer proceedings. We
grant the requested relief.

                                         Background
       The Sapp parties filed an unlimited civil action in the Los Angeles Superior Court,
No. BC536146. Their March 5, 2014, first amended complaint alleges claims against
individual defendants Gwendolyn Triplett and Latonya Higgins, against San Pedro
Townhouses #1, Inc., a stock cooperative housing program sponsored by the federal
Department of Housing and Urban Development (the Association), and against Exusia
Investment Company, LLC (Exusia).1 The pleading alleges breach of fiduciary duty,
fraud and intentional misrepresentation, negligent misrepresentation, and conversion,
seeking an accounting, preliminary and permanent injunction, and declaratory relief
(against the individual defendants and the Association), and quiet title and cancellation of
instruments against Exusia. Triplett and Higgins, acting as the Association’s board of
directors, are alleged to have converted and misappropriated Association income and
assets, fraudulently misrepresenting to others that they individually owned each of the
units within the Association including the units owned by the petitioners, and




       1
        The Association is alleged to have been incorporated on February 29, 1972,
under California’s general nonprofit corporation law, “to provide housing on a mutual
nonprofit basis [under title 2, section 236, of the National Housing Act] for families and
persons of lower income . . . .”

                                               2
surreptitiously and without authority selling the Association’s property, including the
petitioners’ units, to Exusia.2
       Also on March 5, 2014, Exusia filed four actions for unlawful detainer pursuant to
three-day notice against the petitioners, alleging that on or about February 4, 2014, the
Sapp parties had sold the units to Exusia and are holdover tenants on the property. On
March 13, 2014, the Sapp parties answered the unlawful detainer complaints and filed a
notice identifying case No. BC536146 and the unlawful detainer cases as related cases.3
       On March 28, 2014, Judge Kevin Brazile ruled in case No. BC536146 that case
No. BC536146 and the unlawful detainer cases are not related cases. On April 16, 2014,
Judge Brazile denied an ex parte application to consolidate the cases.4
       The unlawful detainer actions were scheduled for trial on May 8, 2014. On May
7, 2014, the Sapp parties filed this petition. They also requested a stay of the unlawful
detainer proceedings pending the petition’s determination. This court stayed the unlawful
detainer proceedings, and on June 19, 2014, entered an order directing respondent
superior court to show cause why a peremptory writ should not issue ordering it to vacate
its April 16, 2014 order denying petitioners’ application to consolidate case No.




       2
         The petitioners claim ownership of four of the Association’s eight residential
units; that real parties in interest Triplett and Higgins each own one unit; and that the
Association owns the two remaining units, which it rents to individual tenants. Sapp, for
example, claims to have lived since her early childhood in her home in San Pedro
Townhomes; that her mother purchased the unit on June 1, 1982, and on July 3, 2001,
transferred her shares in the stock cooperative, representing the units ownership, to Sapp.
Sapp paid off the property’s mortgage debt on November 30, 2012.
       3
         The record leaves uncertain whether three or four unlawful detainer actions are
involved, a matter that the parties do not address and that has no apparent impact on our
ruling in this proceeding. We ignore it.
       4
         The ex parte application asked that in the alternative if consolidation were
denied, for an order shortening time to hear the motion to consolidate or for a stay of the
unlawful detainer proceedings until determination of the quiet title action.

                                             3
BC536146 and unlawful detainer actions Nos. 14U03062, 14U03061 and 14U02876, and
to enter a new and different order granting same.5

                                          Discussion
       Mandate is appropriate to review an order denying consolidation of cases.
(Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) “Although it is well
established that mandamus cannot be issued to control a court’s discretion, in unusual
circumstances the writ will lie where, under the facts, that discretion can be exercised in
only one way.” (Babb v. Superior Court (1971) 3 Cal.3d 841, 851.) The petitioners’
unlimited civil action raises issues of title that, if established in their favor, would negate
the facts and conditions on which Exusia’s claim of title and right to possession depend.
We therefore hold that the trial court abused its discretion by refusing to grant petitioners’
request for consolidation or other relief from the summary procedures that govern
unlawful detainer actions, for unlimited civil action in case No. BC536146, in which the
respective parties’ right to title to the property is a controlling issue.
       Ordinarily the only triable issue in an unlawful detainer proceeding is the right to
possession of the disputed premises, along with any incidental damages that result from
the property’s unlawful detention. (Larson v. City and County of San Francisco (2011)
192 Cal.App.4th 1263, 1297; Friedman et al., Cal. Practice Guide: Landlord-Tenant (The
Rutter Group 2012) ¶ 8:4, p. 8-1 (rev. # 1, 2011).) Issues of title to the property
ordinarily cannot be adjudicated in an unlawful detainer action. (Drybread v. Chipain
Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1072; Friedman, supra, ¶ 7:267, p. 7-
58.15 (rev. # 1, 2012).) The denial of some procedural rights in unlawful detainer cases
is deemed necessary in order to prevent frustration of the summary proceedings by the
introduction of delays and extraneous issues. (Markham v. Fralick (1934) 2 Cal.2d 221,
227; Martin-Bragg v. Moore, supra, 219 Cal.App.4th at p. 385.)



