Karasov v. The Superior Court Of Los Angeles County

• Decision Date: 09 July 2010
• Docket Number: B219134,No. EC040854,EC040854
• Parties: MITCHELL A. KARASOV ,Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY,Respondent; CHANDLER CORNERS, LLC,Real Parties in Interest.
• Court: California Court of Appeals

MITCHELL A. KARASOV , Petitioner,

v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;CHANDLER CORNERS, LLC, Real Parties in Interest.

B219134

No. EC040854

Court Of Appeal Of The State Of California

Second Appellate District

Division Five

Filed 07/09/10

Plotkin Marutani & Kaufman, Jay J. Plotkin for Petitioner Mitchell A. Karasov. No appearance for Respondent.

Morgan Miller Blair, Richard G. Blair; Robert DeVries for Real Parties in Interest.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

TURNER, P. J.

ORIGINAL PROCEEDINGS. Petition for Writ of Mandate. David Milton, Judge. Petition granted.

I. INTRODUCTION

Plaintiff, Mitchell A. Karasov, has filed a mandate petition seeking to set aside an August 28, 2009 mistrial ruling. We agree with plaintiff that given the present procedural posture, the respondent court did not have the discretion to grant the mistrial motion of defendant, Chandler Corners LLC. Thus, we issue our writ of mandate directing that the August 28, 2009 mistrial order be set aside.

II. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff filed his verified complaint on May 16, 2005, for declaratory relief, quiet title and specific performance. On July 28, 2006, plaintiff filed his first amended complaint. According to the first amended complaint, in July 2003, plaintiff entered into an agreement to purchase an office building at 5352 Laurel Canyon Boulevard plus 31 parking spaces from defendant, David Metcalf, the trustee of the Metcalf Family Trust, dated June 11, 1995. In addition, plaintiff purchased a perpetual easement across the remainder of the parking lot which was located near the office building. On December 1, 2003, plaintiff and Mr. Metcalf entered into a parking lot agreement which modified the initial July 2003 sales agreement. After the December 9, 2003 escrow close, a problem developed in that the lot transferred to plaintiff did not contain 31 recorded parking places. The first amended complaint alleges: plaintiff owned a parking easement across Mr. Metcalf's property; plaintiff had a right to a total of 31 parking spaces; and plaintiff had a perpetual right of way easement across Mr. Metcalf's property to permit parking on the parcel already conveyed. As a result, plaintiff alleges causes of action for declaratory relief, to quiet title and for specific performance. In the second cause of action for quiet title, defendant was named but no allegation explains its role in the transactions.

On August 3, 2006, defendant and Mr. Metcalf filed their first amended crosscomplaint. The sole cross-defendant is plaintiff. Cross-complainants allege that when the parking lot agreement was entered into, the parties were unaware the 31 parkingspaces could not fit within the borders of the property conveyed to plaintiff. By October 2004, the parties were aware that they had been incorrect in assuming their proposed conveyance would allow 31 spaces to be placed in the parcel conveyed to plaintiff. The parties then entered into a '"Covenant and Agreement for Community Driveway."' Mr. Metcalf believed that in executing the conveyance, he would be complying with his obligations to convey the 31 parking spaces. This agreement was entered into prior to escrow close. In the event the 31 spaces were not conveyed, Mr. Metcalf retained the option to relocate the parking spaces in a parking structure at 12032 Chandler Boulevard. As a result, cross-complainants allege causes of action for rescission of conveyance of covenant and agreement for community driveway, declaratory relief, quiet title and specific performance.

After a bench trial, Judge Alan S. Kalkin ruled in plaintiff's favor. Judge Kalkin issued his statement of decision on August 8, 2007. The interlocutory judgment filed on August 31, 2007, provides: plaintiff was entitled to 4-half spaces and the adjacent row of 4-full parking spaces which are located on the westerly portion of lot 2 of tract 11034; plaintiff was to receive title to that foregoing property and have an easement of access; and a document was to be recorded which set forth the litigants' rights to lots 1, 2, 3 and 4 of tract 11034. Plaintiff was ordered to prepare an application for submission to the County or City of Los Angeles for a lot line adjustment or split or a subdivision. Mr. Metcalf was ordered to cooperate in the processing of the lot line adjustment. If the lot line adjustment was approved, defendants were ordered to execute the documents necessary to convey the additional land containing the parking spaces to plaintiff. Judgment was entered on the cross-complaint in favor of plaintiff. Cross-complainants were to take nothing under their cross-complaint. Paragraphs 11 and 13 of the interlocutory judgment state: "If the lot line adjustment is denied, [plaintiff] shall file a Motion informing the court of this fact and seeking such other and further orders or judgments as justice may require to quiet title in [plaintiff] to an exclusive easement or license to the westerly portion of lot 2 of tract 11034 upon which the 4-half spaces and 4-full spaces as located. [¶]... The Court reserves jurisdiction of this action until this judgment has been complied with or until further order of this court."

