Filed 8/1/13; pub. order 9/3/13 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION ONE


KIMBERLY MARTIN-BRAGG,                                  B238772

         Plaintiff and Respondent,                      (Los Angeles County
                                                         Super. Ct. No. BC459449)
         v.

IVAN RENE MOORE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Richard L. Fruin, Jr., Judge. Reversed.
         Ivan Rene Moore, in pro. per., for Defendant and Appellant.
         Thomasina M. Reed for Plaintiff and Respondent.




                              ___________________________________
       Ivan Rene Moore appeals in pro. per. from the superior court’s judgment
following trial on the unlawful detainer complaint of Kimberly Martin-Bragg seeking
forfeiture of a lease and possession of a property. The judgment, entered January 23,
2012, awarded Martin-Bragg possession of the disputed property, along with rent of
$50,068.34 and rental damages of $57,220.96 for the period from May 1, 2011 to
December 31, 2011, plus daily damages of $238.42 per day from January 1, 2012 until
the date of judgment.
       Moore appeals from the judgment on a number of grounds, most notably the trial
court’s refusal to consolidate the unlawful detainer case against him with another action
then pending in the superior court, brought by Moore, seeking quiet title to the property
based on allegations that Martin-Bragg’s title to the property was actually held in trust for
Moore’s benefit. Upon a fragmentary and disorganized record we conclude that the trial
court abused its discretion in refusing Moore’s request to consolidate the unlawful
detainer and quiet title actions for trial, and that Moore was prejudiced by being forced to
litigate the complex issue of title to the property under the summary procedures that
govern actions for unlawful detainer.
                                     BACKGROUND
Martin-Bragg’s unlawful detainer action
       On April 13, 2011, Kimberly Martin-Bragg filed an unlimited unlawful detainer
action against Ivan Rene Moore. (See Code Civ. Proc., §§ 86, subd. (a)(4); 1161.) The
complaint alleged Martin-Bragg’s ownership of a residential property at 6150
Shenandoah Avenue in the Ladera Heights area of Los Angeles, Moore’s month-to-
month tenancy of the house under a written rental agreement, Moore’s non-payment of
the $7,152.62 monthly rent, his receipt of service of a three-day notice to pay rent or quit,
and Martin-Bragg’s demand for past-due rent of $50,068.34.1



 1  The complaint did not attach a copy of the written rental agreement on which Martin-
Bragg’s claim rested. (Code Civ. Proc., § 1166, subd. (d)(1) [requiring complaint to
attach copy of written lease].)


                                              2
       After an unsuccessful demurrer, Moore answered in pro. per. on June 20, 2011,
challenging Martin-Bragg’s ownership of the property and right to receive rent for it. His
answer alleged that he and Martin-Bragg had been long-time domestic partners; that the
property at 6150 Shenandoah Avenue is rightfully owned by Moore, a few corporations
he uses in his music business, and Ronald Hills, the corporations’ secretary; that the
property had been in his family long before his relationship with Martin-Bragg; that title
to the property had been held by Mr. Hills, and the property had been used by Moore
over the years as collateral for business loans of over $5 million; and that in 2004 Mr.
Hills had transferred title to Martin-Bragg in trust as a business arrangement for the
benefit of Moore and his corporations, not for Martin-Bragg’s personal use or benefit.
He alleged that he and his corporations had made all payments for the property’s
purchase, maintenance, upkeep, and extensive improvements, and that Martin-Bragg had
made no payments, or had been reimbursed for any payments she had made. He also
alleged that Martin-Bragg had received large amounts of cash, for which she refused to
account, from a nightclub and radio stations owned and operated in other cities by Moore
and the corporations.2
Moore’s action to quiet title
       On June 22, 2011, Moore filed a verified complaint against Martin-Bragg and
others (L.A.S.C. No. BC464111), seeking quiet title to the 6150 Shenandoah Avenue
property along with other causes of action.3 The allegations with respect to the quiet title

 2 The corporations were later identified as Rufftown Entertainment, Radio Multimedia,
Rene Moore Music (a California corporation), and Rene Moore Music (a Nevada
corporation). Throughout this opinion we refer to the corporations used in Moore’s
music business collectively without differentiation, as did the witnesses at trial.
 3  The complaint in case number BC464111 alleged causes of action for breach of
contract, fraud and intentional deceit, breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, intentional interference with prospective economic advantage,
conspiracy, accounting, slander of title, quiet title, and slander. Martin-Bragg represented
to the court that the other named defendants were her mother, her daughter, and a friend.
Moore included these defendants because he believed that Martin-Bragg might have
transferred the property’s title to them.


                                             3
claim were consistent with his answer to the unlawful detainer complaint. The complaint
alleged also that Martin-Bragg had provided him with special powers of attorney assuring
that she would not interfere with right to the property; that in reliance on his relationship
with Martin-Bragg he had caused title to the property to be transferred to her, with the
understanding that she would hold it in trust for him; and that he had since made
improvements of over $150,000 to the property.
Denial of motion to relate and consolidate pending cases
       On June 23, 2011, Moore filed ex parte applications in the unlawful detainer
proceeding to shorten time to file a notice of related cases, and a motion to consolidate
the unlawful detainer proceeding with case number BC464111. The trial court in the
unlawful detainer case denied the unopposed application on June 27, 2011.
       The unlawful detainer trial commenced on June 30, 2011.
       Following the opening statement on Martin-Bragg’s behalf, Moore renewed his
earlier request to relate the unlawful detainer proceeding with case number BC464111,
the quiet title action, citing Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, and
expressing concern that “once this court makes a ruling” in the unlawful detainer
proceeding, “it could affect the res judicata.”4 The trial court then acknowledged its right
to relate the cases and to consolidate them in the unlawful detainer court. “Now, if the
two are related and consolidated, I can set the matter for trial probably in August or
maybe July. In that event, you’ll get a judgment in both cases.” “What concerns me
here,” the court pointed out, “is that there is a challenge to the plaintiff’s ownership. I
understand that she has a grant deed, but if there were loans subsequent to the grant deed




 4  Moore also sought judicial notice of another action (referred to as the “Bobby Watson
case”) in which he, as well as Martin-Bragg and others, had been defendants. He claimed
that in that case he had been forced to pay $280,000 to settle a judgment based on his
ownership of the 6150 Shenandoah Avenue property.


                                              4
with the property used as security, it might be evidence that her title was not the legal title
but was held as a trustee.”5
       On the trial’s first day the court heard testimony on the plaintiffs’ behalf from
Martin-Bragg, from Mr. Rile, an expert document examiner, and from Moore, under
Evidence Code section 776. After the plaintiff rested her case, Moore presented
testimony from Mr. Hills, Vijay Chandran, and Martin-Bragg (under Evidence Code
section 776).
The trial testimony on behalf of Martin-Bragg
       Martin-Bragg, a Los Angeles police officer, testified that Moore had lived in the
home at 6150 Shenandoah Avenue since about 2000, before she purchased the property.
Martin-Bragg purchased the property for $687,000 in April 2004, from Ronald Hills, a
colleague of Moore. She paid a down payment of about $16,000 from her credit union
account. Sometime earlier she had purchased the house next door, at 6160 Shenandoah
Avenue, and she had lived in both houses, “in between the two properties.”
       Moore and Martin-Bragg were living together in the 6150 Shenandoah Avenue
home until September 15, 2010, when Martin-Bragg moved out. At that time Moore
signed a rental agreement agreeing to pay monthly rental of $7,152.62 (consisting of the
monthly mortgage payment plus a late fee, “just in case”).
       Martin-Bragg denied having agreed that the property could be encumbered as part
of a trust for Moore’s benefit, and no such trust document has been recorded on the
property. Moore paid—or was supposed to pay—the mortgage and all expenses on the
property, since he was using it for his business and recording equipment.