       5
         Real party in interest Exusia has filed opposition to the petition; individual
parties Triplett and Higgins have not appeared.

                                                4
       However, Code of Civil Procedure section 1148 provides trial courts with
discretion to consolidate pending actions that involve common questions of law or fact;
and applicable case law (unmentioned by Exusia in this court and in the trial court)
requires the consolidation of actions that involve the same parties, witnesses, evidence,
and questions of law and fact, in order to avoid substantial prejudice to a party.
       When allegations in pending unlawful detainer and unlimited civil actions
demonstrate that the unlawful detainer plaintiff’s title might be insufficient to justify
relief, and that the unlawful detainer defendant might be entitled to quiet title to the
disputed property, a trial court abuses its discretion by refusing relief from the summary
procedures that apply to unlawful detainer proceedings, as to trial of the issue of the
property’s ownership. (Martin-Bragg v. Moore, supra, 219 Cal.App.4th at pp. 385, 395.)
Under such circumstances the cases should be granted consolidation or some equivalent
relief from the summary procedures that apply to unlawful detainer proceedings: “When
an unlawful detainer proceeding and an 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. [Citation.] If it does neither and instead tries the issue
of title under the summary procedures that constrain unlawful detainer proceedings, the
parties’ right to a full trial of the issue of title may be unfairly expedited and limited. If
complex issues of title are tried in the unlawful detainer proceeding, the proceeding loses
its summary character; defects in the plaintiff’s title ‘are neither properly raised in this
summary proceeding for possession, nor are they concluded by the judgment.’
[Citations.]” (Id. at p. 385.)
       These circumstances are shown by the record in this proceeding. Exusia’s right to
unlawful detainer is dependent on its title to the properties for which it seeks unlawful
detainer. A pending civil action, as well as affirmative defenses to the unlawful detainer
complaints, allege facts that, if established, might entitle the petitioners to quiet title to
those properties against Exusia and therefore might defeat Exusia’s right to prevail in its
unlawful detainer actions. Exusia’s right to unlawful detainer thus depends on the


                                                5
outcome of the quiet-title action, an unlimited civil action to which the summary
procedures that govern unlawful detainer proceedings do not apply. (Code Civ. Proc., §§
1161, 1161a.) The controlling interests of the parties in the various actions, taken
collectively, are identical, resting on the validity of Exusia’s purported purchase of the
property that encompasses the residential units allegedly owned by each of the
petitioners.
        In this case, as in Martin-Bragg v. Moore, supra, 219 Cal.App.4th 367, the right to
unlawful detainer depends on the outcome of the quiet title action, which cannot be made
subject to the summary unlawful detainer procedures. As we held in Martin-Bragg v.
Moore, an action for unlawful detainer can co-exist with other causes of action “only ‘so
long as the entire case is treated as an ordinary civil action, not as a summary
proceeding.’” (Id. at p. 387; Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603,
608.)
        The trial court did not identify on the record the grounds on which it denied the
petitioners’ requests for consolidation. Nor does Exusia’s opposition to consolidation in
either the trial court or this court identify any sufficient basis for the denial. Exusia
alleges that it is a bona fide purchaser of the property, and that the facts alleged by
petitioners fail to allege wrongdoing by Exusia sufficient to support consolidation. But it
does not deny that its unlawful detainer claims depend on the validity of its title to the
property, nor that its right to title is at issue in both the quiet title action and the unlawful
detainer cases. Exusia alleges that being deprived of the expedited unlawful detainer
procedures would result in irreparable injury, that the petitioners would be able to occupy
the property without paying rent (which might not be collectable following a disposition
favorable to Exusia), and that the consolidated cases would cause “the thousands in
damages and legal fees” that Exusia has already incurred to “grow exponentially”; but it
identifies no factual bases for these claims.6