On September 27, 2007, defendant appealed from the August 31, 2007 interlocutory judgment. Plaintiff moved to dismiss the appeal. On November 20, 2007, we dismissed the appeal on the ground that material parts of the interlocutory judgment were dependent on the governmental approval of the lot line adjustment. (Karasov v. Chandler Corners (Nov. 20 2007, B202718) [nonpub. order].) Our dismissal order states: "The dismissal motion is granted. The analysis in this case is governed by the holding of Lyon v. Goss (1942) 19 Cal.2d 659, 669-670. (See Eldridge v. Burns (1978) 76 Cal.App.3d 396, 404-405.) At present, there are issues potentially requiring further judicial action which may be essential to a final determination of the rights of the parties. Hence, the present decree is interlocutory. Material parts of the interlocutory judgment are dependent upon whether the lot line adjustment is approved by the City of Los Angeles. In paragraph 11 of the judgment, the trial court has retained jurisdiction to make other orders if the lot line adjustment application is rejected by the City of Los Angeles. In paragraph 9, in the event that the lot line adjustment is approved by the City of Los Angeles, the trial court has retained jurisdiction to approve the language of the recordable document setting forth the parties' rights and obligations under the Parking License And Agreement. (Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 498-500; Olmstead v. West (1960) 177 Cal.App.2d 652, 653-655.) Moreover, a trial will be held on the remaining cause of action for contract breach. (Sullivan v. Delta Airlines, Inc. (1997) 15 Cal.4th 288, 307; Whitacre v. Hall (1940) 40 Cal.App.2d 68, 72.) Nothing in this order is intended to foreclose any challenge to the interlocutory judgment by means of a mandate petition. [¶] The appeal is dismissed without prejudice to the filing of a notice of appeal upon entry of a final judgment. All parties are to bear their own costs incurred on appeal." (Karasov v. Chandler Corners, supra].) On December 21, 2007, defendants filed a mandate petition seeking to set aside the interlocutory judgment. We denied the mandate petition on inadequate recordgrounds. (Chandler Corners, LLC v. Superior Court (Jan. 11, 2008, B204475) [nonpub. order].)

Beginning in 2008, the application for lot line adjustment was filed with the City of Los Angeles. On March 27, 2008, plaintiff dismissed without prejudice his fourth cause of action for contract breach. On September 24, 2008, plaintiff moved for an order requiring defendant sign deeds or, in the alternative, the court clerk be directed to execute the instruments. According to plaintiff's counsel's declaration, the City of Los Angeles required the grant deeds be recorded in order to complete the lot line adjustment. Once the grant deeds were recorded, the parties were required to prepare and record the maintenance agreement for the parking lot. If the city did not approve the lot line adjustment, then further proceedings would be necessary in order to grant an easement or other relief to plaintiff.

Defendant opposed the motion because: the parking lot maintenance agreement had not been drafted nor approved by the parties; the description of the parking spaces on the border of the parcels was too vague; the deeds did not conform to the interlocutory judgment; under the proposed lot line adjustment, plaintiff would receive more that 31 parking spaces; and the deeds created legally ambiguous fractional parking spaces. Hearing on the motion was continued for a total of six months on the respondent court's own motion.

At a case management conference, it was revealed Judge Kalkin was unavailable to preside over the case. On August 5, 2009, defendant moved for a mistrial. The ground for the motion was that Judge Kalkin had retired and was unavailable. The issues which required further action were whether the lot line adjustment could be accomplished. And if it was possible to secure the lot line adjustment, at issue was whether the deeds provided the lot line adjustment required by the interlocutory judgment. Mr. Metcalf joined in the mistrial motion.

Plaintiff argued the proposed deeds complied with the interlocutory judgment as follows: parking lot 1 was comprised of lots 1, 2, 3 and 4 of tract 11034; plaintiff purchased 31 marked, painted spaces; Mr. Metcalf was obligated to convey a separatelegal parcel to plaintiff which...