 5  The trial court orally denied that it had refused to accept a notice of related cases, and
respondent’s brief represents that the record does not show that an application to relate
and consolidate the cases was filed. However, the court’s minute order of June 27, 2011
refutes that representation, showing that the court considered and denied Moore’s ex
parte application for order shortening time “for notice of related cases and motion to
consolidate cases BC459449 and BC464111.” Moreover, Martin-Bragg later orally
represented to the court in Department 85 that the trial court in Department 15 was
“addressing all the issues that Mr. Moore had put in this motion to consolidate.”


                                              5
       Martin-Bragg admitted that she had signed documentation for a $5 million loan
from Wachovia Bank to Moore and herself, as well as Moore’s corporations, which she
said was intended to be used to pay her what Moore then owed her. The loan
encumbered the 6150 Shenandoah Avenue property, in which she and Moore were then
living, but not the next door property she owned at 6160 Shenandoah Avenue. Martin-
Bragg said that she had signed a power of attorney authorizing a pledge of the 6150
Shenandoah Avenue property to Wachovia Bank, but providing also that Moore was
given no equity in the property. Moore’s corporations made the payments on the
Wachovia Bank loan, and Martin-Bragg was not responsible to the bank for payments.
       Mr. Rile, a document examiner, testified on Martin-Bragg’s behalf that the
signature on the lease agreement, Exhibit 3, appeared to be Moore’s.
       Called as an adverse witness, Moore testified that neither the purported signature
on the lease agreement (Exh. 5), nor a number of the comparison signatures used by the
document examiner, were his. He believed that some of the signatures Mr. Rile had used
for comparison, on checks and other documents, had been done by others—including
Martin-Bragg—without and sometimes with his authorization. Moore confirmed that a
lien on the 6150 Shenandoah Avenue property secured a $5 million bank loan.
       The court admitted into evidence the five exhibits proffered by Martin-Bragg:
The grant deed for the 6150 Shenandoah Avenue property (Exh. 1), a buyer’s closing
statement (Exh. 2), the rental agreement for the property (Exh. 3), a notice to pay rent or
quit (Exh. 4), and a forensic report (Exh. 5) including the grant deed of the 6150
Shenandoah Avenue property to Martin-Bragg.
       The plaintiff then rested her case.
Defendant Moore’s case in chief
       Mr. Hills testified to his 37-year association with Moore in the music business,
and his status as secretary of Moore’s corporations since 1992. His services for the
corporations had included writing songs, producing music, and handling the recording
business at the 6150 Shenandoah Avenue house. Title to the 6150 Shenandoah Avenue
property had been in his name since 1999 or 2000, when Moore’s mother (now deceased)


                                             6
had transferred it to him, without payment, in connection with promotional transactions
in which they were then involved. Title was placed in his name because his own home
was being used as collateral for the project’s financing.
        Mr. Hills testified also about the resolution of the Bobby Watson case (which was
the subject of Moore’s request for judicial notice in the trial court), in which he, Martin-
Bragg, Moore, and others, had been sued to recover upon Moore’s interest in the 6150
Shenandoah Avenue property upon a claim of fraudulent transfer. The thrust of that
testimony was that the lawsuit had alleged that title to the 6150 Shenandoah Avenue
property had been transferred to Martin-Bragg without consideration in order to frustrate
Moore’s creditors, and that Moore had been forced to pay a $280,000 settlement in order
to clear the title.
        Mr. Hills testified that he received no payment for his transfer of the property to
Martin-Bragg in April 2004. Title to both of the Shenandoah Avenue properties had been
placed in his name in trust for the benefit of Moore’s music, and he had transferred them
to Martin-Bragg with that same understanding. He would not have transferred them to
her without that understanding. He testified that he did not receive and had never seen
the $48,000 check that Martin-Bragg had produced, purporting to be the proceeds from
Martin-Bragg’s purchase of the 6150 Shenandoah Avenue property.
        Mr. Hills identified an Affidavit and Declaration (Exh. 6) representing that
Martin-Bragg holds the 6150 Shenandoah Avenue property in trust for Moore, and that
Moore has the right to encumber the property, consistent with Moore’s representations to
the bank. Both Martin-Bragg and Moore had signed the Affidavit and Declaration in Mr.
Hills’ presence, apparently in March 2009.
        Mr. Vijay Chandran, a banker and financial adviser, testified that he had been the
banker at Wachovia Securities and Wachovia Wealth Management who had structured
the $5 million loan to Moore and his corporations. He testified that Martin-Bragg is “not
responsible for any of that loan.”




                                              7
       According to Mr. Chandran, the $5 million credit facility had originally been
provided in about 2003, and had been modified and amended a number of times over the
years, most recently between 2008 and 2009 as Moore’s business interests changed. In
connection with the loan the bank had required both Mr. Hills and Martin-Bragg to
execute documentation to convey to the bank their security interests in the 6150
Shenandoah property, or to obtain Moore’s guaranty of those interests. He understood
from his conversations with Martin-Bragg at the time that she claimed no interest in the
6150 Shenandoah Avenue property, but she wanted her other assets segregated to protect
them from anything having to do with the loan. Wachovia Bank (now Wells Fargo Bank)
still holds security interests in the property.
       The 6150 Shenandoah Avenue property had also been subject to a lis pendens in
favor of a judgment creditor, which the bank had required Moore to clear before it
extended the loan. The documentation regarding the property’s ownership had been
reviewed and handled by others at the bank, not by Mr. Chandran.
       Martin-Bragg testified under Evidence Code section 776 that she had ended her
domestic partner relationship with Moore when she had asked him to repay funds she had
loaned to him and his corporations. “We had an agreement. You [Moore] were going to
pay. I mortgaged my property in order to loan the corporation the money. You were
going to be responsible for paying that note.” “You and the corporations signed the
I.O.U.s.” “$2 million I’ve loaned this man to get this business going. I signed for these
loans because he was supposed to pay me my money. When the money came from the
loans, no money, nothing.”6 Martin-Bragg conceded that the replacement promissory
note dated October 18, 2009 (Exh. 7) (purportedly the amended $5 million loan
document) does not indicate her responsibility for the loan, nor do Exhibits 11, 12, or 13
identify her in any capacity; but said she has other loan documents that do.



  6The court accepted Exhibits 11 and 13 from Moore, identified as a loan application
and guaranty, and a certificate of resolution to borrow. It accepted from Martin-Bragg
Exhibit 12, purporting to be a ratification of guaranty and pledge agreement.


                                                  8
       When Martin-Bragg’s testimony deteriorated into a volley of accusations between
the parties, the trial court concluded that “I’m sort of through with this.” “We’re not
going to finish this case today.”
       The court then addressed the state of the evidence. “The issue is whether or not
Ms. Bragg owns 6150 Shenandoah,” and there is evidence on both sides. “The rental
agreement certainly is signed by Moore” (as Ms. Moore and Mr. Rile had testified), and
“[t]he grant deed supports her title.” However, some further documents are needed,
“given the relationship between the parties and the fact that the seller of the property
claims he got no money” from the sale. The court asked Martin-Bragg to produce escrow
instructions that say to whom money was paid, and loan documents showing that she had
borrowed to pay off any mortgage and to pay additional money to the seller. “Now, if, in
fact, the only money that Ms. Bragg put into the house was the $16,000 that she
borrowed from the L.A.P.D. credit union, then I wonder what’s going on.”
       Expanding on the evidence, the court explained: “It seems to me what’s really
going on here is a very involved commercial relationship between the two, and she’s
trying to save whatever assets are in her name so that she can sell those assets or rent
those assets in order to get paid back some of the money that she’s loaned to Moore and
his companies.” The court went on: “I’d also like to have a title report. This is not a
standard unlawful detainer action. And I don’t think I should oust Moore of possession
given that he has extensive recording equipment and has paid for remodeling without the
clearest or at least sufficient evidence that the property belongs to Ms. Bragg.” After
again noting that the evidence of title “cuts both ways,” the court concluded “This is a
mess, and unless it’s clear, I probably shouldn’t give a U.D. [judgment]. Probably what I
should do is relate the other case to me and try both cases together in August.” “In other
words, I can bring the other case here and we can have a really early trial.”
       Although Moore may be “trying to create a lot of problems” by naming other
parties in his quiet title action, “this property lends itself to raising those problems
because . . . . it’s been used as a piggy bank to obtain money for the operation of the
corporations, and Ms. Bragg has been part and parcel of that procedure.”