        6
         Because Exusia intended to hold the property for rental rather than to reside in it,
its potential damages from delay in the proceedings are only monetary. Application of
the summary procedures of unlawful detainer to the petitioners, on the other hand, would

                                                 6
       The authorities on which Exusia relies in opposing consolidation provide it no
support. In Mobil Oil Corp. v. Superior Court (1978) 79 Cal.App.3d 486, the trial court
granted relief from the trial court’s stay of an unlawful detainer proceeding pending trial
of the tenant gasoline station’s action alleging the improper termination of its franchise.
But here, unlike in the Mobil Oil case, the issue is not merely restoration of a tenant’s
lease founded on its franchise contract, but quiet title to the property from which ouster is
sought. And in Gonzales v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029, the court
confirmed that an adjudication of fraud under summary unlawful detainer procedures
could not result in a binding determination of title. (Id. at pp. 1036-1037.)
       As noted above, in more recent cases that are neither cited nor discussed by
Exusia, the law recognizes that the pendency of complex issues of title justify and may
require consolidation or equivalent relief from the expedited and summary procedures
that govern typical unlawful detainer proceedings. (Martin-Bragg v. Moore, supra, 219
Cal.App.4th 367; Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, 147
[compromise of summary procedures of unlawful detainer action is justified because due
process precludes homeowners’ eviction without the opportunity to adjudicate
affirmative defenses of fraud, which, if proved, would demonstrate their right to
ownership and possession]; Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1047-
1050 [unlawful detainer defendants’ claim that plaintiff’s title was obtained by fraud
required trial court to stay execution of unlawful detainer judgment upon reasonable
conditions for the protection of parties’ interests]; Berry v. Society of Saint Pius X (1999)
69 Cal.App.4th 354, 364, fn. 7 [treatment of unlawful detainer action as ordinary civil
action for declaratory relief was justified because summary remedy of unlawful detainer
is not proper vehicle for litigation of complex issues of title]; see Pierotti v. Torian
(2000) 81 Cal.App.4th 17, 32 [sanctions imposed for appellant’s failure to address most

potentially deprive them of their constitutional rights to due process in the adjudication of
their right to continue residing in their long-held residential units. (See Lindsey v.
Normet (1972) 405 U.S. 56, 64–66 [applying summary unlawful detainer procedures is
not constitutionally justified when complex issues of title require subordination of due
process to the summary procedures of unlawful detainer].)

                                               7
pertinent legal authority]; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869,
884-885 [same].)
       The Sapp parties’ pleadings in these actions demonstrate a right to relief on the
merits of their petition. The law is clear that trial courts have available various
procedural options—including consolidation—to address the parties legitimate rights and
to provide the unlawful detainer plaintiff with reasonable protection from unjustified
delay of the proceedings while affording reasonable and fair opportunities for discovery
and preparation for trial of the issues of title on which the right to the unlawful detainer
remedy depends. (Martin-Bragg v. Moore, supra, 219 Cal.App.4th at p. 393.) The trial
court abused its discretion by failing to grant any such available options.
       The Sapp parties’ petition also satisfies the other requirements for mandate. The
order denying consolidation is not an appealable order (Code Civ. Proc., § 904.1, subd.
(c)); and review by appeal from a final judgment in either the quiet title action or the
unlawful detainer actions could not afford timely or effective relief.

                                         Disposition
       Let a peremptory writ of mandate issue directing respondent court to vacate the
order of April 16, 2014, in Los Angeles Superior Court case No. BC536146, denying
consolidation of that case with Los Angeles Superior Court unlawful detainer case Nos.
14U03062, 14U03061, and 14U02876, and to enter a new and different order either
granting consolidation of the actions for further proceedings, or granting such other relief
as will permit the issues of title raised by case No. BC536146 to be heard and determined
before trial of unlawful detainer case Nos. 14U03062, 14U03061, and 14U02876,
without the restrictions that otherwise apply to actions for unlawful detainer.




                                              8
      Petitioners to recover their costs in this proceeding, without prejudice to any
additional recovery to which they may be entitled.
      NOT TO BE PUBLISHED.




                                                CHANEY, Acting P. J.


We concur:



             JOHNSON, J.



             MILLER, J.*




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

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