                                               9
       Counsel for Martin-Bragg questioned whether the court could consider whether
Martin-Bragg held title to the property in trust: “Well, is that really proper in an unlawful
detainer? . . . because in an unlawful detainer you’re not supposed to examine title issues
beyond the deed, as far as I’m concerned.” The court acknowledged the quandary:
“Well, maybe we ought to terminate this right now, because you’re correct, title is not an
issue in [an] ordinary unlawful detainer. But if there’s a suspicion that the power of the
court is being used to oust someone from possession when there is a contest about title,
usually the judge will not act to give the U.D. judgment.”7
Moore’s renewed request for consolidation of the pending cases
       Following the court’s suggestion that it could relate the pending cases for unlawful
detainer and quiet title and try both cases together in the next month, Moore renewed his
request for consolidation: “I do agree with the court that you should merge the two cases
because it is an issue of title. With the res judicata involved in this case and the other
issues that are apparent, it needs to be adjudicated with both of the cases.” But the court
did not consolidate the pending cases, noting that the quiet title action involved other
defendants and other claims as well.
       The court set two hours on Monday morning, July 11, 2011, for completion of the
unlawful detainer trial. The consolidation issue remained unresolved.
The TRO barring the unlawful detainer trial’s continuation, and Martin-Bragg’s ex
parte motion to set aside the TRO
       On July 11, 2011, the trial court in Department 15 (where the unlawful detainer
trial was pending), was met with a ruling from Department 85 of the Superior Court
granting Moore an ex parte temporary restraining order against the unlawful detainer
trial’s continuation (apparently in light of the pending quiet title issue in case number


 7 The trial court explained: “There’s two relationships going on here. One is that they
were in a domestic partnership; the second is they were in essence partners in the
business. She was loaning money to him in the expectation that she would get that
money back. Now it turns out that maybe she won’t. But that’s an explanation as to why
she subordinated her title to the $5 million loan.”


                                              10
BC464111). Judge Fruin in Department 15 therefore suspended the unlawful detainer
trial, and adjourned until August 1, 2011, “due to the ruling before Hon. Chalfant.” It
ordered the parties to report that result to Department 85.8
       At the July 13, 2011 TRO hearing in Department 85, Martin-Bragg explained that
the unlawful detainer trial in Department 15 remained uncompleted because “the judge
did decide to take up the issues that Mr. Moore had raised in regards to ownership.” She
represented that the unlawful detainer trial was “addressing all the issues that Mr. Moore
had put in this motion to consolidate. All the issues are being addressed by Judge Fruin.”
The trial court responded: “I don’t know that he can do that in an unlawful detainer
case.” After hearing Moore’s objections to trial of the issue of title in the unconsolidated
summary unlawful detainer proceeding, the court recessed the proceedings in order to
call Judge Fruin.9
       After reconvening in Department 85, Judge Chalfant explained that Judge Fruin
told him that the plaintiff had not yet rested in the unlawful detainer trial (although the
record shows otherwise). According to Judge Chalfant, “[Judge Fruin] believes that the
scope of his proceeding, what he was trying to determine anyway was both legal and
beneficial ownership of the property.” Judge Fruin said “that’s both probably what he
should do and he is going to do it, is that he is going to reconsider consolidation and
consolidate the two cases. And he wants me to dissolve the TRO.”
       With that, the court then granted Martin-Bragg’s request to dissolve the TRO. The
court suggested that the parties “walk downstairs” to talk to Judge Fruin about “what




 8  The July 13, 2011 transcript for Department 85’s proceedings in case number
BC464111 shows that before issuing the TRO, the court, Judge James C. Chalfant, had
directed Moore to first “exhaust the remedy of asking the trial court in [the unlawful
detainer] case to relate the unlawful detainer case and then consolidate the two.” The
Department 85 court had then granted the TRO, setting a July 21 return date.
 9 Moore   explained to Judge Chalfant that “[t]the issue of ownership cannot be decided
in an unlawful detainer case. It can’t. That’s not the proper place. When I asked [Judge
Fruin] to combine it, so all those issues can be decided at one time, he then denied.”

                                              11
should be done, but I’m telling you he has said he’s going to consolidate the two cases,
essentially reconsider your motion.”10
       In Department 15, Judge Fruin and the parties discussed the “proposal” that the
court relate and consolidate the cases for trial. However, when Moore suggested that
some discovery would be required (which he thought could be done “quickly and
expeditiously”), the court interrupted with “another proposal,” that “I complete the U.D.
trial and stay the judgment on the U.D. trial until we do the second trial.” But the court
denied Moore’s request for either consolidation or expedited discovery, saying “I don’t
plan to delay this case for so-called discovery,” because “[a] U.D. action is entitled to
priority,”11 and Martin-Bragg should provide him with documents in her possession upon
request.
       The court tentatively set resumption of the unlawful detainer trial for about a week
hence, on July 21, 2011, ordering counsel for Martin-Bragg to provide the court and
Moore with two days’ advance confirmation of that date; and trial would otherwise
resume on August 1, 2011 (the date that had been set on July 11, 2011). However, on
July 21, a number of circumstances (another proceeding involving both parties), then a
bankruptcy automatic stay relating to one of the corporations), resulted in additional
continuances, ultimately to December 16, 28 and 29, 2011.




 10    The court went on to explain that Judge Fruin had said his concern about
consolidation was that Moore would then be entitled to discovery, which would delay the
unlawful detainer trial. “I don’t know what he’s going to do,” Judge Chalfant explained.
“He may sever the title portion of the two cases, that is the UD and the title portion of
Moore’s case; try that issue first while you take discovery on your other causes of action.
. . . [B]ut I do know that the scope of what he wants to do includes who owns the
property legally and beneficially. And because of that, there’s no reason for a TRO.
 11  Ordinarily, in an unlimited action “[o]ne department of the superior court cannot
enjoin, restrain, or otherwise interfere with the judicial act of another department of the
superior court.” (Ford v. Superior Court (1986) 188 Cal.App.3d 737, 742.) Because
neither the trial court nor any party raised this issue, however, we do not address it
further.


                                             12
       At one of the scheduling hearings during that period, on December 13, 2011, the
court reasserted that “I’m going to determine title in this action. I’m not going to relate
the two cases here or consolidate them.” The unlawful detainer trial must proceed, the
court explained, because it has priority and because the property is threatened with
foreclosure for nonpayment of the mortgage.
       On December 15, 2011, Moore filed an ex parte application for a continuance of
the trial until December 22, 2011, on the ground that he would be unavailable on
December 16, 2011, and identifying 16 witnesses who would be unavailable until after
January 2, 2012.12 The application apparently was denied.
Trial resumes
       Trial resumed on Friday, December 16, 2011, with Moore present “via Court
Call.” Although the court’s minutes reflect no ruling, the court apparently permitted
Martin-Bragg to reopen her case-in-chief for additional testimony from Mr. Rile, the
document examiner, and the identification of two reports prepared during the trial recess,
dated October 28, 2011 (Exh. 15), and November 3, 2011 (Exh. 16).13 The record on
appeal includes no transcript of the December 16 proceedings, nor of the continued trial
proceedings on December 28, 2011.14




 12 Earlier in the trial proceedings Moore had explained to the court that his business
obligations compelled him to travel each Thursday in order to be in Lexington, Kentucky
each Friday through Sunday, where his nightclub could not open without his presence
because its liquor license was in his name.
 13 According to the court’s later statement of decision, Mr. Rile testified that the
signature block of the Affidavit and Declaration, purporting to contain Martin-Bragg’s
and Moore’s signatures, was created by photocopying and resizing the parties’ signatures
taken from a Notice of Appeal filed in another case.
 14 Moore’s initial designation of record in his appeal identified proceedings on
December 16 and 28, 2011, as dates for which reporters’ transcripts were requested; but
Moore later filed a redesignation of record (after obtaining this court’s permission to do
so on specified conditions), which omitted a number of dates to be reported, including
December 16 and 28.


                                             13
       On December 29, 2011, the trial proceedings began with Moore’s motions to
dismiss (which the court denied after hearing argument), and for the court to recuse itself
for bias and prejudice (which the court denied without hearing argument).
       After initially refusing to permit Moore to present further testimony from Mr.
Hills and other potential witnesses, the court permitted Mr. Hills to testify that the crux of
the Bobby Watson case (in which he and Martin-Bragg were defendants along with
Moore and others) was the claim of the judgment-creditor plaintiff that Moore was in fact
the owner of the 6150 Shenandoah Avenue property; and the case had been settled
because Moore indeed was the rightful owner of the property. Mr. Hills testified that the
6150 Shenandoah Avenue property had been used as collateral for loans to the
corporations Moore used in his recording business, and had been used as an asset of the
corporations and of Moore, including as collateral for the $5 million Wachovia Bank
loan. Martin-Bragg had never had any ownership interest in the corporations, and had
never claimed any such interest.15
       Mr. Hills testified that he had not received escrow closing documents for the sale
of the property to Martin-Bragg, nor the $48,000 payment for the property, and he had
never signed any escrow documents for that transaction.
       Moore, called on his own behalf, testified about the formation, use, and ownership
of the corporations and about a number of properties—including the 6150 Shenandoah
Avenue property—owned and operated by and for his music business enterprises. He
testified that Martin-Bragg had signed documents permitting encumbrances to be placed
on the 6150 Shenandoah Avenue property to secure the Wachovia Bank loan, and she
had willingly renewed the loan documentation in order to permit the 6150 Shenandoah
Avenue property to be used as security, as long as no other properties in which she held
title were involved.



 15Mr. Hills also testified that he had filed a lawsuit (apparently case number
BC4675551, filed December 20, 2011), to rescind his sale of the 6150 Shenandoah
Avenue property to Martin-Bragg.


                                             14
       Moore testified that after the court in the Bobby Watson case had announced its
ruling that Moore owned the property, Moore paid a substantial settlement in the
fraudulent-transfer claim, at the Wachovia Bank’s insistence. Martin-Bragg again signed
for increases of the encumbrance on the 6150 Shenandoah Avenue property when Moore
paid another $250,000 for an FM translator in order to simulcast his FM radio broadcast
to another radio station, and when he purchased a Louisville, Kentucky radio station for
$1.4 million. Using the 80-channel recording console and related equipment at the 6150
Shenandoah Avenue house, Moore, his corporations, and others, used the 6150
Shenandoah Avenue house to make and edit sophisticated audio and video recordings, as
well as to edit movie soundtracks and commercials for his radio stations.
       Moore testified that he had never been Martin-Bragg’s tenant, and that she had
never asked him to pay rent.
       He testified on many other subjects concerning transactions with Martin-Bragg,
including her claim that he owed her $2.3 million; his belief that she had pilfered about
$80,000 in Louisville, Kentucky nightclub cash receipts; and the invalidity of corporate
documents showing Martin-Bragg as corporate president of Rene Moore Music,
authorizing a loan and loan payments to her, and showing her ownership of one of the
corporations. A recent appraisal of the 6150 Shenandoah Avenue property (Exh. 101)
showed its value to be $880,000, and Moore believed the property to be worth even more.
He offered other documents, including a deed of trust purporting to show Mr. Hills’
interest in the property in 2008.
       Moore testified that in 2000 he had signed and had notarized an affidavit of
registered domestic partners, which Martin-Bragg said she would register with the state
to make them registered domestic partners. In their relationship it was Martin-Bragg who
maintained the documents. Moore has seen her copy and paste to modify documents
many times.
       Moore was present and witnessed Martin-Bragg sign the Affidavit and Declaration
between Moore and Martin-Bragg, which was given to the bank to show that the
property was held by her in trust. Moore was unable to locate the original of the


                                            15
Affidavit and Declaration showing that Martin-Bragg held title to the property in trust for
him.
       There were never liens on the property for Martin-Bragg’s benefit. All the liens
were consistent with the development of the business. Mr. Hills was involved to protect
his investment, because he had put money into the business, without promissory notes,
based on trust and oral agreements.
       On cross examination Moore admitted that in the Bobby Watson case he had
signed a declaration under penalty of perjury saying that he does not own the 6150
Shenandoah property, and has not owned any property since 1988 or 1989. By that he
meant that he owned no property in his name, although he did own interests in some
properties in the name of the corporations or Mr. Hills. He testified that he did not sign
the Addendum to Domestic Partnership Agreement (Exh. 37), which purports to
relinquish rights to the 6150 Shenandoah Avenue property), and the signature on it does
not appear to be his.
       Moore denied manipulating signatures in order to create the signature page on
Exhibit 6, the Affidavit and Declaration, and denied that in 2006 the court in another
case had found that he had forged his deceased mother’s name on a deed to real property,
or that he had forged his former attorney’s name.
       Following some further testimony from Martin-Bragg on these subjects, and after
Moore renewed his claim of prejudice due to his inability to obtain discovery, the trial
court received a number of documents in evidence, and ended the trial without final
arguments.16


 16  Moore objected to the admission into evidence of the copy of the face of a $48,000
escrow check to Mr. Hills (for lack of authentication and lack of any showing it was
received by Mr. Hills), and to the admission of the unsigned escrow documents, received
from Martin-Bragg rather than the escrow company and not shown to have been
maintained in the ordinary course of business. The court did not address the objection to
the escrow documents, but explained that it was receiving the $48,000 check in evidence
“as part of the package that Martin-Bragg testified was received in the mail,” not for the
fact that Mr. Hills had received the money.


                                            16
Entry of judgment and statement of decision
       The trial court entered judgment in Martin-Bragg’s favor on January 23, 2012,
giving possession of the property at 6150 Shenandoah Avenue to Martin-Bragg and
granting her damages against Moore totaling $112,772.96, plus costs and attorney fees.
In a six and one-half page statement of decision the court found that Moore occupied the
house at 6150 Shenandoah Avenue under a written agreement to pay rent to Martin-
Bragg; that he had never paid rent; that he was served with a statutory three-day notice to
pay rent or quit; and that he failed to pay the required rent.
       The statement of decision expresses the court’s acceptance of Martin-Bragg’s
version of the events, and rejection of Moore’s testimony, on credibility grounds. It
recounts findings that Moore and Martin-Bragg had been unregistered domestic partners
from May 2002 until January 1, 2011; that Moore, and a number of corporations he
controls, own interests in radio stations in other states; that Moore lived in and operated
his music business at the 6150 Shenandoah Avenue property; and that Martin-Bragg, a
Los Angeles police officer and licensed real estate agent, lived next door at 6160
Shenandoah Avenue.
       Martin-Bragg purchased the 6150 Shenandoah Avenue property in April 2004,
from Mr. Hills, a colleague of Moore in his music business. Six years later, in September
2010, Moore signed a rental agreement for the property, specifying monthly rent of
$7,152.62. Moore continued living in and using the premises for his business; he and his
corporations continued to make the mortgage and tax payments for the property
(sometimes with checks drawn by Martin-Bragg, who was a signatory on the
corporations’ accounts); and he (or his corporations) obtained bank loans using the
property as collateral, with Martin-Bragg’s consent and with her signatures. He paid no
rent to Martin-Bragg.
       The statement of decision addressed the central defense pleaded by Moore: that
Martin-Bragg holds title to the property in trust for Moore, his corporations, and Mr.
Hills; and that Martin-Bragg has no beneficial interest in the property. With respect to
that defense, the court itemized its findings that the grant deed transferring the property to


                                              17
Martin-Bragg was signed by Mr. Hills; Martin-Bragg’s evidence established that she had
in fact obtained loans from a credit union and a third-party lender in order to complete the
purchase; and that copies of the escrow documents that Martin-Bragg said the escrow
company had sent to her and to Mr. Hills (although unsigned and unauthenticated by an
escrow officer), establish that the property’s purchase by Martin-Bragg was conducted
through a third-party escrow.17
       The trial court found also that the May 6, 2006, “Affidavit and Declaration” was a
fabrication,18 and that in an earlier declaration filed in another action, Moore had denied
under oath that he had any ownership interest in the 6150 Shenandoah Avenue property.
The court concluded that “Defendant’s 2006 declaration, therefore, defeats any assertion
the defendant now makes that he always has held an undocumented interest in the 6150
Shenandoah property.”
       The trial court concluded that Moore’s nonpayment of rent after the September
2010 rental agreement entitled Martin-Bragg to possession of the property. The
judgment grants “restitution and possession of the premises” to Martin-Bragg, and rent


 17  Moore objected to the statement of decision’s failure to address Mr. Hills’ testimony
that he had held title to the property in trust only, and that the transfer to Martin-Bragg
was done in trust only. He also objected to the decision’s determination of Mr. Hills’
ownership interest without regard to the fact that an action asserting that interest was then
pending in the superior court between Mr. Hills and Martin-Bragg (LASC No.
BC475551).
 18  The document entitled Affidavit and Declaration (Exh. 6) purports to detail the
parties’ agreement that Martin-Bragg would hold title to the 6150 Shenandoah property
(and another property in Redondo Beach) in trust for Moore and his corporations; that she
would have no beneficial rights in the properties; and that Moore could continue to
hypothecate or transfer the properties in the normal course of business. Martin-Bragg
denied signing any such document. Moore contended that the document had been
prepared and submitted to Wachovia Bank in order to fund his $5 million line of credit,
and was signed by Martin-Bragg. According to the court’s statement of decision, Mr.
Rile, the document examiner, testified (apparently during a session for which no
transcript was designated in the record on appeal) that Moore’s and Martin-Bragg’s
signatures were placed on the document by photocopying and resizing the signatures
from a Notice of Appeal filed in 2006 in another case.


                                             18
from January 1, 2012 to the date of judgment. Although the judgment does not explicitly
grant “title” to Martin-Bragg, the trial court explicitly tried the issue of title in its
determination that Martin-Bragg was entitled to possession; and its statement of decision
explicitly rejects Moore’s claim that he or his corporations are the property’s true owners.
       Moore’s timely appeal does not challenge the sufficiency of the evidence to
support the trial court’s findings, but lists nine claims of error that he contends require
reversal of the judgment and remand for a new trial.19 We find merit in one of his
contentions, and therefore reverse the judgment and remand for retrial without
consideration of his remaining claims.
                                         DISCUSSION
Trial Of The Issue Of Title To The Property In The Summary Unlawful Detainer
Proceeding Abused The Trial Court’s Discretion
       Moore contends that the trial court’s refusal to consolidate the unlawful detainer
proceeding with his pending action for title to the subject property resulted in improper
and prejudicial determination of “complex and complicated property ownership issues
and rights in an unlawful detainer action.” The record confirms that he was prejudiced by
the procedure adopted by the trial court.
       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. (Larson v. City and County of San Francisco (2011) 192
Cal.App.4th 1263, 1297; Friedman et al., Cal. Prac. Guide: Landlord-Tenant (The Rutter
Group 2012) ¶ 8:4, p. 8-1). Ordinarily, issues respecting the title to the property 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.) The denial of


  19 Moore’s request for modification of the court’s tentative statement of decision
asserts that the trial court had ex parte telephone communications with plaintiff’s counsel
before setting the trial’s resumption for a date on which Moore and his witnesses would
be unavailable. Lacking any record to support these claims, however, this court is unable
to evaluate Moore’s contentions.


                                                19
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. (Markham v. Fralick (1934) 2 Cal.2d 221, 227; Vasey v. California
Dance Co. (1977) 70 Cal.App.3d 742, 747.)
       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. (Friedman et al., Cal. Prac. Guide: Landlord-Tenant, supra, ¶¶ 8:5:1,
8:409.1, pp. 8-2, 8-142.) 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. (Id., ¶ 7:268,
p. 7-58.15.) 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.” (Cheney v. Trauzettel (1937) 9
Cal.2d 158, 160; Wood v. Herson (1974) 39 Cal.App.3d 737, 745; Gonzales v. Gem
Properties, Inc. (1974) 37 Cal.App.3d 1029, 1033-1035.)
       The trial court in this case recognized that Moore’s action for title in case number
BC464111 raised the issue whether title to the property was held by Martin-Bragg as a
security interest or in trust for the benefit of Moore’s music business. The parties’ trial
testimony tended to confirm the court’s initial concern about the complexity of the issue
of title. Martin-Bragg claimed title by purchase of the property from Mr. Hills in 2004,
for consideration. But Mr. Hills testified that he had held title to the property that he had
received from Moore’s (now deceased) mother, without payment. He denied having
received any payment for his transfer of the property to Martin-Bragg, and testified that
his title—and Martin-Bragg’s—was held in trust for Moore and his business entities.


                                             20
Moreover, Martin-Bragg produced no signed escrow documents confirming her payment
of consideration for the purchase, and she could show no proof that Mr. Hills had
received the $48,000 or any other proceeds from the escrow. Martin-Bragg had made no
payments on the property’s encumbrances, nor for its maintenance or improvement (all of
which had been paid by Moore and his companies). Moore’s banker testified that the
property was encumbered as security for a $5 million credit facility in Moore’s favor.
       As the court recognized, at that point the evidence respecting title to the property
“cuts both ways,” suggesting “a very involved commercial relationship between the two,
and she’s trying to save whatever assets are in her name so that she can sell those assets
or rent those assets in order to get paid back some of the money that she’s loaned to
Moore and his companies.” “There’s a lot more than meets the eye in this case,” and
“before I would issue a U.D. judgment, . . . I want to be pretty clear that this property
belongs to her as a grant deed and not simply as security for all the money that she’s
loaned to him and his corporations.” The property had “been used as a piggy bank,”
raising the question “[i]s this a true landlord-tenant relationship or is this in actuality a
business operation which has been mortgaged to provide loans to Moore’s business?”
       As such, the court recognized that title issue was complex and not subject to
summary trial proceedings. “This is a case with a lot of issues in it. It’s not a standard
U.D. . . .” If Moore’s action for title were meritorious, it would defeat Martin-Bragg’s
right to possession. In other words, Martin-Bragg’s right to possession could not be
determined without first determining the issue raised by the quiet title claim. “Probably
what I should do is relate the other case to me and try both cases together in August,”
early trial, the court suggested. And when counsel for Martin-Bragg questioned whether
the court could consider the issue of title at all, the court confirmed that “maybe we ought
to terminate this right now, because you’re correct, title is not an issue in an ordinary
unlawful detainer. But if there’s a suspicion that the power of the court is being used to




                                               21
oust someone from possession when there is a contest about title, usually the judge will
not act to give the U.D. judgment.”20
       However, the trial court also recognized that consolidation of the unlawful
detainer proceeding with Moore’s quiet title action could change the nature of the action.
The unlawful detainer law’s provisions for summary determination of the right to
possession would be lost if the lawsuit were to be transformed into an ordinary action at
law involving complex issues of title to the property. “[A]n action for unlawful detainer
can co-exist with other causes of action in the same complaint,” it has been held, but only
“so long as the entire case is treated as an ordinary civil action, not as a summary
proceeding.” (Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603, 608.)
       Instead of treating the unlawful detainer as an ordinary civil action rather than as a
summary proceeding, however, the trial court did the opposite. It instead insisted upon a
summary trial of the parties’ dispute as to title, without the discovery and preparation that
the law affords for ordinary civil actions.
       “The California wrongful detainer statutes were ‘. . . enacted to provide an
adequate, expeditious and summary procedure for regaining possession of real property
wrongfully withheld by a tenant. [Fn. omitted.] The rights and remedies afforded a
landlord by the statutory provisions are given in lieu of his common law rights and
remedies which included the right to enter and expel the tenant by force. [Citations.]
The enactment of such statutory procedures is supported by the strong public policy of
preserving the peace [citation] as well as the recognition of the unique factual and legal
characteristics of the landlord-tenant relationship. [Citation.] . . . .’” (Deal v. Municipal
Court (1984) 157 Cal.App.3d 991, 995, quoting Childs v. Eltinge (1973) 29 Cal.App.3d
843, 853.)
       These reasons form the constitutional justifications for the summary nature of
unlawful detainer actions, and the limitations on the issues that may be raised by a


 20  The trial court explained: “It may be that Moore is correct, that . . . property’s held
in trust for him. [Ms. Bragg] needs to prove that she paid money for this property.”


                                              22
defendant in such proceedings. (Lindsey v. Normet (1972) 405 U.S. 56, 92 S.Ct. 862.) In
that case the United States Supreme Court held that the summary procedures of an
Oregon forcible entry and wrongful detainer statute were justified by the nature of the
landlord-tenant relationship, and when applied in that narrow context they afford the
tenant due process. “There are unique factual and legal characteristics of the landlord-
tenant relationship that justify special statutory treatment inapplicable to other litigants.
. . . [U]nless a judicially supervised mechanism is provided for what would otherwise be
swift repossession by the landlord himself, the tenant would be able to deny the landlord
the rights of income incident to ownership by refusing to pay rent and by preventing sale
or rental to someone else. . . . Speedy adjudication is desirable to prevent subjecting the
landlord to undeserved economic loss and the tenant to unmerited harassment and
dispossession when his lease or rental agreement gives him the right to peaceful and
undisturbed possession of the property. Holding over by the tenant beyond the term of
his agreement or holding without payment of rent has proved a virulent source of friction
and dispute,” and a state is “well within its constitutional powers in providing for rapid
and peaceful settlement of these disputes.” (Id. at pp. 72-73.)
       However, the Supreme Court did not approve the application of these justifications
outside of the context of routine cases in which the tenant has failed to pay rent or has
held over after the tenancy has expired, “and the issue in the ensuing litigation is simply
whether he has paid or held over.” (Lindsey v. Normet, supra, 405 U.S. at pp. 64-65.)
“The constitutionality of these summary procedures is based on their limitation to the
single issue of right to possession and incidental damages. (Ibid.; Deal v. Municipal
Court, supra, 157 Cal.App.3d at pp. 995-996.) Although California now permits the
adjudication of substantially more defenses in unlawful detainer proceedings than simply
the payment of rent,21 the rule in this state is that because trial courts are afforded express



 21 E.g., Green v. Superior Court (1974) 10 Cal.3d 616; Knight v. Hallsthammar (1981)
29 Cal.3d 46 [breach of implied warranty of habitability]; Schweiger v. Superior Court
(1970) 3 Cal.3d 507; Aweeka v. Bonds (1971) 20 Cal.App.3d 278 [retaliatory eviction];

                                              23
statutory discretion to extend the unlawful detainer law’s expedited pleading timetable
for good cause, the statute’s truncated time to respond to an unlawful detainer complaint
does not deprive the defendant of due process of law. (Deal v. Municipal Court, supra,
157 Cal.App.3d at pp. 997-998.)
       The trial court in this case recognized that under these settled principles, Moore
was entitled to interpose his claim of equitable ownership of the 6150 Shenandoah
Avenue property as a defense to Martin-Bragg’s claim of unlawful detainer. His quiet
title claim related directly to the issue of possession; if he were to prevail on that claim,
the result would be a judgment entitling him to retain possession of the premises. (See
Deal v. Municipal Court, supra, 157 Cal.App.3d at p. 995.)
       It does not follow, however, that by pleading his claim to title as a defense to
unlawful detainer (while simultaneously asserting his claim to title in a separate action),
Moore necessarily acceded to the summary and expedited procedures of unlawful
detainer with respect to that issue, or waived his right to the statutory procedures that
apply to trial of complex issues of title. His timely requests for consolidation of the
unlawful detainer with the action for quiet title sought the opposite result, as the trial
court recognized. The fact that Moore pleaded his title to the property as an affirmative
defense to the unlawful detainer action did not constitute his consent to have his claim
heard under the summary unlawful detainer procedures. (Mehr v. Superior Court (1983)
139 Cal.App.3d 1044, 1050.)
       The trial court in this case initially declined to order consolidation of the unlawful
detainer with the action for title expressly because that would delay the unlawful detainer
proceeding for discovery, thereby compromising Martin-Bragg’s right to the expedited
summary procedures of the unlawful detainer law. “I don’t plan to delay this [unlawful
detainer] case for so-called discovery.” However, the court also recognized that the key
issue to be tried was title: “whether or not Ms. Bragg owns 6150 Shenandoah.” And


Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d 242 [racial
discrimination].


                                              24
although the trial court advised Judge Chalfant in Department 85 that it would
consolidate the unlawful detainer and quiet title cases, the court then declined to do so.
As the court later explained, “I’m going to determine title in this [unlawful detainer]
action. I’m not going to relate the two cases here or consolidate them. The title action
does not have a priority. It provides for the usual discovery procedures. And I think that
consolidating that action with this one would simply delay the trial.”22
       The trial court’s concern about loss of the summary procedures to which unlawful
detainer plaintiffs are entitled was justified; it undoubtedly had discretion to
fashion conditions and limitations to protect and preserve those legislatively imposed
benefits to the extent possible. However, that discretion did not permit it to wholly
disregard Moore’s legitimate need for, and right to, time to prepare and to obtain
reasonable discovery in advance of trial of the admittedly complex issue raised by the
parties’ conflicting claims of ownership, or to require that those complex issues be tried
within the summary procedures designed for straightforward unlawful detainer claims.
(Lynch & Freytag v. Cooper, supra, 218 Cal.App.3d at p. 609 [“It would obviously be
unfair to require the defendant-tenant to defend against ordinary civil actions under the
constraints of the summary procedure in unlawful detainer actions”]; Deal v. Municipal
Court, supra, 157 Cal.App.3d at p. 996; see Lindsey v. Normet, supra, 405 U.S. at pp. 64-
66 [summary unlawful detainer procedures are constitutionally acceptable as long as they
are applied to straightforward issues of possession and incidental damages].)
       The reasoning applied in a number of other decisions is instructive, though not
controlling in this circumstance. In Asuncion v. Superior Court, supra, 108 Cal.App.3d
141, for example, a lending company filed a municipal court unlawful detainer action
based on title obtained through what it asserted was a foreclosure sale of the property.


 22 The court went on: “This trial has to proceed because, one, it’s entitled to priority;
two, because the property is subject to foreclosure because the mortgage is not being
paid. I know there’s no foreclosure sale that’s scheduled at this point in time, but it’s
inevitable to be done; so title, or at least the U.D. action, should be determined as soon as
possible.”


                                              25
The property’s homeowners filed a superior court action alleging that the lender had
obtained the deed through fraud. The appellate court held that the court in which the civil
action for title was filed should “retain jurisdiction over the matter so long as substantive
issues of ownership remain to be litigated.” (Id. at p. 147.) That result was required—
even though it had the effect of compromising the summary nature of the unlawful
detainer action—because due process precluded the homeowners’ eviction without
having the opportunity to adjudicate the affirmative defenses of fraud, which, if proved,
would demonstrate their right to ownership and possession. (Ibid.)
       In Mehr v. Superior Court, supra, 139 Cal.App.3d 1044, after being sued for
unlawful detainer the defendants filed an answer claiming that the plaintiff’s trustee’s
deed had been obtained by fraud, and filed a separate action based on that claim. The
appellate court held that because the defendants were entitled to litigate their right to title
in the fraud action, the trial court was required to stay execution of its unlawful detainer
judgment, upon reasonable conditions for the protection of both parties’ interests,
pending the appeal. (Id. at pp. 1047-1050.)
       In Berry v. Society of St. Pius X (1999) 69 Cal.App.4th 354, the plaintiff sought
unlawful detainer against a religious society and several priests who were in possession
of disputed church properties. The plaintiff claimed a right to possession of the
properties by virtue of his appointment as pastor of the religious entity that held title as a
corporation sole. The court of appeal affirmed the trial court’s treatment of the unlawful
detainer action as an ordinary civil action for declaratory relief rather than applying the
summary procedures that apply to unlawful detainer proceedings, and its entry of
summary judgment for the defendants on the merits. Although “unlawful detainer is
intended to afford an expeditious remedy for obtaining possession of premises
wrongfully withheld,” the court explained, “the summary remedy of an unlawful detainer
action was not the proper vehicle” to litigate the complex issues of title in that matter.
(Id. at p. 364, fn. 7.)
       Each of these cases reflect the courts’ recognition that when complex issues of
title are involved, the parties’ constitutional rights to due process in the litigation of those


                                              26
issues cannot be subordinated to the summary procedures of unlawful detainer. (Lindsey
v. Normet, supra, 405 U.S. at pp. 64-66 [summary unlawful detainer procedures are
constitutionally acceptable when they are applied to straightforward issues of possession
and incidental damages]. By failing to determine whether and how Moore’s rights and
needs might be balanced with Martin-Bragg’s legitimate interests in the matter’s prompt
resolution, and instead proceeding to try the complex issue of the parties’ rights to title of
the property within the confines of the summary procedures that apply only to
straightforward determination rights to possession, the court abused its discretion.23
       Moore’s rights are not foreclosed because he asserted his ownership of the
property, “putting the issue before the court and actually litigating title matters fully as an
affirmative defense” in the unlawful detainer action, contrary to Martin-Bragg’s
argument on appeal. (Mehr v. Superior Court, supra, 139 Cal.App.3d at pp. 1047-1050
[defendants who pleaded right to title both as affirmative defense in unlawful detainer
proceeding and as plaintiffs in separate fraud action are entitled to trial of title issue in
fraud action].) The record shows that although Moore was willing to litigate the issue of
title, he objected to doing so under the summary procedures that apply to unlawful
detainer proceedings, without having the opportunity for reasonable discovery of
documents and preparation that can be completed “quickly and expeditiously.”
       It has been held that an adjudication of title in an unlawful detainer proceeding can
be affirmed when the defendant has acceded to the summary nature of the trial, and has
had a full and fair opportunity to present his evidence bearing on the issue of title.
(Wilson v. Gentile (1992) 8 Cal.App.4th 759, 761.) That rule does not apply here,
however, because the record does not establish either that Moore acceded to the summary
procedures, or that he had a full and fair opportunity to present his evidence bearing on

  23The record shows that Martin-Bragg did not intend to physically possess the property
other than to rent or sell it. The damages she would suffer from delay of the proceedings
therefore were wholly monetary. Moore, on the other hand, had lived and worked in the
house for more than a decade, since before his domestic partnership with Martin-Bragg;
and the evidence indicated that he might well have had resources available to compensate
Martin-Bragg for any monetary loss.


                                               27
the issue of title. (See Gonzales v. Gem Properties, Inc., supra, 37 Cal.App.3d at p. 1036
[unlawful detainer judgment obtained under summary procedures is not res judicata on
the question of title obtained by fraud]; Asuncion v. Superior Court, supra, 108
Cal.App.3d at p. 144 [summary unlawful detainer action is not suitable for trial of
complicated ownership issues].)
       In Gonzales v. Gem Properties, Inc., supra, 37 Cal.App.3d 1029, the court had
purported to adjudicate the defendant’s claim of title in a summary unlawful detainer
proceeding. The unlawful detainer plaintiff then asserted the unlawful detainer judgment
as res judicata requiring dismissal of the dispossessed defendant’s separate action for
title. The court of appeal held that res judicata could not apply, because the record was
inadequate to establish that the unlawful detainer defendant had received a full adversary
hearing on the issues involved in his subsequent suit claiming fraud in the acquisition of
title to the property. (Id. at pp. 1033, 1036.) “The summary nature of unlawful detainer
proceedings suggests that, as a practical matter, the likelihood of the defendant’s being
prepared to litigate the factual issues involved in a fraudulent scheme to deprive him of
his property, no matter how diligent defendant is, is not great. . . . Investigation and
discovery are not always available to a defendant who must face the time element of
unlawful detainer proceedings provided in Code of Civil Procedures sections 1167,
1179a.” (Id. at p. 1036; Asuncion v. Superior Court, supra, 108 Cal.App.3d at p. 147
[court in which action for title is filed should “retain jurisdiction over the matter so long
as substantive issues of ownership remain to be litigated.”)
       Much like the case of Gonzales v. Gem Properties, Inc., in this case after the court
had denied his requests for consolidation, Moore attempted to assert his own title and to
refute Martin-Bragg’s evidence of her title to the property. But the summary procedures
that apply to unlawful detainer precluded him from obtaining the discovery that
ordinarily is afforded to litigants in civil actions concerning claims of title, even upon
abbreviated and expedited terms. Moore’s initial attempt to obtain consolidation of the
cases had come just three days after his answer was filed in the unlawful detainer
proceeding, but just a week before the June 30, 2011 commencement of the unlawful


                                              28
detainer trial. It was denied on June 27, 2011, too late as a practical matter to commence
any meaningful discovery in the unlawful detainer case. (Code Civ. Proc., § 2024.040,
subd. (b)(1) [discovery in summary proceedings for possession of property to be
completed on or before fifth day before date set for trial].) Moore’s requests for even
limited discovery concerning the documents that the court identified as critical to the
issue of title were denied, admittedly because the court “assumed that you were trying to
delay the trial.”24
       The cases cited above are consistent in holding that adjudication of complex issues
of title to property should not be forced to adhere to the strictures that apply to summary
proceedings for unlawful detainer. (Lynch & Freytag v. Cooper, supra, 218 Cal.App.3d
at p. 609 [“It would obviously be unfair to require the defendant-tenant to defend against
ordinary civil actions under the constraints of the summary procedure in unlawful
detainer actions”]; Asuncion v. Superior Court, supra, 108 Cal.App.3d at p. 147 [court
hearing action for title should “retain jurisdiction over the matter so long as substantive
issues of ownership remain to be litigated”]; Berry v. Society of St. Pius X, supra, 69
Cal.App.4th at p. 364, fn. 7 [summary remedy of unlawful detainer action is not proper
vehicle for litigation of complex issues of title]; see Lindsey v. Normet, supra, 405 U.S. at
pp. 64-66 [summary unlawful detainer procedures are constitutionally acceptable when
applied to straightforward issues of possession and incidental damages].) The trial court
nevertheless ultimately refused to address the issue of title outside of the summary
unlawful detainer proceeding.
       The factual record on which the trial court based its judgment was undoubtedly
sufficient to support its findings; Moore has not contended otherwise in this appeal. But
the record does not establish that Moore received a full adversary hearing on the issues
involved in his suit for title to the property. Nor was he permitted to engage in


  24The record does not reflect the extent to which Moore sought formal discovery
before the unlawful detainer action’s trial commenced on June 30, 2011. But the trial
commenced just ten days after his answer was filed, and a few days after the court’s
denial of his motion to relate and consolidate the case with his quiet title action.

                                             29
reasonable discovery to obtain evidence in his defense and to support his claim to
ownership of the property at trial. We do not hold that trial courts must in all cases grant
applications for consolidation of an unlawful detainer proceeding with a pending quiet
title action, no matter how straightforward the issues, and no matter what the
circumstances. With or without consolidation of the cases, trial courts have available
options to address plaintiffs’ legitimate rights and need for protection from unjustified
delay of the unlawful detainer proceeding, while still affording reasonable opportunities
for discovery and to prepare for trial of complex issues relating to the property’s title.
The trial court has discretion, for example, to sever and separately try the issue of title to
the property, while assuring the availability of fair compensation to the plaintiff for any
delay in acquiring possession. (Code Civ. Proc., § 1170.5, subd. (c) [court may order
defendant to pay contract rent into court during delay of trial for defendant’s benefit].)
       There is no certainty that any evidence Moore might have obtained in reasonable
discovery would have been sufficient to persuade the trial court to accept Moore’s
version of the events, or to cast doubt on Martin-Bragg’s claims of payment for and
ownership of the property. Nor is it certain that notice and reasonable opportunity for
preparation would have enabled Moore to effectively address the plaintiff’s case. But the
record is sufficient to lend support to his claim that the expedited and summary unlawful
detainer trial schedule resulted in “trial by ambush.” For example, no copy of the
purported rental agreement was attached to the unlawful detainer complaint (as the Code
requires (Code Civ. Proc. § 1166, subd. (d)(1)); and Moore not only had no notice of Mr.
Rile’s testimony concerning the validity of his signature on the rental agreement, he was
not given a copy of Mr. Rile’s written report or its exemplar copies even when the
witness testified, nor until sometime during the subsequent lunch break, after he had been
compelled to begin his cross-examination of the witness—contrary to the procedures for
expert witness discovery in Code of Civil Procedure section 2024.030, and to ordinary
rules of fair trial procedure.
       Moore’s claim that further preparation was needed is also bolstered by the court’s
recognition that documentary proof that Martin-Bragg had paid, and Mr. Hills had


                                              30
received, substantial consideration for the property’s purchase (contrary to the testimony
of Moore’s witnesses) was critical. The court explained: “the question is, is there
something behind the title? Did she acquire the property for consideration, or was it
given to her for free, which would suggest that she’s holding it in trust . . . .” As far as
the record shows, the court had before it no escrow documents signed by the seller, no
title report for the property’s sale, and no documentary evidence that the seller had
received the $48,000 escrow payment.
       Moore objected that his lack of preparation, inability to produce certain witnesses,
and lack of the critical evidence the trial court had identified was rooted in the summary
nature of the unlawful detainer proceeding: “[A]ll the discovery that would have been
needed in order to flush these untruths out were not afforded to the defendant. That’s
why the defendant made the request a long time ago to combine the cases . . . .”25
       Here, the trial court erred. The law affords substantial procedural rights to
litigants in cases involving adjudication of complex issues of legal and beneficial title to
property. Moore’s enjoyment of those rights was compromised by the trial court’s
insistence on trying those complex issues using the summary procedures that are
approved only for the determination of a landlord’s right to possession in straightforward
unlawful detainer proceedings. The fact that Moore needed time for discovery and
preparation with respect to these (and other) issues resulted directly from the trial court’s
erroneous determination to adjudicate the issues regarding the parties’ rights to beneficial
title—complex issues having nothing to do with whether or not rent had been paid—in
this unlawful detainer proceeding.
       The determination of error is not itself sufficient to justify a reversal of the
judgment, of course. (Cal. Const., art. VI § 13 [reversal only where error has resulted in
miscarriage of justice]; Code Civ. Proc. § 475 [reversal only where error is prejudicial].)

 25  The court had refused Moore’s request for an order for the bank to produce a copy of
the backside of the $48,000 escrow company check to show that Mr. Hills had received
the funds, instead apparently taking the word of Martin-Bragg’s counsel that the bank had
destroyed the record.


                                              31
While it is easy to doubt that Moore would have been able to change the trial court’s
negative credibility determinations, even with more discovery and time to prepare, that is
not the test. Error in trial proceedings is prejudicial when there is a “reasonable
probability” that the error affected the outcome of the trial. (College Hosp. Inc. v.
Superior Court (1994) 8 Cal.4th 704, 715.) And “reasonable probability” does not mean
“more likely than not”; it means merely a “reasonable chance, more than an abstract
possibility.” (Ibid.)
       In light of the sharply conflicting testimony in this case on key subjects—such as
whether Martin-Bragg had or had not agreed to hold the property in trust, and whether
Mr. Hills had or had not been paid for the property’s transfer to Martin-Bragg—we
cannot say that the error in this case was insubstantial, or that there was no more than an
abstract possibility that a result more favorable to Moore might have been achieved in the
absence of the error. (Ibid.) Under the applicable test, the error was prejudicial.
                                      CONCLUSION
       The court had before it allegations demonstrating a complex factual scenario under
which the unlawful detainer plaintiff might not hold title sufficient to justify an unlawful
detainer judgment in her favor, and that the unlawful detainer defendant and others might
well be entitled to quiet title to the property. Faced with these circumstances, the trial
court’s trial and implicit determination of the ownership issue within the summary
unlawful detainer proceeding, and refusal to permit trial of the issue of title outside of
those summary procedures, was an abuse of discretion requiring the judgment’s reversal
and remand to the trial court for determination of the parties’ rights to legal and
beneficial title to the property, and their respective rights to possession based on that
determination. In view of our decision, it is unnecessary for us to consider the
appellant’s remaining contentions on appeal, or to address the parties’ remaining requests
for judicial notice.




                                              32
                                   DISPOSITION
     The judgment is reversed. The appellant is entitled to his costs on appeal.




                                                            CHANEY, J.

We concur:



             MALLANO, P. J.



             ROTHSCHILD, J.




                                          33
Filed 9/3/13
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION ONE


KIMBERLY MARTIN-BRAGG,                            B238772

        Plaintiff and Respondent,                 (Los Angeles County
                                                   Super. Ct. No. BC459449)
        v.
                                               ORDER CERTIFYING OPINION
IVAN RENE MOORE,                                   FOR PUBLICATION

        Defendant and Appellant.                [NO CHANGE IN JUDGMENT]




        THE COURT:*
        The opinion filed in the above-entitled matter filed on August 1, 2013, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.
        There is no change in the judgment.




__________________________________________________________________
*    CHANEY, J.             MALLANO, P. J.       ROTHSCHILD, J.
